Supreme Court decision in Heathrow Airport case

On 16 December 2020, the Supreme Court gave judgement in the case of R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd. Heathrow Airport Ltd had appealed against a Court of Appeal decision that the Secretary of State had acted unlawfully.

The Facts

The Airports National Policy Statement (ANPS) is the national policy framework which governs the construction of a third runway at Heathrow Airport. Applications for development consent to build the third runway must be considered in relation to ANPS.

In 2015, the Secretary of State for Transport accepted the case for airport expansion and announced that the North West Runway (MWR) scheme was preferred.

In 2016, the UK signed and ratified the Paris Agreement under the United Nations Framework Convention on Climate Change. The Paris Agreement sets out targets for the reduction of greenhouse gas emissions and the reduction of temperature increases resulting from global warming.

Friends of the Earth and Plan B Earth challenged the lawfulness of ANPS on a number of legal grounds. At first instance, the claims were all dismissed. On appeal, the Court of Appeal stated that the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS.

Heathrow Airport Ltd (HAL) appealed to the Supreme Court. It stated that it had already invested a large sum of money in promoting the NWR scheme and wished to make an application for development consent.

The Supreme Court allowed HAL’s appeal and made the following points.

  • Section 5 of the Planning Act 2008, under which the ANPS was designated, states that the reasons for adopting national policy frameworks such as ANPS must take account of government policy.

  • The government’s commitment to the Paris Agreement did not amount to government policy. Government policy means carefully formulated written statements of policy which have been cleared by the relevant departments. Treaty commitments continue whether or not a particular government remains in office and do not amount to government policy for the purposes of domestic law.

  • Section 10 of the Planning Act 2008 requires the Secretary of State to designate national policy frameworks with the aim of achieving sustainable development. He has to take into account the environmental, economic and social objectives which make up sustainable development. The Secretary of State had taken the Paris Agreement into account when designating the ANPS. His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable decision would have made it.

  • The ANPS was carefully structured to ensure that when HAL applied for development consent, it would have to show that the development was compatible with the Paris Agreement.

  • The argument put forward by Friends of the Earth that the Secretary of State had breached his section 10 duty, by failing to have regard to the effect of emissions created by the NWR scheme, was dismissed. The Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be formulated.

  • Section 5 of the Planning Act 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks including ANPS. The court dismissed the complaint that the appraisal of sustainability was defective because it did not refer to the Paris Agreement. The targets referred to in the appraisal took the UK’s obligations in the Paris Agreement sufficiently into account.

Comment

This was the first significant legal ruling in the world based on the Paris Agreement. It meant that the airport could now seek a development consent order.

Before the coronavirus pandemic, Heathrow was one of the world’s busiest airports with 80 million passengers a year. A third runway would mean 700 more aircraft a day and would result in a significant rise in carbon emissions.

A spokesperson for Plan B Earth is reported to have commented that the really damaging thing about the Supreme Court ruling was its precedent for other cases.

The head of legal at Friends of the Earth commented that they were disappointed but pleased that the judgement confirmed their view that climate impacts would still need to be fully determined at the planning stage. Heathrow airport expansion remained in doubt and harder than ever, given the UK’s increasingly stringent climate policy. They were in this for people everywhere facing climate breakdown and for the next generation who were being left to inherit a world changed for the worse.

The Stay Grounded campaign commented that approving the third runway was a betrayal of our children’s future and incompatible with the UK’s climate commitments. It condemned the reckless and irresponsible verdict, but the fight was far from over.

On behalf of the campaign group, Back Heathrow, it was commented that this was an important moment for local communities desperate for jibs and apprenticeships.

It was a huge moment for the UK as it moved towards an uncertain Brexit, but now with the confidence that international trade could be boosted by additional capacity at the country’s only hub airport. It was an opportunity to progress while also meeting the country’s carbon reduction targets by 2050.

A Heathrow spokesman is reported to have commented that this had been the right result for the country. Only by expanding the UK’s hub airport could we connect all of Britain to all of the growing markets in the world, helping to create hundreds of thousands of jobs.

Heathrow had already committed to net zero and the Supreme Court ruling recognised the robust planning process which would require the airport to prove that expansion was compliant with the UK’s climate change obligations, including the Paris Agreement, before construction could begin.