Local authorities, the Mayor of London and environmental campaigners have won an appeal over the proposed expansion of Heathrow Airport by the addition of a third runway under the Airports National Policy Statement (ANPS).
In Plan B Earth v Secretary of State for Transport  EWCA Civ 214 (Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave) the appellants sought to challenge the planning aspects of the ANPS and its process.
In a summary of its ruling the Court of Appeal stressed that it was required – “and only required” – to determine whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully. It said its decision was not concerned with the merits of expanding Heathrow by adding a third runway, or of any alternative project, or of doing nothing at all to increase the United Kingdom’s aviation capacity. Those matters were the Government’s responsibility.
The judges said that to a substantial extent, they agreed with the analysis and conclusions of the Divisional Court, which had dismissed the councils and environmental campaigners’ legal challenge.
“Like the Divisional Court, we have concluded that the challenges to the ANPS must fail on the issues relating to the operation of the Habitats Directive, and also on all but one of the issues concerning the operation of the Strategic Environmental Assessment Directive,” they said.
“However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS ‘must ... include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change’.”
The Court of Appeal concluded, in particular, that the designation of the ANPS in June 2018 was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change.
The judges said: “We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not."
That, they said, was legally fatal to the ANPS in its present form.
The Court said it was necessary to grant a suitable remedy at this stage “to ensure, at least, that the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement”.
The judges said they had concluded that the appropriate remedy was a declaration, the effect of which would be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State had undertaken a review of it in accordance with the relevant statutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008.
Any such review would have to be conducted in accordance with the judgment of the Court. The initiation, scope and timescale of any review must and will be a matter for the Secretary of State to decide.
The Court of Appeal said: “Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake.
“The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed.”
The Court of Appeal added that the Government, having seen the judgment in draft, had not opposed the grant of a remedy. Nor had the Government sought permission to appeal from the decision to the Supreme Court.
The councils involved in the appeal were Hillingdon, Wandsworth, Richmond, Hammersmith & Fulham, and Windsor & Maidenhead.
The judges also rejected a separate appeal brought by Heathrow Hub Ltd. and Runway Innovations Ltd., who proposed extending the northern runway at Heathrow.
The judges concluded that the arguments put forward by the appellants on legitimate expectation, the materiality of the absence of any assurance from Heathrow Airport Ltd. to implement Heathrow Hub’s scheme for an extended northern runway, and various grounds concerning the law of competition must all fail.