London Borough of Hillingdon & Ors, R (on the application of) v Secretary of State for Transport & Anor

Government policy supporting major infrastructure is not immutable. It must remain open to reconsideration in light of material changes, including developments in climate-change policy. A preliminary policy statement does not authorise development or prevent later statutory debate. Where a comprehensive statutory planning process will provide a further opportunity to correct defects, judicial review at the preliminary stage requires more than an ordinary flaw. Intervention may be justified where the process was clearly and radically unfair, or where an uncorrectable “show-stopper” makes the proposal obviously unacceptable. A decision-maker must also identify clearly what an environmental condition means and what has actually been decided about it.

The claimants, including local authorities and organisations opposed to a third runway at Heathrow, challenged the Secretary of State’s January 2009 decisions confirming policy support for a third runway and associated passenger facilities. Transport for London was an interested party.

The challenge alleged unfair consultation, failure to consider material matters and inadequate reasons, particularly concerning climate change, the economic case and surface access. The court considered the status of the 2009 decisions and their relationship with the statutory framework introduced by the Planning Act 2008.

1. Status of the 2009 decisions. The decisions were non-statutory policy statements with no direct substantive effect. They did not authorise development and could not determine the outcome of a future Airports National Policy Statement or development-consent process.
2. The policy established in 2003 was not immutable. Administrative policy must remain open to reconsideration in light of changing circumstances. The development of climate-change policy, including the Climate Change Act 2008, required a general reappraisal. The Planning Act 2008 provided a comprehensive framework for that review, including consultation, parliamentary scrutiny and consideration of climate-change policy.
3. Scope of judicial review. The court adopted the approach in R(Greenpeace Ltd) v Secretary of State [2007] EWHC 311 (Admin); [2007] Env LR 29. In a high-level and preliminary policy process, an unlawful consultation requires something clearly and radically wrong. The preliminary character of the decision was an additional reason for restraint, because defects could be corrected in the later statutory process. Intervention might nevertheless be required for a “show-stopper”: a policy or factual matter making the proposal so obviously unacceptable that it should be abandoned immediately.
4. The climate-change and economic criticisms were powerful reasons for further consideration in the Airports National Policy Statement process, but did not require intervention at this stage. The green-slots issue and the mistaken reference to carbon emissions did not amount to a fundamental defect or show-stopper.
5. The reasoning on surface access was inadequate. The Secretary of State had not clearly identified the scope of the relevant condition, explained what had been decided, or addressed Transport for London’s concerns. The most likely interpretation was that no decision of significance had been made and that the issue remained for a later detailed planning strategy.
6. Remedies were adjourned for further submissions. The court was doubtful that quashing was appropriate for a policy statement having no substantive legal effect, particularly if the Secretary of State gave an undertaking concerning reliance on section 12(1) of the Planning Act 2008.