Spurrier, R (On the Application Of) v The Secretary of State for Transport

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.

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.