The Heathrow Third Runway case

There has been some excitement in the news media about the judgment handed down by the Court of Appeal this morning in an appeal relating to proposals for the construction of a third runway at Heathrow Airport (R. (Plan B Earth) v Secretary of State for Transport (and conjoined appeals) [2020] EWCA Civ 214. However, as all too often happens, some people have been getting over-excited and are trying to read too much into this decision.

Opponents of the third runway at Heathrow had launched a root and branch attack on the scheme, but their appeal succeeded in the Court of Appeal on only one ground. The Court concluded that, in one important respect, the Airports National Policy Statement (‘ANPS’) supporting this project was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of government policy in a national policy statement, which Parliament put in place in the Planning Act 2008, was not fully complied with. The Paris Agreement [on climate change] ought to have been taken into account by the Secretary of State in preparing the ANPS, but was not.

The Court agreed with the appellants that the Government’s commitment to the Paris Agreement constitutes government policy on climate change, which the Secretary of State was required to take into account. However, the Government when it published the ANPS had not taken into account its own firm policy commitments on climate change under the Paris Agreement. The Court nevertheless emphasised that section 5(8) of the 2008 Act does not require of the Secretary of State to follow or act in accordance with government policy. In terms, what it requires is that the ANPS should explain how the Secretary of State has “taken into account” government policy. It is necessarily implicit in that obligation that the Secretary of State must indeed first have taken that government policy into account. This is an important aspect of the transparency of the Secretary of State’s actions and his accountability, both to Parliament and to the wider public.

The Court of Appeal did not consider that it should quash the ANPS, but confined the relief granted to a Declaration. Other grounds of appeal were all dismissed. These included issues relating to the operation of the Habitats Directive, and also on a variety of issues concerning the operation of the Strategic Environmental Assessment Directive.

The Court of Appeal made it clear that these judicial review proceedings, did not require the Court to decide whether and how Heathrow should be expanded. That is not the kind of decision that courts can make. It is ultimately a political question for the Government of the day. Rather, the Court was required to consider whether the court below (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. This is an entirely legal question.

The Court of Appeal was also at pains to stress the limited scope of their judgment. The Court did not decide, and could not decide, that there will be no third runway at Heathrow. Nor did they find that the ANPS supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. However, the consequence of the Court’s decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed.

A successful claim in judicial review proceedings often proves to be a ‘pyrrhic’ victory, and this may well be the case here. All that the Secretary of State need do now is to reconsider the matter, “taking account” of stated government policy in relation to the implementation of the Paris Agreement. As the Court of Appeal made abundantly clear, the Secretary of State is not required to follow or act in accordance with government policy. It is therefore entirely possible that the Secretary of State, having taken account of the government’s own policy as to their obligations under the Paris Agreement, may nevertheless decide for economic and other reasons that the ANPS supporting the expansion of Heathrow Airport should be reaffirmed in its present form, thus allowing the third runway at Heathrow to go ahead.

The government has already stated that they will not seek to appeal to the Supreme Court, but will abide by the judgment (which, as I have explained, should prove to be a comparatively easy exercise). The owners of Heathrow Airport, on the other hand, were all set to pursue a further appeal, but they may think better of it when it becomes clear to them that this judgment is unlikely in practice to prevent the expansion of Heathrow that they have planned.

[Just to make one thing clear, I am not taking sides in this case. I can see that there may well be arguments against further airport development in the face of the mounting climate crisis, but as the Court of Appeal made abundantly clear, that is a political issue, and is not one with which the courts can concern themselves. The government simply has to follow the correct procedure in accordance with section 5(8) of the 2008 Act, and they are home and dry.]

© MARTIN H GOODALL