“Our choice at Heathrow is in favour of the Northwest Runway proposal by the airport operator. The so-called Heathrow Hub is an imaginative idea, which has usefully opened up thinking about the way the airport operates, but for the reasons we explain is less attractive from a noise perspective. The Northwest Runway scheme is technically feasible and does not involve massive, untested infrastructure. The costs are high, but financeable by the private sector, in our judgement and that of investors.”
“Of the two Heathrow schemes, the Northwest Runway scheme offers the largest increase in capacity. This is due to lower anticipated congestion on taxiways and also simpler respite procedures associated with that scheme, which would keep all three runways in operation throughout the day, albeit with certain runways only used for arrivals or departures at certain times. The Extended Northern Runway scheme, by contrast, would be more susceptible to taxiway congestion and would not operate all three runways at certain times of the day to provide respite. While, in principle, the highest number of peak-hour movements is not significantly different between the schemes, it would be easier to schedule a larger number of movements over the course of the full operating day with the Northwest Runway scheme.”
“3.55 The Heathrow Northwest Runway scheme would provide respite by altering the pattern of arrivals and departures across the runways over the course of the day to give communities breaks from noise. However, respite would decrease from one half to one third of the day. The Heathrow Extended Northern Runway scheme has much less potential for respite. It would use both runways for arrivals and departures for most of the day, although it may be able to ‘switch off’ one runway for a short time during non-peak periods with a corresponding reduction in capacity. 3.56 The Heathrow Northwest Runway scheme should provide greater resilience than the Heathrow Extended Northern Runway scheme because of the way the three separate runways could operate more flexibly when needed to reduce delays, and the less congested airfield. It delivers greater capacity (estimated on a like for like basis by the Airports Commission at 740,000 flights departing and arriving per annum compared to the Extended Northern Runway scheme at 700,000), accordingly higher economic benefits, and a broader route network. It also provides greater space for commercial development, which could be used to enhance onsite freight capacity. 3.57 The Airports Commission and the Civil Aviation Authority both assessed the Extended Northern Runway scheme to be deliverable. However, the Extended Northern Runway scheme has no direct global precedent. As such, there is greater uncertainty as to what measures may be required to ensure that the airport can operate safely, and what the impact of those measures may be, including the restriction on runway capacity.”
“… [HUB] are of the opinion that the NPS should not be laid before Parliament without: … • the Extended Northern Runway scheme being included in the ANPS; and • a written guarantee from HAL to [HUB] that, if the Extended Runway Scheme is progressed, HAL will work on standard commercial terms with [HUB] to implement that scheme for the expansion of Heathrow airport” • the Extended Northern Runway scheme being included in the ANPS; and • a written guarantee from HAL to [HUB] that, if the Extended Runway Scheme is progressed, HAL will work on standard commercial terms with [HUB] to implement that scheme for the expansion of Heathrow airport”
“3.63 As noted above, in forming its view on the most effective and appropriate scheme to meet the need for additional capacity the Government has considered the positive and negative effects from each of the three shortlisted schemes. The Government recognises that analysis suggests that the Heathrow Extended Northern Runway scheme would have mainly lower environmental and local impacts and would be cheaper to construct compared to the Heathrow Northwest Runway scheme. Further consideration of the environmental impacts of the Northwest Runway scheme is found in Chapters 6, 7 and 8. 3.64 As it would maintain Heathrow Airport's hub status, the scheme is expected to deliver substantial improvements in connectivity and bring about wider benefits in terms of trade, freight and productivity that are accompanied with a large increase in jobs. However, the relatively smaller increase in capacity offered by the scheme limits the overall size of these benefits, compared to the other two schemes. 3.65 The capacity of the schemes was considered by the Commission. It concluded that the Heathrow Northwest Runway scheme would provide capacity for around 40,000 additional ATMs compared with the Heathrow Extended Northern Runway scheme. This is on the basis of the Heathrow Northwest Runway scheme allowing for more flexibility, including all three runways being full length and capable of independent operation, allowing the airfield to be less constrained, easing airport taxiway congestion. 3.66 The Department has reviewed the Commission’s findings, taking into consideration the representations from [HUB]/RIL, and agrees with the Commission’s conclusions. The evidence provided by [HUB]/RIL uses an alternative, simplified methodology to model capacity, compared with the Commission’s work. Under this alternative methodology, the Heathrow Northwest Runway scheme would still have greater capacity than the Heathrow Extended Northern Runway scheme.”
“You have also requested that there should be a written guarantee from HAL that, if the ENR scheme were subsequently progressed, Heathrow Airport Limited (HAL) would work on standard commercial terms with your client ([HUB]) to implement that scheme. However as explained above, the Government does not agree that the ENR is the preferred way of meeting the need for additional airport capacity in the South East, and does not consider it appropriate to include it in the proposed ANPS. The NWR is the only scheme for which the proposed ANPS gives policy support. The request for a guarantee is therefore academic. In any event, such a matter is for HAL. …”
“137. In relation to that question, we have concluded that promoter-specific risk was in fact immaterial to the Secretary of State’s decision to prefer the NWR scheme over the other schemes; and that therefore, even if there had been a continuing legitimate expectation as contended for by the Claimants, that expectation was not breached or frustrated.”
“When I took over, we asked questions again: Has the Airports Commission got it right? Has anything changed? The drawbacks of the Gatwick and [HUB] Schemes were amply set out in the [Airports Commission] recommendations. The question was: was there anything new? Was there anything to change that view?” “When I took over, we asked questions again: Has the Airports Commission got it right? Has anything changed? The drawbacks of the Gatwick and [HUB] Schemes were amply set out in the [Airports Commission] recommendations. The question was: was there anything new? Was there anything to change that view?”
“(viii) Even if HAL had responded positively to the request, this would have made no difference to the outcome, because it could not have improved the objective merits of the ENR scheme.”
“13.3 Nonetheless, the Commission has unanimously concluded the proposal for a new [NWR] at Heathrow Airport, in combination with the significant package of measures to address the environmental and community impacts described below, present the strongest case. It delivers more substantive economic and strategic benefits than any other shortlisted option, strengthening connectivity for passengers and freight users and boosting the productivity of the UK economy and strikes a fair balance between national and local priorities. The Commission’s terms of reference required it to make recommendations designed to maintain the UK’s position as a global hub for aviation. Heathrow expansion is the most likely route to achieving that.”
“12.24 The CAA did note the lack of precedent for the Heathrow [ENR] concept and indicated that it would need more detailed development.”
“13.87 On balance, taking account of its economic, environmental and social impacts, and operational and commercial factors, the Commission’s judgment is that the [ENR] presents a less effective proposition to meet the UK’s aviation capacity and connectivity needs. It has therefore concluded that the [NWR] scheme offers the best option for expansion at Heathrow.”
“The Department is therefore satisfied that the Airports Commission’s Final Report is a sound and robust piece of evidence on which the Government can base decisions as to whether further airport capacity is required and as to where that capacity would best be located.”
“566. A good example of how we acted on unsolicited information from [HUB] is provided by our consideration of the revision of [HUB]’s proposals in relation to air quality. The [Commission] had concluded that the ENR scheme had performed less well in relation to air quality than the NWR, concluding that ‘the Extended Northern Runway scheme presents greater challenges in terms of compliance with the EU Air Quality Directive’. Following the publication of [the Commissions]’s final report, [HUB] submitted to us a number of revisions to their surface access plans. [HUB] argued that these revised plans addressed the issues raised by the [Commission]. My team continued to assess the plans, albeit noting that these plans did not contain the level of detail considered by the [Commission]. 567. Following technical analysis by the Department’s environmental consultants (WSP) of the high level surface access iterations from [HUB], we concluded that that proposal could address the concerns raised by the [Commission] in regards to air quality: ‘The Heathrow ENR Surface Access arrangements which were considered by the [Commission] have undergone further consideration by the promoter to improve air quality. Variations put forward to The Department include ‘Iteration 3’ and Iteration 4’ which are considered by the promoter to be deliverable, and could provide reductions in adverse air quality effects relative to the surface access proposals assessed by the AC’. 568. However, as set out below, we did not consider that the other concerns raised by the [Commission] in relation to the ENR scheme had been satisfactorily met.”
“63. The paper therefore engaged with the merits of the two proposals, including the risks inherent in the novelty of the ENR scheme; and downplayed the significance of the failure of the Claimants to obtain any assurance from HAL. Indeed, as can be seen, the conclusion was that any commercial negotiations between the two would not delay the 2030 target date for delivery of full capacity.”
“3.73 Building on this assessment, the Government has identified a number of attributes in the manner of strategic effects, which it believes only the preferred scheme is likely to deliver to meet the overall needs case for increased capacity in the South East of England and to maintain the UK’s hub status. The Government has afforded particular weight to these. 3.74 The needs case has shown the importance of developing more capacity more quickly, and in a form which passengers and businesses want to use. The Heathrow Northwest Runway scheme is best placed to deliver this capacity, delivering the greatest benefits soonest as well as providing the biggest boost to the UK’s international connectivity, doing so in the 2020s at a point when without the scheme 4 out of 5 London airports would be full, with all the problems to passengers this could entail. Taken together, benefits to passengers and the wider economy are substantial, even having regard to the proportionally greater environmental disbenefits estimated for the Heathrow Northwest Runway. Even though the preferred scheme’s environmental disbenefits are larger than those of the Gatwick Second Runway scheme, when all benefits and disbenefits are considered together, overall the Heathrow Northwest Runway scheme is considered to deliver the greatest net benefits to the UK.”
“[Secretary of State]: Nothing had changed. It was different with Gatwick – there [the updated forecasts for Gatwick strengthened its case which meant] that Government now had a harder decision to make. That’s why I said Gatwick was a very difficult decision. Butwith the [HUB] scheme, nothing emerged post the Commission tochange the view that the NWR scheme was preferred over the ENRbased on a number of factors: respite, resilience and deliverability. And furthermore , the lack of a guarantee made it even harder for them.”
“Ultimately, the issue of guarantee is an ‘academic’ one. There were several good reasons to prefer the NWR scheme over the ENR scheme, and neither the presence nor absence of a guarantee could have changed that outcome. Even in the counterfactual scenario, where [HUB] had secured a guarantee during the Airports Commission process, it could not have changed the assessment that the ENR scheme underperformed against the NWR scheme on a number of areas, or that the greatest strategic benefits lay with the NWR scheme.”
“DECISIONS BASED UPON IRRELEVANT CONSIDERATIONS OR FAILURE TO TAKE ACCOUNT OF RELEVANT CONSIDERATIONS 5-130 When exercising a discretionary power a decision-maker may take into account a range of lawful considerations. Some of these are specified in the statute as matters to which regard may be had. Others are specified as matters to which regard may not be had. There are other considerations which are not specified but which the decision-maker may or may not lawfully take into account. If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by disregard of relevant considerations required to be taken into account (expressly or impliedly), a court will normally hold that the power has not been validly exercised. 5-131 It may be immaterial that an authority has considered irrelevant matters in arriving at its decision [..] if it has not allowed itself to be influenced by those matters and it may be right to overlook a minor error of this kind even if it has affected an aspect of the decision. However, if the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. As a general rule it is enough to prove that their influence was material or substantial. For this reason there may be a practical advantage in founding a challenge to the validity of a discretionary act on the basis of irrelevant considerations rather than extraneous purpose, though the line of demarcation between the two grounds of invalidity is often imperceptible.”
“138(vi) [T]he Secretary of State was considering whether there existed an objective reason for departing from the recommendation of the Commission that the [NWR] Scheme should be preferred. Such an objective reason might have been a change in the objective merits of the three schemes. The fact is that the Commission’s recommendation was not departed from because there was no good reason to do so.”
“I pay tribute to the promoters of the Heathrow Hub Scheme, having already paid tribute to the other promoters generally. The Scheme was very innovative and very different, but for two prime reasons we felt unable to endorse it. First, it did not allow a respite for the surrounding communities, because the same two corridors would be used for taking off and landing all the time. Secondly, the Scheme’s promoters could not ultimately provide the certainty that it would be built and adapted by [HAL], if we opted for it rather than for the main route. Those, to my mind, are two strong reasons. However, I pay tribute again to the promoters. It was a very innovative concept, and we gave it very serious thought. After visiting and listening to the promoters, I considered very carefully whether it was the best option. In the end, however, my judgment was that the north-west runway was the better one for Britain.”
“I have to say that the extended runway proposal is a very innovative one. At the end of the day, as I have said before, I think the biggest issue for us was that the promoters of that scheme could not secure from Heathrow a written guarantee that if we picked it they would do it. That seemed to be a fairly fundamental problem for us. There were a number of other issues related to it; that was not the only one, but there was no guarantee that that would be something the owners of Heathrow would be willing to pursue. No guarantee could be secured on that front. I explained why we had taken the view on the [ENR scheme]. It did not deliver as much capacity, and it also had the simple complication that we did not have certainty that we could do it because [HAL] would not sign up to it.”
“… The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
“… Without straying into possibly forbidden territory, we consider that on any fair reading, the Secretary of State’s remarks in Parliament were expressed in the context of the innovative nature of the ENR scheme and the implications of that for the assessment of relative scheme merits. Those statements were not only consistent with, but essentially to the same effect as, statements he made outside Parliament which are admissible and which as such formed the basis for our findings. Therefore, we do not need to resolve the dispute between the parties about whether the statements made in Parliament can be used in this case to indicate the relative weight attached to the matters to which they refer in the decision-making process.”
“It is not alleged that the Prime Minister misled the House or acted improperly within the House. The Prime Minister’s statement in the House is relied on for what it says, rather than questioned or challenged. …”
“… The meaning of the Prime Minister’s statements to the House is an objective matter. Mr Clayton accepts that Mr Toussaint can only rely on the statements for their actual meaning, whatever the Judge may rule that to be. While no suggestion may be made that the Prime Minister misled the House by his statement, Mr Toussaint also remains free to deploy any evidence available to him on the issue whether the public purpose recited in the declaration was a sham … The Prime Minister’s statement to the House is potentially relevant to Mr Toussaint’s claim as an admission or explanation of the Executive’s motivations. If the Prime Minister were to suggest that he expressed himself incorrectly, and did not intend to say what he said, then it would not be Mr Toussaint who was questioning or challenging what was said to the House.”
“… [T]he courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well founded any sanction is for Parliament to determine. The proceedings of Parliament include Parliamentary questions and answers. These are not matters for the courts to consider.”
“… The claimants’ application is an unusual one because it is sought by them to rely on what was said in Parliament to prove (a) that facts which occurred extraneous to Parliament but were mentioned in Parliament were true and (b) that the person who related those facts in Parliament believed them to be true … [H]ere the defendant does not admit those underlying facts, in which case the claimants cannot rely upon Hansard for the truth of what was said. If they were able to rely on it for that purpose, the Court would then be in a position of having to decide the accuracy of the content of the proceedings in Parliament, so as to determine if those facts had been proven. This is expressly forbidden.”
“(i) Does the undertaking in question have a dominant position in a market and, if so, in which market or markets? (ii) Is the undertaking in question a ‘public undertaking’ or an undertaking to which a Member State has granted ‘special or exclusive rights’? (iii) What is the nature of the measure, enacted or maintained in force by the Member State, that is said to enable the undertaking to infringe Article 102 TFEU? We shall refer to such a measure as the ‘State Measure’. (iv) Has the undertaking in fact infringed Article 102as a result of the State Measure?”
“162. Before we consider these points of competition law, however, we should stress one fundamental point regarding Ground 1. This is a claim for judicial review and [HUB] are seeking (and seeking only) the quashing of the Secretary of State’s decision to designate the ANPS. This is a public law ground and the remedy sought is a public law remedy. [HUB] have chosen to bring a competition law claim not as a selfstanding claim, but within the framework of a claim for judicial review. We have found – in relation to Ground 2 – that the promoter-specific issues regarding the ENR scheme played no material part in the decision to prefer the NWR scheme over the ENR scheme. For this reason alone, we consider that Ground 1 must also fail. 163. Had [HUB] framed their case as a competition law challenge to the preference decision and sought to challenge that decision in late 2016, that point might not arise. However, for the reasons we now give, even if it had been so framed, that claim would not have succeeded.”
“168. We consider that the relevant market to be wider than simply the provision of airport operation services (and related services) at Heathrow. Although this was the conclusion of the CAAin paragraphs 4.28 and 4.30 of its Notice of Determination, the CAA was considering HAL’s market power in relation to the market for the provision of services at Heathrow Airport for the purpose of imposing a price control. The question before us is a different and wider one, namely the provision of airport operation services (and related services) in the South East of England . That, we find, is the relevant market in the present case. We consider further below why the separate market, contended for by the Secretary of State, for the provision of runway scheme designs is, in our judgment, entirely irrelevant to a consideration of Ground 1 (see paragraph 197).”
“169. We do not consider that the development of new airport capacity in the South East of England can sensibly be differentiated from the existing market for airport capacity in the South East of England. The fact is that all markets can be the subject of change and development. In this case, the point of the ANPS was to commence the process of expanding this market. But the existence of the market as it stands at the moment and the manner in which that market might be developed in the future are questions that are actually inseparable: a present market includes future potentiality and we do not consider it appropriate to separate the two.”
“172. … However, a necessary part of that conclusion was that Heathrow Airport itself was a dominant provider of airport operation services in the South East of England. If – hypothetically speaking – there were another airport of the scale of Heathrow in the South East of England (or, possibly, in the UK) then this might constitute a substitute service capable of competing with Heathrow and so reduce the possibility of HAL’s dominance at Heathrow. 173. Self-evidently, HAL’s market power at Heathrow derives from two factors: (i) HAL’s operative control of Heathrow, and (ii) the fact that Heathrow itself has no substitute. If the latter did not pertain, then users of Heathrow would simply be able to go elsewhere for their airport operation services.”
“c) We do not consider that the history of Heathrow and the fact that it was a part of a public undertaking can be disregarded for the purposes of article 106(1) TFEU. It was by virtue of being a part of this public undertaking that Heathrow attained its status as a dominant airport. The sale into private hands of such a public undertaking constituted the granting of special or exclusive rights first to BAA and then to HAL. The continued existence of special or exclusive rights is evidenced by the fact that controls such as those contained in the CAA 2012 continue to exist.”
“190. Given those conclusions, it is impossible to see how any abuse of a dominant position could arise on the part of HAL, or how the State Measure – the request of the Secretary of State – could in any way have enabled the abuse. This is an inevitable consequence of our finding that the request and the response to it had no effect on the preference decision. That is the case whatever HAL’s state of mind when not providing the commitment requested by the Secretary of State and sought by the Claimants. … … 192. The short point is that there is not even a potential anticompetitive consequence liable to result from the State Measure in this case. 193. For this reason also, we conclude that Ground 1 must fail.”
“200. Accordingly, if we are wrong in our conclusion that the Secretary of State did not regard the provision of a guarantee or assurance by HAL as material to the preference decision, our conclusion would be that the preference decision was materially affected by the Secretary of State’s request and the response to it; that the Secretary of State’s request was a State Measure; and that the State Measure gave HAL the opportunity materially to influence the preference decision.”
“206. The fact is that Ground 1 seeks to question something done by the Secretary of State in the course of preparing the ANPS, namely the preference decision, where that decision did not, even potentially, affect competition or market structure, whilst seeking to quash the designation of the ANPS. However, the designation of the ANPS was not affected by the promoterspecific risk. In short, there is a disconnect between the breach of competition law alleged by the Claimants and the decision which section 13(1) of [the Planning Act] allows them to challenge (see also paragraph 162 above).”
“51. To entrust a legal person such as ELPA, which itself organises and commercially exploits motorcycling events, the task of giving the competent administration its consent to applications for authorisation to organise such events, is tantamount de facto to conferring upon it the power to designate the person authorised to organise those events and to set the conditions in which those events are organised, thereby placing that entity at an obvious advantage over its competitors…”
“175 Under Article 86(1) EC, the competition rule applicable to the State measures (Case C-22/98 Becu and Others [1999] ECR 1-5665, paragraph 31), Member States must not, by laws, regulations or administrative measures, put public undertakings and undertakings to which they grant special or exclusive rights in a position which the said undertakings would not themselves attain by their own conduct without infringing Articles 12 EC and 81 EC to 89 EC (see, to that effect,Case C-18/88 GB-Inno-BM[1991] ECR I-5941 , paragraph 20). 176 In that regard, although it is true that special or exclusive rights within the meaning of that provision are granted when protection is conferred by the State on a limited number of undertakings which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions (Case C-475/99 Ambulanz Glöckner[2001] ECR I-8089 , paragraph 24), the fact remains that the United Kingdom legislation does not confer such protection on the broadcasters [BBC and ITV] in question. 177 Thus, such rights are at issue when the public authorities have granted a monopoly (Case C-163/96 Raso and Others[1998] ECR I-533 , paragraph 23), when they can prevent the entry of a competitor into the market sphere of the rights-holder on grounds relating to potential adverse effects on the operation and profitability of the rights-holder’s activities (Ambulanz Glöckner, paragraph 176 above, paragraphs 7, 23 and 25) or labour market requirements (Becu and Others, paragraph 175 above, paragraph 23), or where the rights-holder is entitled, under the relevant legislation, to influence the terms under which the activity in question may be pursued by his competitors according to his interests or according to the consequences of their activity on that market or even on a neighbouring market (see, to that effect,Case C-202/88 France v Commission[1991] ECR I-1223 , paragraph 51; ERT, paragraph 142 above, paragraph 37; GB-Inno-BM, paragraph 175 above, paragraph 25; andCase C-49/07 MOTOE[2008] ECR I-4863 , paragraph 43).”