Doncaster Metropolitan Borough Council, R (on the application of) v Doncaster Sheffield Airport Limited

A privately owned airport operator may, depending on the nature, context and consequences of the decision, be performing a public function amenable to judicial review. Amenability is arguable where the circumstances disclose a sufficient public law element, even though the operator is commercially motivated and not exercising a statutory power directly.

Where a public-function body voluntarily undertakes consultation, the Sedley requirements apply. The consultation need not be public or all-embracing. The decision-maker must conscientiously consider responses and have regard to obviously relevant considerations, but may reject them through a reasoned exercise of judgment. A court should not substitute its view of the merits where the decision remains within the lawful range of discretion.

The Council sought judicial review of decisions by the private operator of Doncaster Sheffield Airport to reject proposals for continued aviation activity and to begin winding down airport services. The Council relied on consultation unlawfulness, failure to consider relevant matters, unreasonableness, and unlawful delegation or fettering.

The claim was issued on 2 November 2022 after the operator’s 25 September decision and the September Announcement. The Council also sought interim relief to preserve the possibility of a sale or transfer to a new operator. The central issues were whether the operator was performing a reviewable public function, whether the proposed grounds were arguable with a realistic prospect of success, and whether interim relief should be granted.

1. Permission and interim relief refused. The Council had standing and the operator’s decision-making was arguably amenable to judicial review, but none of the proposed grounds crossed the threshold of arguability with a realistic prospect of success.
2. A private airport operator may perform a public function. Amenability depends on the overall nature, context and consequences of the decision, rather than on a universal test. Relevant features included the airport’s public and national significance, licensing, services provided to public bodies, and the statutory and regulatory framework. The conclusion was only that reviewability was properly arguable, not finally determined.
3. The voluntary Strategic Review and consultation engaged the four Sedley requirements. There was no realistic prospect of proving predetermination or a closed mind. The operator had transparently maintained that it would consider proposals addressing the airport’s fundamental lack of viability, while excluding proposals that merely funded continuing losses.
4. The operator had conscientiously considered and had regard to the matters relied on by the Council, including prospective purchasers, the proposed £7m bridging grant, economic impact evidence, and wider effects on the public, employment and public services. The consultation was not required to include the public generally, and the period allowed was not arguably inadequate.
5. The refusal of the bridging grant was not arguably unreasonable. The operator was entitled to weigh the absence of tangible proposals, the evidence of continuing losses, the use of public money, the uncertainty of the proposed process, and alternative options for the site. The court could not treat acceptance of the grant as the only reasonable response.
6. There was no realistic prospect of establishing unlawful delegation or fettering. The evidence showed separate decisions: the parent group restricted future funding, while the operator decided to proceed with managed closure.
7. No order for interim relief was made. Had permission been granted, tightly limited relief preserving specified assets and licences might have been appropriate, subject to a cross-undertaking in damages. The Council was ordered to pay 75% of the operator’s Acknowledgment of Service and summary grounds costs, 50% of its further costs, and £50,000 on account.