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

A legitimate expectation requires a clear, unambiguous and unqualified representation. An implied representation arises only from a consistent practice tantamount to a promise. General statements of fair treatment, or awareness of a difficulty, do not suffice. An express disclaimer of legitimate expectation prevents reliance on less formal communications.

A consideration may be legally relevant yet factually immaterial. A judicial-review challenge fails where the evidence shows that the matter did not affect the decision and could not have altered its outcome. Courts should not ordinarily decide academic public-law issues. A state measure under Articles 106(1) and 102 TFEU does not infringe competition law merely by creating a conflict of interest; it must be liable to harm competition in an economic market.

HUB promoted an extended northern runway scheme for Heathrow. Heathrow Airport Ltd promoted a north-west runway scheme. Following the Airports Commission's recommendation, the Secretary of State designated the Airports National Policy Statement under section 5(1) of the Planning Act 2008, selecting the north-west runway.

HUB sought judicial review, principally alleging that the Secretary of State's request that it obtain an assurance from Heathrow Airport Ltd was unlawful under EU competition law and breached a legitimate expectation. The Divisional Court dismissed the claim in R (on the application of Heathrow Hub Limited and Another) v Secretary of State for Transport [2019] EWHC 1069 (Admin). HUB appealed on those issues.

1. Appeal dismissed. The court upheld the dismissal of HUB's judicial-review claim.
2. A legitimate expectation requires an express promise or a consistent practice giving rise to an implied promise. The representation must be clear, unambiguous and devoid of relevant qualification. No such representation arose from the Airports Commission process, general statements of fair or equal treatment, or the circumstances preceding the request for an assurance. The negotiated Statement of Principles expressly excluded any legitimate expectation. That exclusion also prevented less formal communications from founding one.
3. The absence of an assurance was legally capable of being considered, but the evidence showed that it had no factual materiality. The Secretary of State accepted the Airports Commission's objectively based preference for the north-west runway because no sufficient reason emerged to depart from it. The assurance was, at most, confirmatory and could not have improved the objective merits of HUB's scheme. The ANPS's reasons were lawful and rational.
4. It was unnecessary to decide the disputed admissibility of Parliamentary statements under Article 9 of the Bill of Rights 1689. If their meaning were disputed, deciding their accuracy would risk forbidden questioning of proceedings in Parliament. In any event, they did not affect the materiality conclusion.
5. Under section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different without the alleged conduct, so relief had to be refused in any event.
6. The competition-law questions were academic but were exceptionally addressed. The court declined to endorse the Divisional Court's conclusions on market definition, dominance and special or exclusive rights. A conflict of interest created by a state measure is insufficient without liability to produce anti-competitive effects in an economic market. Those observations did not determine the appeal or resolve future disputes on different evidence.

• Court of Appeal (Civil Division): dismissed HUB's appeal: [2020] EWCA Civ 213.
• Divisional Court (Administrative Court): dismissed HUB's judicial-review claim challenging designation of the Airports National Policy Statement: [2019] EWHC 1069 (Admin).