In one of the last planning decisions of 2020, the Supreme Court handed down its judgment in R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52; [2020] PLSCS 227. The case received significant coverage, but what does it mean in practice?
1. Who won and who lost?
Heathrow Airport Ltd won the judicial review challenge brought by Friends of the Earth against the government’s support for a third runway at Heathrow.
The Supreme Court overturned the Court of Appeal’s earlier ruling that former transport secretary Chris Grayling failed to take into account the UK’s commitments to tackling climate change in the Paris Agreement when ratifying the Airports National Policy Statement (ANPS). This judgment means that Heathrow Airport Ltd will now be able to proceed with its application for development consent for a third runway.
2. Why is the ANPS so important?
The ANPS sets out the national policy which governs the construction of a third runway at Heathrow. It is significant because any application for development consent for the runway will be considered against this policy.
It was designated as national policy in June 2018. At that time, the Climate Change Act 2008 had set a target of an 80% reduction in 1990 greenhouse gas levels by 2050. The government had also committed to the Paris Agreement.
3. What did the Paris Agreement do?
The Paris Agreement enshrined a stronger international commitment to mitigating climate change and a clear aspiration of achieving net-zero greenhouse gas emissions from 2050.
4. What was the court case about?
The judicial review claim against the ANPS was pursued by the mayor of London, five local authorities and several environmental groups. Objectors to the third runway challenged the lawfulness of the secretary of state’s designation of the ANPS on the basis that it did not take into account the government’s commitment to achieving net zero under the Paris Agreement.
5. Didn’t the High Court dismiss the challenge?
Yes, it did, in two separate judgments, but the claimants appealed and the case went to the Court of Appeal on the climate change ground. The Court of Appeal gave its judgment in February 2020. It said that the ANPS should have taken the government’s commitment to the Paris Agreement into account, not just the government’s targets under the 2008 Act. The Court of Appeal held that the ANPS was unlawful and of no legal effect.
6. Who appealed that decision?
It wasn’t the secretary of state who appealed the Court of Appeal decision, but the promoter, Heathrow Airport Ltd. It argued that the secretary of state did take the Paris Agreement into account and had not acted irrationally.
7. What did the Supreme Court decide?
It was satisfied that the secretary of state acted rationally and in compliance with his legal obligations. The secretary of state’s report accompanying the ANPS referenced the UK’s obligations under domestic and international law, and the court said he did not need to go into more detail. The court unanimously concluded that the ANPS was lawful.
8. Does this mean take-off for the Heathrow project?
Not quite… When the Supreme Court judgment came out last month, many thought that the path was now clear for Heathrow to apply for the development consent order (DCO) to construct and operate the third runway. However, it now looks as though there may be other legal hurdles to overcome.
9. What are the further obstacles?
Between the Supreme Court hearing and its judgment, the government announced its commitment to meeting enhanced net-zero emissions targets, including a 68% net reduction in emissions by 2030. The DCO decision-makers will have to take the current climate change targets into account when reaching their decision.
Another issue is that a new judicial review challenge to the ANPS has been threatened. The Good Law Project has urged the transport minister to review the ANPS to bring it into line with the UK’s new greenhouse gas emissions reduction pledges for 2030 and 2050. It has warned that a judicial review challenge will be brought if the government refuses to suspend and review the ANPS. The government has until 18 January to respond. There is still uncertainty as to whether campaigners will take the issue to the European Court of Human Rights. We may have left the EU, but this is still potentially a route for objectors.
10. Does the judgment mean a smoother landing for other infrastructure projects?
Although Heathrow Airport Ltd ultimately succeeded, this judgment is unlikely to dissuade campaigners from finding fruitful grounds for legal challenge against other major infrastructure projects because of the inherent tensions arising from the national need for major infrastructure and the impact on the environment.
The third runway saga has been extremely controversial, and thrust the impact of major infrastructure projects on climate change into the spotlight. The government will need to work to ensure new national policy statements tick all the necessary legal boxes, particularly those relating to the increasingly important issue of climate change.
Kathryn Hampton is a senior expertise lawyer and Claire Dutch is co-head of planning at Ashurst LLP
