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27 February 2020

853: Climate change policy pauses Heathrow expansion

Today’s entry reports on probably the most significant legal event to occur relating to the Planning Act 2008 regime.

Earlier today the Court of Appeal reversed the decision of the High Court and cancelled the effect of the Airports National Policy Statement (NPS).

The full judgment can be found here, but as always to save you time, I have read it and present a summary.

The UK government ratified the Paris agreement less than a month after it decided to pursue a policy of a new runway at Heathrow.

If you really don’t have the time or inclination to read the summary, then the essence of the judgment was that the government was wrong to think it had to wait until the Paris agreement was incorporated into domestic law before it should be taken into account – ratifying the agreement changed government policy and that should have been taken into account when drafting the NPS.

The judgment is in the name of all three judges, but the work of Lord Justice Lindblom is clearly evident. At 83 pages it is 100 pages shorter than the High Court judgment.

It starts by setting out a lot of the background to the Planning Act 2008 regime and the arrival at the designation of the Airports NPS, but regular blog readers will not need this to be gone over. Essentially, government policy as applicable to nationally significant infrastructure projects is set out in a series of National Policy Statements, which have various requirements as to what they must contain.

Before getting to the ground of challenge that did succeed, the judgment dismisses various other grounds, which I cover in the next section. Numbers in brackets refer to paragraph numbers in the judgment where the relevant point can be found.

The issues that didn’t succeed

These were largely on habitats, Strategic Environmental Assessment (SEA) and errors in choosing between the two competing Heathrow schemes. SEA is the equivalent to Environmental Impact Assessment but at the policy stage rather than for a particular project.

The conclusions on habitats had to be Wednesbury unreasonable for them to be unlawful (75). The government was entitled to conclude that Gatwick was not an alternative because it did not meet the ‘maintain the UK’s status as a hub’ objective of the Airports Commission’s terms of reference (80, 89). It was not that Heathrow would be a better hub, but that Gatwick was incapable of becoming a hub (91).

If it hadn’t failed that test Gatwick should probably have been kept on as an alternative for habitats reasons (105).

Was the government OK to consider Gatwick not to be an alternative for habitats reasons but that it was one for SEA purposes? Yes, the SEA process required alternatives to be consulted upon but the habitats process did not (111-112).

A reference to the Court of Justice of the European Union (CJEU) was not necessary on this point (124).

I do wonder about the lawfulness of consulting on something that wasn’t in fact an alternative (and wasn’t one all along, not just later) while claiming to have an open mind on the three options.

Moving on, flaws in the SEA approach would also have to be ‘Wednesbury unreasonable’ to be unlawful (137). Caselaw on Environmental Impact Assessment is applicable to SEA in these circumstances (143).

The government did take other plans and programmes sufficiently into account when conducting SEA in this case (162). The SEA was still OK despite precise flightpaths not being known at the time – the overall noise effects were known even if their locations weren’t (175).

One SEA ground did succeed, however, where it was linked to the Paris agreement, see below.

In a separate judgment, the challenge by Heathrow Hub Ltd to the decision to choose the Heathrow Airport Ltd expansion project over its own one was also unsuccessful, although the Court of Appeal didn’t agree with the High Court on its reasoning on competition law issues (248).

The issue that did succeed

The High Court (referred to in the judgment as the ‘Divisional Court’ because more than one judge was involved) decided that government policy was as set out in the Climate Change Act 2008 (ie the 80% reduction in 1990 levels by 2050), and any effect of ratifying the Paris agreement had yet to be enshrined in domestic law, so it didn’t count.

The Court of Appeal disagreed: ‘even if the legal targets in the Climate Change Act were consistent with the Paris Agreement, it did not follow that, as a matter of law, the government was somehow precluded from taking into account the Paris Agreement when designating the ANPS.’ (203)

Reviewing what the government said since it ratified the Paris agreement, the court concluded ‘ It is clear, therefore, that it was the government’s expressly stated policy that it was committed to adhering to the Paris Agreement to limit the rise in global temperature to well below 2°C and to pursue efforts to limit it to 1.5°C.’ (216)

Section 5(8) of the Planning Act 2008 says that ‘the reasons [for the policy in a national policy statement] must (in particular) 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 decided that ‘government policy’ is not limited to legislation (224), and that the High Court was also wrong when it decided that the Paris agreement was inconsistent with the then words of the Climate Change Act 2008, since it required a reduction in carbon emissions of ‘at least’ 80%. (225)

The court said that the government had received legal advice that not only should it not take the Paris agreement into account in drafting the NPS, but it could not (227). Oops. That was wrong, and doing so was an infringement of section 5(8) of the Planning Act 2008. The court also said the government infringed section 10(3) of the 2008 Act, which is also to do with climate change (235).

The World Wildlife Fund intervened on an alleged breach of the United Nations Convention on the Rights of the Child and there was argy-bargy about who was allowed to submit what to the court on that issue, but it decided it didn’t need to rule on that having already found against the government (241).

The court concluded that the failure to take the Paris agreement into account also amounted to a breach of the SEA directive, as alleged by Friends of the Earth (244).

The government should also take emissions beyond 2050 and non-CO2 emissions into account when it reconsiders the NPS (256, 261).

The court does not say that this is the end of the Airports NPS, but that the government merely needs to carry out the exercise of giving reasons as to how the NPS takes climate change mitigation policy into account – it may be able to reach the same conclusions as long as it does this.

Heathrow Airport Ltd (HAL) said there was no need for the court to do anything as drastic as striking down the NPS, as the same matters would all be taken into account when it made its application for a Development Consent Order, although the government chose not to make that argument. The court disagreed. (275)

The relief granted by the court is that the Airports National Policy Statement is to have no effect until it is reviewed under sections 6-9 of the Planning Act 2008 (280). Of course the review would now need to take ‘net zero’ into account, even though the judgment doesn’t say that. The government need not act in accordance with the Paris agreement, but must just take it into account (238).

The government also has to pay Friends of the Earth and Plan B Earth up to £70,000 each in costs, but as a sting in the tail, Heathrow Hub and the local authorities have to pay the government’s costs.

Extensive reference is made to a 2018 challenge by Plan B Earth (one of the present challengers) to the Secretary of State for Business, Energy and Industrial Strategy. Although that challenge failed, it clearly laid the ground for this one to succeed.

The government has indicated that it will not appeal this judgment (or technically the refusal to allow an appeal) to the Supreme Court, but HAL has indicated that it will. Can they, as a mere interested party, do that, I hear you ask? Yes, pursuant to a 2008 case where a party that wasn’t even an interested party at the lower court stage was allowed to take on an appeal. Secretary of State for Transport Grant Shapps MP has made a somewhat neutral statement to parliament, saying ‘ The Court’s judgment is complex and requires careful consideration. We will set out our next steps in due course.’ It’s not complex in its conclusions!

Even if HAL is successful, it may be a Pyrrhic victory if the government has by then already embarked upon a review of the NPS that takes net zero into account.

The Prime Minister will be pleased that the issue is now between HAL and the challengers and his government no longer has anything to do with it, given his historic opposition to Heathrow expansion. Had the appeals failed, the government might have had to take a more explicit step in opposing expansion that would not go down well with the business community.

HAL was planning a supplementary consultation exercise in April-May this year, I wonder if that will go ahead. I imagine that most of the consultation responses might mention the current lack of policy support.

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