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Heathrow judicial review applications all rejected in one of the largest ever public law challenges

Today the High Court ruled against all 5 applications for judicial review of the Airports National Policy Statement, the official policy document in support of a third runway at Heathrow Airport. The Government has described it as “one of the largest public law challenges of all time”.

A press notice issued by the court emphasises that “the court was not concerned with the merits of increasing airport capacity” but only with the question of whether designation of the scheme was flawed by any legal errors.

On climate change, the court ruled that the legal requirement for the NPS to give consideration to the mitigation of and adaptation to climate change had been met, noting the Government’s claim that the third runway was “capable” of being delivered without causing a breach of the UK’s climate change commitments. The likelihood or otherwise of this happening did not appear to be a legal consideration. The Paris Agreement, the court meanwhile ruled, has no effect in domestic law, so arguments that the NPS had failed to take it into account carried no legal weight.

On air quality, the court found similarly that the argument that a third runway was probably not deliverable within air quality limits was not an issue on which the court could rule at this stage: “A policy which may not be deliverable is not, by virtue of that alone, irrational”, the judgment states. On noise, the court ruled that the Government was not legally prohibited from relying on ‘indicative’ flight paths or from using a noise level of 54 dB rather than 51dB in its modelling. 

The court made clear, however, that the question of the scheme’s deliverability against environmental limits would need to be considered later in the process, specifically at the stage where Heathrow submits its application for a Development Consent Order (the document which would give it planning permission to proceed). Many of the issues being raised by claimants, in other words, could only be assessed in terms of lawfulness further down the line. Based on current timetables, the DCO is likely to be considered by the Secretary of State in 2021 or early 2022.

Any change that the Government makes to the 2050 emissions reduction target under the Climate Change Act, or to the treatment of aviation and shipping emissions in particular, could have a bearing on the question of whether Heathrow expansion is considered to “materially impact” the UK’s ability to meet its climate change obligations at the DCO stage. The judgment specifies that the reference in the NPS to “carbon reduction targets” in the context of an application for a DCO “refers to the targets in force at the date that that application is determined”. 

What did the claimants have to say?

Local resident and AEF member Neil Spurrier, who challenged Heathrow on a range of environmental grounds, highlighted that the National Policy Statement “is just a policy and not a planning consent” and that there is still much to be argued at the Development Consent Order stage. “At the end of the day”, added Spurrier, “the madness of expanding airport capacity in the south east […] may have to be left to the good offices of the various campaign groups and a 16 year old school girl from Sweden”.

Greenpeace, along with local councils and Mayor of London Sadiq Khan, challenged the third runway on grounds relating to surface access, air quality and noise pollution. “Today’s ruling is hugely disappointing”, said Cllr Ravi Govindia, Leader of Wandsworth Council, “but it does not mean the runway will ever be built. It still faces enormous legal obstacles particularly around air pollution”.  

Plan B took the government to court on the grounds of inconsistency with the Paris Agreement on climate change. In a joint statement with Extinction Rebellion, Plan B Director Tim Crosland said “there is widespread recognition that we are in a state of climate and ecological emergency. […] Acting on that emergency demands an urgent and radical reduction of emissions, which is clearly inconsistent with plans to expand aviation”. Plan B is considering appealing against the ruling.

Friends of the Earth, who took the government to court for “failing to properly consider climate change” and for whom AEF has been acting as an expert witness, said the decision was “out of step with the world”. FoE has since announced that it will be appealing the decision: “We are going to continue this fight because it’s about more than a runway, it is actually about a future fit for our children”, said CEO Chris Bennett.

Press summary: https://www.judiciary.uk/wp-content/uploads/2019/05/Heathrow-third-runway-litigation-judgment-press-summary.pdf

Full judgment: https://www.judiciary.uk/wp-content/uploads/2019/05/Heathrow-main-judgment-1.5.19.pdf