Airport Parking and Hotels (Birmingham) Ltd., R (on the application of) v Civil Aviation Authority

For the economic regulation of airports, Airports Act 1986, sections 36 and 41, ordinarily requires a wide understanding of the airport. It extends to the land and undertaking within the delineated airport perimeter, including internal roads and terminal facilities.

Shuttle-bus access, a vehicle bay, signage and a telephone used to serve an off-airport car park may constitute facilities for car parking. Setting down and collecting passengers can involve parking for this purpose. Such activities are therefore excluded from “relevant activities” and fall outside the CAA’s section 41 jurisdiction.

The claimant operated an off-airport car park near Birmingham International Airport. It sought facilities from Birmingham International Airport Plc, including access over airport roads, a terminal vehicle bay, signage and a telephone, in return for a proposed fee based on turnover.

The claimant argued that the arrangements were outside “relevant activities” under sections 36 and 41 of the Airports Act 1986, and that only the Office of Fair Trading could investigate any anti-competitive conduct. The CAA contended that it also had jurisdiction.

The claim was reframed, following permission proceedings, as a claim for declaratory relief concerning the proper construction of the statutory provisions.

1. The Court held that “airport” in section 36 of the Airports Act 1986 bears a wide meaning for this purpose. It covers the whole land and undertaking within the delineated perimeter of the site designated for general airport purposes. The internal roads, terminal vehicle bay, sign and telephone were therefore facilities provided “at the airport”.

2. The arrangements were services or facilities for handling passengers at all stages while they were on airport premises within section 36(1)(c). The claimant ultimately accepted that conclusion.

3. The reference in section 36(2) to facilities for car parking was construed consistently with section 36(1) as relating to car parking at the airport. It did not exclude the activities merely because the claimant’s actual car park was off airport.

4. The expression “facilities for car parking” was nevertheless wide. It included access over airport roads, use of the vehicle bay for loading and unloading passengers and baggage, and the ancillary sign and telephone. Parking was a question of degree. A shuttle bus could be parked while passengers and luggage were discharged or collected, even though the driver remained present. The fact that the vehicle was a bus rather than a car did not alter the conclusion.

5. Those activities were consequently excluded from “relevant activities” by section 36(2). The CAA had no jurisdiction under section 41 to impose conditions or make a determination concerning the claimant’s complaint about the proposed licence terms.

6. The Court declined to use Parliamentary statements as an aid to construction. Even assuming sufficient ambiguity to justify reference to Hansard under Pepper v Hart [1993] AC 593, the statements were not sufficiently clear.

7. A declaration was appropriate, but it had to be clear and tied to the claimant’s specific situation. The Court refused the proposed general and narrative declarations. The parties were directed to agree a suitable formulation. The defendant was ordered to pay 80 per cent of the claimant’s costs, assessed on the standard basis. Permission to appeal was refused.

This was a first-instance judicial review claim. The claimant’s original challenge to earlier CAA decisions was refused permission on standing and delay grounds. Permission was later granted for an amended claim seeking declaratory relief on the statutory construction issue. The present Court determined that issue and refused permission to appeal.