Ian Taylor on what the Court of Appeal really decided
Much of the reaction to the UK Court of Appeal decision on Heathrow’s third runway – including claims that expansion had been “ruled illegal” – would have been curtailed by a careful look at the Court ruling.
In fact, the Court of Appeal ruled on February 27 in ‘R (Friends of the Earth) v Secretary of State for Transport and Others’ on a number of issues regarding the proposed expansion of Heathrow.
The key one was a government National Policy Statement in June 2018 by then transport secretary Chris Grayling.
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This was entitled the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” or ANPS.
It was subject to a number of legal challenges under the UK’s Planning Act.
The Appeal Court’s first ruling was on a challenge brought by a rival bidder to expand Heathrow, Heathrow Hub. The Court concluded all arguments presented in this case “must fail” – so enough said.
The second ruling dealt with challenges brought by several local authorities, the Mayor of London and environmental groups Greenpeace, Friends of the Earth and Plan B Earth. These concerned planning aspects of the ANPS and its process.
The Court noted clearly in its ruling: “We are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway at Heathrow has given rise. That is none of the court’s business.
“The basic question is an entirely legal question. We are required to determine whether . . . the ANPS was produced lawfully. Our decision does not touch the substance of the policy embodied in the ANPS.
“In particular, our decision is not concerned with the merits of expanding Heathrow . . . Those matters are the Government’s responsibility and the Government’s alone.”
The Court of Appeal then ruled that the challenges to the ANPS “must fail” on all but one of the issues raised by the coalition presenting a legal challenge.
This is a Planning Act requirement for the policy set out in the ANPS to “include an explanation of how [it] . . . takes account of Government policy relating to the mitigation of, and adaptation to, climate change”.
The Court of Appeal concluded the ANPS presented by Grayling “was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change concluded in December 2015 and ratified by the UK in November 2016”.
It noted: “The Paris Agreement ought to have been taken into account by the Secretary of State in preparation of the ANPS and an explanation given as to how it was taken into account, but it was not.”
The effect of this is “to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant statutory provisions . . . [and] in accordance with the judgment of this court.
“The initiation, scope and timescale of any review will be a matter for the Secretary of State” – who is now Grant Shapps.
The Court of Appeal judges insisted: “We have not decided, and could not decide, that there will be no third runway at Heathrow.
“We have not found that a national policy statement supporting this project is necessarily incompatible with the UK’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement.
“The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS.”
The Court also noted: “Having seen our judgment in draft, the Government has not opposed the grant of a remedy. Nor has the Government sought permission to appeal to the Supreme Court.”
So the government will simply revisit the ANPS and, presumably, this time endeavour to deliver it legally correctly – no doubt anticipating further legal challenges.
However, the Government will not appeal the decision, and Heathrow expansion has not been ruled illegal or incompatible with action against global warming.
Perhaps the travel and aviation sectors might better understand now why the government has tip-toed through the process thus far.