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16/12/2020

Supreme Court: Heathrow’s third runway can go ahead

Words: Laura Edgar
Heathrow airport / Shutterstock

The Supreme Court has overturned a Court of Appeal ruling that the Airports National Policy Statement (ANPS) was unlawful, meaning that a development consent order (DCO) can now be sought for a third runway at Heathrow Airport.

The ANPS sets the planning policy framework the airport will use to bring forth the planning application.

In February, Judges Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave concluded that “the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided”.

They said the statutory regime for formulating a national policy statement, which Parliament put in place in the Planning Act 2008, “was not fully complied with”.

Chris Grayling, the transport secretary when the ANPS was approved in June 2018, should have taken into account the Paris agreement “in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not”.

The judges consider this to be “legally fatal to the ANPS in its present form” and that it was necessary to grant a reform.

The challenge was brought by campaigners, including Friends of the Earth Ltd (FoE) and Plan B Earth.

The government did not challenge the decision by the Court of Appeal, but Heathrow Airport Ltd did.

A two-day appeal hearing was held in October before a panel of five Supreme Court justices. They heard the challenge bought by Heathrow Airport Ltd against the Court of Appeal verdict.

The Supreme Court rejected Plan B Earth’s argument that the reasons in the ANPS needed to refer to the Paris agreement targets in order to comply with section 5(8) of the Planning Act 2008.

Friends of the Earth’s contention that then transport secretary Chris Grayling breached this duty on the ground that he failed to have proper regard to the Paris agreement when designating the ANPS was dismissed.

The judges noted that it is “clear” from both the appraisal of sustainability and the ANPS “that the applicant for a DCO would have to address the environmental rules and policies which were current when its application would be determined”.


Reaction:

Will Rundle, head of legal at Friends of the Earth, said: “This judgment is no ‘green light’ for expansion. It makes clear that full climate considerations remain to be addressed and resolved at the planning stage. Heathrow expansion remains very far from certain and we now look forward to stopping the third runway in the planning arena.”

Jenny Bates, campaigner at Friends of the Earth, added: “The UK has the potential to lead the world in ambitious climate action but only if the government takes this opportunity to steer the country to a sustainable future, making green jobs, low-carbon travel and the health and wellbeing of all of us a priority. 2021 will be a key year for this, when the eyes of the world turn to the UK as host of UN climate talks.”

A Heathrow spokesperson said: “This is the right result for the country, which will allow ‘Global Britain’ to become a reality.

“Heathrow has already committed to net zero and this ruling recognises the robust planning process that will require us to prove expansion is compliant with the UK’s climate change obligations, including the Paris Climate Agreement, before construction can begin. The government has made decarbonising aviation a central part of its green growth agenda, through wider use of sustainable aviation fuel as well as new technology. As passenger numbers recover [from Covid-19], our immediate focus will be to continue to ensure their safety and to maintain our service levels while we consult with investors, government, airline customers and regulators on our next steps.”

Eleanor Reeves, partner at law firm Ashurst, commented: “Although Heathrow Airport Ltd has 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 sustainable development.

“Such is the pace of change, that between the hearing and the judgment being handed down, the government announced its commitment to meeting enhanced net-zero emissions targets, following the Committee on Climate Change's recommendations for the UK's first net-zero interim carbon budget.

“There will be continued pressure on approving major projects in line with these overarching climate targets. The third runway will also remain in the spotlight, because whilst this was a strategic challenge against the Airports NPS, scrutiny against climate targets will continue throughout the consenting processes.”


The summary and full judgment can be found on the Supreme Court website.

Image credit | Shutterstock

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