Aravco Ltd & Ors v Airport Co-Ordination Ltd (ex parte)

Under Council Regulation No 95/93, the airport co-ordinator allocates capacity declared under Article 6. The Regulation does not require or empower the co-ordinator to create or allocate supplementary capacity above that declared capacity. Article 8(3) therefore does not require such capacity to be made available for ad hoc operations at all times.

A consultation is lawful where the decision-maker retains final responsibility and an open mind. The decision-maker may assess the weight of operational experience and disputed statistical material. A consultation need not be reopened merely because further studies or evidence emerge, where the evidence is neither critical nor central to the decision.

The applicants were general aviation operators using Heathrow Airport. They challenged the introduction by Airport Co-ordination Limited of procedures replacing opportunity slots with tactical availability for ad hoc operations.

Mr Justice Jowitt dismissed the judicial review application. The applicants appealed, arguing that the consultation was unfair, that the new procedures unlawfully delegated decision-making to NATS and Heathrow Airport Limited, and that supplementary capacity was governed by Articles 8(3) and 10(1) of Council Regulation No 95/93. They also challenged the procedures’ transparency and the treatment of delayed scheduled flights.

1. The appeal was dismissed. The request for a reference to the European Court of Justice was refused. Leave to appeal to the House of Lords was refused, and the applicants were ordered to pay the costs.
2. ACL had final responsibility for the decision and had approached the consultation with an open mind. It was sensible for ACL, NATS and HAL to develop a provisional plan because of their different responsibilities and expertise. The consultation was genuine, as shown by its duration, discussions with the applicants and changes made to the original proposal.
3. Opportunity slots, escape slots and tactical availability were forms of supplementary capacity above the airport’s declared capacity. Although they were take-off or landing opportunities, they were not slots governed by the Regulation. Article 6 concerned capacity available for allocation, while Articles 8(1), 8(3) and 10(1) concerned slots within that declared capacity. Article 8(3) did not require the co-ordinator to allocate supplementary capacity, including during peak periods.
4. Delayed scheduled flights did not thereby liberate their slots. They remained flights which had to be accommodated and merely used their slots later. The alleged discriminatory redistribution of liberated slots was therefore not established.
5. Even if Article 8(3) applied, a rational operational decision to determine daily supplementary capacity at 0630 could not properly be challenged as Wednesbury unreasonable. The procedures were sufficiently clear and transparent. NATS was appropriately involved because it had the best information about runway and air-traffic capacity, while ACL retained responsibility for slot allocation and monitoring.
6. The consultation was not unfair. ACL was entitled to prefer the practical experience of those responsible for Heathrow’s operation over disputed statistical exercises. R v Secretary of State for Health, ex parte United States Tobacco [1992] 1 QB 353 did not assist, since the further studies did not constitute critical and central new evidence requiring the consultation to be reopened.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Justice Jowitt dismissing the judicial review application. Appeal dismissed with costs.
• Queen’s Bench Division (Crown Office List): On 14 July 1998, Mr Justice Jowitt dismissed the application for judicial review and quashing of the procedures.