London Borough of Hillingdon & Ors v The Secretary of State for Transport & Ors

A statutory time-limit provision may suspend access to judicial review until the period specified by Parliament begins. Section 13 of the Planning Act 2008 confines challenges to a national policy statement, and to anything done or omitted in preparing it, to the six-week period beginning the day after designation or, if later, publication. It also precludes challenges before that period. The provision is not construed as an ouster clause requiring a narrow interpretation. The phrase covering anything done in preparing a national policy statement is broad and may include antecedent policy-making where the act forms part of the process leading to the statement. Environmental-access obligations do not prevent domestic legislation from regulating when a challenge may be brought.

The claimants, including local authorities, Greenpeace Limited and a local resident, sought judicial review of the Secretary of State’s decision of 25 October 2016 to select a proposal for a third runway at Heathrow Airport for inclusion in a draft national policy statement under the Planning Act 2008. They challenged the decision on air-quality and legitimate-expectation grounds.

The Secretary of State applied under CPR r.3.4(2)(a) to strike out the claim, arguing that section 13 deprived the court of jurisdiction until the relevant national policy statement had been designated and published. The central issues were whether section 13 permitted a challenge before the six-week period and whether the October decision was an act done in preparing the statement.

1. Claim struck out. Section 13 of the Planning Act 2008 deprived the court of jurisdiction to entertain the claim at that stage. The claim form therefore disclosed no reasonable grounds for bringing the claim under CPR r.3.4(2)(a).
2. Section 13 is a time-limited preclusive provision, not a true ouster clause. Its effect is to suspend, rather than exclude, access to judicial review. It must therefore be given its ordinary and natural meaning in statutory context and in light of legislative purpose.
3. Read as a whole, section 13 contains both a start date and an end date. Proceedings may only be brought during the six weeks beginning the day after designation of the national policy statement or, if later, its publication. Challenges before that period, as well as after it, are barred.
4. The phrase anything done or omitted in the course of preparing a national policy statement is deliberately broad. It is not confined to steps expressly prescribed by the 2008 Act, to a draft statement, or to policy bearing the formal imprimatur of the final statement.
5. The 25 October 2016 decision selected the preferred runway location and formed part of the process leading to adoption of a national policy statement. It was therefore caught by section 13. The court rejected any exception for alleged showstopper arguments and found no incompatibility with article 9 of the Aarhus Convention.