Factual and Procedural Background
In July 2002, the Department for Transport published a Consultation Document entitled The Future Development of Air Transport in the United Kingdom: South East, forecasting a substantial increase in air travel demand over the next thirty years. The document sought views on how much additional airport capacity should be planned and where it should be located, considering options such as expansion at Heathrow, Stansted, and a potential new airport at Cliffe in North Kent. Notably, the document explicitly excluded any options for new runways at Gatwick, stating that the Government would not include such options in the forthcoming White Paper on air transport policy.
This legal opinion concerns three challenges to the exclusion of Gatwick options: one by Medway Council and Kent County Council (interested due to the Cliffe airport option), a second by Essex County Council (where Stansted is located), and a third by two local residents near Stansted. The consultation process was non-statutory and followed the South East and East of England Regional Air Services Study (SERAS), which had considered Gatwick options prior to the Consultation Document. The White Paper to follow will set Government policy but will not itself grant planning permission for airport expansions.
Legal Issues Presented
- Whether the Secretary of State lawfully excluded Gatwick options from the consultation process, including the adequacy and rationality of reasons given.
- Whether the exclusion was irrational or Wednesbury unreasonable.
- Whether the Secretary of State failed to take relevant considerations into account.
- Whether the Secretary of State unlawfully fettered his discretion or had a closed mind regarding the 1979 Agreement affecting Gatwick.
- Whether the consultation process was procedurally unfair.
- Whether conservation obligations relating to the Cliffe site required inclusion of Gatwick options.
- Whether the exclusion violated human rights under Article 8 and Article 1 of the First Protocol of the European Convention on Human Rights.
- Whether the exclusion was disproportionate under domestic law.
- Whether a legitimate expectation arose that Gatwick options would be included in consultation.
Arguments of the Parties
Appellants' Arguments
- The exclusion of Gatwick was irrational and lacked adequate reasons, improperly elevating local interests over national interests.
- The Secretary of State failed to overturn the 1979 Agreement, despite the possibility and changing circumstances, thus unlawfully fettering discretion.
- The consultation was procedurally unfair because it denied a meaningful opportunity to present Gatwick as an alternative before government policy became fixed.
- Conservation obligations require consideration of Gatwick as a viable alternative to Cliffe, making exclusion irrational.
- The exclusion violated human rights, particularly Article 8 rights of local residents affected by Stansted expansion.
- The exclusion was disproportionate, giving undue weight to a local agreement over national policy needs.
- A legitimate expectation existed based on prior government statements and SERAS study inclusion of Gatwick options.
Respondent's Arguments
- The decision not to legislate to overturn the 1979 Agreement is not justiciable, grounded in the separation of powers doctrine.
- The reasons given in the Consultation Document, including reliance on the 1979 Agreement and avoidance of blight and anxiety, were sufficient and properly elucidated.
- The Secretary of State was entitled to limit the consultation options and did not unlawfully fetter discretion or close his mind.
- Conservation obligations would be considered at the planning stage; exclusion of Gatwick at consultation was not irrational.
- Human rights claims fail as no current interference or authorisation affecting rights had occurred; consultation on options does not engage Article 8 or Article 1 rights.
- Proportionality is not an independent ground of review absent engagement of Convention rights; Wednesbury reasonableness applies.
- No legitimate expectation arose as there was no clear promise or commitment to consult on all options including Gatwick.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 |
Non-justiciability of decisions not to legislate, respecting separation of powers. |
Court held challenge to decision not to overturn 1979 Agreement by legislation was not justiciable. |
| R v. North and East Devon HA, ex parte Coughlan [2001] QB 213 |
Proper consultation requires sufficient reasons to allow intelligent responses; fairness as part of procedural law. |
Applied to assess adequacy of reasons in consultation document and the requirement of fairness in consultation. |
| R (L) v. London Borough of Barking and Dagenham [2001] 2 FLR 763 |
Consultation requires candid disclosure of reasons. |
Supported the principle that reasons must be disclosed to those consulted. |
| R (Nash) v. Chelsea College of Art and Design [2001] EWHC Admin 538 |
Limits on accepting late reasons in non-statutory consultation; criteria for evaluating late reasons. |
Used to evaluate permissibility of additional reasons given post-consultation. |
| Padfield v. Minister of Agriculture, Fisheries and Food [1986] AC 997 |
Rationality in administrative decisions; decisions must have adequate reasons. |
Referenced in submissions regarding adequacy and logic of reasons for exclusion. |
| Windsor and Maidenhead Royal Borough Council v. Brandrose Investments Limited [1983] 1 WLR 509 |
Statutory bodies cannot fetter their discretion by agreement. |
Distinguished as inapplicable since Secretary of State was not party to the 1979 Agreement. |
| R v. Governors of Haberdashers' Aske's Hatcham Schools, ex parte ILEA [1989] COD 435 |
Adequacy of consultation as part of procedural fairness. |
Supported the court's recognition of fairness requirements in consultation. |
| R v. London Borough of Islington, ex parte East [1976] ELR 74 |
Consultation demands vary with circumstances; fairness underpins consultation. |
Reinforced the procedural fairness aspect of consultation obligations. |
| Regina v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763 |
Illustrative of demands of fairness in public law. |
Referenced to support fairness as a requirement in consultation. |
| Westminster City Council v. Mayor of London (31 July, 2002) |
Public authorities cannot invoke human rights of private individuals indirectly. |
Applied to reject Essex County Council's standing to claim on behalf of inhabitants' human rights. |
| R (Alconbury Limited) v. Secretary of State for the Environment [2001] 2 WLR 1389 |
Proportionality as part of English administrative law, especially concerning Convention rights. |
Considered in relation to proportionality challenge; held proportionality not applicable absent Convention rights engagement. |
| R (Bibi) v. Newham LBC [2002] 1 WLR 237 |
Principles governing legitimate expectation claims. |
Used to analyze whether legitimate expectation arose from government statements and conduct. |
| R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 |
Contours of proportionality principle, focusing on Convention rights context. |
Supported the view that proportionality applies mainly when Convention rights are engaged. |
Court's Reasoning and Analysis
The court first established that the decision not to legislate to overturn the 1979 Agreement was non-justiciable, respecting the separation of powers doctrine. The consultation process was non-statutory but required fairness and the provision of sufficient reasons to enable consultees to respond intelligently. The Consultation Document gave two principal reasons for excluding Gatwick: the binding 1979 Agreement and the prevention of unnecessary blight and anxiety. Additional explanations in the Secretary of State’s witness statement were largely permissible as elucidations consistent with the original reasons.
However, the court expressed concern over a further reason related to Gatwick’s unsuitability as a hub airport, which was not mentioned in the Consultation Document or earlier correspondence and was thus not accepted as a valid reason at this stage.
On irrationality, the court found force in several criticisms raised by the appellants, particularly regarding the premature exclusion of Gatwick despite ongoing uncertainties about airport hub policy and timing of runway availability. The court concluded the exclusion was irrational and thus unlawful under Wednesbury principles.
Regarding relevant considerations, the court rejected claims that the Secretary of State failed to consider the impact on airlines or airport users, noting those matters were addressed in the SERAS study and that no supporting evidence was presented. The court also found no substance in the claim that the Secretary of State failed to consider the burden of blight on residents near Stansted due to Gatwick’s exclusion.
The court held that the Secretary of State did not unlawfully fetter his discretion or close his mind by deciding not to overturn the 1979 Agreement and by limiting consultation options accordingly. Consultation is not negotiation, and the Secretary of State was entitled to define consultation parameters.
On procedural fairness, the court found the exclusion of Gatwick options unfair because it denied the appellants their only real opportunity to present their case on Gatwick before government policy became fixed, thus disadvantaging them in subsequent planning processes.
Conservation obligations relating to the Cliffe site imposed a duty to consider alternatives, including Gatwick, at least at the consultation stage. The court found it irrational to exclude Gatwick options given these obligations and the possibility that Gatwick could be a viable alternative solution impacting the imperative reasons test under the Conservation (Habitats etc) Regulations 1994.
The human rights challenge failed because the consultation did not constitute an interference with Article 8 or Article 1 rights; no authorisation or permission affecting these rights had been granted, and any adverse effects were speculative and indirect.
The proportionality challenge was rejected as proportionality is not a discrete ground of judicial review in domestic law absent engagement of Convention or fundamental rights, and the Wednesbury standard applied.
Finally, the court found no basis for legitimate expectation that Gatwick options would be included, as there was no clear promise or commitment by the Secretary of State to consult on all options including Gatwick, and prior references to “all options” related only to earlier studies, not the consultation itself.
Holding and Implications
The court held that the judicial review applications succeed on grounds of irrationality (Wednesbury unreasonableness), procedural unfairness, and failure to properly consider conservation obligations, but fail on all other grounds.
The Secretary of State's decision to exclude all Gatwick options from the Consultation Document is quashed.
The direct effect of this decision is to require reconsideration of the consultation process to include Gatwick options, thereby ensuring fairness and compliance with legal obligations. The judgment does not establish new precedent beyond the application of established principles of consultation fairness, rationality, and conservation law in this context.