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Court rejects challenges to Heathrow expansion

Airport travel 3160566 640Charles Streeten, barrister at Francis Taylor Building, explains how the court came to reject the claims for judicial review of the Heathrow runway expansion in R (on the application of Spurrier) v Secretary of State for Transport and other cases.

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R (on the application of Spurrier) v Secretary of State for Transport and other cases [2019] EWHC 1070 (Admin)[2019] All ER (D) 11 (May)

What was the basis for the challenge?

The case of R (on the application of Spurrier) v Secretary of State for Transport and other cases concerned the Secretary of State for Transport’s decision to adopt a national policy statement (NPS) under section 5 of the Planning Act 2008 (PA 2008) (which concerns nationally significant infrastructure), setting out its policy on the need for new airport capacity in the South East of England, to be met through a third runway at Heathrow.

Claims for judicial review were brought by seven different claimants, including local authorities, the Mayor of London, Friends of the Earth, Plan B Earth and Mr Spurrier.

In broad terms the grounds fell under the following heads:

rationality—challenges were brought relating to:

the impact that the proposed third runway would have on matters relating to surface access to Heathrow for passengers, staff and freight

the impact that the proposed third runway would have on air quality, with reference to the binding limit values set by the Ambient Air Quality Directive 2008/50/EC

habitats—the claimants argued that the Secretary of State’s decision that the Gatwick scheme was not an alternative solution to the third runway at Heathrow was a breach of EU law under the Habitats Directive 92/43/EC

strategic environmental assessment (SEA)—it was argued that the environmental report failed to comply with the mandatory requirements of the SEA Directive 2001/42/EC

predetermination/apparent bias—some of the claimants alleged that the Secretary of State had failed to consult on the NPS with an open mind and in an unbiased manner

climate change—one of the grounds alleged that the Secretary of State had failed to properly take into account the Paris Agreement on climate change or the requirements of the Climate Change Act 2008 (CCA 2008)

What did the court find?

The judgment given by the Divisional Court traverses a broad and diverse range of legal territory. The claims for judicial review failed on all grounds.

Standard of review

This is the standard of review the court should apply when considering the claimants’ rationality challenges. The factors relevant to determining what standard of review should apply to a judicial review based on Wednesbury unreasonableness are:

the nature of the decision under challenge

the nature of any right or interest the claim for judicial review seeks to protect

the process by which the decision under challenge was reached

the nature of the ground of challenge

Applying those factors, the court accepted that the environmental effects of the expansion of Heathrow are health effects affecting the daily lives of huge numbers of people and are, therefore, matters of great public importance. However, it pointed to the countervailing importance of the arguments in favour of a runway expansion and concluded that the judgment at the heart of this claim was a high, strategic level political judgment. Ultimately, the court considered that the difficulty of challenging a specialist planning judgment applies to irrationality challenges to an NPS (Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin)), [2001] All ER (D) 19 (Feb).

Compliance with the SEA Directive

Specifically, the court considered what it described as ‘the Blewett approach’ (R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin)[2003] All ER (D) 332 (Nov)). In Blewett, the court said that in assessing whether an environmental statement is legally adequate, the test is whether the document is ‘so deficient that it could not reasonably be described as an environmental statement’. The court viewed the Blewett approach as a practical application of conventional Wednesbury principles. The court held that when considering compliance with the Environmental Impact Assessment (EIA) Directive 85/337/EEC or SEA Directive 2001/42/EC, where an authority fails to give any consideration at all to a matter which it is explicitly required by the directive to address, the court may conclude that there has been non-compliance. Otherwise, decisions on the inclusion or non-inclusion in the environmental report of information on a particular subject, or the nature or level of detail of that information, are matters of judgment subject to challenge only on rationality grounds.

The Paris Agreement

The court held, with reference to the established authority in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry sub nom Maclaine Watson and Co Ltd v International Tin Council [1989] Ch 72[1989] 3 All ER 523 that none of the temperature goal obligations to which the UK is a signatory pursuant to the Paris Agreement have effect in domestic law. Interestingly, it also held that the Secretary of State was rationally entitled not to take the objectives of the Paris Agreement into account. That is not, however, to say that international treaties are irrelevant when public authorities determine what course of action to take—what the court held, on the facts of this case, was that the Secretary of State was not under a duty to take the objectives of the Paris Agreement into account when reaching its decision in this case.

What are the next steps in relation to the development consent order?

The next stage is likely to be the promoter, Heathrow Airport Limited, submitting its application for a development consent order (DCO) in accordance with the procedures set down in PA 2008. This provides a streamlined process for the determination of applications for development consent on nationally significant infrastructure projects. Assuming the DCO application is accepted, it will be examined by inspectors who will produce a report and make a recommendation to the Secretary of State who ultimately decides whether the DCO should be made.

What is the government doing to address climate change issues alongside the expansion?

The most important piece of legislation regarding climate change is CCA 2008. This includes a duty on the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline. In order to achieve this target, CCA 2008 requires the government to set carbon budgets for each five-year period (beginning with the period 2008-2012) and to ensure that the net UK carbon account for a budgetary period does not exceed the carbon budget. The carbon budget including the year 2020 must be 34% lower than the 1990 baseline. In regard of these requirements, the Committee on Climate Change (a non-governmental statutory body) advises the government on building a low carbon economy and preparing for climate change. We are likely to see more government action over the next few years.

Interviewed by Stephanie Boyer.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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