8th March 2004
Aviation White Paper faces High Court challenge
Community groups set to seek Judicial Review
Stop Stansted Expansion is mounting a legal challenge to government policy against proposals for the construction of a second runway at Stansted Airport.
The application for permission to bring judicial review proceedings in the High Court has been served on the Government today (8 March) by the campaign group in collaboration with community groups from Heathrow (HACAN) and Luton (LADACAN) as well as the London Boroughs of Hillingdon and Wandsworth The challenge, led by solicitor Richard Buxton, is complementary to a separate legal challenge for judicial review which is being prepared by Essex and Hertfordshire County Councils and Uttlesford and East Herts District Councils.
Judicial review is being sought on the grounds that the process used for the development of the policy contained in the White Paper regarding airports in the south east was fundamentally flawed, challenging specific shortcomings in the decision making process.
These concentrate on four key areas. With respect to Stansted, the claimants argue that the White Paper ignores the absence of a commercial justification for a second Stansted runway, contrary to the Government’s own ground-rules for the consultation. The consultation documents made it clear that commercial viability was a “hurdle which must be passed for new and existing airport sites.” BAA advised the Government that a second Stansted runway would only be commercially viable if it could be cross-subsidised by Heathrow and Gatwick revenues but the regulator (the Civil Aviation Authority) ruled against the option of cross-subsidisation by BAA during the consultation process. Despite this clear impasse, the Government has stated in the White Paper that a second Stansted runway should be built by 2011 or 2012.
Further grounds are that:
1. The consultation document did not make clear that the ending of runway alternation at Heathrow could be a short-term alternative to a third runway (see Note 1)
2. The consultation document failed to give people the opportunity of commenting on the proposal, favoured in the White Paper, of going for an extended runway at Luton (see Note 2)
3. The Government failed to provide the public with information about alternative proposals for new airports at Thames Reach and on the Isle of Sheppey and failed to give proper consideration to those options (see Note 3)
If successful, it will be the second time that Stop Stansted Expansion will have forced a government rethink regarding the expansion of air transport capacity: in November 2002 the group won at judicial review, forcing the Government to extend the consultation for the White Paper by a further seven months. Then, the Secretary of State for Transport, Alistair Darling, was deemed to have acted unlawfully and irrationally in excluding Gatwick Airport from consideration in the consultation process.
The Government now has 21 days in which to file an acknowledgment of service setting out the summary grounds for contesting the claim. A single judge will then consider the application and determine whether there is an arguable case before either granting permission to bring judicial review proceedings. If this is not granted, there is still recourse to an oral hearing to review the application for permission.
If permission is granted, papers will be served on the Government and interested parties who will then have 35 days to serve detailed grounds for contesting the claim together with written evidence. The claimants will then consider whether a response is needed, after which an oral hearing will be held in the High Court, probably around June.
Commenting at a press conference launching the claim at the House of Commons, Stop Stansted Expansion Campaign Director Carol Barbone reinforced the determination and commitment of the people of Stansted to defeat expansion proposals: “We will leave no stone unturned in our fight against the environmental and social catastrophe that major expansion at Stansted would cause. We will pursue every legal and regulatory avenue available to us, and the launch of this claim for judicial review following the issue of the White Paper is the first step.”
If the judicial review succeeds, the Government would be forced to re-examine its policy, necessitating a new consultation.
Note 1: Runway alternation means that people living in West London within about 8 miles of Heathrow only get planes landing over the head for half the day. Planes switch runways at 3pm. The applicants are arguing that there was no indication in the consultation that runway alternation was in any way an alternative to a 3rd runway. The White Paper, however, which put the proposal for a third runway on the back-burner, contained the proposal that runway alternation could be ended at Heathrow.
Note 2: The consultation document contained two options for expansion of Luton Airport: the construction of a replacement southern runway; and a new runway on a different alignment. It did not include details of plans to extend the current runway, the proposal that emerged in the White Paper. Therefore, the applicants argue, people did not have the opportunity to comment on the proposal that emerged.
Note 3: The applicants argue that the Government had information about the viability of new airports at Thames Reach and the Isle of Sheppey that it did not set out in its consultation document. Therefore, the applicants argue, people were not in a position to make a proper assessment of these options when responding to the consultation. The process was at fault. The fact that the applicants have included this point in their challenge does not mean they favour building an airport at Thames Reach or Sheppey.