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21/12/2020

Have these two judgements on our airways cleared the air?

Heathrow Airport / iStock_000027415278

Two highly significant legal determinations relating to our airways were made last week. Claire Petricca- Riding offer a first thoughts on the impact of the Heathrow judgement and the coroner's verdict in the case relating to Ella Kissi-Debrah

The final week of the Michaelmas term has been a busy one for both the Government and the courts. We have seen the release of the energy white paper, Powering our net zero future, the inevitable U-turn on housing delivery numbers and two important decisions regarding the airways and the protection of our own personal airways.

In respect of the airways, this week saw two key decisions which could shape the way we look at these issues in the coming years.

The first decision announced was the latest development in the Heathrow litigation saga that has run throughout 2020. This time however, the Supreme Court has ruled in Heathrow Airport’s favour.

But what are the implications of the decision? It must be said this is not the green light for any expansion at Heathrow airport – this was a point about the Airport National Planning Statement (ANPS).

"It may be the end of the runway for this litigation, but the war is far from over"

Friends of the Earth and Plan B sought to challenge the introduction of the ANPS last year on the basis the Government did not take into account the Paris Agreement when drafting both the ANPS and the eventual choice of the expansion plan at Heathrow airport.

The challenge was unsuccessful in the High Court but won on appeal in the Court of Appeal. The Government decided to call it a day there, it could simply deal with the ANPS by amending the statement to take into account the Paris Agreement. The Government had certainly learnt its lesson when it dealt with the assessment for HS2, as Chris Packham found out in court.

Heathrow Airport Limited, however, decided to press on.

Heathrow had appealed on five grounds; it was successful on four with the court confirming the fifth was an irrelevance in light of the successful appeal on the previous four grounds. The grounds boiled down to what could be considered irrational or unreasonable – arguments which planning and environmental practitioners frequently use or consider.

The Supreme Court went in detail about what is formal Government policy and when this should be taken into account under Section 5 of the Planning Act 2008, but at its heart the decision was the decision maker using their discretion of what should be considered. The consideration itself can be proof that the decision was not irrational or unreasonable.

But the saga is not over, Heathrow has not received permission for any expansion, that is now a matter for the DCO regime and the discretion of a different decision maker. What is certain, however, is that the application will be heavily scrutinised to ensure that it meets any legal requirements at a granular level – so it may be the end of the runway for this litigation, but the war is far from over.

I am sure it will occupy 2021 as much as it has in 2020!

"This is a stark warning to local auhorities that they must address air quality and emissions"

The second important decision was the Coroner’s verdict in Ell Adoo-Kissi-Debrah’s incredibly sad death. Mr Barlow concluded that poor air quality was a significant factor in her death. This follows the research Kings College London issued in relation to an increase in death rate in areas of poor air quality. He said: “There was therefore an alarming disconnect about the message being sent out about the overall health effects of air pollution including the number of deaths it causes and the actual advice being given to patients and the public.”

This is a stark warning to local authorities – Lewisham Council was highly criticised for not actioning any plan in respect of air pollution – that they must address air quality and emissions as a matter of urgency. The action they need to take will largely be through the planning system with any new developments being expected to not increase emissions in areas of already poor air quality.

Claire Petricca- Riding is head of planning and environment at Irwin Mitchell

Photo | iStock

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