Administrative Court indicates that a privately owned airport operator may be amenable to judicial review

In R. (on the application of Doncaster MBC) v Doncaster Sheffield Airport Ltd [2022] EWHC 3060 (Admin), the Administrative Court has indicated that it is "arguable with a realistic prospect of success" that a decision made by a privately owned airport operator, Doncaster Sheffield Airport Limited (the "Operator"), to close Doncaster Sheffield Airport, is amenable to judicial review.

Key Points

• Case law supports the proposition that a privately owned airport operator can in principle be found to be discharging public functions.
• The discharge of public functions attracts public law's basic standards of lawfulness, reasonableness and fairness and renders a decision amenable to judicial review.
• A privately owned airport operator arguably discharges a public function amenable to judicial review when making a decision to close an airport.

Background

The judicial review concerned the Operator's announcement on 26 September 2022 to close Doncaster Sheffield Airport, on the basis that the aviation services were no longer commercially viable (the "Decision").

Prior to the September announcement, the Operator conducted a Strategic Review of options for the airport, including a consultation and engagement programme with stakeholders. The claimant, Doncaster Metropolitan Borough Council (the "Council"), was actively involved in the consultation and strongly opposed the airport's closure.

The Operator sought to raise a number of "knock-out" points at the oral permission hearing, in particular arguing that the decision was not amenable to judicial review, the claimant lacked standing and there had been delay.

Judgment

Amenability

The Operator submitted that the Decision was not amenable to judicial review because the Operator was a private company acting at all times as a private entity and not discharging a public function. Drawing an analogy with R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin), the Operator pointed out that the private body's activities were purely commercial notwithstanding that they were provided to the public at large; the source of the powers and duties derived from a memorandum and articles of association not from statute; the activities were not monopolistic and the function was not intrinsically governmental or quasi-governmental.

Although that was said to be a powerful line of argument, the court found that it was arguable, with a realistic prospect of success, that the Operator was, in its decision making regarding closure of the airport, discharging a public function amenable to judicial review and attracting public law's basic standards of lawfulness, reasonableness, and fairness. Arguability was the appropriate threshold at this stage as the court was only considering the issue of whether or not to grant permission for judicial review.

Fordham J noted case law which supports the proposition that a privately owned airport operator can discharge public functions. He also relied on the regulatory power conferred by Parliament under the Airports Act 1986 which empowers the Operator to make byelaws for regulating the use and operation of the airport. Fordham J considered that making or enforcing byelaws restricting access to the airport would be a sufficient public function for the purposes of amenability to judicial review. Against that background the court found it illogical to conclude that closing the airport down altogether would be a decision bereft of any sufficient public element.

Regard may be had to the "nature, context and consequences" of the decision. The airport was land used for a public purpose, the Operator was permitted to use the land as an airport in the public interest, and the Operator's function was carried out in the national interest. Further, the decision affected substantial members of the public. The combination of these features persuaded the court that the decision was arguably amenable to judicial review.

Standing

The court found that the Council did not lack the sufficient interest required to challenge the Operator's decision, as the airport fell within the Council's administrative responsibilities and was a key infrastructure asset interwoven into the Council's public and legally significant plans. Further, the Council was heavily represented on the Operator's own consultative committee and was a key stakeholder during the Strategic Review.

Delay

The court was not persuaded that it should refuse permission for judicial review on the grounds of delay and a lack of promptness. Although the Council had placed itself on the outer limits of promptness by waiting 5 ½ weeks to issue its claim, it was actively involved in the engagement leading to the decision, and proactive in its attempts to deter the Operator. Just 2 ½ weeks after the Decision, the Council raised in correspondence that it was considering injunctive and public law remedies.

It is notable however that even though the judicial review proceedings were commenced within a matter of weeks, rather than months, Fordham J considered that the Council was "skating on thin ice" notwithstanding the understandable approach of focusing resources on other solutions and turning to the lawyers to draft a claim only as a 'last resort'. Despite all this, Fordham J considered that there had been a delay of a nature capable of having consequences in relation to any question of interim relief.

Grounds for judicial review

There were a number of different grounds for judicial review advanced, including in relation to the consultation process, predetermination, substantive unreasonableness and unlawful delegation. However, the court found no viable ground for judicial review crossing the threshold of arguability with a realistic prospect of success. Permission for judicial review was therefore refused.

Comment

This judgment, although only at the initial permission stage, is notable in confirming that decisions made by privately owned airport operators may potentially be amenable to judicial review. When exercising their powers regarding the running of aviation services, operators may be discharging public functions. Although the issue of whether or not a particular decision will be amenable to judicial review is highly fact and context specific, this judgment serves as a reminder to private organisations functioning in an area of public interest, both in aviation and other sectors, that they are not necessarily exempt from public law's basic standards of lawfulness, reasonableness, and fairness.

The approach of the court on the delay issue is also striking and emphasises the need for claimants who are considering challenging public law decisions to move with the utmost urgency.