John Steel QC and James Potts for the Claimant

Gordon Nardell QC and Cleon Catsambis for the Defendant

Barristers from 39 Essex Chambers appeared on both sides of a hearing for permission to apply for judicial review concerning the Civil Aviation Authority’s (“CAA”) duty to ensure consultation before certain airspace changes are implemented.

Background

Under the previous operational procedures in force at Gatwick Airport, inbound aircraft had to be both ‘established’ on final approach and ‘stabilised’ by 7 nautical miles from touchdown. In late 2012 the air navigation services provider at Gatwick Airport, NATS En-Route Limited (“NERL”), trialled a change to operational procedures altering the point at which approaching aircraft establish on final approach from 7 nautical miles to 10 nautical miles. The change was intended to minimise the potential for rushed and unstable approaches by giving pilots and air traffic control operators additional time to meet the requirements of stabilisation (as to speed, configuration, sink rate, checklists, etc.). Objectors noted that it would increase the number of landing and take-offs.

The results of the trial were claimed to indicate a significant improvement in predictability and consistency on final approach, although this continues to be the subject of dispute. In light of these findings, and after a further longer trial, NERL made the change to the establishing point permanent. The trial was not advertised and no consultation was conducted except of airlines.

Where a change to a ‘notified’ airspace feature is proposed (including changes to the classification of airspace or its boundaries and changes to mandatory routes and procedures such as standard instrument departure routes and standard arrival routes), the CAA operates a seven-stage ‘Airspace Change Process’, from development of a proposal and consultation through to approval, notification in the official publications, implementation and subsequent operational review. Although the CAA was at all times kept informed of developments at Gatwick Airport, it determined that the Airspace Change Process was not engaged as such alterations were entirely within NERL’s discretion.

The claim

Mr Martin Barraud, a resident of Penshurst in Kent and Chair of the action group ‘Gatwick Obviously Not’, complained that the alterations resulted in a concentration of noise from overflying aircraft into a narrower ‘swathe’ than previously. This affected significant numbers of residents living in the area to the north-west and west of Tunbridge Wells. He sought permission for judicial review, contending that the CAA should have ensured consultation about these alterations.

Mr Barraud relied primarily on paragraph 9 of the Civil Aviation Authority (Air Navigation) Directions 2001 (as amended) (“the 2001 Directions”), which provides, so far as material:

Where changes to the design or to the provision of airspace arrangements, or to the use made of them, are proposed, including changes to air traffic control procedures…the CAA shall:

(b) where such changes might have a significant effect on the level or distribution of noise and emissions in the vicinity of a civil aerodrome, ensure that…any local authority in the neighbourhood of the aerodrome and any other organisation representing the interests of persons in the locality, have been consulted

And where such changes might have one or more of the effects specified in paragraphs 9 (a), (b) and (c) of this Direction, the Civil Aviation Authority shall refrain from promulgating the change without first securing the approval of the Secretary of State.”

[emphasis added]

Mr Barraud contended that the changes to vectoring practices by NERL fell within the ambit of paragraph 9 of the 2001 Directions and, accordingly, the CAA came under a duty to “ensure” consultation with, among others, organisations representing the interests of persons affected in the locality, and to “refrain from promulgating” the change without first securing the agreement of the Secretary of State. The CAA’s failure to ensure consultation was therefore unlawful.

By contrast, the CAA contended that, on a proper construction, the reference in paragraph 9 to “changes to…airspace arrangements” is to changes by the CAA to ‘notified’ airspace features, which the CAA has the power to approve or decline. It did not include changes to vectoring practices by NERL within existing CAA mandated airspace arrangements. So long as changes to vectoring practices by NERL were compliant with notified airspace features, the CAA had no approval function under the relevant legislation.

NERL, as an interested party, supported the position of the CAA.

The decision

The Administrative Court, of its own motion, took the unusual step of proceeding directly to an oral permission hearing. The hearing took place before Haddon-Cave J on 1 July 2015. John Steel QC and James Potts appeared for Mr Barraud, Gordon Nardell QC and Cleon Catsambis appeared for the CAA and Javan Herberg QC and Hanif Mussa appeared for NERL.

Haddon-Cave J agreed with the CAA’s submissions and held that Mr Barraud’s challenge was unarguable. He refused permission to bring judicial review proceedings. In particular, the judge held that Mr Barraud’s construction was “clearly wrong” for three reasons:

  • First, it was contrary to the express language of paragraph 9;
  • Second, it was contrary to the architecture of the legislation; and
  • Third, it was unworkable.

As to the first reason, the judge stated that the wording in paragraph 9 presupposes that the changes being referred to are ones which the air navigation services provider (“ANSP”): (a) required the prior approval from the CAA to make in the first place; and (b) needed promulgating by the CAA. He went on to say that “[i]t is axiomatic under the aviation legislative framework that an ANSP may change its practices within notified parameters without first seeking CAA approval. So long as changes to the use of airspace arrangements by an ANSP remain compliant with [notified features], the CAA has no regulatory role to play by way of approval and or promulgation.”

As to the second reason, the judge stated that Mr Barraud’s approach “runs counter to the architecture of UK airspace legislative arrangements and the respective roles of the CAA and ANSP. In simple terms, the CAA has the overall strategic and regulatory control of UK airspace, whereas ANSP such as NERL have the tactical responsibility as to the day-to-day use of such airspace and airspace arrangements.”

As to the third reason, the judge stated that “[i]t would be absurd and impractical if CAA approval was required for every change to vectoring practices.

The judge also rejected the argument that the CAA’s approach was Wednesbury unreasonable.

In a postscript to the judgment, the judge noted that the Secretary of State has a general power to give directions as he thinks necessary or expedient in relation to matters concerned with environmental impact (see s.39 of the Transport Act 2000). He concluded: “Whether there is a case for doing so in relation to what some might…regard as ‘seismic’ changes in vectoring practices is, however, a matter for the Secretary of State, not the Courts.”

Mr Barraud has applied to the Court of Appeal for permission to appeal and a decision is awaited.

Conclusion

In refusing permission to apply for judicial review, Haddon-Cave J has endorsed the current practice of the CAA – which is to only apply the Airspace Change Process where the change in question is to a ‘notified’ feature – and has clarified the respective remits of the CAA and ANSPs.

The CAA is responsible for ensuring that any proposed change to the existing notified airspace structure meets regulatory requirements in respect of safety, consultation, environmental and operational factors

Provided ANSPs operate within the notified parameters and no safety considerations arise, the CAA has no power to intervene in respect of changes to vectoring practices, however great their environmental impact. However, as Haddon-Cave J noted, the Secretary of State has a general power to give directions in appropriate cases, which could be a route to imposing a duty on ANSPs to consult before introducing prescribed kinds of changes of practice.