Heathrow Airport expansion and climate change policy

The Court of Appeal has declared the Heathrow expansion decision unlawful on climate change grounds. David Hart QC explains why.

Airport expansion has taken a long and winding road, not least at Heathrow. But the proponents of the 3rd runway at Heathrow would have been heartened by the Secretary of State’s decision in June 2018 to set out a policy which preferred Heathrow over Gatwick and which was designed to steer planning processes thereafter in support of the new runway.

It is this decision which has just been declared unlawful by the Court of Appeal in Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214.

I am afraid this is where the planning jargon starts and the acronyms proliferate. The challenged decision was an Airports National Policy Statement (ANPS). Under planning legislation, an ANPS “sets the fundamental framework within which further decisions will be taken,” as the CA put it in [275]. Those further decisions include the grant of permission for the particular project, done through the Development Consent Order (DCO) process. But you cannot challenge that fundamental framework later in the DCO process; you cannot say later, for instance, that expansion is not necessary at all, or there is a better alternative, say, Gatwick, if the ANPS has decided otherwise.

The challenges which failed

There were various challenges to the ANPS on the basis that it foreclosed various issues, under the Habitats Directive and the Strategic Environmental Assessment Directive, from later consideration, but the CA rejected all these contentions.

Paragraphs [66]-[183] of the judgment are important for those who want to know how such challenges are brought, but, in a sentence, the CA adopted a traditional and non-intrusive approach to governmental decision-making under those directives. Despite the EU origin of the provisions, and whatever the precise question, the test was the classic Wednesbury test of irrationality. This has been reasonably settled law at CA level (though arguably not in the CJEU), but it might be up for grabs in the Supreme Court.

The successful climate change challenges

The fireworks come later in the judgment. The ANPS was made in 2018, with the run-up to it lasting many years. The Paris Agreement on Climate Change was concluded in December 2015, to which the EU and the UK subscribed. On 17 November 2016, the UK ratified the Paris Agreement. So the climate change and airport expansion processes were occurring in parallel.

The astonishing thing about the Government’s stance in the airport expansion process is that it did not take the Paris Agreement into account when it designated the ANPS.

The CA summarised neatly the Paris Agreement’s main provisions thus:

It enshrines a firm commitment to restricting the increase in the global average temperature to “well below 2°C above pre-industrial levels and [to pursue] efforts to limit the temperature increase to 1.5°C above pre-industrial levels” …, as well as an aspiration to achieve net zero greenhouse gas emissions during the second half of the 21st century – a “balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” )… It requires each state to determine its own contribution to this target… 

The UK has its own domestic climate change legislation, in the Climate Change Act 2008. Enacted on the same day was the Planning Act 2008 which set out the National Policy Statement system, and at the same time it required government in a given NPS (a) to explain how it takes account of its policy on climate change (s.5(8)) and (b) to exercise its NPS functions with regard to the desirability of mitigating and adapting to climate change (s.10).

The CA got to the nub of this issue at [227]. The Secretary of State (Chris Grayling) had received legal advice  

“that not only did he not have to take the Paris Agreement into account but that he was legally obliged not to take it into account at all…. In our view, that was a clear misdirection of law and there was, therefore, a material misdirection of law at an important stage in the process. That misdirection then fed through the rest of the decision-making process and was fatal to the decision to designate the ANPS itself.”

The error was that the government’s commitment to the Paris Agreement by the time of the ANPS was clearly part of government “policy”, within the terms of s.5(8) of the Planning Act. The UK had ratified the Agreement and relevant ministers had endorsed the Agreement in the House of Commons.

The CA therefore rejected the SoS’s submission that taking into account the Paris Agreement involved giving legal status to an international agreement which had not yet been incorporated into domestic law.

The CA also took the view that the failure to take account of the Paris Agreement was a failure to have regard to a material consideration under s.10(3) of the Planning Act.

An ambitious argument was put up by Heathrow (but not by the SoS) on remedy that the outcome would not have been substantially different, had the Paris Agreement been taken account of. Part of this asserted that climate change issues could be taken account of later in the process, at the DCO stage. This elicited a firm slap-down on principle from the CA at [275]

it is incumbent on the Government to approach the decision-making process in accordance with the law at each stage, not only in any current review of the ANPS or at a future development consent stage. The stages of the decision-making process are inter-dependent.

And, more so, at [276]: the SoS’s error was a “basic defect” and “a fundamentally wrong turn in the whole process”.

The CA granted a declaration that the ANPS should not have legal effect unless and until the SoS had reviewed the ANPS against the background of what the CA had decided its obligations were.

Conclusion

Runway 3 at Heathrow has not been stymied by this decision: CA at [285]. At worst for those who oppose, it may have been delayed, due to an extraordinary decision somewhere in government in 2018.

The CA is firmly not saying that the Paris Agreement required the SoS to reach any particular decision on the proposal; indeed [238] suggests that the SoS was not required to act in accordance with it. But what the SoS could not do is to airbrush it out of his considerations.

David Hart QC is a barrister at 1 Crown Office Row. He can be contacted by email.

This article first appeared on the set’s UK Human Rights Blog.