Summary
A National Policy Statement may settle national infrastructure need, select a preferred scheme and define matters that cannot be reopened in a later development-consent process. A significant change affecting the basis of such policy must ordinarily be addressed through review under the Planning Act 2008. Reasons for policy need state its rationale; they need not answer every consultation response. Strategic environmental assessment is subject to conventional public-law review, with appropriate respect for technical and evaluative judgments. Under the Habitats Directive, an alternative solution must meet the genuine and critical core objectives of the policy. Strong governmental support for a proposal is permissible predisposition, unless there is evidence of a closed mind or a real risk of one. All four claims were dismissed.
Factual background
Four linked judicial review claims challenged the Secretary of State’s designation of the Airports National Policy Statement under section 5 of the Planning Act 2008. The policy supported a third runway at Heathrow. The claimants challenged the treatment of surface access, air quality, habitats, strategic environmental assessment, consultation, bias, climate change and human rights. The applications for permission and the substantive claims were heard together on a rolled-up basis. The central questions were whether the designation process complied with the statutory framework, the Habitats Directive, the SEA Directive and common-law consultation requirements, and whether the policy was irrational or otherwise unlawful.
Held
The Divisional Court dismissed all four claims. Permission was granted on the habitats grounds, two SEA grounds and the consultation ground, but the substantive applications on those grounds were refused. Permission was refused on the remaining grounds.
- Under the Planning Act 2008, the Airports National Policy Statement lawfully settled the pressing national need for additional South-East airport capacity, identified Heathrow’s Northwest Runway as the preferred scheme and specified the assessments and planning tests for a later development-consent application. Sections 87(3)(b), 94(8) and 106(1)(b) could therefore be used to disregard representations challenging those matters. Alternatives not rejected by the policy could remain relevant, but a significant change affecting the basis of policy had to be addressed through section 6 review.
- Section 5(7) required the policy’s rationale, not a comprehensive account of every consideration or consultation response. The consultation satisfied the Gunning principles. A national strategic consultation did not require a response resembling a planning inquiry decision letter.
- The court applied a context-sensitive standard of review. Political, planning, scientific, technical and predictive assessments attracted substantial respect, and the court would not resolve conflicts in expert evidence. The surface-access and air-quality challenges therefore failed. The absolute air-quality requirement in paragraph 5.32 of the policy meant that development consent had to be refused unless compliance with legal obligations was demonstrated.
- For article 6(4) of the Habitats Directive, an alternative solution to an NPS proposal had to meet genuine and critical core policy objectives. The Gatwick scheme could lawfully be rejected because it was found not to maintain the United Kingdom’s hub status. The Planning Act 2008 did not override the Habitats Directive at the later development-consent stage.
- The SEA environmental report contained the information reasonably required. The adequacy and level of detail were matters for the Secretary of State’s judgment, reviewable on ordinary public-law principles. The assessment process could be iterative and defects could be cured by later consultation.
- The Secretary of State had a strong predisposition in favour of Heathrow, but there was no evidence of an actual closed mind or a real risk of one. The climate-change and human-rights grounds also failed. The statutory carbon targets, rather than the Paris Agreement as such, defined the relevant domestic policy framework.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2019] EWHC 1070 (Admin) High Court (Administrative Court)
- Appealed to[2020] EWCA Civ 214Outcomeappeal allowed in part; permission granted and judicial review claims succeeded on climate change grounds; declaration granted.
- Appealed to[2020] UKSC 52Outcomeappeal allowed unanimously
Key cases cited
The 30 most senior of 54 authorities cited.
- R v Legal Services Board [2015] UKSC 41
- R v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28
- R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16
- R (Moseley) v Haringey London Borough Council (R (Stirling) v Haringey London Borough Council) [2014] UKSC 56
- Kennedy v The Charity Commission [2014] UKSC 20
- R (Buckinghamshire County Council) v Secretary of State for Transport (R (HS2 Action Alliance Ltd) v Secretary of State for Transport, R (Heathrow Hub Ltd ) v Secretary of State for Transport) [2014] UKSC 3
- R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents) [2008] UKHL 22
- Magill v Porter and Magill v Weeks [2001] UKHL 67
- Alconbury [2001] UKHL 23
- R v Secretary of State for the Home Department, Ex p Doody (R v Secretary of State for the Home Department, Ex parte Smart (Elfed Wayne)) [1994] 1 AC 531
- R v Secretary of State for the Home Department, Ex parte Brind (Brind, Ex parte) [1991] 2 WLR 588
- R v Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council (Hammersmith and Fulham London Borough Council, Ex parte) [1991] 1 AC 521
- R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council (Bradford City Metropolitan Council v Secretary of State for the Environment, Nottinghamshire County Council, Ex parte, Nottinghamshire County Council v Secretary of State for the Environment) [1986] AC 240
- Westminster City Council v Great Portland Estates Plc [1985] AC 661
- Bushell v Secretary of State for the Environment [1981] AC 75
- Shirley & Anor, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22
- Mynnydd Y Gwynt Ltd, R (on the application of) v Secretary of State for Business Energy And Industrial Strategy [2018] EWCA Civ 231
- Scarisbrick, R (On the Application Of) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787
- Mott, R (on the application of) v Environment Agency & Anor [2016] EWCA Civ 564
- Secretary of State for Communities and Local Government v West Berkshire District Council & Anor [2016] EWCA Civ 441
- Ashdown Forest Economic Development Llp v (1) Wealden District Council (2) South Downs National Park Authority [2015] EWCA Civ 681
- Thames Blue Green Economy Ltd, R (On the Application Of) v The Secretary of State for Environment, Food And Rural Affairs [2015] EWCA Civ 876
- Smyth v The Secretary of State for Communities and Local Government & Ors [2015] EWCA Civ 174
- No Adastral New Town Ltd v Suffolk Coastal District Council & Ors [2015] EWCA Civ 88
- Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor [2014] EWCA Civ 567
- Persimmon Homes Teesside Ltd v Lewis, R (on the application of) [2008] EWCA Civ 746
- Office of Fair Trading & Ors v IBA Health Ltd [2004] EWCA Civ 142
- R v Ministry of Defence, Ex p Smith (Beckett, Ex parte, Grady, Ex parte, Lustig-Prean, Ex parte, R v Admiralty Board of the Defence Council, Ex parte Beckett, R v Admiralty Board of the Defence Council, Ex parte Lustig-Prean, R v Ministry of Defence, Ex parte Grady, Smith, Ex parte) [1996] QB 517
- The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)
- Plan B Earth & Ors, R. (on the application of) v Secretary of State for Business, Energy And Industrial Strategy [2018] EWHC 1892 (Admin)
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Cases citing this case
23 later cases · 20 positive · 1 neutral · 2 caution
Most senior citing decisions:
- R. (on the application of Sarah Finch on behalf of the Weald Action Group) v Surrey County Council [2022] EWCA Civ 187 approved
- ClientEarth, R (on the application of) v Secretary of State for Business, Energy and Industrial Strategy & Anor [2021] EWCA Civ 43 applied
- Gathercole v Suffolk County Council [2020] EWCA Civ 1179 approved
- Packham, R (on the application of) v High Speed Two (Hs2) Ltd [2020] EWCA Civ 1004
- Transport Action Network Limited, R (on the application of) v Secretary of State for Transport [2025] EWHC 1273 (Admin)
- Friends Of The Earth Limited v Secretary Of State For Levelling Up, Housing And Communities & Ors [2024] EWHC 2349 (Admin)
- Friends of the Earth & Ors v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin)
- Save Stonehenge World Heritage Site Limited & Anor, R (on the application of) v Secretary of State for Transport [2024] EWHC 339 (Admin)
- Together Against Sizewell C Limited, R (on the application of) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin)
- Norton St. Philip Parish Council v Mendip District Council [2022] EWHC 3432 (Admin)
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