What Are The Non-Airport Implications Of The Heathrow Ruling?

The Court of Appeal’s approach to the issues in the Heathrow cases last month was certainly a surprise to many.

The court found in the main “Plan B” ruling (27 February 2020) that the Secretary of State had acted unlawfully when, following the procedure in section 5 of the Planning Act 2008, on 26 June 2018 he designated the Airports National Policy Statement. The court’s basis for its finding was that the Secretary of State had not complied with section 5(8):

(7) A national policy statement must give reasons for the policy set out in the statement.

(8) The reasons must (in particular) 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.”

The question was what was “Government policy” in relation to climate change as at 26 June 2018. The court found that the Secretary of State had acted unlawfully in not taking into account “its own firm policy commitments on climate change under the Paris Agreement”.

This is somewhat surprising given that at first instance the Divisional Court (Hickinbottom LJ and Holgate J, no slouches) had found that this submission was unarguable:

In our view, given the statutory scheme in the [Climate Change Act 2008] and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.” (paragraph 648 of the main judgment at first instance, known as “Spurrier” after the then first claimant, who had represented himself at first instance but had dropped out by the time of the appeal, which is why you will hear the appeal ruling called “Plan B” after the lead appellant, campaign group Plan B Earth).

(For a wider summary of the proceedings at first instance see my 4 May 2019 blog post Lessons From The Heathrow Cases).

The Court of Appeal has ordered that the Airports National Policy Statement “is of no legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant provisions of the Planning Act 2008.”

Heathrow Airport Limited has applied to the Supreme Court to appeal from the ruling although the Secretary of State has not (meaning that any appeal could be fairly irrelevant if the Secretary of State decides to review the NPS in any event). Whether permission to appeal is granted depends on whether the Supreme Court considers that there is an arguable point of law of general public importance.

So this is all significant as regards the proposal for a third runway at Heathrow. According to the Planning Inspectorate website the application for a development consent order under the Planning Act 2008 NSIP procedure is/was expected to be submitted in Q4 2020.

The main function of the NPS was to give formal national policy support to the proposal at Heathrow. The way that the Planning Act 2008 works is that, under section 104, the Secretary of State must decide a DCO application in accordance with any relevant national policy statement “except to the extent that one or more of subsections (4) to (8) applies.

(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.

(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.

(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.

(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.

(8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.

(9) For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.

So the first thing to note is that the NPS would not have given Heathrow Airport Limited a free pass to a consent – in determining the application the Secretary of State would need to determine whether, notwithstanding the June 2018 NPS, the proposal is not in accordance with, for instance, up to date treaty obligations or domestic legislation – exactly the point made by the Divisional Court in the passage I quoted earlier.

This is relevant because the issue in the Heathrow cases very much turned on an historical question – what was the Government’s climate change policy as at 26 June 2018. Legislation and policy has plainly moved on since then, and will continue to move on. I referred in my 10 August 2019 blog post The Big CC to Theresa May’s tightening in June 2019 of the Government’s commitment to reduce greenhouse gas emissions, by making the Climate Change Act 2008 (2050 Target Amendment) Order 2019 which changed the duty of the Secretary of State under the Climate Change Act 2008 from being to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline, to being at least 100% lower, ie net zero. The target does not include international aviation or shipping: paragraph 10.5 of the explanatory notes published with the order states that there is a “need for further analysis and international engagement through the international networks. For now, therefore we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets…” By the time that any Heathrow DCO application is to be/would have been determined, the Secretary of State would have to take into account climate change legislation and international commitments at the time.

It can all of course get messy/political, as demonstrated by former Energy Secretary Andrea Leadsom’s approval last year, against her inspectors’ recommendations, of the Drax gas-fired power stations DCO, a decision which is now being challenged in the High Court by ClientEarth (see Drax legal case: We’re taking the UK government to court over Europe’s largest gas plant, ClientEarth, 30 January 2020).

Although it would be a risky strategy to adopt, given it would entail acknowledging loss of any formal statutory policy support for Heathrow as the favoured option, Heathrow Airport could in theory decide to proceed with a DCO application without the support of an NPS (this appears to be Gatwick’s strategy with its proposed northern runway). In the absence of an NPS, section 105 applies:

(2) In deciding the application the Secretary of State must have regard to—

(a) any local impact report (within the meaning given by section 60(3)) submitted to the Secretary of State before the deadline specified in a notice under section 60(2),

(b) any matters prescribed in relation to development of the description to which the application relates, and

(c) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State’s decision.”

How even to begin to scope the appropriate approach to decision-making in that situation…

Any wider relevance?

So does this ruling have repercussions away from Heathrow and airports?

People threaten to bring judicial review proceedings, and often end up bringing them for all sorts of reasons. Lord Reed, President of the Supreme Court, made some topical comments to the House of Lords Constitution Committee last week:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.” (Law Society Gazette, 4 March 2020).

Since the ruling we have seen these stories:

Environmentalists follow Heathrow ruling by calling on government to end fossil fuel developments (Ecotricity, 4 March 2020) (The Secretary of State has a discretion in section 6 of the 2008 Act as to whether and when to review NPSs, and indeed since June 2019 Government climate change targets have been clear regardless of what the position was at June 2018 – which is surely the only relevance of the Heathrow rulings – if the point made by the prospective claimants is a good one, it has been a good one for some time now).

HS2 legal challenge launched by Chris Packham (Guardian, 3 March 2020) (There is surely no duty on a minister to take into account Government climate change targets in making a decision to continue with the construction of an existing project which has already, phase 1 at least, been authorised by Parliament).

What did it for the Secretary of State in relation to the Heathrow NPS was the specific statutory duty to take into account “government policy” on climate change mitigation and adaptation.

Regardless of whether the Court of Appeal was right to determine that Government support for the Paris Agreement (international) targets could be construed as government policy for any particular domestic targets, there is not the same statutory duty when it comes to the Town and Country Planning Act system.

When it comes to plan-making, section 19(1A) of the Planning and Compulsory Purchase Act 2004 imposes a statutory duty on local planning authorities that development plan documents must include policies that contribute to mitigation and adaptation to climate change, and this duty is reflected in paragraph 149 of the National Planning Policy Framework, stating in footnote 48 that policies should be “in line with the objectives and provisions of the Climate Change Act 2008”.

There are no specific equivalent requirements in relation to decision making, just the general statement in paragraph 148, stating that the “planning system should support the transition to a low carbon future in a changing climate” and “should help to: shape places in ways that contribute to radical reductions in greenhouse emissions”.

Beware those who wave about the Heathrow ruling as some kind of game changer in relation to the battle against climate change. It is certainly a game changer in relation to Heathrow Airport’s aspirations, as to project timescale at the very least, but, wider than that? The Court of Appeal determined that a specific statutory duty, peculiar to the making of NPSs, was breached. The question of whether there was a breach depended on determining what government policy on climate change was in June 2018, when it was not as advanced as it is now. Finally, it is not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court – but of course all that could well be largely hypothetical, depending upon what steps the Government now takes.

The awaited national infrastructure plan, which was to be published alongside the budget on 11 March, is to be delayed but reportedly could still be “before May” (Government delays Budget infrastructure plan, BBC, 5 March 2020). It will be interesting to see whether any hints are dropped in our new Chancellor’s budget statement as to the Government’s direction of travel.

Simon Ricketts, 7 March 2020

Personal views, et cetera

Stansted Airport

This blog post covers yesterday’s High Court ruling in Ross & Sanders (obo Stop Stansted Expansion) v Secretary of State for Transport (Dove J, 7 February 2020), where the issue before the court was whether an application for planning permission for development at Stansted Airport, made to the local planning authority, Uttlesford District Council, by the airport under the Town and Country Planning Act 1990, should instead have been pursued as a Nationally Significant Infrastructure Project (NSIP), to be determined by the Secretary of State for Transport. I also set out the timeline as to the council’s decision-making in relation to the planning application. I have limited what I say to a factual account, given that my firm is acting for the airport (alongside Tom Hill QC and Philippa Jackson from 39 Essex chambers).

The airport is subject to a cap of 35 million passengers per annum (mppa) and a cap of 274,000 air traffic movements (ATMs) per annum. On 22 February 2018 the airport submitted an application for planning permission which involved “building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands. These new developments are planned to take place in four separate locations within the existing footprint of Stansted Airport. It is uncontentious that these developments would increase the use of Stansted Airport’s single runway and its potential to handle aircraft movements. The planning application also includes a request for the planning cap of 35 million passengers per annum (“mppa”) to be increased to 43 mppa.” It was not proposed to increase the ATMs cap.

The relevant part of section 23 of the Planning Act 2008 provides that airport-related development is to be treated as an NSIP in the case of any “alteration” to an airport the effect of which is “to increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”.

Section 23(6) provides that “”alterationin relation to an airport, includes the construction, extension or alteration of:


(a) a runway at the airport,

(b) a building at the airport, or

(c) a radar or radio mast, antenna or other apparatus at the airport.”

The Secretary of State for Transport determined on 28 June 2018 that the 10 mppa threshold would not be exceeded and that he would not exercise his discretionary power under section 35 of the Act to treat the proposals as nationally significant and therefore subject to the 2008 Act decision-taking process and a decision at a national level. The latter determination was taken against the background of the Secretary of State’s publication on 5 June 2018 of the government’s “”Airports National Policy Statement: new runway capacity and infrastructure at airports in south-east of England” (NPS) together with the policy “Beyond the horizon: The future of UK aviation-Making best use of existing runways” (“MBU”).The MBU policy paper stated that the government would be using its Aviation Strategy to progress its wider policy towards tackling aviation carbon. “”[T]o ensure that our policy is compatible with the UK’s climate change commitments we have used the DfT aviation model to look at the impact of allowing all airports to make best use of their existing runway capacity.” The paper stated:

Airports that wish to increase either the passenger or air traffic movement caps to allow them to make best use of their existing runways will need to submit applications to the relevant planning authority. We expect that applications to increase existing planning caps by fewer than 10 million passengers per annum (mppa) can be taken forward through local planning authorities under the Town and Country Planning Act 1990. As part of any planning application airports will need to demonstrate how they will mitigate against local environmental issues, taking account of relevant national policies, including any new environmental policies emerging from the Aviation Strategy. This policy statement does not prejudice the decision of those authorities who will be required to give proper consideration to such applications. It instead leaves it up to local, rather than national government, to consider each case on its merits.”

Stop Stansted Expansion challenged the Secretary of State’s 28 June 2018 determination on two grounds: that the airport’s proposals would in fact lead to the 10 mppa cap being exceeded and that the Secretary of State should have used his discretionary power to treat the proposals as an NSIP, the claimant relying, amongst other things on a “suggestion that the application was in truth part of a wider project for expansion of passenger throughput in excess of the NSIP definition, and the ramifications of increased carbon emissions as a result of increased air travel which ought to have led to the conclusion that the development should be treated as an NSIP.”

On the first ground, the court accepted that the proposed works amounted to an “alteration” of an airport (the argument was as to whether the definition was for the purposes of these proposals limited to alterations to a runway but Dove J accepted a wider definition, given the word “includes” in sub-section (6)). However, the court found that the Secretary of State was correct to conclude that the 10 mppa threshold would not be breached:

I am satisfied that the submissions of the Defendant in this respect are undoubtedly correct. The language of the statute in relation to whether the alteration will “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services” requires the Defendant to form a judgment in relation to that question. In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground, the court noted that from the statutory language of section 35 of the 2008 Act “the Defendant is granted a broad discretion as to whether or not to treat an application for development which does not otherwise meet the definitions for an NSIP as a project which requires development consent on the basis of national significance. Bearing in mind the prescriptive nature of the definitions for various types of NSIP contained in the 2008 Act, the discretion under section 35 is a broad one. Given the nature of the Defendant’s decision, as one which was exercised using a relatively broad discretion, the task of the Claimants to show that the judgment which the Defendant reached was unlawful is daunting.

The court concluded that similarly ground 2 was not made out. One of the claimant’s submissions was that the MBU carbon emissions modelling was flawed and had “underestimated the effects of growth in aircraft traffic at Stansted airport”. The judge accepted the Secretary of State’s submission that in “reality this aspect of the Defendant’s decision was essentially based on reliance on the MBU policy, and that the substance of the Claimants’ case is in fact a challenge to the legality of that policy in disguise (see paragraphs 95 and 96 above). Certainly, the legality of that policy is now beyond argument. As such I accept that the Defendant was, lawfully, entitled to reach the conclusion which he did, based squarely on the MBU policy that “an increase in the planning cap at [Stansted]…could be adequately mitigated to meet the CCC’s 2050 planning assumption”. That was a conclusion which applied the provisions of the MBU policy (see paragraphs 38 to 40 above) which had considered that proposals of this scale would not imperil the achievement of climate change targets in the light of the modelling work which had informed the policy.”

The Defendant has provided in the evidence a clear and coherent explanation of the purpose of the modelling (namely for long-term forecasting at a national level) and the basis on which it was constructed so as to inform and justify the policy in MBU relating to whether planning proposals at airports could be adequately mitigated and dealt with at the local level. Once this background to the technical work is understood, then it becomes clear that the criticisms of the Claimants, based upon short-term analysis or examination of individual years is without substance.”

Accordingly, the airport had been correct to pursue the proposals by way of an application for planning permission to the local planning authority, and the Secretary of State had not acted unlawfully in declining to intervene by way of directing that the proposals should proceed as an NSIP.

So was the local planning authority, Uttlesford District Council, now free to determine the application? Well this would have been the case if it had not resolved, against officers’ recommendations, to refuse planning permission on 24 January 2020, the decision notice then having been issued on 29 January 2020.

It has been a twisting route, summarised in the report prepared for Extraordinary Planning Committee meetings that were held on on 17 and 24 January 2020 (the passages in quotation marks below), with additional factual insertions by me:

The claimant made requests on 19 April and 14 June 2018 to the Secretary of State for Housing, Communities and Local Government for the application to be called in. He responded that the Secretary of State for Transport should first determine whether the application should be treated as an NSIP.

The Secretary of State determined on 28 June 2018 that the application was not to be treated as an NSIP. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (those proceedings eventually being dismissed on 7 February 2020 as described above).

On 14 November 2018, the Planning Committee resolved to grant the application, subject to conditions and subject to completion of an agreement imposing legally binding planning obligations (“section 106 agreement”). The Report and Supplementary Reports identified the planning obligations required. The precise form that the section 106 agreement should take, in accordance with the amended recommendation, was resolved to be delegated to officers. Subsequently, a proposed S106 Agreement was drawn up between the Council, Essex County Council (as relevant highway authority) and Stansted Airport Ltd.”

On 20 March 2019 the Secretary of State for Housing, Communities and Local Government decided not to call in the application. Stop Stansted Expansion issued judicial review proceedings in relation to that decision (Legal bid lodged after Government rejects ‘call in’ of Stansted Airport planning application, Saffron Walden Reporter, 28 March 2019). Those proceedings were subsequently withdrawn.

The purdah period commenced ahead of local government elections on 2 May 2019.

5. An Extraordinary Meeting of the Council was called for 25 April 2019 to consider the following motion:

“To instruct the Chief Executive and fellow officers not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the related Section 106 Legal Agreement between UDC and Stansted Airport Limited and the Planning Conditions have been scrutinised, reviewed and approved by the Council’s Planning Committee after the local elections.

The motion was defeated by 14 votes to 18 votes.

6. A further Extraordinary Meeting was called to consider the following motion:

To instruct the Chief Executive and fellow officers not to issue the Planning Decision Notice for planning application UTT/18/0460/FUL until members have had an opportunity to review and obtain independent legal corroboration that the legal advice provided to officers, including the QC opinion referred to by the Leader of the Council on 9th April 2019, confirms that the proposed Section 106 Agreement with Stansted Airport Limited fully complies with the Resolution approved by the Planning Committee on 14 November 2018 such that officers are lawfully empowered to conclude and seal the Agreement without further reference to the Planning Committee.

The meeting was originally scheduled for 3 June but was deferred until 28 June to allow further time for consideration of legal advice.

7. An informal meeting was held on 30 April with members who had requisitioned the Extraordinary Meeting. It was agreed:

⁃ that officers would not complete the section 106 agreement and issue the

planning consent for the time being;

⁃ That the legal advice previously obtained from Christiaan Zwart, barrister,

would be circulated to all members;

⁃ That a briefing session would be held for all members, with Christiaan Zwart in attendance to answer questions about his advice;

⁃ That, if need be, further advice would be sought at Q.C. level and a further briefing for all councillors would be held. This advice would focus on whether the planning obligation requirements made by the Planning Committee have been incorporated fully and effectively into the s106 agreement, and on the origin and consequences of any “gaps” if any between the Planning Committee Resolution and the resulting S106 Agreement.”

At the local government elections on 2 May 2019, the council came under the control of Residents 4 Uttlesford by a substantial majority.

8. A briefing meeting for all councillors was called for 14 May. Advice obtained from the Council’s barrister, Christiaan Zwart, was circulated prior to the meeting. He spoke to his advice on 14 May and answered questions.

9. Further advice was then obtained from Stephen Hockman Q.C. working jointly with Christiaan Zwart. Their joint advice was sent to members prior to a second briefing meeting held on 21 May. They answered questions raised by members at that briefing. Issues raised at the briefing meeting by members, and by Stop Stansted Expansion separately, led to additional further advice from Stephen Hockman, Q.C. and Christiaan Zwart. This also was shared with all members of the Council. In all cases information was shared on a legally privileged and confidential basis.

10. At the Extraordinary Meeting of Full Council on 28 June officers were instructed not to issue a Planning Decision Notice for planning application UTT/18/0460/FUL until the Planning Committee had considered:

(i) the adequacy of the proposed Section 106 Agreement between UDC and Stansted Airport Ltd, having regard to the Heads of Terms contained in the resolution approved by the Council’s Planning Committee on 14th November 2018;

(ii) any new material considerations and/or changes in circumstances since 14 November 2018 to which weight may now be given in striking the planning balance or which would reasonably justify attaching a different weight to relevant factors previously considered.

11. Since that meeting further expert legal advice has been obtained from Philip Coppel QC at the request of Members, and officers have been supporting members of the Planning Committee in preparing to consider the two matters set out above through a series of workshop sessions, in part owing to the significant change in membership of the committee. These sessions have taken members through the content of the draft obligations and issues that might be raised as potential new material considerations and regarded as a material change in circumstances since 14 November. They have provided opportunities for councillors and officers to ensure the obligations and issues are fully understood.

12. This report seeks to set out the issues comprehensively, to enable the Committee to comply with the Council resolution and authorise the release of the appropriate decision notice on the planning application.”

Officers recommended the following:

The Assistant Director – Planning be authorised to issue the decision notice approving the planning application subject to the planning conditions as resolved by the Planning Committee on 14 November 2018 on signing of the amended S106 Agreement appended to this report.”

The Committee sat on 17 and 24 January 2020. Members rejected the officers’ recommendation (ten members voting to reject it, with two abstentions).

The reasons for refusal set out on the decision notice are as follows:

1 The applicant has failed to demonstrate that the additional flights would not result in an increased detrimental effect from aircraft noise, contrary to Uttlesford Local Plan Policy ENV11 and the NPPF.

2 The application has failed to demonstrate that the additional flights would not result in a detrimental effect on air quality, specifically but not exclusively PM2.5 and ultrafine particulates contrary to Uttlesford Local Plan Policy ENV13 and paragraph 181 of the NPPF.

3 The additional emissions from increased international flights are incompatible with the Committee on Climate Change’s recommendation that emissions from all UK departing flights should be at or below 2005 levels in 2050. This is against the backdrop of the amendment to the Climate Change Act 2008 (2050 Target Amendment) to reduce the net UK carbon account for the year 2050 to net zero from the 1990 baseline. This is therefore contrary to the general accepted perceptions and understandings of the importance of climate change and the time within which it must be addressed. Therefore, it would be inappropriate to approve the application at a time whereby the Government has been unable to resolve its policy on international aviation climate emissions.

4 The application fails to provide the necessary infrastructure to support the application, or the necessary mitigation to address the detrimental impact of the proposal contrary to Uttlesford Local Plan Policies GEN6, GEN1, GEN7, ENV7, ENV11 and ENV13.

If you are interested in the debate that led to these conclusions, you are out of luck: No webcast or sound recording of the 24 January session is apparently available. There is an apology on the council’s website:

Unfortunately the broadcasting of today’s meeting failed. Officers worked throughout the day, in liaison with the supplier, to identify and rectify the problem without success.

It has now been established that the back-up local recording of the meeting also failed, meaning an audio recording of the meeting will not be available on the council’s website.

We sincerely apologise to those who had wanted to ‘listen in’ or ‘listen again’ to the meeting.”

From lack of sound to lack of soundness…

The inspectors examining Uttlesford’s local plan concluded in their 10 January 2020 post stage 1 hearings letter as follows:

Unfortunately, despite the additional evidence that has been submitted during the examination and all that we have now read and heard in the examination, including the suggested main modifications to the plan (ED41) put forward by the Council, we have significant concerns in relation to the soundness of the plan. In particular, we are not persuaded that there is sufficient evidence to demonstrate that the Garden Communities, and thus the overall spatial strategy, have been justified. We therefore cannot conclude that these fundamental aspects of the plan are sound.”

But that, friends, is for another blog post.

Simon Ricketts, 8 February 2020

Personal views, et cetera

Urgent Agenda/Urgenda

There appears to be a new domestic political urgency about climate change (to the extent that there is space for anything other than the B word). After saying as little as possible about the politics, the focus of this blog post is on law, and specifically, climate change litigation, although as can be the case with some constitutional law cases (not to mention judicial reviews in our little Planning Court world), climate change law is an area where the purpose of the proceedings, succeed or fail, is often simply to change the politics.

The politics

Party members backed a radical “Green New Deal” motion at last week’s Labour party conference Labour set to commit to net zero emissions by 2030 (Guardian, 24 September 2019). If that is to form part of the next manifesto, some serious thinking is going to be required as to how to turn headlines into costed, politically and socially acceptable reality, but the starting gun has perhaps been fired.

Ahead of the Conservative party conference this week, as I write this morning we are waiting for a series of Government announcements, trailed overnight in pieces such as ‘21st Century Conservatism’: Tories unveil fresh wave of net zero measures (Business Green, 28 September 2019) and Tories ignore tough climate change recommendations in 2050 net zero plan, but promise nuclear fusion instead (Independent, 28 September 2019), which follows Theresa May’s June 2019 tightening of the minimum 80% reduction against 1990 levels figure in the Climate Change Act 2008 Act to 100% ie net zero greenhouse emissions by 2050, with an announcement on 12 June 2019 and the making of the Climate Change Act 2008 (2050 Target Amendment) Order 2019 on 26 June 2019. The amended target excluded international aviation and shipping pending further analysis and international engagement. The Committee on Climate Change on 24 September 2019 published advice to the Secretary of State for Transport as to how emissions from these sectors could be brought within the 2050 target.

UN

It was of course also the UN Climate Action Summit last week, with a series of actions announced, trackable via this detailed portal.

Convention on the Rights of the Child petition

Greta Thunberg announced at the UN that proceedings were being brought under the UN Convention on the Rights of the Child against Argentina, Brazil, France, Germany and Turkey, as G20 countries which are alleged not to have kept previously made pledges in international climate change conventions and agreements. The detailed petition (96 pages of reasoned argument, with evidence) to the Committee on the Rights of the Child (which monitors states’ compliance with the Convention) alleges that:

⁃ “each respondent has failed to prevent foreseeable human rights harms caused by climate change by reducing its emissions at the “highest possible ambition.” Each respondent is delaying the steep cuts in carbon emissions needed to protect the lives and welfare of children at home and abroad.”

⁃ “as members of the G20, which makes up 84% of all global emissions, each respondent has failed to use all available legal, diplomatic, and economic means to protect children from the life-threatening carbon pollution of the major emitters (China, the U.S., the E.U., and India) and other G20 members. As G20 members, the respondents have diplomatic, legal, and economic tools at their disposal. Yet, none of the respondents have used, much less exhausted, all reasonable measures to protect children’s rights from the major emitters”.

By recklessly causing and perpetuating life-threatening climate change, the respondents have failed to take necessary preventive and precautionary measures to respect, protect, and fulfill the petitioners’ rights to life (Article 6), health (Article 24), and culture (Article 30) and are thus violating the Convention. Under the Convention, states must “limit ongoing and future damage” to these rights, including those caused by environmental threats.”

The five states were selected as the five largest emitters of carbon that are signatories to the Convention. China, USA, Saudi Arabia and Russia are not signatories.

Obviously, steps like these are taken for a variety of motives – direct legal redress is unlikely, but it all adds to the political pressure and of course shines a more direct light publicly on the relevant issues. It also made me realise that I should perhaps write this follow up to my 10 August 2019 climate change blog post The Big CC (which, I’m sorry, was a bit of a monster) to reference some of the other climate change litigation that we have been seeing.

Heathrow

The appeals from the Heathrow court rulings that I summarised in my 4 May 2019 blog post Lessons From The Heathrow Cases will be heard by the Court of Appeal on 17, 18, 22, 23, 24 & 25 October 2019. They will be live streamed.

Whilst the attacks by the various claimants to the Secretary of State’s decision to designate the Airports National Policy Statement were wide-ranging, challenges brought by Plan B Earth and Friends of the Earth focused on climate change arguments.

Plan B Earth sought to establish that “government policy” to be taken into account in designating the NPS included a commitment to the Paris Agreement limit in temperature rise to 1.5oC and “well below” 2oC. The Secretary of State acted unlawfully in not taking into account that commitment; and in taking into account an immaterial consideration, namely the global temperature limit by 2050 of 2oC above the pre-industrial level which, by the time of the designation, had been scientifically discredited as recognised by the UK Government as a party to the Paris Agreement and other announcements of support for the 1.5oC limit upon which the Paris Agreement was based (Plan B Earth Ground 1).

However, the Divisional Court held that “the Secretary of State was not obliged to have foreshadowed a future decision as to the domestic implementation of the Paris Agreement by way of a change to the criteria set out in the CCA 2008 which can only be made through the statutory process; and, indeed, he may have been open to challenge if he had proceeded on a basis inconsistent with the current statutory criteria. Nor was he otherwise obliged to have taken into account the Paris Agreement limits or the evolving knowledge and analysis of climate change that resulted in that Agreement.”

Plan B Earth also sought to argue that the “Secretary of State erred and failed to act in accordance with section 3 of the Human Rights Act 1998, which requires legislation to be read and given effect in a way which is compatible with the ECHR rights, by failing to read and give effect to the phrase in section 5(8) of the PA 2008, “Government policy relating to the mitigation of, and adaptation to, climate change”, as including the Paris Agreement” and that “in any event, irrespective of the terms of the PA 2008, the Secretary of State acted irrationally in taking into account the discredited 2oC limit and not taking into account the 1.5oC limit to which, by the time of the designation, the Government was committed.” Both grounds were also rejected.

Friends of the Earth argued, unsuccessfully, that the NPS did not adequately explain how the 2050 carbon target as set out in section 1 of the Climate Change Act 2008 had been taken into account and /or that in a number of respects the NPS was “internally contradictory or otherwise unclear” as to its compatibility with the 2050 emissions target.

They also argued that section 10 of the Climate Change Act 2008 “requires the Secretary of State, on the basis of up to date information and analysis, to take into account the ability of future generations to meet their needs, which includes taking into account international agreements such as the Paris Agreement and the underlying science of climate change which bear upon that question.” However, the court held that “international commitments were a consideration in respect of which he had a discretion as to whether he took them into account or not.

It is well-established that where a decision-maker has a discretion as to whether to take into account a particular consideration, a decision not to take it into account is challengeable only on conventional public law grounds. In our view, given the statutory scheme in the CCA 2008 and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.

Lastly, Friends of the Earth argued unsuccessfully that the obligations of the Paris Agreement should have been taken into account in the environmental report that was prepared for the purposes of the strategic environmental assessment that informed the Secretary of State’s decision to designate the NPS.

Generally, the passages in the judgment in relation to climate change (paragraphs 558 to 660) are well worth reading. Will the Court of Appeal hold to the same line?

Plan B Earth “carbon target” litigation

Plan B Earth had previously brought a challenge to the Secretary of State’s refusal to revise the 2050 carbon target under the 2008 Act, on the basis that he was obliged to do so following the Paris Agreement.

The proceedings, Plan B Earth v Secretary of State (Supperstone J, 20 July 2018), were dismissed as unarguable.

One of the grounds of challenge was that the Secretary of State’s refusal to amend the 2050 target constitutes a violation of the claimants’ human rights. “The Claimants rely on the rights conferred by Articles 2 and 8 of the ECHR, and by Article 1 of the First Protocol, both individually and in conjunction with Article 14. Mr Crow submits that in so far as the Secretary of State is acting inconsistently with his Treaty obligations and with general principles of international law, he is in breach of his positive obligations to uphold the Claimants’ Convention rights. This ground, Mr Crow acknowledges, raises a novel issue under the HRA 1998. However he observes that it is difficult to conceive of any issue that would be of greater significance to each member of the British public than the threat of climate change, which the Government has acknowledged as constituting an “existential threat”. In this context, he submits that the Government’s delay is inexcusable (Ground 4).

Mr Palmer submits that the decision not to amend the 2050 target at this time does not amount to an interference with any identifiable victim’s rights under any of the Articles relied upon. Mr Crow accepts there is no interference with any identifiable victim’s rights, but submits that there has been a violation of those rights, which have an environmental dimension. The Claimants do not identify any interference to which that decision gives rise, but only to the effects of climate change generally. The violation arises, it is said, because of the failure of the Secretary of State to take proper preventive measures. I reject this submission. The Government is committed to set a net zero emission target at the appropriate time. I agree with Mr Palmer that this is an area where the executive has a wide discretion to assess the advantages and disadvantages of any particular course of action, not only domestically but as part of an evolving international discussion. The Secretary of State has decided, having had regard to the advice of the Committee, that now is not the time to revise the 2050 carbon target. That decision is not arguably unlawful, and accordingly the human rights challenge is not sustainable.”

Permission to appeal was refused by the Court of Appeal on 22 January 2019.

Urgenda

It is interesting to contrast these two rulings with the Dutch proceedings brought by campaign group, Urgenda. As summarised by the LSE/Grantham Research Institute on Climate Change and the Environment, the Hague Court of Appeal ruled (unofficial English translation, 9 October 2018) “that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change. The court rejected the government’s argument that the lower court decision constitutes “an order to create legislation” or violation of trias politica and the role of courts under the Dutch constitution. In response to these appeals, the court affirms its obligation to apply provisions with direct effect of treaties to which the Netherlands is party, including Articles 2 and 8 of the ECHR. Further, the court found nothing in Article 193 of the Treaty on the Functioning of the European Union that prohibits a member state from taking more ambitious climate action than the E.U. as a whole, nor that adaptation measures can compensate for the government’s duty of care to mitigate greenhouse gas emissions, nor that the global nature of the problem excuses the Dutch government from action.

An appeal was heard by the Dutch Supreme Court in May 2019 and its ruling is anticipated before the end of the year.

The end of the year? I think they need a Lady Hale.

Simon Ricketts, 28 September 2019

Personal views, et cetera

Lessons From The Heathrow Cases

In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).

It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation

The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:

⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)

⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London

⁃ Friends of the Earth

⁃ Plan B Earth

⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”)]

Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.

The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.

The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.

As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:

⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim

⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)

⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings

⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim

⁃ statements of common ground

⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues

⁃ bundles and skeleton arguments complying with strict page limits and other requirements

⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000

⁃ cost capping in the other claims on Aarhus Convention principles

The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.

Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:

R (Spurrier & others) v Secretary of State (Divisional Court, 1 May 2019)

R (Heathrow Hub Limited & Runway Innovations Limited) v Secretary of State (Divisional Court, 1 May 2019)

The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.

I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.

The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”

The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.

The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.

In the Spurrier judgment:

– the scope for challenge of an NPS (paras 86 to 90)

⁃ relationship between the NPS and DCO process (paras 91 to 112)

⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)

⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)

⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)

⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)

⁃ whether updated information should have been taken into account (paras 201 to 209)

⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)

⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)

⁃ compliance with the Habitats Directive (paras 286 to 373)

⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)

⁃ whether consultation was carried out with an open mind (paras 503 to 552)

⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)

⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)

⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)

In the Heathrow Hub judgment:

⁃ legitimate expectation (paras 113 to 138)

⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)

⁃ competition law (paras 157 to 209).

As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…

Simon Ricketts, 4 May 2019

Personal views, et cetera

Parliament, Purdah, Planning

The pre- general election “purdah” period starts at midnight tonight (21 April). What this means is set in Cabinet Office guidance published yesterday, 20 April.
The guidance says:

“During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money

So don’t hold your breath for any decision letters to be issued. 
In relation to current consultation processes, the guidance says:

“If a consultation is on-going at the time this guidance comes into effect, it should continue as normal. However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process. 


As these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. That can be done, for example, by: 


– prolonging the consultation period; and


– putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister).

Some consultations, for instance those aimed solely at professional groups, and that carry no publicity will not have the impact of those where a very public and wide-ranging consultation is required. Departments need, therefore, to take into account the circumstances of each consultation.”

There are currently six DCLG consultation processes which are still open:

* Review of park homes legislation: call for evidence

* Running free: consultation on preserving the free use of public parks

* Banning letting agent fees paid by tenants

* 100% business rates retention: further consultation on the design of the reformed system

* Fixing our broken housing market: consultation

* Planning and affordable housing for Build to Rent

the last two of course being particularly important for us in the housing and planning sector. 

The Department for Transport is currently consulting on its draft Airports National Policy Statement in relation to the expansion of Heathrow and on reforming policy on the design and use of UK airspace.

Surely these consultation processes will all now be extended. Can any of them be said to be “aimed solely at professional groups”?
The Government faces an interesting dilemma in relation to its awaited consultation draft air quality plan. Garnham J had ordered on 21 November 2016 that the draft be published by 24 April 2017 following previous deadline breaches summarised in my 4.11.16 blog post. The announcement of the election and consequent purdah period does not automatically extend that deadline. Will we see a draft by the deadline or will ClientEarth be back before the court?
Notwithstanding purdah, Parliament will continue to sit until 2 May 2017. The outstanding Bills are:
• Bus Services Bill

• Children and Social Work Bill 

• Digital Economy Bill 

• Health Services Supplies Bill

• Higher Education and Research Bill 

• National Citizen Service Bill

• Pension Schemes Bill

• Technical and Further Education Bill

and of course the Neighbourhood Planning Bill, which is at its final stages, with final consideration by the House of Lords on 25 April 2017 of amendments made by the Commons. Whilst technically there is therefore the time available before Parliament dissolves, the BBC website  has an interesting analysis of the practical constraints that there will be on Parliamentary time during this final period. My understanding is that public Bills cannot be held over and so the Bill would fall. 
Finally, as we wait for the parties’ manifestos and various pressure groups compose their letters to Santa, this is a collection of some of the commitments which some Town Legal colleagues would personally like to see (tongue in cheek – what votes in many of these one wonders?). We will be jotting up the scores once the manifestos are published but a more than a 10% convergence would be doing pretty well I suspect…
1. Revised NPPF as previously signalled, but with consultation on final wording.

2. Real sanctions for local planning authorities which continue to delay in preparing plans or which do not plan adequately to meet housing requirements. Statutory duty to make local plans every 10 years. 

3. Review of green belt boundaries in the south east should be obligatory at least every 20 years. Where there are no green belt boundaries fixed because there are no local plans in place , the Secretary of State should appoint PINS to lead a plan making exercise at the expense of the defaulting council with step in rights if the Council wants to come back into the fold.

4. Review of effectiveness of Localism Act 2011 procedures, including neighbourhood plan making.

5. No weakening of environmental protections via Great Repeal Bill.

6. Urgent conclusion to CIL review, with short-term remedial measures, including greater flexibility for local planning authorities and developers in relation to strategic sites.

7. Enabling urban extensions and new settlements of true scale (eg 10,000 to 15,000 homes plus associated infrastructure and development) to proceed by way of NSIP.

8. Introduction of duty to cooperate to apply as between the London Mayor and local planning authorities.

9. Reform of rights to light law to reflect modern realities.

10. Greater flexibility for local authorities to dispose of land for less than best consideration.

11. Require better coordinated forward planning with statutory undertakers and infrastructure providers.

12. General commitment to consultation and piloting prior to legislative changes in relation to planning.

13. Increased resourcing in relation to the planning system so as to achieve better quality, more consistent, more timely and more efficient outcomes.

14. High speed Broadband and electric car charging should be a standard requirement.

15. Clarity on approach to viability and review mechanisms.

16. A more stable system with no more changes for the next two years at least (save for these ones!)

Back to the day job…

Simon Ricketts 21 April 2017

Personal views, et cetera

Hillingdon JR: Lucky Strike Out?

In R (London Borough of Hillingdon & others) v Secretary of State  (Cranston J, 30 January 2017) the Government achieved an impressive strike out of the first challenge to the proposed third runway at Heathrow, following the Government’s 25 October 2016 announcements. My 15 October 2016 blog post Airports & Courts wins no prizes for predicting a series of such challenges.  
Following the strike out, the draft Airports NPS  was promptly published on 2 February for a 16 weeks’ consultation period. 
However, was this somewhat of a lucky win? The Government’s position, accepted by Cranston J, was that the effect of section 13(1) of the Planning Act 2008 was that there can be no legal challenge of a Government announcement of a decision to publish a draft NPS, but that any challenge instead has to be made within a six week window following final designation of the NPS.
Section 13(1) provides as follows: 
“A court may entertain proceedings for questioning a national policy statement or anything done, or omitted to be done, by the Secretary of State in the course of preparing such a statement only if –



(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed [before the end of] the period of 6 weeks beginning with [the day after] —

 
(i) the day on which the statement is designated as a national policy statement for the purposes of this Act, or



(ii) (if later) the day on which the statement is published.”

So was the 25 October 2016 announcement something done “in the course of preparing” an NPS? Hmm.
Was the operation of section 13(1) intended to be so different from sections 23 and 25 of the Acquisition of Land Act 1981, which provide for a six week deadline for challenging a compulsory purchase order from publication of notice of its confirmation and the exclusion that a CPO otherwise “shall not, either before or after it has been confirmed, made or given, be questioned in any legal proceedings whatsoever“? So, according to the 1981 Act, no challenges before the CPO has been made but the Supreme Court in R (Sainsbury’s Supermarkets Limited) v Wolverhampton City Council  (12 May 2010) has entertained a judicial review of a council’s resolution to make a compulsory purchase order. Is the drafting within the 2008 Act distinguishable from the 1981 Act? Even if it is, where is the logic? With CPOs the widely understood risk of JR of the resolution to make a CPO, before section 25 cuts in to prevent further challenges until the order has been finally confirmed or rejected, is the reason why acquiring authorities commonly seek to leave as little time as possible between that final resolution and making the order. There is no reference in Cranston J’s judgment to this (surely) analogous process

.

Whatever the rights and wrongs, the decision to go for a strike out – always high stakes, given the risk of adding to the time needed to dispose finally of the challenge or at least the risk of egg on face – has so far proved to be the right one, although I do not know whether the claimant local authorities plan to appeal. Even if cleared for take off, the proceedings would in any event face a bumpy ride give that judicial review is a remedy of last resort and it could be said that the claimant authorities should first be making representations to the draft NPS before resorting to litigation?
It was a good week all round for Heathrow. By a decision letter dated 2 February 2017  the Secretaries of State for Communities and Local Government and Transport allowed an appeal by the airport, permitting enabling works to allow it to implement “full runway alternation during easterly operations” (ie, basically, regular easterly departures from the northern runway), after a June 2015 (yes 2015) inquiry and initial refusal by Hillingdon Council in March 2014 (yes 2014) of the airport’s planning application.  
Finally, a post script on challenges to CPO decisions, and to my 22 September 2016 blog post Regeneration X: Failed CPOs. Local Government Lawyer reports that after an oral hearing Collins J has granted Southwark Council permission to challenge the Secretary of State’s decision not to confirm the Aylesbury Estate CPO, Dove J having previously refused permission on the papers. Collins J apparently also “proposed that a meeting should be held between the two parties before any litigation began, considered that it would be unlawful for Southwark to offer more than was allowed under the Compensation Code, and recognised that the decision had significant knock-on effects for other schemes“. It would be no surprise at all to me if the decision is eventually overturned. 
You may now unfasten your seat belts.

Simon Ricketts 4.2.17

Personal views, et cetera

Airports & Courts

The Government’s long awaited decision on airport expansion in the south east, following its interim 10 December 2015 statement, finally seems imminent. A Guardian 9 October 2016 story speculates that the decision will be taken at a cabinet meeting on 17 October (presumably meaning an announcement the following day) and that Heathrow will be favoured, in which case, according to an Independent story the same day, Gatwick will pursue expansion in any event.
New Civil Engineer on the hand speculates that both Heathrow and Gatwick will get the go ahead:
“It is believed that the announcement will be made on 18 October, with government giving the green light to a third runway at Heathrow immediately and also allowing Gatwick to expand with a second runway within the next five years.

Gatwick’s 30-year agreement with local authorities not to expand is due to expire in 2019.

It is also understood that government will urge Birmingham airport to advance its proposals for an additional runway.”

Whatever the timing and content of the announcement, two things are sure:

1. The process of turning the announcement into reality will be a slow and complex process. The Government confirmed in its 10 December 2015 statement that the DCO rather than Hybrid Bill process would be used. The first step will be an Airports national policy statement to form the policy basis for a DCO application or applications to be made in due course. Once the announcement is made I will cover in a future blog post the potential complexities, which would be acute were both Heathrow and Gatwick to proceed, in terms of the coordination required between competing promoters, but equally difficult if only one airport is favoured leaving the other to object, challenge and seek to promote its own proposals independently. 

2. There will inevitably be litigation at each administrative step of the process, particularly ahead of the formal submission of any DCO application (because any challenges to that process, once it is underway, can only be brought once it has concluded). The litigation will be entangled with (1) ongoing issues as to the Government’s non-compliance with the EU Air Quality Directive (2) a slowly changing basis over coming years as to the extent to which UK environmental laws are underpinned by EU legislation (3) continuing efforts by the Government to speed up the judicial review process and discourage unmeritorious claims. 

Aside from the potential for the airport operators themselves to resort to litigation in response to the forthcoming decision, a number of campaign groups have also made their positions clear. For instance: 
– Teddington Action Group has restated on 11 October its threat of judicial review should one of the two Heathrow options be chosen, alleging bias on the part of the chair of the Airports Commission, Sir Howard Davies.
– Gatwick Area Conservation Campaign has written to the Secretary of State for Transport on 4 August 2016 threatening judicial review, referring to John Steel QC having advised that “there are a number of potential grounds able to be considered which are sound, including that a decision to choose Gatwick as the location for additional runway capacity in the South East, if based on political expediency, would be irrational”. They assert that they expect to be supported by “two County Councils and seven Borough and District Councils” as well as a number of MPs. 


Of course, resorting to the courts to try to stop airport expansion is nothing new. For instance:
R (Hillingdon LBC) v Secretary of State for Transport  (Carnwath LJ, 26 March 2010) – the challenge by various local authorities to the Government’s 2009 decision (abandoned following the 2010 General Election) to proceed with a third runway at Heathrow. 
R (Sanders) v Airports Commission and Secretary of State for Transport  (Patterson J, 2 December 2013) – Stop Stansted Expansion’s unsuccessful challenge to Airport Commission’s sift criteria on which its shortlist was to be based, again alleging bias on the part of a member of the Commission.

R (Stop Stansted Expansion) v Secretary of State for Transport  (Sir Thayn Forbes, 13 March 2009) – the same group’s unsuccessful challenge to the Secretary of State’s decision in 2009 to allow planning appeals increasing the cap on passenger numbers to 35m per annum (a cap which Stansted Airport’s owner MAG is currently planning to apply to increase, according to a Telegraph September 2016 piece ).

R (Griffin) v London Borough of Newham  (Court of Appeal, 20 January 2011) – Fight The Flights’ unsuccessful challenge to Newham Council’s 2009 decision to increase the number of permitted flights to up to 120,000 per annum (since when of course the Secretary of State has now allowed a planning appeal for expansion of the airport in a decision letter dated 27 July 2016).

RSPB and Lydd Airport Action Group v Secretary of State and London Ashford Lydd Airport  (Ouseley J, 16 May 2014) – unsuccessful challenges to the Secretary of State’s 2013 decision to allow a planning appeal for expansion of London Ashford Airport at Lydd. 

– R (Barraud) v CAA (2015), an unsuccessful challenge by campaign group Gatwick Absolutely NOT, again advised by John Steel QC, to the Civil Aviation Authority’s decision to implement airspace changes, on the basis of lack of consultation, referred to in a 39 Essex chambers update, where an appeal to the Court of Appeal appears to be in abeyance according to the campaign group’s website.

 This list should be depressing for all of us. From one perspective, these cases, largely unsuccessful in achieving anything but delaying projects (and perhaps unnecessarily raising the hopes of those asked to crowdfund the appointed lawyers) demonstrate the dead hand of the judicial review process on controversial decision and projects. How can we make progress with any real pace when political sclerosis is then followed by years of public law litigation? On the other hand, how can we balance economic, environmental and transportation priorities in a way that does not lead to entrenched opposition and allegations of inconsistency? And, taboo question, are some projects so huge and so political that the unwritten legal burden of proof on the part of a claimant becomes almost impossibly high? Establishment of the Davies Commission was a valiant attempt to de-politicise what was always going to be a controversial process. Unfortunately we are back where we always were: mired in politics, lawyers at hand. 

Simon Ricketts 15.10.16
Personal views, et cetera