It’s more than half a century since the process kicked off to identify the location for a new runway in the south east. And the prospect that Heathrow’s third runway would finally get built rarely looked closer until last Thursday, when a landmark Court of Appeal ruling found the government’s Airports National Policy Statement (NPS) and its support for a third runway to be unlawful.
The ruling doesn’t just deliver a hammer blow to Heathrow's long-held expansion plans, it could also have wide-ranging consequences for how climate change is treated by the planning system. The verdict hinged on whether the government should have taken its commitments under the 2015 Paris Climate Change Agreement into account when it formulated its Airports NPS, which was approved by Parliament in June 2018.
Following a legal challenge by environmental pressure groups Friends of the Earth and Plan B, the High Court ruled in 2019 that it was acceptable for the government not to have taken into account the Paris Agreement, which commits the UK to introduce measures to prevent global temperatures from rising more than 1.5°C above pre-industrial levels, because it had yet to be enshrined in domestic law.
But the Appeal Court reversed this position, ruling that the then transport secretary Chris Grayling, in preparing the NPS, should have considered the 2015 agreement, which the UK had adopted in the following year. One of the judges, Lord Lindblom described this failure as "legally fatal". The appeal judges concluded that even though the global climate change commitments had at that point yet to become law - though this happened subsequently when Parliament agreed last year to a new target to cut emissions to net zero by 2050 - it still represented government policy.
And that mattered within the context of the Planning Act 2008, the legislation that underpins the national infrastructure planning regime. It states that each NPS must take account of government policy relating to climate change mitigation and adaptation.
Following the judgment, Heathrow Airport said it has launched an appeal against the ruling to the Supreme Court and was "confident" of success.
Will Rundle, head of legal at Friends of the Earth (FoE), led its legal team on last week's case. He said: "Policy can have legal effect even though it is not written into legislation. If a minister is espousing a particular policy and doesn’t act in accord with that policy, you can hold them to account on that. It’s really important that ministers know when they stand up in Parliament and produce a strategy document that commits them, it will be treated seriously by courts as policy. That is sound public governance."
"The government was wrong to think it had to wait until the Paris Agreement was incorporated into domestic law before it should be taken into account," said Angus Walker, partner at BDB Pitmans. "The whole point of the judgment is that [the agreement] doesn’t need to be legislation to be government policy," he said, adding that it is "unlikely" that Heathrow’s appeal against last week’s verdict will succeed.
Rundle also took heart from the court’s ruling that the government should take emissions rises beyond the 2050 cut off date for the 2008 Climate Change Act, into account when it reviews the Airports NPS. "This is going to make national policy much more climate friendly going forward," he added.
The Airports NPS now has no "legal effect", the judges ruled, until the government has carried out a review of the document, which legal experts said will now have to take the ‘net zero’ by 2050 goal into account. "Legally, there is a clear route to achieving a review of the policy statement potentially without any substantial change," said Simon Ricketts, a partner at specialist planning practice Town Legal. But in practice, commentators said, any review is likely to involve long winded consultation, including scrutiny by the transport select committee.
Ricketts pointed out that the ruling only affects airport proposals that are large enough to be nationally significant, such as those that increase passenger numbers by 10 million per year. "A number of applications for expansion of airports are proposed below the NSIP threshold and will be determined in the normal way against development plans and other material considerations," he added.
The clearest implications from judgment will be for other NPS documents that have not taken into account the Paris agreement targets when they should have done. The good news from an infrastructure providers point of view is that most of these other statements were approved before the UK’s 2016 adoption of the Paris Agreement. But the bulk were drawn up in the first half of the last decade, meaning they are ripe for an update anyway.
And when this happens, the process will now have to reflect the Paris agreement targets in order to comply with the court’s judgment, said Rundle. "This has raised the bar in terms of climate change requirements that have to be taken into account," said Ricketts. But he cautioned against reading too far across from this ruling to other planning documents and decisions beyond the formulation of NPSs.
Peter Geraghty, chair of the housing, planning and regeneration board for council planning chief umbrella body ADEPT said the basis for considering planning applications that is set out in the National Planning Policy Framework is unaffected by the ruling. He said: "The weight afforded to climate change will still be a matter of judgement for the decision-maker taking into account all the relevant material considerations," he said.
But the case will have wider implications for planning, even if it only increase objectors’ confidence in using climate change arguments to challenge plans and decisions, said Rundle: "This ruling provides additional support for those who are looking for up to date local plans to reflect Paris Agreement targets. Certainly, for any major infrastructure projects with big carbon impacts [the judgment] may be read across even if it is just to strengthen arguments."
Walker agrees. "It’s quite a narrow point because its written about the NPS but the implications are going to be quite wide. This will galvanise climate change objections as grounds for trying to stop things. They can now use the Paris Agreement directly in a challenge."
PROJECTS AND POLICY DOCUMENTS IN THE FIRING LINE
In October last year, business energy secretary Andrea Leadsom approved a development consent order submitted by energy firm Drax for four new gas-fired turbines at its existing facility at Selby, North Yorkshire, despite her own inspector having recommended that the application be refused. She based her justification for approving the scheme on the energy National Policy Statement, which contains a presumption in favour of development units for energy infrastructure. In January, campaigning environmental law practice Client Earth was granted permission by the High Court to proceed with its judicial review of the decision, which it says conflicts with the government's carbon reduction goals.
This week it was announced that legal action has commenced to force the government to review the Energy NPS, which provides the planning basis for new energy infrastructure projects. A letter, submitted to the government’s legal department this week from environmental campaigners, claims that the NPS is out of date and does not reflect recent shifts in the UK’s climate change policy and international commitments. The NPS, which was formulated in 2011, includes references to the "significant" and "vital" role of fossil fuel-fired generation, which according to the claim, does not square with current policy to limit emissions.
Following last week’s Heathrow verdict, Transport Action Network is putting pressure on the government to review the National Networks NPS, which covers new road and rail projects, so that it complies with current climate change goals. The campaigning group said proposed road projects that could be affected by any review of the NPS include the Lower Thames Crossing, the Oxford to Cambridge Expressway, the A303 Stonehenge Tunnel and the A27 bypass Arundel, which cuts through the South Downs National Park and an ancient woodland.
Airport expansion plans
The Heathrow verdict means that progress on any airport project in the wider south east, consent for which is underpinned by the Airports NPS, will be suspended pending the review of the document. Will Rundle, FoE’s head of legal, said the presumption in favour of airport expansion in the region no longer exists, which may have implications for the application for a development consent order to upgrade Manston Airport’s capacity to handle cargo traffic. However, Gatwick Airport’s expansion plans are less likely to be affected because they involve reuse of an existing runway, said Rundle. Beyond the south east, he also said that any appeal by Bristol Airport against North Somerset council’s recent refusal of its expansion plans will now have to reflect the emphasis on climate change issues reinforced by the Heathrow court case.