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Airports judicial review struck out

The High Court (Cranston J.) today granted an application made by the Secretary of State for Transport to strike out, under CPR 3.4(2)(a), a judicial review claim brought by the London Boroughs of Hillingdon, Wandsworth and Richmond, the Royal Borough of Windsor and Maidenhead and Greenpeace. The judicial review sought to challenge on the decision of the Secretary of State on 25 October 2016 to select for inclusion in a draft National Policy Statement the Heathrow North West Runway scheme. The judicial review raises grounds based on: (i) air quality; and (ii) breach of legitimate expectation.

The Secretary of State contended that the claim is one the Court has no jurisdiction to hear at this time because of the preclusive provision in s. 13 of the Planning Act 2008. S. 13(1) of the 2008 Act provides:

“13 Legal challenges relating to national policy statements

(1) A court may entertain proceedings for questioning a national policy statement or anything done, or omitted to be done, by the Secretary of State in the course of preparing such a statement only if –

(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed [before the end of] the period of 6 weeks beginning with [the day after]  —

(i) the day on which the statement is designated as a national policy statement for the purposes of this Act, or

(ii) (if later) the day on which the statement is published.”

The Secretary of State argued:

  1. The effect of s. 13 was to limit any legal challenge to either the NPS or “anything done, or omitted to be done, by the Secretary of State in the course of preparing” such an NPS to a 6 week period beginning with the day after designation (or publication if later) and ending 6 weeks thereafter;
  2. The 25 October 2016 announcement by the Secretary of State, the subject of the judicial review proceedings, was something done, or omitted to be done, by the Secretary of State in the course of preparing an NPS.

The Judge concluded “I have reached the clear conclusion that under section 13 of the 2008 Act the court has no jurisdiction to hear the claim.  That follows from the language of the section, the legislative purpose and the overall statutory context and history.  Once the Secretary of State adopts and publishes an NPS the court will have jurisdiction to entertain the challenges the claimants advance.  For the present this claim must be struck out”

For a copy of the judgment see here. 

James Maurici QC, David BlundellAndrew Byass and Heather Sargent appeared for the Secretary of State for Transport.