Airport Parking and Hotels (Birmingham) Ltd., R (on the application of) v Civil Aviation Authority [2003] EWHC 2106 (Admin)

Case No CO/5017/2002

[2003] EWHC 2106 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 8th July 2003

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF AIRPORT PARKING AND HOTELS (BIRMINGHAM) LIMITEDClaimant

-v-

Between

THE CIVIL AVIATION AUTHORITYDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR R HENDERSON QC & MR P GREEN (instructed by Paul Davidson Taylor, West Sussex RH13 5AD) appeared for CLAIMANT

MR JR MCMANUS QC & MISS SJ DAVIES (instructed by the Civil Aviation Authority) appeared for DEFENDANT

J U D G M E N T

MR JUSTICE DAVIS: These proceedings have a background which in procedural terms is unusual.

[2]Birmingham International Airport is owned and operated by a company called Birmingham International Airport Plc ("BIA"). It would appear that BIA has, over recent years, adopted what might be called a practice of charging car park operators - using that phrase in a non technical sense - a fee being a percentage of those operators' turnover in return for the grant of facilities of a certain kind. One such company was a company called Airparks Services (Birmingham) Limited. By a written licence dated 30th August 1995 BIA granted Airparks Services (Birmingham) Limited access to the premises known as Birmingham International Airport, for a term of 1 year and thereafter until determined on 3 months' notice. By clause 4.1, the licensee, being Airparks Services (Birmingham) Limited, agreed with BIA that, during the term of the licence, the licensee would provide the services specified in schedule 1, and any other services agreed by BIA in writing from time to time and on the terms as there set out. The services as specified in schedule 1 were defined as follows:

"The transportation of customers using Birmingham International Airport between the airport premises and the licensees' airport car park site."

This reflected what was the fact, namely that Airparks Services (Birmingham) Limited had a car park which was some distance away from the premises known as Birmingham International Airport. BIA, for its part, by clause 5 of the licence agreed amongst other things to provide the facilities set out in schedule 2. Schedule 2 provides as follows:

"1. A position for a courtesy telephone in a baggage reclaim hall of a main terminal at the airport premises. 2. A vehicle bay on the roadway to the front of the main terminal at the airport premises, for use by the licensee's vehicles when setting down and picking up customers only. 3. A sign showing the licensee's name adjoining the vehicle bay."

The licence also contained various other terms and provisions, which it is not necessary for me here to set out. By clause 14 it was, amongst other things, provided that the licensee would pay to BIA a license fee of £3,500 per year from the commencement date.

[3]As I understand it, this particular licence was subsequently terminated in around 1998. However, Airparks Services (Birmingham) Limited continued to use the facilities provided but now BIA was proposing to charge, by way of licence fee, a 4% percentage of Airparks Services (Birmingham) Limited's annual turnover.

[4]The Civil Aviation Authority (which I will call the CAA) is empowered in certain circumstances to impose conditions on operators of airports which are what may be called "non- designated airports". It is common ground that Birmingham International Airport is a non-designated airport. Relevant provisions in this regard are contained in Part IV of the Airports Act 1986 which part is entitled "The economic regulation of airports".

[5]Section 41 of the 1986 Act provides in part as follows:

"(1) The CAA may, if it thinks fit in the case of any airport which is not a designated airport, impose in relation to the airport such conditions as are mentioned in section 40(2), either at the time of granting a permission under this Part in respect of the airport or at any other time while it is in force. (2) Where, at the time of granting a permission under this Part in respect of an airport (whether a designated airport or not) or at any other time while such a permission is in force, it appears to the CAA that the airport operator pursuing one of the courses of conduct specified in subsection (3), then (subject to subsection (6) and section 42) the CAA, may if it thinks fit, impose in relation to the airport such conditions as it considers appropriate for the purpose of remedying or preventing what it considers are the adverse effects of that course of conduct. (3) The courses of conduct referred to in subsection (2) are- (a) the adoption by the airport operator, in relation to any relevant activities carried on by him at the airport, of any trade practice, or any pricing policy, which unreasonably discriminates against any class of users of the airport or any particular user or which unfairly exploits his bargaining position relative to users of the airport generally. (b) the adoption by the airport operator, in relation to the granting the rights by virtue of which relevant activities may be carried on at the airport by any other person or persons, of any practice which- (i) unreasonably discriminates against persons granted any class of such rights, or any particular grantee of such a right, or unfairly exploits his bargaining position relative to the grantees of such rights generally or (ii) unreasonably discriminates against any class of persons applying for such rights or any particular applicant, or unreasonably limits the number of such rights that are granted in the case of any particular services or facilities or which has resulted in the adoption by any other person of a practice that does any of those things. (c) the fixing by the airport operator of any charges levied by him at the airport in relation to any relevant activities carried on by him there ..."

Section 41(6) provides as follows:

"Before imposing any conditions under subsection (2) in relation to an airport, the CAA shall notify the airport operator concerned of the course of conduct within subsection (3)(a), (b) or (c) which it appears to the CAA that he is pursuing and of the condition which the CAA proposes to impose and if, within such period as may be prescribed, the airport operator notifies the CAA that he objects to its proposals, the CAA- (a) shall not proceed with the implementation of those proposals; but (b) may instead make a reference to the Commission in respect of the airport under section 43(3)."

It may be noted that by section 41(6) the right to refer the matter to the Commission is conferred on the CAA (on objection by the airport operator) and not on anybody else.

[6]Reference then may be made to section 36 of the 1986 Act (as amended), included in Part IV relating to economic regulation of airports. Section 36 is headed "Interpretation of Part IV etc". By subsection (1) it provides:

"In this Part ... ... 'airport charges' in relation to an airport, means (a) charges levied on operators of aircraft in connection with the landing, parking or taking off of aircraft at the airport (including charges that are to any extent determined by reference to the number of passengers on board the aircraft, but excluding charges payable by virtue of [section 73 of the Transport Act 2000 (charges for services))] and (b) charges levied on aircraft passengers in connection with their arrival at, or departure from, the airport by air." "

Relevant activities" are defined in this way:

"'Relevant activities' in relation to an airport, means the provision at the airport of any services or facilities for the purposes of- (a) the landing, parking or take off of aircraft; (b) the servicing of aircraft (including supply of fuel); or (c) the handling of passengers or their baggage or of cargo at all stages on airport premises (including the transfer of passengers, their baggage or cargo to and from aircraft). (2) It is hereby declared that the reference in the definition of 'relevant activities' in subsection (1) to the provision of facilities for the purposes of the handling of passengers does not include the provision of facilities for car parking, for the refreshment of passengers at the airport or for the supply of consumer goods or services there."

[7]Airparks Services (Birmingham) Ltd was aggrieved at BIA's decision to charge it 4% of its turnover in return for the grant of the license and facilities under the licence. It took the view, it would appear, that such a charge involved an unreasonably discriminatory practice and was an unfair exploitation of BIA's bargaining position relative to the grantees of such rights generally. It complained to the CAA.

[8]There was then a dispute as to whether the CAA had jurisdiction to hear such a complaint. By a detailed decision letter dated 21st January 2000 the CAA decided that it did have jurisdiction to hear such complaint. As it happened, BIA (whose arguments seem to a considerable extent to have mirrored the arguments that are now advanced in these proceedings before me on behalf of the Claimant) had disputed that the CAA did have jurisdiction. By a subsequent decision letter dated 2nd August 2002 the CAA decided that a requirement of 4% of turnover was not objectionable as a course of conduct referred to in section 41(3). Thus, in the result, the complaint of Airparks Services (Birmingham) Limited was not upheld.

[9]In the meantime the Claimant in these proceedings, Airport Parking & Hotels (Birmingham) Limited, on 11th July 2002 acquired the site and business of a car park sited at Plot 1, Hansall National Distribution Centre, near Birmingham, and which was quite near to Birmingham International Airport but forming no part of it. I was told that the area of that car park amounted to some eight acres with room for some 2,200 vehicles and with a 24 hour manned exit service. Just as Airpark Services (Birmingham) Limited before it, the Claimant too wished to be granted a licence for facilities corresponding to those granted to Airparks Services (Birmingham) Limited and, it may be, to other such car park operators.

[10]By letter dated 19th August 2002, BIA proposed the following terms, this (among other things) being said:

"I confirm that I am prepared to recommend to the Airport Directors that you be granted a Licence to operate on the following basis: 1. The Licence to be a period of 5 years from 11 July 2002 2. The Licensee is to pay to the airport company a fee of 4% turnover."

I need not read the rest of that letter. The Claimant considered this objectionable on the ground that these terms constituted, as it were, an unfair exploitation of the bargaining position of the airport or, putting it another way, an abuse of a dominant position.

[11]Matters then took a rather curious turn. It was common ground before me that the complaints which the Claimant makes are complaints which can properly be the subject of a complaint to what is now called the Office of Fair Trading ("the OFT") under the provisions of the Competition Act 1998 and the Enterprise Act 2002. The position of the OFT was set out in a letter dated 30th October 2002. That letter refers to a letter from the solicitors to the Claimant and records that two questions were asked:

"whether OFT would consider and investigate a complaint made by the claimant in relation to substantially the same matters as have already been looked at by the CAA; and whether any such consideration would be 'without reference to the reasonings, assumptions and findings' of the CAA Decision."

The letter went on to say:

"On the first point, there is no legal bar to an investigation by the OFT under the Competition Act 1998 even though the matter has already been looked at by the CAA. The OFT does, however, have a discretion as to whether, and how far, to investigate any matter formally, subject to its own administrative priorities. On the second point OFT would not be bound by the CAA decision which is taken under different legislation. We cannot, of course, rule out the possibility that following analysis of the facts we may come to the same conclusion as the CAA."

[12]More recently (and after these proceedings were commenced) a further and detailed letter was written by the OFT which was directed to this Court. It is dated 28th March 2003. The letter sets out in detail the background to the by then current dispute. There is a long section in the letter dealing with the Director's (that is to say, the Director General of Fair Trading, now the OFT) powers under the Competition Act 1998. That particular section of the letter concludes with this comment:

"By way of further clarification, the OFT would not regard itself as being even informally bound by a decision of the CAA taken under the Airports Act 1986."

The letter then goes on to deal with points relating to a Concordat made in 1997 and certain arguments raised regarding concurrency as to jurisdiction. The letter concludes in this way:

"Pursuant to s86 of the Transport Act 2000 the CAA has concurrent powers with the Director to apply CA98 to the supply of air traffic services. However, the phrase 'air traffic services', as defined as at s98 of the Transport Act 2000, does not include the activities at issue in the present case, and therefore only the Director has jurisdiction to enforce the CA98 prohibitions in respect of the activities at issue. In any event, as stated above, no view is taken as to the scope of the CAA's jurisdiction in the context of the Airports Act 1986 with regard to those activities."

[13]Shortly put, it is the position of the Claimant in these proceedings that the OFT is the only person empowered to rule on this particular dispute. It is the position of the CAA, on the other hand, that both the CAA and the OFT have the power to rule on this particular dispute. In this context, it is pointed out, on behalf of the CAA, that an overlapping jurisdiction of this nature is in general terms contemplated by the terms of section 56 of the Airports Act 1986, which expressly enables the Secretary of State to make regulations to co-ordinate the exercise of the functions by the CAA and the OFT where their jurisdiction overlaps (albeit that the functions of those two bodies are different).

[14]For the purposes of Part IV of the Airports Act 1986, the functions of the CAA are specified as follows in section 39(2):

"The CAA shall perform its functions under those sections in the manner which it considers is best calculated- (a) to further the reasonable interests of users of airports within the United Kingdom; (b) to promote the efficient, economic and profitable operation of such airports; (c) to encourage investments in new facilities at airports in time to satisfy anticipated demands by the users of such airports; and (d) to impose the minimum restrictions that are consistent with the performance by the CAA of its functions under those sections and section 4 of the 1982 Act (general objectives of the CAA) shall accordingly not apply in relation to the performance by the CAA of those functions."

My attention was also drawn to paragraph 3 of the Concordat made in 1997 with regard to airports between the CAA and the OFT formerly Director General of Fair Trading). In paragraph 3 of that Concordat, this in part is said:

"Relevant activities exclude the non-aviation parts of the business at an airport such as car parking, car hire, cafes, restaurants, duty free shops and retail outlets."

That particular sentence would lend some support to the arguments now advanced on behalf of the Claimant; but, as it seems to me, I cannot properly have regard to it in deciding the issues of statutory interpretation that arise. The Concordat goes on in paragraph 6 in this way (under the heading of "Airports with an annual turnover of £1 million"):

"Where a person wishes to make a complaint about anti- competitive behaviour related to a relevant activity at an airport in Annex 3, this should be addressed to the CAA. Where the airport is in England, Scotland or Wales the CAA will deal with it in accordance with section 41 of the Airports Act..."

At paragraph 7 this is said:

"Where the complaint is about anti-competitive behaviour relating to an activity which is not a relevant activity it should be addressed to the OFT."

And at paragraph 8:

"Where it is unclear to the person making the complaint whether the activity concerned is 'relevant' or not he should address the complaint to the CAA which will then decide in consultation with the OFT how it should be dealt with. The complainant will be advised which body is handling the complaint."

Dealing with paragraph 8, it was not clear to me that those provisions were ever invoked in the case of the complaint which had originally been made by Airparks Services (Birmingham) Limited.

[15]All this no doubt is very interesting but it raises this immediate query: if, as is common ground, the OFT has jurisdiction to deal with this particular dispute, why should it matter whether or not the CAA also has jurisdiction since, as the OFT's letter of 20th March 2003 makes clear, the OFT would not regard itself as bound by any decision in this regard by the CAA? Mr Henderson QC (appearing with Mr Patrick Green on behalf of the Claimant) answered this by saying that the OFT does not say that it would have no regard to a decision of the CAA: only that it would not be bound by such a decision. It would, he says, also assist the Claimant - and it may be other car park operators in the same or similar position to that of the Claimant - to establish that the CAA has no jurisdiction at all to deal with this particular sort of dispute in this particular sort of case. It would further, he submitted, be of assistance to the Claimant to know if the OFT was the only regulator with which the Claimant had to deal in this particular context.

[16]This may explain the form that these proceedings originally took. After unsuccessful attempts in correspondence, courteously conducted, with a view to seeking to achieve a resolution, the Claimant, by its claim as originally formulated, sought to quash the decisions of the CAA dated 21st January 2000 and 2nd August 2002 as being made without jurisdiction and therefore as being null and void. This approach attracted opposition from the CAA on the grounds, amongst other things, of delay. In addition the point was taken that the Claimant had no standing to challenge the validity of those two decisions since it had not been party to them, the relevant parties having been Airparks Services (Birmingham) Limited and BIA.

[17]On 11th December 2002 Lightman J refused permission. But on 24th February 2003, after an oral hearing, Stanley Burnton J granted permission. He did so on a basis not reflecting the claim as it then stood. He ruled indeed that the Claimant had no standing to seek to quash the decisions of 21st January 2000 and 2nd August 2002, which, as he pointed out, were not made in relation to the legal rights of the Claimant. But he went on to say that the proceedings might be appropriate if they claimed declaratory relief to revolve the issues of statutory interpretation arising. Stanley Burnton J said this at paragraphs 16 and 17 of his judgment:

"16. In my judgment, the legal issue raised by the claimant is a seriously arguable issue. It is one which affects the claimant and others, and it is liable to affect the exercise of powers by the CAA and possibly the OFT. The decisions which it is sought to impeach by the claim form have been regarded as being of wide application and indeed it is not easy to distinguish them, as I have already indicated. The issue in question is an issue of statutory interpretation in which the facts involved are highly unlikely to be contentious, and where, in my judgment, the parties are likely to benefit from an authoritative determination of the issue, whichever way it goes -- by parties, I mean the CAA just as much as the claimant. If a decision is made that the car parking facilities are not relevant activities, there may be implications to the application of the decisions made in January 2000 and August 2002, but those implications remain to be worked out at a later date. In fact, there may be no implications at all because no prohibition has been made on any activity as a result of those decisions, and it may be that if a complaint is made to and accepted by the OFT, it will come to a decision that the 4 per cent of turnover fee is not objectionable as an abuse of a dominant position or otherwise. That is for the future. 17. In my judgment, this is a case where it would be appropriate for the question of statutory construction, which is clearly at issue between the parties, to be determined. The appropriate way to determine it is by way of a claim for declaration. While refusing permission to proceed with the present claims, I would, therefore, look positively at an amended claim form which claimed declaratory relief."

[18]In the light of that ruling there was some debate before Stanley Burnton J as to the form of declaration now to be sought. What has eventuated is to be found in paragraph 4 of the re-amended claim form. It has to be said that it is something of a mouthful. The declaration as sought is in these terms, as found in section 6 of the claim form:

"A declaration that: An airport operator's permission for non-exclusive use of roads to shuttle air passengers to and from a terminal and to and from an 'off airport' car park using a dropping off and collection lay-by and with the benefit of a sign or signs and a telephone position is the provision of facilities for car parking and granting of rights therefore and falls outwith 'relevant activities' in relation to an airport in sections 36 and 41 of the Airports Act 1986."

[19]I turn then to the background facts and issues arising. As I have said, the Claimant owns and operates a car park which on any view is "off airport". What the Claimant then offers to its car park users is the provision of a shuttle service by bus between the car park and the air passenger terminal at Birmingham International Airport where there is a bay designated for use by that bus. In addition, there is a sign by the bay at the airport terminal for those waiting carriage by means of the shuttle bus to the car park. There is also installed a dedicated telephone in the baggage reclaim hall to permit the Claimant to be contacted from the terminal, presumably with a view to summoning the bus.

[20]For its part what BIA provides is access for the shuttle bus over the roads within its premises and access to and egress from and use of a bay near to the passenger terminal and permission for the sign and for the telephone in the baggage reclaim hall. As I understand it, therefore, the matters in respect of which the Claimant was seeking permission, and which were the subject of BIA's letter of 19th August 2002, are very similar to - if not indeed identical to - those the subject of the 1995 licence in favour of Airparks Services (Birmingham) Limited. The totality of these services may be called 'the activities'.

[21]The issues for determination thus arising are these. First, whether the activities are, or at least one of them is, provided "at the airport" within the meaning of section 36(1) of the Airports Act 1986. Second, if so, whether they are or include services or facilities for the purposes of "the handling of passengers or their baggage at all stages while on airport premises" within the meaning of section 36(1)(c) of the Airports Act 1986. Third, whether in any event they amount to "provision of facilities for car parking" within the meaning of section 36(2) of the Airports Act 1986 and as such are excluded from the definition of "relevant activities". I take that formulation from the skeleton argument submitted on behalf of the CAA. It is convenient to approach the matter in that way, although I agree both with Mr Henderson and with Mr McManus QC (who, with Miss Sarah-Jane Davies, appeared for the CAA) that the section must be read as a whole and that section 36(2) can not be regarded as entirely discrete from section 36(1).

[22]The overall structure of Part IV of the 1986 Act is that there are two levels of regulation, depending on whether or not the airport has been designated by the Secretary of State under section 40 of the Act. If it has been designated there are mandatory conditions relating to the accounts of the airport operator and to airport charges, as defined, levied at the airport. There is also a system of five yearly reviews in respect of the airport operator by the Competition Commission. That is dealt with under section 40 and section 43. There is also a requirement, among other things, for the Commission to investigate, in relation to airport charges or the carrying on of "operational activities" (as defined) relating to the airport, whether the operator has pursued a course contrary to the public interest. Those requirements do not apply in this particular way to non-designated airports. But, as has been mentioned, the CAA may, in such a case, impose conditions where the relevant requirements of section 41 are satisfied. Reference may also be made in this context to the Civil Aviation Authority (Economic Regulation) Regulations 1986. There is an ultimate position that if the airport operator objects to any proposed conditions the CAA cannot implement them but may make a reference to the Commission under the provisions of section 41(6).

[23]The first issue arising, then, is whether the services or facilities in question are provided "at an airport" as section 36(1) requires. "Airport" is defined in section 82 of the 1986 Act. It provides as follows:

"'Airport' means the aggregate of the land, buildings and works comprised in an aerodrome within the meaning of the 1982 Act."

The 1982 Act, I should add, is defined so as to mean the Civil Aviation Act 1982. "User" is defined in section 82:

"in relation to an airport, means- (a) a person for whom any services or facilities falling within the definition of 'relevant activities' in section 36(1) are provided at the airport, or (b) a person using any of the air transport services operating from the airport."

Turning then to the provisions of the Civil Aviation Act 1982, in section 105 of that Act (which is the general interpretation section) it is provided that:

"In this Act, except where the context otherwise requires- ... 'aerodrome' means any area of land or water designed, equipped, set apart or commonly used for affording facilities for the landing and departure of aircraft and includes any area or space, whether on the ground, on the roof of a building or elsewhere which is designed, equipped or set apart for affording facilities for the landing and departure of aircraft capable of descending or climbing vertically."

[24]Mr Henderson submits that, when one has regard to the definition of "aerodrome" contained in section 105 of the Civil Aviation Act 1982, the roadways at Birmingham International Airport over which access is granted and the bay and the sign and the telephone as provided at the terminal, do not fall within the ambit of an "airport" as defined in section 82 of the Airports Act 1986. The word requires, he submits, a narrow interpretation, whereby the focus is on core activities of aircraft landing and departing only. It would not, he suggests, even extend to hangers, let alone to car parking facilities. He referred me also to various provisions in the Civil Aviation Act 1982 itself, such as sections 5, 25, 30(2) and 35(1), which are at least consistent with a narrow interpretation, albeit not (as he fairly accepts) conclusive in that regard. The focus of section 36 of the 1986 Act moreover, he submits, is (in his phrase) "functional and topographical": it is not "temporal", in that the facilities and services mentioned do not apply to the position before, for example, check-in. All this is, he submits - again using his phrase - "congruent with" a narrow definition of the word "airport" as used in sections 36 and 41.

[25]There is perhaps some prima facie force in this submission if one focuses simply on the definition of "aerodrome" as set out in section 105 of the Civil Aviation Act 1982 and as incorporated by section 82 of the 1986 Act. But it is necessary to read the 1986 Act as a whole. Doing that a different picture emerges.(1) First, if this narrow interpretation is right, it is difficult to see why it was thought necessary to include the actual provisions of section 36(1)(c): for that extends to "handling" of passengers or their baggage or of cargo "at all stages while on airport premises" (emphasis added).

(2) Second, if this narrow interpretation is right, section 36(2) seems otiose. For, on Mr Henderson's interpretation, facilities for car parking, refreshment of passengers and the supply of consumer goods or services at an airport (at all events, unless provided after check-in) would never have been "at the airport" in the first place. Mr Henderson frankly accepted this. He accepted that, on his interpretation, section 36(2) is in effect largely (if not entirely) otiose. But his point is that the subsection is only worded as a declaratory provision and not in terms as an exclusory provision (an observation which I think is strictly correct): and it is not surprising, he goes on to submit, that such provision was put in in order to avoid doubt. In my view, however, the more natural reading is that such provision was included just because the draftsman considered that otherwise such facilities could and would be regarded as being "at the airport".

(3) Third, Mr McManus drew my attention to various other provisions of the 1986 Act. Thus, in Part VI of 1986 Act which is headed "Miscellaneous and Supplementary", section 63 is included. This relates to airport byelaws. Section 63(1) reads as follows:

"Where an airport is either- (a) designated for the purposes of this section by an order made by the Secretary of State, or (b) managed by the Secretary of State, the airport operator (whether the Secretary of State or some other person) may make byelaws for regulating the use and operation of the airport and conduct of all persons while within the airport."

Subsection (2) provides that any such byelaws may, in particular, include byelaws of the kind there set out.

(d) one such byelaw is capable of being:

"for regulating vehicular traffic anywhere within the airport, except on roads within the airport to which the road traffic enactments apply, and in particular (with that exception) for imposing speed limits on vehicles within the airport and for restricting or regulating the parking of vehicles or their use for any purpose or any manner specified in the byelaws."

Subparagraph (e) makes provision for byelaws:

"for prohibiting waiting by hackney carriages except at standings appointed by such person as may be specified in the byelaws."

Various other provisions are made for byelaws, relating to prohibition of restriction of access to any part of the airport, for preserving order within the airport and for regulating and restricting advertising within the airport and so on.

(k) provides that byelaws may be made:

"for restricting the area which is to be taken as constituting the airport for the purposes of the byelaws."

Section 65(1) provides:

"Subject to the provisions of this section, the Road Traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads which the public has access."

Section 66(3) provides that various provisions of certain statutes where they:

"apply to any land within any airport in accordance with an order made under or by virtue of that section, those provisions shall have affect in relation to vehicles in a building on that land, which is used for providing facilities for the parking of vehicles as they have effect in relation to vehicles on land in the open air."

These provisions, taken both individually and in totality, simply are not consistent with the narrow interpretation offered by Mr Henderson. For example - and it is only an example - the provisions of section 63(2)(d) and (e) can make no sense at all if airport has the limited interpretation now propounded. Moreover, as Mr McManus pointed out, if "airport" has so restricted a definition, the ability of an airport operator to make byelaws under section 63 is so curtailed as in practice to be virtually nugatory. And it is, as it seems to me, no answer at all to suggest that "airport" may somehow have a different meaning in Part VI of the 1986 Act as compared to Part IV.

[26]Mr McManus referred me to the explanation of the term "airport" advanced as a matter of usage in Shawcross & Beaumont on Air Law Volume I division 3 (ii) and to the observation of Morrison J in the case of Rolls Royce Plc v HVD Limited

[2000] 1 Lloyds Report 653

at page 658 to the effect that the word "aerodrome" is now simply an old-fashioned word for what is nowadays called an airport. Morrison J was there talking by reference to the Warsaw Convention and not, it must be stressed, by reference to the Airports Act 1986, which has, by section 82, its own express definition. Even so, Mr McManus's interpretation, which is to the effect that an airport is to be taken as the whole undertaking that is within the delineated perimeters, is consistent with a conventional understanding of the word. Moreover, the wide definition of "operational activities" in relation to an airport, as contained in section 30(4) of the 1986 Act, is also a pointer in my view, to the word "airport" as used in section 36 having a wider interpretation than that advanced by Mr Henderson. Yet further, one might wonder what was the purpose of the elaborate system of economic regulation set out in Part IV if "airport" is to have the narrow interpretation proposed.

[27]Mr Henderson did also make submissions by reference to the fact that "airport charges" as defined in section 36(1) are charges levied on operators of aircraft in connection with landing or parking off of the aircraft at the airport and charges levied on aircraft passengers in connection with their arrival at or departure from the airport by air. That, he submits, supports a narrow interpretation of "airport". But, in my view, when one studies the provisions relating to airport charges, there is no real basis for construing the word "airport" as used in the 1986 Act by reference to the definition of "airport charges". There is no necessary correlation between the imposition of airport charges and the subject matter of conditions to be imposed under section 41.

[28]In my judgment, therefore, for this purpose and on the true construction of section 36 of the 1986 Act, a wide interpretation is to be given to the phrase "the aggregate of land, buildings and works comprised in an aerodrome within the meaning of the 1982 Act." The suggested narrow interpretation fits neither with the provisions of section 36 itself nor with the other provisions contained in the 1986 Act. Nor, I might add, does the definition of "aerodrome" as contained in the 1982 Act of itself compel so narrow an interpretation. For the purposes of section 36, and as the context requires, the word "airport" is, in my view, to be taken as extending to the whole of the land and undertaking within the delineated perimeters of the site designated for general airport purposes. Since the activities in question here are carried on by use of the roads within the perimeters of the land which is laid out and designated as Birmingham International Airport and since the facilities comprise the telephone in the baggage reclaim hall and the vehicle bay and sign at the front of the terminal within those perimeters these activities are, in my judgment, "at the airport" within the meaning of section 36(1).

[29]The second issue (although, as I have said, it is not to be taken altogether separately from the other issues) is as to whether the services or facilities in question are for the purpose of "the handling of passengers or their baggage at all stages while on airport premises." (It is common ground, I might add, that paragraphs (a) and (b) of subsection (1) do not have any application here.) In my view, the answer to this question is clear - which is that they are. That seems to me to be the plain consequence of a plain reading of the subsection; in my view, the facilities and services in question here are for the purposes of the "handling" of passengers "at all stages while on airport premises". That approach is also, I think, consistent with the fact that the draftsman felt it necessary to include section 36(2) as he did. In the event, as I understood him, Mr Henderson ultimately did not dispute that the present activities fell within the purpose set out in section 36 (1)(c).

[30]I turn then to the third issue: does section 36(2) operate so as to provide that the activities in question here are not within the definition of "relevant activities", on the basis that they amount to "the provision of facilities for car parking"?

[31]Mr Henderson's first point was to note that, under section 36(2), whereas the provision of facilities for refreshment of passengers is qualified by the words "at the airport" and whereas the "provision of facilities" for the supply of consumer goods or services is qualified by the word "there", (that is, at the airport) there is no such qualification to the provision of facilities for car parking. Accordingly he submits the car park in question may, as here, be "off airport". The argument then goes that what the Claimant offers at its eight acre site on any view is car parking; and then that the facilities here (namely the road access, the vehicle bay, the sign and telephone) are "for" that car parking; and accordingly, it is submitted, these activities fall outside the definition of "relevant activities" by operation of section 36(2) on its true interpretation.

[32]Put like that, I do not accept that submission.(1) As a matter of ordinary language it seems to me to be a strained reading. (It also seems to me to be a strained reading as a matter of impression, although I do accept - and as we are told at the highest level of authority - impression is not always a very good guide and is not to be used as a substitute for reasoning.)

(2) It seems very hard to identify any rationale for extending section 36(2) to car parking which is outside the airport.

(3) As Mr Henderson himself had pointed out, section 36(2) is, as a matter of drafting technique, drafted in declaratory form and not exclusory form. Section 36(1) relates to the provision or services or facilities "at the airport". It seems to me that, set in context, the reference in section 36(2) to car parking consistently with section 36(1) - and not least section 36 (1)(c) - necessarily relates to car parking at the airport.

[33]I appreciate that such a conclusion bestows a degree of surplusage at the words "at the airport" and "there" as used elsewhere in section 36(2). Even so, it seems to me to be the more natural and sensible interpretation.

[34]Mr Henderson's second way of putting the point was to submit that, in any event, the facilities here offered were "facilities for car parking". He submits that the phrase "facilities for car parking" is broad. He further points out that there is a rationale for that, in that facilities for car parking are of an inherently secondary or ancillary nature in the operation of an airport on a par with the refreshment of passengers or the supply of consumer goods and services: and one would not necessarily expect, he submits, that the CAA would be contemplated as having jurisdiction over such matters.

[35]With that particular submission, I agree. The phrase "facilities for car parking" as used in section 36(2) is, as I see it, wide. The statute does not, for example, here limit itself to the provision of "car parks". In my judgment, the facilities in question, involving access over the airport roads to and from the vehicle bay, the stopping at the bay for the purpose of unloading and picking passengers and baggage, and the ancillary facilities of the telephone and the sign (which are part and parcel of the service) all come within the phrase "facilities for car parking".

[36]Mr McManus submitted that only "actual" (in his word) car parking facilities are excluded. He observed that the phrase is facilities "for" (emphasis added) car parking, not, for example, facilities "related to" or "connected with" car parking. He submitted that the vehicle bay was not provided for parking but for setting down and picking up only (which, at all events, was what the terms of the 1995 Licence had provided) and as part of a shuttle bus service. But I do not accept, in this context, that parking is to be treated as a distinct activity from setting down or picking up for the purposes of a shuttle bus service. What is involved in parking is a question of degree. The shuttle bus here has to pull up in the bay (and it is perhaps of some note that a bay is provided: that of itself connotes a perception that the bus may be there for some little while and must not obstruct the road). The bus then has to unload, or, as the case may be, admit, the passengers and their luggage. That ordinarily will take some little time during which time the bus will be stationed in the bay. As I see it, the bus will be parked for that time for that purpose and the bay is provided for that purpose.

[37]Mr McManus cited a sentence or two from the judgment of Sir Wilfred Greene MR in the case of Ashby v Tolhurst

[1937] 2 KB 242

at pages 248 to 249. That case had a totally different factual situation to the present and involved, among other things, the status of conditions attached to a car parking ticket: a familiar source of litigation some years ago. In the course of that particular case Sir Wilfred Greene said this:

"You take a car park ticket in order to obtain permission to park your car at a particular place and parking your car means, I should have thought, leaving your car in the place. If you park your car in the street you are liable to get into trouble with the police. On the other hand, you are entitled to park your car in places indicated by the police, or the appropriate authority for the purpose. Parking a car is leaving a car, and I should have thought nothing else."

[38]Mr McManus, at one stage in his argument, suggested that those words connoted that the car in question had to be left by the driver, in the sense that the driver absented himself from the vehicle. I do not, for myself, read that passage from Sir Wilfred Greene's judgment in that way. A car can perfectly sensibly be described as being parked even when the driver remains in the car throughout. For example, many visitor in cars to seaside car parks would seem to do just that. In any case, I do not see, in the present context, that it can be determinative that in setting down and picking up the driver may not absent himself from the bus. In my view, it is perfectly sensible to say that the bus is parked while it disgorges passengers and luggage or, as the case may be, while it awaits the intromission of passengers and luggage.

[39]Mr McManus at one stage did submit - although not, I think, with much enthusiasm - that what is involved here cannot be facilities for car parking since what is involved here is a bus not a car. But, in my view, the words are not to be so narrowly read. Mr McManus went on, in effect, to submit that the phrase "facilities for car parking" should be read as "facilities for car parks". But if that what was intended the Act could have said so. Moreover, I would regard it as anomalous that, as Mr McManus's submissions would seem to entail, a designated car park within the purlieu of Birmingham International Airport would not be a "relevant facility" within the ambit of section 36 and section 41 but the provision of a vehicle bay and ancillary facilities at the terminal for a shuttle bus would be.

[40]In my judgment, therefore, the activities in question here are "facilities for car parking" within the meaning of section 36(2). Accordingly, they do not form part of the "relevant activities" for the purposes of section 36(1) and for the purposes of section 41.

[41]I would make two other points. Both sides adopted the forensic position that the matter was absolutely manifest in their own respective favours. Accordingly, each submitted that reference to Parliamentary materials was inappropriate, since the conditions laid down in Pepper v Hart

[1993] AC 593

were not satisfied. I was, nevertheless, referred, at some length, to various statements both by Mr Ridley MP (then Secretary of State for Transport) and Mr Spicer MP (then Under Secretary of State for Transport) in discussions in the House on the Bill. Mr Henderson, in particular, took me to certain passages from the statements of Mr Ridley and to his emphasis, so far as the CAA was concerned, on "core activities". For example, he referred me to this statement by Mr Ridley:

"Part IV of the Bill gives the CAA powers to regulate airport charges and trading practices. That is a natural extension to the existing role of regulator of civil transport and airports for safety purposes. All airport activities will be subject to normal competition law. The CAA will exercise more specific regulatory functions over airport charges and core airport activities that are essential for the use of an airport for air transport, such as operating runways, aircraft services facilities and passenger and baggage and handling facilities"

. Mr Henderson drew my attention to other passages as to what was said by Mr Ridley and Mr Spicer. Mr McManus, for his part, took me to some rather broader comments which can be extracted from the various statements made in particular by Mr Spicer.

[42]I would accept that some of the statements of Mr Ridley, and perhaps also some of those of Mr Spicer, could be taken, at least on a very broad basis, to be supportive of Mr Henderson's case. But their statements, read as a whole, are not obviously inconsistent with Mr McManus's case. In my judgment, even assuming, for present purposes, that there is an ambiguity in section 36 sufficient to justify reference to Hansard, the statements sought to be relied upon are in any event not clear enough to be a proper aid to the construction of the legislation.

[43]The second point I would wish to add is this. The interpretation which I place on section 36 by reference to the activities in question is, I think, at least consistent with the policy behind the legislation. I would agree with Mr McManus that there is no policy reason why both the CAA and the OFT should not have jurisdiction in relation to this sort of dispute. As he observed, an overlap in jurisdictions with regard to the same matter was contemplated under section 56 of the 1986 Act. Although the prospect of a reference both to the CAA and to the OFT, on what might, in point of substance, be the same competition point, might appear to be cumbersome, there was no necessary reason, as he observed, that there should not be an extra layer of protection: the more so since the functions and objects and criteria of the CAA and OFT are not the same. I thus would accept that Mr McManus's overall argument, if right, would not directly counter any perceived policy behind the legislation. Nevertheless Mr Henderson's submission that the relevant jurisdiction here lies with the OFT and the OFT alone cannot itself be said to counter any policy behind the legislation. Certainly in the present case, where the gravamen of the complaint is, as it were, that Birmingham International Airport is operating an anti-competitive practice and/or abusing a dominant position, there is, I think, no lack of sense in a conclusion that it is the OFT which not only has jurisdiction to deal with that point (as I have said, it is common ground that it does) but that it has exclusive jurisdiction.

[44]I turn, finally, to the question of what remedy, if any, I should grant. As I have said, the declaration in its present form is something of a mouthful. I would not myself be prepared to make a declaration in so convoluted a form. When I suggested to Mr Henderson that he try to produce something rather more clear and workable, he came up with this revised wording:

"A declaration that the question whether the terms proposed by a letter of 19th August 2002 from Birmingham International Airport (BIA) to the Claimant may give rise to anti-competitive conduct falls within exclusive jurisdiction of the Office of Fair Trading (and outwith that of the Civil Aviation Authority) because the operation of a shuttle bus on BIA roads to and from the Claimant's car park and with the use of dedicated lay-by, signage and telephone facility do not constitute 'relevant activities' at that airport."

I am not prepared to make a declaration in so convoluted and narrative a form either.

[45]One of the concerns of the Claimant has always been the potential impact of the CAA's decisions of 21st January 2000 and 2nd August 2002 in relation to the form of licence granted to Airparks Service (Birmingham) Limited in terms virtually or perhaps even precisely identical to that contemplated as being sought by the Claimant. However, it is not appropriate to grant a declaration by reference to the CAA's jurisdiction with regard to those two particular decisions, since permission was refused to the Claimant on the ground of lack of standing. I am not prepared to grant by, as it were, the back door what the Claimant could not get by the front door. Nor is it the ordinary role of the Court to make generalised declarations as to the state of the law in a vacuum or as to purely hypothetical questions. A declaration should ordinarily be linked to the specific situation presented to the court.

[46]Mr McManus submitted, in the circumstances, that a declaration would be inappropriate and no relief useful to the Claimant could be granted in these proceedings. (The strength of that particular submission, however, was rather diluted by his frank admission that a declaration as to the scope of the CAA's powers would be useful to the CAA itself.) Certainly, I would not make a declaration requiring the OFT to disregard the previous decisions of the CAA and, in any event, as I have said, the OFT in terms has said that it did not regard itself as bound by those decisions. A declaration for such a purpose would be neither appropriate nor workable. Mr McManus in fact also said that I should not make any declaration because the OFT was not represented at this hearing. That is true, but it is the case that the OFT, as indeed BIA, have been served with these proceedings as interested parties and have elected not to be represented.

[47]I have come to the conclusion that I should grant some declaratory relief, albeit not in the form currently proposed. I think I should do so because, first, as between these parties, I consider that a declaration would be appropriate to reflect the conclusion as to this proposed licence which I have reached; and, second, because the whole rationale of Stanley Burnton J's decision to grant permission was to enable declaratory relief (and only declaratory relief) to be obtained. The ultimate discretion of course remains mine, but I am rather loath, having reached a ultimate conclusion in favour of the Claimant, to withhold all declaratory relief when that was the basis for which permission was granted in the first place.

[48]The sort of declaration that I have in mind that I might be prepared to grant would be broadly to the effect, that on the true construction of sections 36 and section 41 of the Airports Act 1986, the CAA has no jurisdiction to impose conditions or make any determination in respect of the present complaints of the Claimant to the terms proposed by BIA in its letter of 19th August 2002. That may not be as far as Mr Henderson would like me to go; but he may find that is as far as I am prepared to go.

[49]I will hear counsel further as to the form of declaration to be granted and on any further matters such as costs.

[50]MR JUSTICE DAVIS: So far as the form of declaration is concerned, I think Mr Henderson's suggestion is thoroughly sensible, namely that he and counsel for the defendant go away and put their heads together and try to come up with an agreed formulation. I very much hope that can be done. That will follow the lines of what I have indicated. I simply would like to make clear that if the formulation put before me is not a formulation that I personally accept, then subject to further argument I reserve the right to refuse to grant a declaration at all. But needless to say, I very much hope that an acceptable and clear form of declaration can be brought together reflecting my judgment.

[51]On the question of costs, the claimant has, in many respects, succeeded and in the overall result certainly has succeeded. I think, however, I should take into account that up until the hearing before Stanley Burnton J, the claimant was proceeding by reference to a claim form, on a basis which Stanley Burnton J, and I think also reflecting what Lightman J decided, that they had no standing. Indeed, one possible outcome of the hearing before Stanley Burnton J would have been to have dismissed the then claim form altogether, and required the claimant to start afresh. I think I should bear that in mind, although I also bear in mind that much of the material which is prepared at the outset of the issue of those proceedings has proved to be material which has remained relevant for these proceedings in their amended form.

[52]Secondly, I think applying the approach, enjoined by the Civil Procedure Rules and not least the overriding objective, I do think it right to make some discount to reflect the fact that the claimant did not succeed on the argument relating to the meaning of the words "at the airport." I agree with Mr Henderson that much of the material that was deployed before me had to be deployed in any event. Nevertheless, a not insignificant amount of the argument and preparation of the argument did have to be devoted, I am in no doubt, to the argument as to the meaning of the words "at the airport".

[53]Looking at the matter in the round, while I think the claimant should, in principle, have its costs, I think that there should be some deduction to reflect those matters and, in the result, I think the just order here is to order that the defendant pay 80% of the claimant's costs, such costs to be assessed on the standard basis.

[54]MISS DAVIES: My Lord, there is one further matter which is the question of permission to appeal. Obviously, those instructing me will consider your Lordship's judgment with some care, but I do rise at this point to ask your Lordship for permission to appeal on the car parking point. As your Lordship observed yesterday, it is a matter of general application not just specifically on the facts of this case but may have implications in relation to other sorts of similar activities.

[55]MR JUSTICE DAVIS: Why should it matter if the OFT can handle this kind of point, why should it matter? Certainly it is a matter that the CAA has handled in the past. As your Lordship is well aware there are, as it were, determinations on that point in relation to others apart from these claimants. Is there any other ruling you are aware of which corresponds to the ruling which was given in this case in January 2000?

[56]MISS DAVIES: Not that I am aware of my Lord. If you would allow me to take instructions (Pause).

[57]MR JUSTICE DAVIS: Yes. Those instructing me cannot come up with any examples off the top of their heads, as it were. I put it in that way. So far as the importance of the point, it is a matter of some general application. So far as the prospects of success are concerned, again I say that is a point on which the CAA must have a reasonable prospect - It had crossed my mind that if Mr McManus persuaded me that no declaration should be granted, what was it that you could have appealed against?

[58]MISS DAVIES: Indeed my Lord, one certainly appeals against orders. Nonetheless, your Lordship has been persuaded and the declaration-

[59]MR JUSTICE DAVIS: The thought had crossed my mind. There it is.

[60]MISS DAVIES: Your Lordship has my submissions any way.

[61]MR JUSTICE DAVIS: Right. Very well, you say they are realistically arguable points. In the alternative you say there are compelling reasoning. Mr Henderson, what do you say about this?

[62]MR HENDERSON: It is a matter entirely for your Lordship. If your Lordship thought it right, which I would submit you should probably not on the submission to grant leave to appeal, then, I would ask there be leave to cross appeal in relation to the airport point. In our submission this is the end of the matter.

[63]MR JUSTICE DAVIS: I certainly agreed with you on that, Mr Henderson, but I have to ask if there is a realistic prospect of success, do I not?

[64]MR HENDERSON: In relation to the airport my Lord.

MR JUSTICE DAVIS: In relation to-

[66]MISS DAVIS: Exactly, I respectfully suggest there are none.

[67]MR JUSTICE DAVIS: It is a point of statutory construction. Very well, I think, Miss Davies, I refuse you permission to appeal. If you want to take this matter further, I think you better persuade the Court of Appeal that you should.

[68]If an agreed form of declaration can be prepared and if it is acceptable I can deal with it on the papers.

[69]MR HENDERSON: Liberty to apply?

[70]MR JUSTICE DAVIS: Liberty to apply if you cannot agree the minute of order. That is right. Perhaps my clerk can be notified. I thank both sides for their very good preparation of this case.