No jurisdiction for judicial review of Heathrow third runway decision until government publishes final policy statement

In London Borough of Hillingdon v Secretary of State for Transport [2017] EWHC 121 (Admin), the Administrative Court (Cranston J) struck out a judicial review ("JR") of the decision by the defendant Secretary of State to include a proposal for a third runway at Heathrow Airport in a draft National Policy Statement ("NPS"), on the basis that it did not have jurisdiction to hear the claim as the Secretary of State for Transport (the "SoS") had not yet published the relevant NPS.

Key points

• The Court's general power to strike out statements of case that disclose no reasonable grounds for bringing or defending a claim can be exercised in JR proceedings, including in the planning context.
• Section 13(1) of the Planning Act 2008 ("section 13") provides that the time for bringing a JR questioning an NPS "or anything done, or omitted to be done, by the Secretary of State in the course of preparing such [an NPS]" is within six weeks beginning with the day after an NPS is adopted or, if later, published.
• Provisions such as section 13 that have the effect of suspending, rather than excluding, the right of access to the Court are not to be treated as clauses that seek to oust the Court's JR jurisdiction and should be given their ordinary and natural meaning; there is no basis to give them a narrow construction.
• Policy decisions leading to the publication of a draft NPS for consultation are likely to be considered to be part of the process leading to the publication/designation of the NPS and therefore can only be challenged in the above-mentioned six week period after the adoption/publication of the final NPS.

Background

On 25 October 2016, following extensive work conducted by the Airports Commission since 2012, the SoS announced the Government's preferred option for delivering additional runway capacity in south-east England, namely a north-west runway scheme at Heathrow including the construction of a third runway at that airport. This proposal would be included in a draft NPS that would be subject to a consultation (the "Decision").

The claimants sought to challenge the Decision through JR proceedings, arguing that the project would be unlawful due to its impact on air quality and that the Decision was contrary to their legitimate expectations in light of previous statements by the Government that no third runway would be built at Heathrow.

The SoS applied to strike out the claim, submitting that under section 13, the Court lacked jurisdiction to hear it as the SoS has not published or designated any NPS.

Decision

The Judge first confirmed the power of the Administrative Court to strike out statements of case both generally in JR proceedings and specifically in relation to challenges to an NPS under section 13.

Dealing secondly with the issue of whether section 13 precluded the JR in this case, the Judge considered whether section 13 should be construed in a strict manner akin to an ouster clause, or given its ordinary meaning. He considered the distinction between true ouster clauses, which attempt to exclude legal challenges in the courts, and time-limited clauses, which confine challenges within certain boundaries. The Judge's view was that there was no basis to give section 13 a narrow construction, as notwithstanding the claimants' submission that its effect could be to preclude a JR for many years, it should not be regarded as an ouster clause since it suspended, rather than excluded, access to the Court.

Accordingly, it followed that section 13 should be given its ordinary and natural meaning. In the usual way, this meant considering the language used in its statutory context and in light of the legislative purpose. After conducting this analysis, the Judge concluded that section 13 prohibited JR challenges both before and after the six week period beginning with the adoption/publication of a final NPS. He held further that the Decision was a preparatory act within the scope of section 13, albeit that he acknowledged that the words of section 13 may otherwise require a fact-sensitive inquiry as to whether a particular act or omission was in the course of preparing an NPS.

The Judge rejected the claimants' argument that reading section 13 in this way would breach the UK's obligations under Article 9 of the Aarhus Convention, which provides that remedies in environmental cases should be adequate and effective and, amongst other matters, timely, finding "there is nothing in Article 9 which prevents a signatory state from having in place provisions regulating the time at which a claimant may bring a challenge in the domestic courts".

Comment

A consequence of this judgment is the risk that the Government could expend time and resources preparing for the publication of an NPS, only to have it frustrated by a JR concerning issues which occurred potentially significantly earlier in the process. On the other hand, it gives effect to the intention of section 13, being to streamline planning and decision-making processes. This allows space for proposals to develop without interruption from court proceedings.

The Court avoided making any comment on the substance of the claimants' JR, being careful to confine the strike out decision to the issue of jurisdiction. As such, the challenge in one form or another may resurface, when the final NPS is published. However, in the interim, the consultation on the draft NPS that commenced on 2 February 2017 must run its course and that may well impact on the shape of any future challenge. The consultation is currently scheduled to run until 25 May 2017. The SoS will need to take representations made by consultees conscientiously into account in finalising the NPS.

This case demonstrates that claimants should consider carefully the implications of statutory restrictions before bringing a claim for JR. Where a statutory bar sets out clear limits for when JR can be used, or gives an alternate satisfactory route of challenge, the courts will give effect to the statutory bar.

In a similar vein, the recent case of R (Privacy International) v Investigatory Powers Tribunal [2017] EWHC 114 (Admin) also considered the operation of ouster clauses, and held that a decision of the Investigatory Powers Tribunal could not be challenged by way of judicial review as the Regulations of Investigatory Powers Act 2000 had effectively allocated jurisdiction to the Investigatory Powers Tribunal and had its own provisions for appealing the Tribunal's decision.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email