854: Heathrow judgement fallout continues

Angus Walker Partner

Today’s entry reports on the fallout from the Court of Appeal declaration that the Airports National Policy Statement has no effect.

For anyone who has been self-isolating, on 27 February the Court of Appeal declared that the Airports National Policy Statement (NPS), designated in June 2018, was of no effect because it hadn’t taken into account government policy on climate change mitigation arising from ratification the Paris Agreement.

Government attitude

The government has said it will not appeal the decision to the Supreme Court. It has not yet said whether it will review the Airports NPS – the official line is currently that the judgement is complex and the government is considering it.

Grant Shapps MP, Secretary of State for Transport, made a statement on the day of the judgement that can be found here; there was an urgent question on it in parliament that new aviation minister Kelly Tolhurst MP answered on Monday (the debate can be found here).

The government’s line is very much that this is a private sector project that it has nothing to do with (washing one’s hands is all the rage at the moment). However, it cannot sustain that line forever if Heathrow Airport Ltd (HAL) persists in making an application for a Development Consent Order (DCO), as Grant Shapps will have to decide it one way or the other. My hunch is that the Prime Minister wants it to go away without the government having to do anything to stop it, thus maintaining a purportedly pro-business and growth stance.

Indeed, in answer to green MP Caroline Lucas’s question at Prime Minister’s Questions on Wednesday, the Prime Minister said:

‘I thank the hon. Lady for her question. She can take it that we will ensure that we abide by the judgement and take account of the Paris convention on climate change, but I do not believe for one second that that will be an impediment to our delivery of an infrastructure revolution across this country.’

And then yesterday it was revealed that the National Infrastructure Strategy would not be published alongside next Wednesday’s Budget, but would be further delayed and instead come out ‘before May’, civil service speak for ‘April’. This may be partly because the Chancellor will have been in post for less than four weeks, but is almost certainly influenced by the Court of Appeal decision. I’ve lost count how many times this document has been delayed; it was already 20 months after the National Infrastructure Assessment was published to which it is a response. It is to contain £100 billion of spending on infrastructure.

Heathrow attitude

Meanwhile, HAL has vowed to appeal the decision to the Supreme Court (or strictly speaking sought permission to appeal, but that amounts to much the same thing in effect), although I am not sure if it has done so yet. It was beaten to it by one of the rival project promoters, hotel company Arora, which wants a variation of the official project.

HAL has told Planning Magazine that it is suspending the supplementary consultation exercise it was planning for April-June this year and is also delaying its DCO application beyond the current date of the end of this year (itself a delay from this July).

Effect on other National Policy Statements

I have been asked a couple of times what the effect of the judgement is on other National Policy Statements. Those that were designated before the Airports one pre-dated the Paris agreement, so didn’t suffer from the same issue as the Airports one, but the subsequent ratification of the Paris agreement and implementation of net zero means that there is at least one impending claim that they are now out of date.

The preamble to the net zero amendment to the Climate Change Act 2008 says:

‘The Secretary of State considers that since the Act was passed, there have been significant developments in scientific knowledge about climate change that make it appropriate to amend the percentage specified in section 1(1) of the Act.’

The Planning Act 2008 says:

‘In deciding when to review a national policy statement the Secretary of State must consider whether:

(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided;

(b) the change was not anticipated at that time; and

(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.’

The impending litigation is from an alliance of Jolyon Maugham (of the Good Law Project), Dale Vince (of Ecotricity) and George Monbiot (a Guardian journalist, amongst other things), who are crowdfunding a challenge to the suite of six energy NPSs on the basis that they are out of date. The challenge will take a while – it needs money, for the government to refuse to review the NPSs and then for a court case to be mounted, but there may be similar other challenges that may come first.

The letter before action for this challenge can be found here and curiously the cause of action hasn’t arisen yet, it will be the refusal to agree to review the NPSs as a result of receiving the letter that will be challenged. As yet I am not going to agree that ‘Netzero’ is one word, as used in the letter, by the way.

The only draft NPS in existence is that for water resources, which luckily for it refers briefly to the Paris agreement already.

Other challenges

Finally, two further net zero related challenges have been launched. One is by campaigner Chris Packham to the decision to approve HS2, also on climate change grounds. The other is to the approval by Cumbria County Council of a coal mine in Whitehaven, by Keep Cumbrian Coal in the Hole.