Court of Appeal declares government’s airports policy unlawful

This blog was first posted on HSF’s Public Law Notes on Thursday, 27 February 2020.

Today in a unanimous decision the Court of Appeal found that the current Government policy in relation to the expansion of Heathrow Airport is unlawful.

Background

The Court of Appeal has today handed down two related judgments both concerned with the Government’s policy in relation to the proposed expansion of Heathrow by way of a third runway, one dealing with the detail of how expansion should take place and the other considering the planning aspects and process of the policy. This latter case originated as five judicial review applications at the High Court. The policy in question was set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (the “ANPS”), which was designated by the then Secretary of State for Transport under section 5(1) of the Planning Act 2008.

The appellants in this appeal ranged from local authorities and climate change campaigners to the Mayor of London. The Court of Appeal was unconvinced by the appellants’ attempts to overturn the first instance judgment on various issues relating to the Habitats Directive and the Strategic Environmental Assessment Directive and broadly agreed with the judgment of the Divisional Court on many of those aspects.

And then there was one…

The appellants succeeded today on only one ground: the Court of Appeal found that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change.

The question upon which the decision turned was what is “Government policy” relating to climate change, pursuant to section 5(8) of the Planning Act which requires that the reasons for the policy set out in the ANPS “must … 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” [emphasis added].

The court found that the Government’s commitment to the Paris Agreement was “clearly” part of Government policy by the time of the designation of the ANPS because the Paris Agreement was ratified and there were firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers. The concept of “Government policy” did not have any specific technical meaning, but should be applied in its ordinary sense. In particular, there was nothing to warrant limiting the phrase “Government policy” to mean only the legal requirements of the Climate Change Act. The concept of policy is necessarily broader than legislation.

The Court of Appeal concluded that the Paris Agreement was not taken into account by the Secretary of State in the preparation of the ANPS and so there was no explanation provided as to how it was taken into account. Indeed it appears that the Secretary of State received legal advice that not only did he not have to take the Paris Agreement into account but that he was legally obliged not to take it into account, which amounted to a material misdirection of law at an important stage of the process.

Potential consequences

Although the appellants won today and at the time of seeing the draft judgment the Government did not seek to appeal the decision to the Supreme Court, this is not necessarily the end of the matter.

The court decided not to quash the ANPS. Instead, it declared that the ANPS in its present form is unlawful and cannot have legal effect, which gives the Secretary of State the opportunity to reconsider the ANPS. The court stated that the initiation, scope and timescale of any such review must and will be a matter for the Secretary of State to decide. The court also explained that the duty in section 5(8) does not require the Government to conform to its own policy commitments, “simply to take them into account and explain how it has done so”.

Importantly, the court repeatedly emphasised the line between its judgment and the politics of the third runway:

“[We] are required to consider whether the Divisional Court was wrong to conclude that the Government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. That is the question here. It is an entirely legal question. …”

“We have made it clear that we are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway being constructed at Heathrow has given rise. That is none of the court’s business…..”

“Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow.”

These comments reflect the well-established purpose and role of judicial review, aimed at ensuring that the Executive is held to account in its decision making but without straying into the sphere of policy making and politics.

The judgments can be found here: R (on the application of (1) Heathrow Hub Limited (2) Runway Innovations Limited) v Secretary of State for Transport [2020] EWCA 213 and R (on the application of Plan B Earth and others) v Secretary of State for Transport [2020] EWCA 214.

For more information please contact:

Andrew Lidbetter
Andrew Lidbetter
Partner, administrative and public law, London
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner, administrative and public law, London
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of counsel, administrative and public law, London
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate, administrative and public law, London
+44 20 7466 2621

Impact of net-zero by 2050 on aviation and airport development

In May, we reported on the outcome of five challenges to the Secretary of State’s decision to designate the Airports National Policy Statement (ANPS), which sets out the Government’s policy support for expansion of Heathrow Airport. All five challenges were dismissed by the High Court. Since then, the Court of Appeal has made an order allowing a number of claimants, including Plan B and Friends of the Earth, to challenge the High Court’s rejection of their claims. A hearing is due to be held on 21 October 2019, which will involve the Court of Appeal hearing the full application for permission to appeal and, if permission to apply for judicial review is granted on that application, the claim for judicial review. One of the issues that will be taken into consideration at the hearing is the change in UK law since May 2019, committing the UK to legally binding net-zero emissions targets. Yesterday, the Committee on Climate Change (CCC) wrote to the Secretary of State for Transport in response to the Government’s request on how to bring international aviation and shipping (IAS) emissions within the UK’s net-zero target.

This post considers the impact of the new commitment to net-zero by 2050 on the forthcoming Court of Appeal hearing. It also considers the CCC letter of 24 September 2019 and outlines the next steps in the Heathrow expansion consultation.

Impact of new net-zero targets

As these are judicial review proceedings, the Court of Appeal will not be able to rule on the merits of the APNS, such as increasing airport capacity or whether a third runway at Heathrow should proceed. It will, however, consider the grounds of the judicial review claims, which include climate change considerations. This will likely be one of the more closely watched issues that the Court of Appeal is dealing with, particularly given the recent legal developments to set a net-zero target by 2050 (see below).

In the High Court, the claimants unsuccessfully argued that the Secretary of State acted unlawfully by not taking into account the Paris Agreement. The High Court held that the Paris Agreement does not form part of UK law and so, while the UK has ratified it, it has no effect in domestic law until Parliament decides if and how to incorporate the agreement’s target to hold the increase in global average temperature to well below to “well below” 2ºC above pre-industrial levels and to pursue efforts to limit that increase to 1.5ºC.

Since the High Court’s rulings in May, Parliament has passed legislation to commit the UK to a legally binding target of net-zero emissions on 1990 levels by 2050, which based on the Committee on Climate Change’s (CCC) Net Zero Report[1], is the appropriate UK contribution to the Paris Agreement.

Now that there is UK law which reflects the UK’s commitment to the Paris Agreement, all eyes (including the eyes of proponents of other nationally significant infrastructure projects in the pipeline) will be on the Court of Appeal and how it decides to grapple with this legal development when considering these judicial review applications.

CCC recommendations on IAS emissions

The CCC’s latest advice on dealing with international aviation and shipping emissions builds on the measures and policy recommendations foreshadowed in the CCC’s Net Zero Report published in May 2019. The recommendations include formally recognising international aviation and shipping emissions in the 2050 net-zero target and building on global initiatives to achieve significant emissions reductions in both sectors. The CCC believes that aviation is likely to be the largest emitting sector in the UK by 2050 even with strong progress on technology and limiting demand but recognises the difficulty in achieving emissions reductions in this sector due to the significant lead in time for technological developments that would result in emissions reductions. The policy recommendations include managing growth in both demand and airport capacity which if implemented, will likely have impacts across the entire sector including for airline and airport operators, as well as consumers who have for so long benefited from cheap short-haul flights.

Regarding airport capacity specifically, the CCC recommends that the Government’s airport capacity strategy should be assessed in the context of the net-zero target and foreshadows that current planned additional airport capacity growth at London airports (including the third runway at Heathrow) will leave little room for growth at non-London airports. This indicates that any capacity restrictions which may be implemented as a result of these recommendations may not apply to the Heathrow expansion, or to other current planned expansion projects at London airports.

We have prepared a more detailed summary of the CCC Letter of 24 September 2019. Please contact us if you would like to receive a copy.

Heathrow consultation

Meanwhile, Heathrow’s statutory consultation on its masterplan for expansion closed on 13 September. This consultation sought feedback on the future layout of the airport, including the new runway and other airport infrastructure such as terminals and road access.

Heathrow’s application is expected to be submitted to the Planning Inspectorate mid-2020. Once the application is received, the Planning Inspectorate will review the application and decide whether to accept if for examination. All application documents will be published on the Planning Inspectorate’s Expansion of Heathrow Airport (Third Runway) project page.

It will be interesting to see how Heathrow deals with impacts on climate change in light of the above, and the impact of expansion on airport emissions in particular.

[1] Net Zero: The UK’s contribution to stopping global warming, Committee on Climate Change (May 2019)

Author: Julia McKeown, Associate (New Zealand), planning, real estate

For further information please contact:

Julia McKeown
Julia McKeown
Associate (New Zealand), planning, London
+44 20 7466 2321
Catherine Howard
Catherine Howard
Partner, planning and environment, London
+44 20 7466 2858

Heathrow expansion given the green light after the High Court concludes Airport NPS is not flawed by legal error

Campaigners trying to block the expansion of Heathrow Airport have failed in their bid to persuade the High Court that the Government’s decision to designate the Airports National Policy Statement (“ANPS”), including the process which led to the designation, was flawed by legal error.

The ANPS is a policy document which sets out the Government’s position on the need for new airport capacity in the South East of England and the preferred scheme, namely a new 3,500 metre runway at Heathrow which would enable at least 26,000 extra flights per annum.

On Wednesday 1 May 2019, the High Court dismissed five claims for judicial review which challenged the Government’s decision to designate the ANPS under section 5(1) of the Planning Act 2008. The decisions, which were handed down in two separate judgments by Mr Justice Holgate, Lord Justice Hickinbottom and Mr Justice Marcus Smith, are available to view here.

The first four claims for judicial review challenged the Government’s decision on 22 grounds ([2019] EWHC 1070 (Admin)). The claimants comprised the London Borough of Hillingdon and four adjacent boroughs, the Mayor of London, several non-Government environmental organisations (including Greenpeace, Friends of the Earth and Plan B Earth) and one individual claimant (Mr Spurrier) who all oppose the expansion of Heathrow. The grounds that the Court considered arguable concerned matters relating to climate change, air quality, surface access, noise and habitats.

In respect of climate change, the claimants unsuccessfully argued that the Secretary of State acted unlawfully by not taking into account the Paris Agreement. They also claimed he failed to apply the precautionary principle and acted irrationally by concluding that the new runway wouldn’t breach UK’s obligations under the Air Quality Directive, and that he relied upon unjustified assumptions about the deliverability of public transport schemes and the effectiveness of Clean Air Zones. On the surface access point, they argued the Secretary of State failed to take into account information and modelling which considered the adverse impacts of more people travelling to and from Heathrow by road as a result of the additional runway, and that he erred in adopting unrealistic mode share targets in the ANPS. Claims relating to the inadequacy of the noise assessment and the consideration of alternatives under the Habitats Directive were also dismissed.

The fifth claim ([2019] EWHC 1070 (Admin)) was brought by the promoters of a rival Heathrow expansion scheme – Heathrow Hub Limited and Runway Innovations Limited. Unlike the other four claims, the claimants did not challenge the ANPS insofar as it establishes the need for new airport capacity which is best met by expanding Heathrow. Instead, they argued that the Secretary of State wrongly preferred the proposal for a ‘new’ runway at Heathrow over their scheme, which would double the length of the existing northern runway to allow it to operate as two independent runways. The arguments focussed on legitimate expectation and anti-competition however were unsuccessful on all five grounds.

The claimants may apply for permission to appeal and some of the campaigners have already come out saying they will continue to fight the controversial expansion – a battle which has been ongoing since the 1980s and isn’t showing any signs of slowing down soon. Even if this hurdle is overcome, the next stage of the planning process is an application for a development consent order which presents further opportunities for opponents to make representations on the proposal. According to the Planning Inspectorate website, this application is expected to be submitted by Heathrow Airport Limited in 2019/2020.

If you have any questions relating to the development consent process, please don’t hesitate to get in touch with a member of our team.

Author: Lisa Bazalo, Associate (New Zealand), Planning, London

For further information please contact:

Catherine Howard
Catherine Howard
Partner, planning, London
+44 20 7466 2858
Lisa Bazalo
Lisa Bazalo
Associate (New Zealand), planning, London
+44 20 7466 2957
Charlotte Dyer
Charlotte Dyer
Of counsel, planning, London
+44 20 7466 2275

The impact of purdah on planning and a recent decision on judicial review

Author: Fiona Sawyer, Professional Support Lawyer, Planning, London

This week, we have links to two pieces of interest to developers:

  • "Getting away with purdah" – an article in EG by Matthew White, Head of Planning, and Annika Holden, Associate (Australia), Planning, London discussing the impact of the convention of purdah, brought into play by the unexpected announcement of the snap general election. Purdah has the potential to severely disrupt and delay the planning process; recent experience has shown that it is often inconsistently applied, can cause confusion and can be invoked as an excuse to avoid controversial decisions. The article comments on the history, status and potential exploitation of purdah, highlighting relevant caselaw. For the full article, see here.
  • "Failure to comply with statutory conditions will lead to quashing unless it is 'highly likely' the error would have made no difference" – an ebulletin by our London Administrative and Public Law team, discussing the impact of a recent planning judicial review case concerning a council's decision to adopt a document setting out an interim approach to negotiating affordable housing contributions. Key points include that the High Court must generally refuse relief on an application for judicial review if it appears "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". For the full ebulletin, see here.

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Grants of planning permission against officer recommendation – managing the legal risk

Author: Annika Holden, Associate (Australia), Planning, London

The Court of Appeal has recently upheld challenges in two cases where planning permission was granted by planning committee against officer recommendation (see Oakley v South Cambridgeshire District Council & Anor [2017] EWCA Civ 71 and Campaign To Protect Rural England, Kent (CPRE), R (On the Application Of) v Dover District Council [2016] EWCA Civ 936). From a legal perspective, Oakley is particularly interesting as a rare look by the Court of Appeal at the question of whether planning authorities have a general common law duty to give reasons on the grant of planning permission – see the excellent e-bulletin from my public law colleagues here for more on that. On a practical level, the cases represent a good reminder of how carefully all parties need to tread whenever planning permission is granted against officer recommendation.

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The changing cost of environmental claims

Authors: Andrew Lidbetter, Partner, London and Jasveer Randhawa, Of Counsel, London

 

In environmental (Aarhus Convention) claims, judges can now award costs that take into account the claimant's financial resources. As of 28 February 2017, judges in environmental judicial review claims and statutory challenges now have the ability to vary previously fixed costs caps or remove them altogether. This is due to changes to the Civil Procedure Rules governing environmental claims. It is worth noting that three non-governmental organisations, ClientEarth, Friends of the Earth and the RSPB, are challenging the new rules.

 

Herbert Smith Freehills has produced a bulletin setting out more detail on this, which can be found here.

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Judicial Review deadlines

The time limit for lodging an application for judicial review of a planning decision is now a fixed six weeks from the date of the decision. This will usually be the date the planning permission is actually issued (not the date of the resolution to grant).

Some planning decisions nevertheless remain subject to the old three month judicial review period, e.g. decisions under the Highways Act.

The courts have recently considered how to count the six weeks (apparently not a simple question), so always take advice on drafting in agreements which are conditional on planning or where decisions are being made on when a permission should be regarded as "safe". Always remember that the courts retain a discretion to accept legal challenges outside the relevant period.

For more information please contact:

Matthew White
Matthew White
Partner and Head of Planning, London
+44 20 7466 2461
Lucy Morton
Lucy Morton
Professional Support Lawyer, Planning, London
+44 20 7466 2626

 

Council which agreed to vary a development agreement in order to assist viability is subject to a successful judicial review

On 11 February 2015, pursuant to an application for judicial review by a local resident, the High Court ruled that a redevelopment project in Winchester had to be put out to competitive tender under the EU procurement rules. This obligation arose when the Council agreed to make substantial variations to a development agreement that had originally been entered into 2004. The case illustrates the severe problems which can arise when regeneration projects are awarded, or subsequently amended, without due regard for the procurement rules.

1. The facts

2. The High Court ruling

3. Lessons to be learned

4. Post-script: new procurement regulations are about to enter into force

 

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