Town and country planning – Planning policy – Airport – Respondent objectors applying for judicial review of secretary of state’s Airports National Policy Statement (ANPS) designating third runway at Heathrow airport – Divisional Court dismissing respondents’ claims – Court of Appeal holding secretary of state acted unlawfully in failing to take Paris Agreement into account when designating ANPS – Appellant airport owner appealing – Whether ANPS lawful – Appeal allowed
Heathrow was the busiest two-runway airport in the world, full to capacity with further, unfulfilled demand. The secretary of state designated the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (ANPS) under section 5 of the Planning Act 2008. The ANPS set out the government’s policy on the need for new airport capacity, and its preferred location and scheme to meet that need, namely a third runway at Heathrow (the NWR scheme). Any future application for development consent to build the runway would be considered against the policy framework in the ANPS. The ANPS did not grant development consent in its own right.
The respondent objectors to the NWR scheme sought to challenge that designation decision by way of judicial review on a number of grounds. The Divisional Court dismissed all of the objectors’ various claims in two separate judgments: [2019] EWHC 1070; [2019] PLSCS 82.
The Court of Appeal upheld the main parts of those judgments but allowed some of the grounds. It held the secretary of state had acted unlawfully in failing to take the Paris Agreement under the United Nations Framework Convention on Climate Change (the Paris Agreement) into account when designating the ANPS. Accordingly, the ANPS was of no legal effect: [2020] EWCA Civ 214; [2020] EGLR 16.
The secretary of state did not appeal that decision. However, the appellant company which owned Heathrow Airport was a party to the proceedings and was granted permission to appeal to the Supreme Court. It stated that it had already invested a large sum of money in promoting the NWR scheme and wished to apply for development consent to carry the project through.
Held: The appeal was allowed.
(1) Section 5(7) and (8) of the Planning Act 2008 provided that a national policy statement (NPS) had to give reasons for the policy set out in the statement and that the reasons had to explain how the policy in the statement took account of government policy relating to the mitigation of, and adaptation to, climate change.
The principal question for determination was the meaning of “government policy” in section 5(8) which pointed towards a policy which had been cleared by the relevant departments on a government-wide basis. The phrase needed to be given a relatively narrow meaning so that the policies could readily be identified. Parliament could not have intended to create a bear trap for ministers by requiring them to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy relating to the relevant field.
The epitome of “government policy” was a formal written statement of established policy. The criteria for a policy to which the doctrine of legitimate expectations could be applied would be the absolute minimum required to be satisfied for a statement to constitute policy for the purposes of section 5(8): A statement qualified as policy only if it was clear, unambiguous and devoid of relevant qualification: Inland Revenue Commissioners v MFK Underwriting Agents Ltd [1990] 1 WLR 1545 applied.
In the present case, when the secretary of state designated the ANPS, the government’s approach on how to adapt its domestic policies to contribute to the global goals of the Paris Agreement was still in a process of development. There was no established policy beyond that already encapsulated in the Climate Change Act 2008.
(2) Section 10(2) and (3) of the Planning Act 2008 required the secretary of state to designate national policy frameworks with the aim of contributing to the achievement of sustainable development which involved “meeting the needs of the present without compromising the ability of future generations to meet their own needs”. It had three overarching elements, namely an environmental objective, an economic objective and a social objective. Section 10(3)(a) provided that the secretary of state had to have regard to the desirability of “mitigating, and adapting to, climate change”. Unlike in section 5(8), that was not a factor tied to Government policy.
There were three categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard had to be had; (ii) those clearly identified by the statute as considerations to which regard had not to be had; and (iii) those to which the decision-maker might have regard if in his judgment and discretion he thought it right to do so. There was a margin of appreciation within which the decision-maker might decide what considerations should play a part in his reasoning process. The test whether a consideration falling within the third category was “so obviously material” that it had to be taken into account was the Wednesbury irrationality test: R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 and R (on the application of Hurst) v Northern District of London Coroner [2007] 2 AC 189 applied.
On the evidence, the secretary of state had asked the question whether he should take into account the Paris Agreement beyond the extent to which it was already reflected in the obligations under the Climate Change Act 2008 and had concluded, in the exercise of his discretion, that it would not be appropriate to do so.
(3) Section 5(3) of the Planning Act 2008 required the secretary of state to produce an appraisal of sustainability in respect of frameworks such as the ANPS. Council Directive 2001/42/EC (the SEA Directive) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004, required the secretary of state to produce an environmental report in respect of major plans and proposals such as the ANPS.
On the facts, the secretary of state had not acted in breach of any of his obligations under the SEA Directive in drafting the relevant environmental report in respect of the ANPS, and in omitting to include any distinct reference in it to the Paris Agreement.
(4) The secretary of state had not acted irrationally in not attempting in the ANPS to assess post-2050 emissions against policies which had yet to be determined. Furthermore, it was not reasonably arguable that the secretary of state had acted irrationally in not addressing the effect of the non-CO₂ emissions in the ANPS. The designation of the ANPS had only been the first stage in a process by which permission could be given for the NWR scheme to proceed and the secretary of state had powers at the development consent order stage to address those emissions. It had been clear that an applicant would have to address the environmental rules and policies which were current when its application was determined.
Lord Anderson QC, Michael Humphries QC, Richard Turney and Malcolm Birdling (instructed by Bryan Cave Leighton Paisner LLP) appeared for the appellant; David Wolfe QC, Peter Lockley and Andrew Parkinson (instructed by Leigh Day) appeared for the first respondent; The second respondent appeared by its representative.
Eileen O’Grady, barrister
