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03 May 2019

826: Airports NPS challenges – the result

Today’s entry analyses the judgment of the challenges to the Airports National Policy Statement.

Introduction

On Wednesday, the High Court issued its judgment on the multi-party challenge to the designation of the Airports National Policy Statement endorsing a third runway at Heathrow Airport. The full judgment can be found here, and runs to some 184 pages. The challenge by Heathrow Hub is reported separately here.

In summary, the Government won. 26 barristers, including 10 QCs, were involved in the case, one of the largest judicial reviews of recent years.

There were 32 grounds of challenge, which in the main case were two on surface access, six on air quality, two on habitats, five on Strategic Environmental Assessment (SEA), two on consultation, seven on climate change, two on human rights and one on bias. The Heathrow Hub case was on five grounds and was more about competition law and the choice between the two Heathrow schemes.

This was a ‘rolled-up’ hearing where whether to grant permission to hear the case was considered simultaneously with the hearing. As can be seen at Appendix A (plus the Hub judgment), technically speaking seven of the 32 grounds were given permission, the rest were not. The seven that were given permission were both habitats grounds, two of the SEA grounds, the consultation ground, a legitimate expectation ground relating to Heathrow Airport Ltd being asked to give a guarantee that they would implement the alternative project if it were chosen, and a competition ground.

The details

I have read the judgments so you don’t have to. I summarise the main points of interest (to me, at least) with some commentary in square brackets, in the order to which they appear, giving paragraph numbers should you be interested to read further. Here goes.

If representations about an NPS are made during consideration of a Development Consent Order (DCO) application, it is discretionary that they can be disregarded, not mandatory (93).

Alternatives to a DCO application can be considered during its examination (104).

But not if the NPS has rejected them [so presumably Gatwick and the other Heathrow project can’t be proposed as alternatives during the North West Runway DCO process, but the Arora Heathrow alternative could be] (106).

The Secretary of State (SoS) doesn’t have to give a full rationale for policy in an NPS (119).

The SoS doesn’t have to give a response to consultation in an NPS (120).

There is a lot of consideration of the ‘intensity of review’ (141-184), ie the threshold for a court to intervene in a decision such as this.

Surface access

Staff make up about 37% of the staff plus passenger trips to and from Heathrow airport currently, and use public transport less than passengers (187).

The promised public transport share increases are more or less dependent on the Western Rail Link and Southern Rail Access projects coming forward (214), and if those were late, Heathrow expansion might have to be phased or other transport improvements implemented (273).

The public transport share increases still result in more traffic, but it is open to the SoS to demand a higher share when the DCO comes along (216).

Air quality

On air quality, a particular project can add to pollution but need not be rejected for that reason (237).

There is a high probability of an adverse effect on air quality from the project (249).

The project won’t cause a breach of air quality limits because the NPS says it won’t (para 5.32 of the NPS) (265).

There is no evidence that the project is definitely undeliverable in air quality terms, potential undeliverability is not a ground for the decision to designate the NPS being irrational (268).

Habitats

The NPS doesn’t have to go as far as to set out the Government’s views on habitats, air quality, SEA etc (278).

By aligning the NPS and the habitats regulations assessment in October 2017 the Government did not act in bad faith (317).

A potential alternative (for habitats purposes) is not an alternative if it does not meet core policy objectives [so Gatwick could be ruled out because the SoS considered it would not maintain London’s hub status] (341).

The hub status requirement came from the Airport Commission’s terms of reference in 2012 (354).

It is OK that Gatwick is an alternative for SEA and consultation but not habitats [I’m not sure I agree with that] (359).

SEA

Article 12(2) of the SEA directive is not about standard of individual environmental reports but about them generally (411).

An environmental report under SEA is not stricter than an environmental statement under Environmental Impact Assessment (418).

Leaving things out altogether without consideration is flawed, deciding what to include is not unless ‘Wednesbury’ unreasonable (434).

It is not up to a court to decide if an environmental report is of sufficient quality (438).

Local plans were not ignored in the SEA for the NPS (460) and the use of indicative flight paths was OK (487).

Consultation

On whether the Government’s mind was made up, predetermination (unlawful) is not the same as predisposition (lawful) [ie it is OK to have a preferred option, even a strongly preferred one] (510).

The consultation leaflets did not indicate a predetermination (546) [their pro-Heathrow tone was something I noted at the time – see this blog entry].

The Airports Commission recommendation could have been judicially reviewed (556) [Could it? The Airports Commission ceased to exist once it issued its final report].

Climate change

On climate change, the Paris Agreement has no effect (yet) in domestic law (606), policy is still as set out in the Climate Change Act 2008 (612).

Even if it did, it does not require individual states to limit temperatures (607).

The judges accept that policy may be lagging behind scientific knowledge (609).

The Planning Act 2008 and Climate Change Act 2008 were passed on the same day and are clearly linked (645).

The SoS was neither required to take international commitments into account or ignore them (647).

Hub challenge

The judges did not need to address the issue of whether statements made by Chris Grayling MP in Parliament were able to be scrutinised (145 of the Hub judgment) but did not agree with some of the Speaker’s counsel’s submissions (152).

Heathrow Airport Ltd do have a dominant position in air services in the south east (178), is a privileged undertaking (182), did not abuse its position (190), but did have the opportunity to influence the preference for the North West runway (200).

What happens now?

The losing claimants must now decide whether to appeal the decision. If they do, it is my understanding that the claim will ‘leapfrog’ the Court of Appeal and be heard directly by the Supreme Court. Chris Grayling MP stated that he hoped they wouldn’t as this would waste public money.

It is likely that either way Heathrow Airport Ltd will press on with the statutory consultation for its proposed DCO, timetabled to start in June.

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