Heathrow Hub Ltd & Anor, R (On the Application Of) v The Secretary of State for Transport

A decision-maker may take account of deliverability risks arising from both the characteristics of a proposed scheme and the identity or position of its promoter, unless a valid public-law promise prevents this. A legitimate expectation requires a clear, unambiguous and qualified representation. Even where one exists, a public authority may depart from it where the public interest justifies doing so and procedural fairness is maintained.

For competition-law purposes, Articles 106(1) and 102 TFEU require a causal connection between a State measure and potential or actual anti-competitive conduct. A measure affecting an earlier preference decision will not establish an infringement where it has no effect on market structure or competition, and the challenged later decision was not materially influenced by it.

The claimants promoted an extended northern runway scheme at Heathrow. The Secretary of State preferred Heathrow Airport Ltd’s north-west runway scheme and designated an Airports National Policy Statement under the Planning Act 2008.

The claimants supported airport expansion but challenged the choice of scheme. Ground 3 was abandoned. The remaining grounds alleged inadequate reasons concerning capacity and safety, breach of legitimate expectation and procedural fairness, and infringement of Articles 106(1) and 102 TFEU arising from a request that Heathrow Airport Ltd provide assurance concerning implementation of the claimants’ scheme.

1. Disposition. The court granted permission on Grounds 1 and 2 but dismissed the substantive claim. Permission was refused on Grounds 4 and 5. Ground 3 had been abandoned.
2. Reasons, capacity and safety. The comparison of runway capacity properly incorporated resilience and noise respite, rather than theoretical runway capacity alone. The difference between 740,000 and 700,000 annual air traffic movements was objectively supported. The absence of precedent for the extended runway scheme created uncertainty about future safety mitigations and their effect on capacity, without amounting to a finding that the scheme was unsafe. The reasons in the ANPS were clear and rational.
3. Legitimate expectation. No enforceable expectation arose. Statements by the Airports Commission could not found an expectation against the Secretary of State, and the statement of principles expressly excluded legal obligations and legitimate expectation. The request for written comfort from Heathrow Airport Ltd was not an absolute precondition or veto. Even if an expectation had arisen, the Secretary of State could proportionately depart from it in the public interest. In any event, promoter-specific risk did not materially influence the preference decision.
4. Competition law. Heathrow Airport Ltd was dominant in the market for airport operation and related services in the South East and was an undertaking with special or exclusive rights. Articles 106(1) and 102 TFEU require a State measure capable of causing an actual or potential anti-competitive consequence. The request for assurance had no material effect on the preference decision and therefore could not enable an abuse. Even on the contrary assumption, the preference decision did not alter market structure or competition, and the challenge to designation of the ANPS disclosed no breach.
5. Parliamentary material. It was unnecessary to decide the admissibility issues under article 9 of the Bill of Rights. The court made limited observations only, leaving the constitutional questions for a case requiring determination.

First instance judicial review. The judgment records related judicial reviews concerning the same ANPS, including a separate judgment at [2019] EWHC 1070 (Admin), but this claim was determined independently.