The Supreme Court has overturned the Court of Appeal’s previous decision that the Airports National Policy Statement (ANPS) was unlawful; opening the way for the Heathrow Airport expansion to proceed.
In June 2018, the ANPS was designated by the Secretary of State as the national policy framework for expansion at Heathrow Airport and primary basis for decision making on any development consent order (DCO) application for a new “North West Runway” (NWR Scheme).
Objections from local authorities and campaign groups to the designation of the ANPS were dismissed by the Divisional Court in 2019. However, in March 2020, the Court of Appeal allowed appeals by campaign groups, Friends of the Earth and Plan B Earth, declaring that the ANPS had no legal effect and that the Secretary of State had acted unlawfully in failing to take into account the UN Paris Agreement on climate change in designating the ANPS.
Heathrow Airport Limited (as an interested party) appealed the decision to the Supreme Court, but the Secretary of State did not join the appeal.
On 16 December 2020, the Supreme Court upheld the appeal; accordingly reinstating the designation of the ANPS. The Court addressed the grounds of appeal as follows.
Ground 1: Did the Paris Agreement constitute “Government Policy”?
Section 5(8) of the Planning Act 2008 requires that reasons for adopting national policy frameworks must include an explanation of how the policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change.
The Court considered “Government policy” should be narrowly construed, limited to a “formal written statement of established policy”. It must also be “clear, unambiguous and devoid of relevant qualification”. The Court of Appeal had found that statements made by Andrea Leadsom MP (14 March 2016) and Amber Rudd MP (24 March 2016) indicating that the Government would take steps to enshrine the Paris Agreement in UK law were “Government Policy” for the purposes of Section 5(8). However, the Supreme Court disagreed. Such statements did not meet the criteria for “Government policy”. They were neither clear, nor devoid of relevant qualification and did not refer to the relevant temperature targets.
The Court also considered that ratified international treaties are not “Government policy” until implemented into UK law.
Ground 2: Did the Secretary of State breach its duty to consider sustainable development?
Section 10 of the Planning Act 2008 requires the Secretary of State to ensure national policy frameworks contribute to sustainable development. The Court held that the evidence indicated the Secretary of State took the Paris Agreement into account when designating the ANPS, following advice from the UK Government’s Climate Change Committee that the existing measures under the Climate Change Act 2008 could be compatible with Paris Agreement targets. Further, the ANPS specified that future adjustments of the targets under the Climate Change Act 2008 would be addressed in the construction and operation of the NWR Scheme at the DCO application stage.
Ground 3: Was the sustainability appraisal / environmental report deficient?
The Strategic Environmental Assessment Directive requires the Secretary of State to carry out and publish a sustainability appraisal for the ANPS, and the sustainability appraisal produced for the ANPS did not refer to the Paris Agreement.
The Supreme Court held that the Secretary of State has a discretion regarding the information to be included within a sustainability appraisal and that discretion would only be found to have been exercised unlawfully if no reasonable decision maker would have come to the same conclusion. If the ability to exercise discretion was removed the Court found that it would likely lead to a defensive approach from decision makers.
In any event, it concluded that the sustainability appraisal sufficiently took into account the Paris Agreement’s targets.
Ground 4: Should the Secretary of State have considered post-2050 and non-carbon emissions?
Friends of the Earth argued that the Secretary of State failed to have regard to post-2050 and non-CO2 emissions in the designation of the ANPS, thereby constituting a breach of Section 10 of the Planning Act 2008.
The Court dismissed this argument, however, referring to the fact that the relevant policies were still under development at the time of designation and therefore the Secretary of State was not “irrational” not to have taken such policies into account.
Further, any DCO application for the NWR scheme will have to take into account relevant emissions targets and policies in effect at the time of the application.
The Supreme Court’s clarification on what constitutes “Government policy” for the purposes of national policy frameworks is useful for both applicants and decision makers in development and infrastructure projects. This decision that “Government policy” must be construed narrowly – i.e. limited to clear, unambiguous and established written policy – will provide greater certainty in the DCO process.
The findings of the Court confirms that future infrastructure projects will be subject to greater scrutiny in the context of the legally binding Net Zero Targets and other environmental targets set out in UK law and (established) Government policy.
As set out in the Judgment and the ANPS itself, the DCO application for the NWR Scheme will still need to address the matters covered by the Climate Change Act 2008, including emissions targets. It is likely that the Heathrow expansion project will continue to face hurdles at all stages of the DCO application process for the NWR Scheme. It is clear that environment and planning considerations will be paramount for all infrastructure projects moving forwards.