This is entry number 118, first published on 26 March 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

Today’s entry reports on the court decision on the challenge to the government's position on a third runway at Heathrow airport.

On 15 January 2009, the then Secretary of State for Transport, Geoff Hoon MP, made a statement to the House of Commons, that amongst other things confirmed the government's support for a third runway at Heathrow. A document was published at the same time confirming this: Adding capacity at Heathrow airport: Decisions following consultation.

This was challenged by a large consortium of local authorities and pressure groups (if you really want to know, they were the London Boroughs of Hillingdon, Hounslow, Richmond-upon-Thames, Wandsworth, Hammersmith & Fulham, the Royal Borough of Windsor & Maidenhead, Greenpeace Ltd, WWF-UK, NoTRAG, HACAN ClearSkies and the CPRE). Transport for London was also an interested party. The claimants applied for the statement to be quashed back in April last year. After an initial refusal of permission in July, the case was heard by Lord Justice Carnwath last month and the decision was issued today. The Planning Act 2008 features heavily in the judgement.

The claimants alleged that the statement should not have been made for three reasons: it was the conclusion of a consultation but was fundamentally different from the matters consulted upon, it failed to take into account several material considerations and inadquate reasoning was given. The claimants were worried that BAA, owners of Heathrow, would put in an application for a third runway given this fair (but flawed) wind and before the Airports National Policy Statement (NPS) is published (due early next year), although BAA has said it will wait until the Airports NPS.

The judgement is somewhat impenetrable, to be honest, although the media is portraying it as a victory for the claimants. The judge says that he cannot 'wholly support the position taken by either party' (paragraph 64).

Essentially he says that whatever the circumstances of the announcement on 15 January 2009, there will be a full legislative process of consultation and Parliamentary scrutiny on the Airports NPS, which will make anything that happened before that largely irrelevant (as long as no applications are made in the meantime, presumably).

He does not reach a conclusion on remedies, but suggests that the government be required to undertake that it will not use the Planning Act to declare that any previous policy document on airports will be used as all or part of the forthcoming Airports NPS, which it can do under section 12(1), just to make sure that there will be a full NPS process. He should also get it to undertake that it won't use section 12(5) either, which could avoid full consultation being carried out.

Dare I say it, but I think the judgement misunderstands the NPS process and potentially comes to an incorrect conclusion as a result. Regular readers of this blog will be well used to my contention that consultation on NPSs is not consultation on policy, but only on the way it is presented, yet the judgement seems to get this wrong at paragraph 97. If the NPS process is not in the business of reopening any debates on policy, this means that policy is more settled than Carnwath LJ says it is, which makes his judgement less favourable to the claimants than perhaps it should be.

Whether that is right or not, this judgement contains a couple of firsts: the judicial review of a statement made in Parliament (unless anyone can come up with another example), and reference to a section of the Planning Act 2008 in a decision. This case also adds to the growing body of consultation law that it will be essential to be aware of when promoting an application under the Planning Act