London Borough of Wandsworth & Ors v Secretary of State for Transport & Ors

A public authority conducting a substantial consultation must give consultees sufficient information and reasons to enable an intelligent response. Further consultation is required only where the later proposal is fundamentally different from that consulted upon, but fairness is assessed in context and changes may not give an unconsulted proposal a policy advantage.

National policy may settle broad strategic questions while leaving detailed design to the planning and environmental impact assessment process. It is unlawful, however, to prescribe a particular runway design where the consultation did not fairly expose that choice, or to give policy support to an alternative runway proposal which was not properly consulted upon.

Two groups of claimants sought judicial review of airport policies in Chapter 11 of the Government’s air transport White Paper. The challenges concerned consultation fairness, the choice of a wide-spaced second runway at Stansted, support for an extension of the existing runway at Luton, and the commercial viability of the proposed Stansted development.

The court considered whether the consultation had fairly addressed the relevant policy choices, whether later evidence and regulatory changes required further consultation, and whether the Government’s conclusions were irrational or failed to take account of material considerations.

1. Consultation principles. The fairness of a substantial non-statutory consultation was amenable to judicial review. Further consultation was required only where there was a fundamental difference between the proposals consulted upon and those later adopted. The decision-maker had to provide sufficient reasons to enable consultees to give intelligent consideration and an intelligent response.
2. Stansted. It was lawful to support a second runway at Stansted as the first new runway in the South East. That broad outcome was reasonably foreseeable from the consultation. The final sentence of paragraph 11.40, however, prescribed the wide-spaced runway option without explaining why that option had been selected or exposing the relevant environmental and capacity trade-off to consultation. The SERAS material presented Option 5 as a representative option, and did not fairly indicate that it would be adopted as the definitive design. The policy therefore gave Option 5 an impermissible head start in the later planning and EIA process.
3. Commercial viability. The Government had carefully considered the funding issue. It was entitled to conclude that the Stansted runway could be funded, particularly because system-wide regulation could support viability and the CAA retained statutory responsibilities concerning timely investment. The decision not to choose between stand-alone and system funding was neither irrational nor based on disregard of relevant considerations.
4. Luton. The Government could support growth to the maximum use of a single full-length runway broadly on the current alignment. It could not, without proper consultation, give equivalent policy support to the airport operator’s proposal to extend the existing runway. The White Paper’s wording conveyed support for that unconsulted proposal and failed to maintain the neutrality required by fairness.
5. Relief. The Heathrow and commercial viability challenges failed. The Stansted and Luton challenges succeeded. The court declined to quash Chapter 11 or rewrite the White Paper. Declaratory relief in the terms of the judgment was appropriate.