The Secretary of State for Transport designated the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” on 26 June 2018. It provides national policy support for Heathrow Airport Limited's ("HAL") North West Runway ("NWR") scheme.
Heathrow Hub Ltd and its sister company Runway Innovations Ltd ("HHL") promoted an extension to the Northern Runway (ENR).
HHL are seeking permission for Judicial Review on five grounds:
1. The Secretary of State acted unlawfully in making it an effective precondition of selecting the Heathrow Hub’s ENR scheme that the Heathrow Airport guarantee that it would implement the scheme. This effectively gave the HAL, which was a competitor to the ENR Scheme, a veto over the Heathrow Hub’s proposal. It was unlawful for the Secretary of State, under Article 106 TFEU, read in conjunction with Article 102 TFEU, to impose such a requirement or condition;
2. In rejecting the Heathrow Hub’s proposal for the ENR scheme, the Secretary of State acted in breach of the Heathrow Hub’s legitimate expectation that the Secretary of State would not reject the ENR scheme relying (solely or in part) on the HAL's failure to give a guarantee that it would implement the ENR scheme if the Secretary of State found it to be the most suitable scheme;
3. In accepting HAL's scheme and rejecting the ENR scheme, the Secretary of State had regard to an immaterial consideration, namely his factually incorrect assumption that the NWR scheme provided greater capacity for air traffic movements (“ATMs”) and more respite (pauses for local residents from noise exposure), and/or failed to have regard to a material consideration, namely the evidence which demonstrated that the ENR scheme provided for at least the same capacity in terms of ATMs as the NWR scheme and that the NWR scheme could not in practice deliver the levels of respite attributed to it;
4. The Secretary of State failed to provide any or any adequate and/or intelligible reasons for its assertion in the Airports NPS that the NWR scheme provided greater capacity for ATMs and more respite than the ENR scheme;
5. In basing his decision to reject the ENR scheme partly on concerns relating to its safety and the implications of this for deliverability, the Secretary of State acted unfairly in that he failed to provide any or any intelligible details or explanation of what the safety concerns were or what those concerns were based upon. He also acted contrary to the Heathrow Hub’s legitimate expectation that he would, before relying on a particular matter for rejecting their scheme, bring that matter to their attention and give them a reasonable opportunity to respond.
Heathrow Hub’s legal advisers are DAC Beachcroft LLP, Martin Kingston QC and Satnam Choongh of No 5 Chambers as well as Robert O’Donoghue QC and Emma Mockford of Brick Court Chambers
Willie Walsh, chief executive of airline group IAG, said he was not convinced HAL was well incentivised to manage the expansion well: “Heathrow is a quasi-monopoly that games the economic regulation environment to raise the charges that they can levy and has done well in the past to convince the regulator to reward them by spending more money.