Councils fail in bid to challenge decision over third runway at Heathrow

A High Court judge has rejected a judicial review challenge brought by four local authorities over the Transport Secretary’s decision to back a third runway at Heathrow Airport.

The Secretary of State, Chris Grayling, took the decision on 25 October 2016 under the Planning Act 2008 to include the option in a draft National Policy Statement.

Together with Greenpeace and a local resident, the councils - Hillingdon, Richmond, Windsor & Maidenhead and Wandsworth - argued that the proposal involved a flawed approach to air quality and that the decision was contrary to their legitimate expectations because the government made repeated promises over a number of years that there would be no third runway at Heathrow.

The claimants were supported by Transport for London and the Mayor of London, who agreed with them in their challenge regarding air quality.

The Transport Secretary contended that there was an insuperable obstacle to the claim proceeding because under the 2008 Act the court had no jurisdiction at present to hear it. He therefore sought an order under CPR r.3.4(2)(a) striking out the claimants' claim form and grounds.

The Secretary of State was supported in the application by the second interested party, Heathrow Airport Holdings.

In London Borough of Hillingdon & Ors v The Secretary of State for Transport & Ors [2017] EWHC 121 Mr Justice Cranston said resolution of the jurisdictional issue turned on the interpretation of section 13 of the 2008 Act and whether, under that section, proceedings may only be brought in a six-week period beginning the day after an NPS is adopted or, if later, published. Neither event has yet occurred in this case.

The judge noted that publication of a draft NPS was imminent but adoption and publication of any final NPS was not expected until the end of the year at the earliest.

Mr Justice Cranston said he had “reached the clear conclusion” that under section 13 of the 2008 Act the court had no jurisdiction to hear the claim.

“That follows from the language of the section, the legislative purpose and the overall statutory context and history. Once the Secretary of State adopts and publishes an NPS the court will have jurisdiction to entertain the challenges the claimants advance,” he added.

Responding to the ruling, the claimant councils accused the Government of delaying facing a legal challenge against its decision to back Heathrow expansion.

They said the case should have been heard now “before more time and taxpayers’ money is wasted developing a scheme that will never be able to comply with air quality law”.

They also argued that local residents should not have to face another period – “perhaps years” - of uncertainty over a scheme which they believed would never get planning permission.

The claimants also pointed out that Mr Justice Cranston’s ruling did not concern the merits of their grounds for complaint.

Cllr Ravi Govindia, Leader of Wandsworth Council, said: “The Government has taken a colossal gamble by delaying this legal action for at least a year. The country is now going to waste more time developing a scheme that will never pass a simple legal test on air quality. Nothing is going to change between now and 2018 to make this scheme any less polluting so they should face this challenge now or abandon the third runway.”