Councils fail in legal challenge over Heathrow Airport expansion

A Divisional Court has dismissed a legal challenge brought by five councils, the Mayor of London and a number of other claimants over the Secretary of State for Transport’s decision to designate the Airports National Policy Statement (“ANPS”), which sets out that the Government’s preferred location for additional airport capacity in the South East of England is a new runway at Heathrow.

The new runway (“the NWR Scheme”) would be situated to the North West of the current two runways at Heathrow.

The case of The Heathrow Third Runway Litigation [2019] EWHC (Admin) 1069 and 1070 (click here for the main judgment and here for the hub judgment) comprised four claims brought by the London Borough of Hillingdon (in which Heathrow is situated) and four adjacent boroughs, the Mayor of London, several non-Government organisations dedicated to environmental causes (notably Greenpeace, Friends of the Earth and Plan B Earth) and one individual claimant (Mr Spurrier).

These claims concerned climate change, air quality, surface access, noise and habitats.

A fifth claim – relating to legitimate expectation and anti-competition – was brought by the promoters of a rival Heathrow scheme, which would double the length of the existing northern runway to allow it to operate as two independent runways (“the ENR Scheme”).

The four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.

None of the claimants argued before the court that increasing airport capacity was unlawful. The court was solely concerned with whether the Secretary of State’s designation of the NWR Scheme, including the process which led to the designation, was flawed by any legal error. All of the claims were dismissed.

The councils involved have said they were “disappointed” in the court’s failure to quash the ANPS, saying it “could bring long-term damage to the health of millions of Londoners”.

They also warned that large areas of London and the Home Counties would be affected by noise from the north-west runway.  “For many London boroughs it means a substantial increase in the number of communities affected.”

“The court has refused all the applications for judicial review of the ANPS essentially because it has decided that at this policy stage the decision to support a third runway at Heathrow needs only meet a low level of judicial scrutiny,” the councils said.

“There will be another stage where the damage caused to life and health and the environment by a third runway and its associated traffic (damage causing air pollution, noise pollution and contributing to climate change) will be more closely scrutinised. Objections to runway three must be heard then and any decision to approve it will be open to challenge through the courts.” 

Cllr Ravi Govindia, Leader of Wandsworth Council, said: “Today’s ruling is hugely disappointing for Londoners. It shows that the Government can drive through expansion plans without properly considering the full environmental and health impacts. But it does not mean the runway will ever be built. It still faces enormous legal obstacles particularly around air pollution.” 

The councils have pledged to maintain detailed scrutiny of all aspects of the airport’s planning application for the runway (Development Consent Order). “This will include the detail of how the airport intends to meet its obligations in key areas such as noise, air quality and surface access. This detail will be subject to examination at the public inquiry stage with potential for further challenge in the courts.”