• Category: Opinions | February 27, 2020

  • Introduction

    Background

    The Court of Appeal was required to consider whether 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.

    The policy is contained in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”), designated by the Secretary of State for Transport under section 5 of the Planning Act 2008  (“The Planning Act”) on 26 June 2018.

    The Planning Act requires that national policy statements: (i) explain how the infrastructure project has taken account of Government policy on climate change (section 5(8)); and (ii) demonstrate that the policy is in line with the objective of achieving sustainable development, in particular, mitigating and adapting to climate change (section 10).

    The Airports Commission had issued an 'Appraisal of Sustainability’ at the same time when he ANPS was published, which included a list of international policy and legislation relevant to the ANPS, but the Paris Agreement was not included.

    The Paris Agreement, adopted in December 2015, enshrines the firm commitment from 189 countries to restrict the increase in the global average temperature to below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C. The UK Government ratified the Paris Agreement in November 2016. The UK also has its own domestic climate change legislation, the Climate Change Act 2008 (“The Climate Change Act”), which sets a "carbon target" for the UK to reduce its greenhouse gas emissions by 80% from their 1990 levels by 2050. In June 2019, that target was amended to carbon neutrality by 2050 (“net zero”).

    The issue before the Court of Appeal was therefore whether the Government's commitment to the Paris Agreement constituted Government policy on climate change, therefore requiring the Secretary of State to take it into account.

    The Secretary of State argued that the ANPS had been produced lawfully as the Climate Change Act did not provide for emissions from international aviation and the Paris Agreement did not represent "Government policy" as it was not incorporated into domestic law. In addition, the Secretary of State stated that it had received legal advice that not only did it not have an obligation to have regard to the Paris Agreement in formulating the ANPS, it was legally obliged not to take it into account at all.

    Despite the Divisional Court ruling that the Government policy was as set out in the Climate Change Act and any effect of ratifying the Paris Agreement had yet to be enshrined in domestic law, so it was not applicable, the Court of Appeal disagreed.

    The Court of Appeal said that even if the legal targets in the Climate Change Act were consistent with the Paris Agreement, it did not follow that, as a matter of law, the Government was somehow precluded from taking into account the Paris Agreement when designating the ANPS. Reviewing what the Government said since it ratified the Paris Agreement, the Court of Appeal concluded “It is clear, therefore, that it was the government’s expressly stated policy that it was committed to adhering to the Paris Agreement to limit the rise in global temperature to well below 2°C and to pursue efforts to limit it to 1.5°C.”

    Section 5(8) of the Planning Act says that “the reasons [for the policy in a national policy statement] 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 Court of Appeal noted that while Section 5(8) of the Planning Act does not necessarily require the Secretary of State to follow or act in accordance with Government policy, it is obliged to take Government policy "into account". Further, the Court of Appeal determined that the meaning of 'Government policy' should be construed in the ordinary sense. In other words, the Court of Appeal found no basis for limiting the phrase 'Government policy' to mean only the legal requirements under the Climate Change Act and that such policy must be "necessarily broader than legislation". Consequently, the Court of Appeal found that the Government's commitment to the Paris Agreement was "clearly part of Government policy" by the time the ANPS was designated, as not only had it been ratified by Parliament, but various ministers had made statements which reiterated the Government's adherence to the Paris Agreement.

    Accordingly, the Court of Appeal found that the advice the Secretary of State had received that it was legally obliged not to take the Paris Agreement into account at all was "a material misdirection of law". Indeed, the Court of Appeal stated that requiring the Secretary of State – as an organ of the executive branch of the State, namely the Crown – to "comply with what has been enacted by Parliament (in this case the obligations in section 5(8) of the Planning Act) is an entirely conventional exercise in public law”.

    The Court of Appeal therefore found the ANPS to be unlawful and of no legal effect, unless and until the Secretary of State undertook a review of its designation decision in accordance with the relevant statutory provisions and the Court of Appeal’s judgment. The Government should also take emissions beyond 2050 and non-CO2 emissions into account when it reconsiders the ANPS.

    It was therefore wrong for the Government to think that to think it had to wait until the Paris Agreement was incorporated into domestic law before it should be taken into account – ratifying the agreement changed government policy and that should have been taken into account when drafting the ANPS.

    The relief granted by the Court of Appeal on 27th February 2020 was that the ANPS is to have no effect until it is reviewed under sections 6 to 9 of the Planning Act 2008. Of course the review would now need to take ‘net zero’ into account, even though the judgment does not state that.

    Implications

    For the ANPS and the Government

    The Court of Appeal did not quash the ANPS or issue a mandatory order requiring the Secretary of State to review it. Instead it deferred to the general discretion of the Secretary of State under section 6(1) of the Planning Act 2008 pursuant to which the Secretary of State must undertake a review of the ANPS "whenever [he] thinks it appropriate to do so”.

    The Government therefore merely needs to carry out the exercise of giving reasons as to how the ANPS takes climate change mitigation policy into account – it may be able to reach the same conclusions as long as it does this.

    The Government has indicated that it will not appeal to the Supreme Court.

    For HAL

    It is worth noting that the decision is not fatal to expansion at Heathrow Airport. The Court of Appeal did not decide that there will be no third runway at Heathrow Airport, as this is a matter fir the Government.

    HAL and Arora have appealed to the Supreme Court.

    HAL could make an application for a DCO under section 105 of the Planning Act (Decisions in cases where no NPS has effect) instead of section 104 (Decisions in cases where a NPS has effect). However, an application under section 105 is more difficult because without clear Government policy prescribed in an ANPS, the Secretary of State's discretion within which to decide an application is broader, meaning the risks of pursuing such a project are that much greater.  HAL and Arora have instead appealed to the Supreme Court, which indicates that they want to overturn the Court of Appeal’s decision so as to pursue their application under section 104 of the Planning Act.

    Regardless of this appeal to the Supreme Court, it is likely that HAL’s expansion plans will be on hold for a short while. Not only pending the outcome of this application for permission to appeal and subject to any review the Secretary of State may undertake of the ANPS, but also because of Covid-19 pandemic.

    HAL is now in the midst of the Covid-19 pandemic and feeling its force. Not only does the reduction in air travel and closing of terminals and runways have an impact on finances, it will be interesting to note whether air travel will return to the level prior to the Covid-19 pandemic.

    Even if it decides to pursue an expansion in due course, there will be huge delays with the DCO timetable and review/update of HAL’s application will be required prior to submission to take into account many changes/updates.

    For National Planning Statements

    Other NPSs may be at risk of challenge too. There are currently 11 designated NPSs, apart from the ANPS, but judicial review can no longer be brought against them given the six-week time limit for challenge. There is a requirement at section 6 of the Planning Act that the Secretary of State must review existing NPSs when he "thinks it appropriate to do so" taking into account the matters in section 6(3), one of which is whether there has been a "significant change in circumstances" on the basis of which any of the policy was decided. Whether the Court of Appeal's decision amounts to a "significant change in circumstance" will be a matter for the Secretary of State.

    The Government will now take particular care in preparing and designating all future NPSs, to include a clear statement as to how the policies in that NPS have taken account of the Government's policy on climate change.

    It is worth noting that there is already impending litigation from an alliance of Jolyon Maugham (of the Good Law Project), Dale Vince (of Ecotricity) and George Monbiot (a Guardian journalist) who are crowdfunding a challenge to the suite of six energy NPSs on the basis that they are out of date. The challenge will take a while as it needs money, for the Government to refuse to review the NPSs and then for a court case to be mounted, but there may be similar other challenges that may come first.

    Finally, two further net zero related challenges have been launched.  One is by campaigner Chris Packham to the decision to approve HS2, also on climate change grounds. The other is to the approval by Cumbria County Council of a coal mine in Whitehaven, by Keep Cumbrian Coal in the Hole.

    For other Major Infrastructure Projects

    While the Court of Appeal was careful to note that its role is not to consider the merits of Government decisions, it did recognise that climate change is "a matter of profound national and international importance of great concern to the public". This is likely to increase the degree of scrutiny to which the Government's decision making process is subject and, as a result, it is possible that further proposed infrastructure projects could now face legal challenges if it appears the Government is not taking proper account of its climate change commitments.

    The Court of Appeal decision adds even further impetus to the importance of climate change matters being present in all decision-makers' minds given the current political and social climate.

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