Plan B Earth v Secretary of State for Transport

In judicial review of a national policy statement, the court must distinguish the merits of government policy from the legality of the decision-making process. Under section 5(8) of the Planning Act 2008, Government policy has its ordinary, broad meaning. It includes a firm executive commitment under an unincorporated international agreement. The decision-maker must take that policy into account and explain how it has done so. The Paris Agreement was also an obviously material consideration under section 10 and the SEA Directive. Failure to consider it was fatal to the designation.

By contrast, Wednesbury review applied to the technical and evaluative assessments under the Habitats and SEA Directives. The court granted declaratory relief preventing the national policy statement from having legal effect pending a lawful statutory review.

Three linked challenges concerned the designation of the Airports National Policy Statement supporting additional runway capacity in the South East of England, including a third runway at Heathrow. The Divisional Court dismissed the Hillingdon claim and refused permission in the Friends of the Earth and Plan B Earth claims: [2019] EWHC 1070 (Admin).

The claimants appealed or sought permission to appeal. They challenged the treatment of alternative airport schemes under the Habitats Directive and SEA Directive, the adequacy of the environmental assessment, and the Secretary of State’s treatment of climate-change commitments, particularly the Paris Agreement. The central issue was whether the ANPS had been produced lawfully.

1. Disposition. The court rejected the challenges under the Habitats Directive and most of the SEA Directive grounds. The climate-change challenges succeeded in material part.
2. Habitats Directive. Wednesbury rationality was the appropriate standard for reviewing compliance with articles 6(3) and 6(4) of the Habitats Directive. The technical and multifactorial nature of the assessments justified the same standard for both provisions. The Secretary of State was entitled to treat the hub objective as a genuine and critical core objective. A Gatwick second runway, which was found to threaten rather than maintain hub status, was therefore not an alternative solution. The iterative nature of assessment, and possible effects on a priority habitat, did not alter that conclusion.
3. SEA Directive. The Secretary of State had a broad judgment under article 5(2) as to the information reasonably required in an environmental report. Wednesbury review applied. Cumulative treatment of local plans, indicative flight paths, the 54 dB noise threshold, and assessment of affected people and buildings were lawful evaluative choices. The Habitats Directive and SEA Directive served different purposes: a scheme could be excluded as an alternative solution under the former but retained as a reasonable alternative under the latter to inform consultation.
4. Climate change. Government policy in section 5(8) of the Planning Act 2008 was not confined to statutory targets under the Climate Change Act 2008. The United Kingdom’s ratification of, and ministerial commitments to, the Paris Agreement made it Government policy. Section 5(8) required the Secretary of State to take that policy into account and explain how he had done so. Section 10 also required consideration of the Paris Agreement, which was so obviously material that it had to be taken into account. Its unincorporated status did not prevent those statutory duties from applying. The Paris Agreement was likewise relevant under Annex I(e) to the SEA Directive.
5. Further climate effects and relief. Scientific uncertainty did not justify ignoring acknowledged non-CO₂ effects. The implications of emissions beyond 2050 also required reconsideration. It was not highly likely that the outcome would have been substantially the same under section 31(2A) of the Senior Courts Act 1981. The court declared the designation unlawful and provided that the ANPS would have no legal effect unless and until reviewed under sections 6, 7 and 9 of the Planning Act 2008. It declined to quash the ANPS or make a mandatory review order.

1. Divisional Court, Queen’s Bench Division. The Hillingdon claim was dismissed and permission was refused in the Friends of the Earth and Plan B Earth claims: [2019] EWHC 1070 (Admin).
2. Court of Appeal (Civil Division). The appeal and permission applications were heard together. The court allowed the appeal and granted declaratory relief because the Secretary of State had failed to take the Paris Agreement into account.