Commentary on R (ex parte Hillingdon & others) v Sec of State for Transport [2019] EWHC 1070 (Admin)

The big idea behind the 2008 Planning Act was to stop repeating the arguments about what the national requirement was for infrastructure every time we tried to build something substantial. The solution was for the Government – subject to consultation of course – to obtain Parliamentary approval for a number of National Policy Statements (NPS’s) on the different types of infrastructure required. Most of these were formally designated seven or eight years ago but, to no-one’s surprise the Airports NPS encountered delay and difficulty because no-one could agree on additional runway capacity for South-East England.

Finally, the Government decided in favour of a scheme called the Heathrow North West runway and published its preference in an Airports NPS, which then went to consultation. It was this consultation that was challenged in Court – alongside many other issues – and which resulted in a lengthy judgment published on 1^st May. In essence the Judges ruled that there had been no breach of the Gunning One principle re pre-determination and that Ministers did not have such a closed mind as had prevented them from giving ‘conscientious consideration’ to consultee views – per the Gunning Four principle.

How come?  After all, there was abundant evidence that the Government had selected this from the various ideas considered by the previous Airports Commission report. It went out of its way to dismiss the alternative Gatwick-based proposal by revising its original criteria to add the requirement about maintaining a ‘hub’ airport. Ministers had also made speeches about not just taking a difficult decision, but actually ‘delivering it’.

Judges seem to have become very focused on the concept of decision-makers’ minds being closed. Surprisingly, they placed much store on a 1981 New Zealand Case concerning an aluminium smelter and an even older totemic planning case from 1947 concerning the building of Stevenage New Town when many consultees thought it was a very bad idea. (Maybe there are people who still think so …! ). However, the expectations of the public for involvement and consultation have changed dramatically in recent years; it’s hard to be convinced of the relevance of these distant precedents.

Nevertheless, these and other cases persuaded the Court that despite all the rhetoric, Ministerial minds were not wholly closed. Judges Higginbottom and Holgate were agreed that;

 “…the consultation process left open the possibility of consultees … persuading the Secretary of State that either less importance should be given to the “hub objective” or that Gatwick could meet that objective. In our view, the press statement does not indicate a closed mind or a real risk of a closed mind, …. This material is entirely consistent with the Secretary of State being open to persuasion to alter the proposed policy in the light of the consultation responses received. (Paragraph 538)

What they are doing is placing a very high bar before it declares a decision-maker to be so biased by virtue of his or her pre-disposition in favour of a particular solution as to render that decision unlawful.

It is tempting to read this as a significant weakening of the Gunning One requirement about being at the formative stage of decision-making. But this may be wide of the mark. Consider the following:-

• Gunning One has always been troublesome for spatial planning. By the time major projects are sufficiently developed as to be ready for public consultation, millions of pounds will have been spent and years of effort expended. The word ‘formative’ hardly fits. At the Institute, we have long predicted that the Planning Division of the High Court would, sooner or later, find it necessary to redefine Gunning One for its own purposes. That refinement will not, in our view read across to other situations.
• NPS’s were, in principle a good idea that have in general worked well. Most of them have allowed an informed debate about requirements without becoming over-embroiled in the location-specific aspect – i.e. where exactly do you build. The exceptions have been the Tideway Tunnel in London in respect of waste water, and of course the Airports. Given the long history of repeated consultations, obfuscations and fudge, it is clear that a verdict on the lawfulness of this particular NPS is much affected by that context and may be of limited relevance to the other NPS’s … or indeed to different sectors.
• In this particular legal challenge, consultation is really a sideshow. The big issues are about climate change, transport policy, air pollution and so forth. Alleging that the consultation was flawed because the Government was meant to have a more open mind than perhaps it should – whilst important, and fully deserving proper consideration – is still peripheral to the heart of the matter. There is little evidence to suggest that because consultees (Hillingdon and neighbouring councils) thought the Minister’s mind was no longer open to persuasion, that they therefore did not bother to participate, or were inhibited from advancing certain arguments. They knew exactly where they were and it would not have been easy for the Court to find that they had been unfairly treated by the process.

This will not be the last legal challenge that the proposed Third Runway project will face – but our guess is that the more formidable hurdles may remain – as they have been for forty years – political and environmental. On the scale of things, the Airports NPS may not quite be such a big deal.