Planning Act 2008 – Failure to have regard to the Paris Agreement The Court of Appeal’s decision turned primarily on the Secretary of State’s approach to the Paris Agreement. The Court of Appeal rejected the appeal on all Habitats Directive and SEA Directive grounds (save for one, discussed below), but allowed Plan B and Friends of the Earth’s appeal on climate change grounds. the impact of UK’s commitments on climate change and whether the ANPS was unlawful because the Secretary of State failed to have due regard to these commitments, including the Paris Agreement and.the operation of the SEA Directive (2001/42/EC), including whether the Secretary of State breached this Directive by failing to consider the Paris Agreement.the operation of the Habitats Directive (92/43/EEC), in particular whether the Secretary of State breached this Directive by deciding that expansion at Gatwick airport was not an “alternative”.The issues facing the Court of Appeal can be narrowed to four categories: In order to understand the judgment of the Supreme Court, it is necessary to first get to grips with the decision of the Court of Appeal. In February 2020, the appeal against the Divisional Court decision was heard by the Court of Appeal in R (Plan B Earth and others) v Secretary of State for Transport and others EWCA Civ 214. In today’s decision, the Supreme Court has overturned the Court of Appeal’s decision and reinstated the ANPS. The Court of Appeal’s judgment is discussed in more detail below.
The appeal was partially successful and the Court of Appeal quashed the ANPS. The High Court’s decision on the planning / environmental grounds was appealed by three of the original claimants: the group of five local authorities (known as the “Hillingdon claimants”) Plan B and Friends of the Earth. The competition law decision was appealed by Heathrow Hub Limited, but the appeal was dismissed in its entirety and permission to appeal to the Supreme Court was refused. The Divisional Court rejected all grounds. These were heard by the Divisional Court together in a “rolled up” hearing that took place over seven days in March 2019, with the competition law case submitted by Heathrow Hub Limited being heard and decided separately. This decision, unsurprisingly, proved controversial and multiple separate judicial review claims were launched by various parties, including local authorities, environmental charities and Heathrow Hub Limited (the promoter of an alternative scheme for Heathrow Airport expansion).
The ANPS adopted the recommendation of the Airports Commission that airport expansion in the south-east of England should be achieved through the expansion of Heathrow Airport by way of construction of a new northwest runway and associated infrastructure.
Although the basic idea of expansion of Heathrow Airport has been in the public realm since at least 1990 (when it was recommend by the Runway Capacity Study), the real start of this litigation saga came with the designation of the Airports National Policy Statement (“ ANPS”) in June 2018. The Heathrow Airport litigation has been ongoing for a number of years.
This decision does not herald the end of the Heathrow Airport debate – despite the reinstatement of the ANPS, with aviation in flux due to climate change and Covid-19, the government’s next steps remain uncertain. Further, the Supreme Court emphasised that future developments in law and policy will be considered at the DCO stage. The Supreme Court found that the Paris Agreement had been adequately taken into account in the ANPS process through the targets set in the Climate Change Act 2008, and that the Secretary of State’s decision not to have further regard to the Paris Agreement beyond this was not irrational. The Supreme Court’s decision turned on the extent to which the Secretary of State had considered – or, rather, failed to consider – the Paris Agreement in its decision to designate the ANPS. Following years of litigation, the Supreme Court has decided to overrule the Court of Appeal and reinstate the Airports National Policy Statement (“ ANPS”) – the policy document which provides for the expansion of Heathrow Airport by construction of a third runway.
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