Town and country planning – Planning policy – Airport – Appellants applying for judicial review of respondent secretary of state’s Airports National Policy Statement designating third runway at Heathrow as preferred scheme for meeting need for increased airport capacity in south-east England – Whether respondent acting in breach of Habitats Directive – Whether respondent acting in breach of Strategic Environmental Assessment Directive – Whether respondent applying legislative provisions relating to government’s policy and commitments on climate change – Appeals allowed
Heathrow was the busiest two-runway airport in the world, full to capacity with further, unfulfilled demand. The Airports Commission was established to examine the scale and timing of any requirement for additional capacity to maintain the UK’s position as Europe’s most important aviation hub.
The respondent secretary of state designated the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (ANPS) a national policy statement, 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).
The appellants sought to challenge that designation decision by way of judicial review. The appellants included an individual who appeared in person, seven appellants including the London Borough of Hillingdon, in which Heathrow was situated, and four adjacent London Boroughs, the Mayor of London and non-governmental organisations concerned with the environment and climate change. The claims were linked and were heard together.
The appellants made contentions based on issues of climate change, air quality, surface access, noise and wildlife habitats. Amongst other things, they contended that the respondent had breached EC Council Directive 2001/42/EC on the assessment of the effect of certain plans and programmes on the environment (the SEA Directive) by failing to consider the Paris Agreement on climate change. The respondent argued that the correct approach when designating the ANPS was to consider existing domestic legal obligations under the Climate Change Act 2008 and government policy commitments; the Paris Agreement was not relevant. The applications were dismissed: [2019] EWHC 1070 (Admin); [2019] PLSCS 82. The appellants appealed.
Held: The appeals were allowed
(1) It was not the task of the court to decide whether and how Heathrow should be expanded. That was ultimately a political question for the government. Rather, the appellate court was required to consider only whether the Divisional Court was wrong to conclude that the government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. That was an entirely legal question.
(2) To a substantial extent, the court agreed with the analysis and conclusions of the Divisional Court. The challenges to the ANPS failed on the issues relating to the operation of EC Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive); and also on all but one of the issues concerning the operation of EC Council Directive 2001/42/EC on the assessment of the effect of certain plans and programmes on the environment (the SEA Directive).
(3) However, the appellants’ challenges succeeded in relation to the legislative provisions relating to the government’s policy and commitments on climate change, in particular section 5(8) of the Planning Act 2008, which required that the reasons for the policy set out in the ANPS had to include an explanation of how the policy set out in the statement took account of government policy relating to the mitigation of, and adaptation to, climate change. In the present case, the statutory regime for the formulation of government policy in a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with.
In December 2015, the Paris Agreement on climate change had been concluded; it was ratified by the UK in November 2016. The words ‘government policy’ were not limited to mean only the legal requirements of the Climate Change Act. The words of that Act did not require the respondent to act in accordance with any particular policy; they had required him to take that policy into account and explain how it had been taken into account. The government’s commitment to the Paris Agreement was clearly part of “government policy” by the time of the designation of the ANPS. It ought to have been taken into account by the respondent in the preparation of the ANPS, but was not. That meant, in effect, that the government when it published the ANPS had not taken into account its own firm policy commitments on climate change under the Paris Agreement. That was legally fatal to the ANPS in its present form.
(4) The appropriate form of relief was a declaration, the effect of which would be to declare the designation decision unlawful and prevent the ANPS from having any legal effect unless and until the respondent had undertaken a review in accordance with the statutory provisions, including sections 6, 7 and 9 of the Planning Act 2008. In the particular circumstances of this case, given the conclusions on the issues of the SEA Directive and the Habitats Directive, it was neither necessary nor appropriate to quash the ANPS at this stage. Nor was it appropriate to make a mandatory order requiring the respondent to undertake a section 6 review, bearing in mind that the respondent had a discretion under section 6(1) to decide to undertake a review whenever he thought it appropriate to do so.
The appellant in the first action appeared in person; David Wolfe QC, Andrew Parkinson and Peter Lockley (instructed by Leigh Day) appeared for the appellant in the second action; Nigel Pleming QC, Catherine Dobson and Stephanie David (instructed by Harrison Grant) appeared for the first to sixth appellants in the third action; Ben Jaffey QC, Catherine Dobson, Flora Robertson and Stephanie David (instructed by Transport for London Legal) appeared for the seventh appellant in the third action; James Maurici QC, David Blundell, Andrew Byass and Heather Sargent (instructed by Government Legal Department) appeared for the respondent secretary of state; Michael Humphries QC and Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) appeared for the interested party (Heathrow Hub Ltd); Charles Banner QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the interested party (Arora Holdings Ltd); Helen Mountfield QC and Raj Desai (instructed by WWF-UK) appeared for the intervener; No other party appeared or was represented.
Eileen O’Grady, barrister
