Plan B Earth v Secretary of State for Transport

A national policy statement must explain how it takes account of government policy on climate change. That duty requires prior consideration of the policy, which extends beyond statutory emissions targets and can include commitments under an unincorporated international agreement. Consideration does not require conformity with the policy or a particular outcome. International environmental protection objectives must also be considered in strategic environmental assessment where relevant.

Environmental assessment allows evaluative judgments about the information reasonably required. Courts review those judgments on conventional public law principles. Scientific uncertainty does not justify disregarding acknowledged environmental effects. A future assessment or policy review does not cure an unlawful policy-making process. Relief must be refused where the statutory test of a highly likely, substantially unchanged outcome is satisfied, subject to the exceptional public interest discretion.

The Secretary of State for Transport designated the Airports National Policy Statement under the Planning Act 2008. It supported a north-west runway at Heathrow. Heathrow Airport Ltd, the airport operator promoting that scheme, and Arora Holdings Ltd, representing landowners proposing a terminal development, participated as interested parties.

Plan B Earth, a climate change charity, and Friends of the Earth Ltd, an environmental organisation, challenged the designation. Five local authorities, Greenpeace Ltd and the Mayor of London brought a further challenge. Their grounds concerned protected habitats, strategic environmental assessment and climate change. WWF-UK intervened on sustainable development and the interests of children.

The Divisional Court dismissed the challenges or refused permission to bring them in [2019] EWHC 1070 (Admin). The local authorities and their co-claimants appealed. The applications by Plan B Earth and Friends of the Earth for permission to appeal were heard with their substantive claims, should permission to apply for judicial review be granted. The central question was whether the national policy statement had been produced lawfully, particularly where the Secretary of State had deliberately excluded the Paris Agreement from consideration.

1. The challenges succeeded on the climate change grounds. The challenges concerning the Habitats Directive and the other strategic environmental assessment issues failed. The court's joint judgment addressed the legality of policy-making, leaving the merits of airport expansion to government.

2. Section 5(8) of the Planning Act 2008 required an explanation of how the national policy statement took account of government climate change policy. That obligation necessarily required the policy to be considered first. Government policy bore its ordinary meaning and extended beyond statutory requirements. Ratification of the Paris Agreement and ministerial statements established the Government's commitment to that agreement. The existing statutory emissions target was a minimum and did not prevent consideration of more ambitious policy commitments. Requiring consideration under an Act of Parliament did not give the unincorporated agreement direct domestic legal effect. The Secretary of State's contrary legal advice materially misdirected the designation process (paras 222–233).

3. The omission also breached the duties under section 10 of the Planning Act 2008. The Secretary of State had failed to recognise his discretion to consider the agreement. In any event, it was so obviously material that the only reasonable course was to consider it. Annex I to the SEA Directive included relevant environmental protection objectives established by unincorporated international agreements. Consideration required neither compliance with the agreement nor a predetermined decision (paras 234–238, 242–247).

4. The non-carbon dioxide effects of aviation and emissions beyond 2050 required consideration during reconsideration. Scientific uncertainty did not justify disregarding acknowledged effects merely because precise quantification was unavailable. The court left unresolved the intervener's arguments concerning the UN Convention on the Rights of the Child (paras 239–241, 254–261).

5. An alternative solution under article 6(4) of the Habitats Directive had to meet genuine and critical policy objectives. A scheme could not be excluded merely because a preferred scheme met those objectives better. Gatwick expansion lawfully failed the essential hub objective. Its retention as a reasonable alternative for SEA consultation was consistent with its exclusion under the Habitats Directive. The two regimes had different functions. No reference to the Court of Justice was necessary. Wednesbury review was appropriate, although the same conclusion followed on proportionality review (paras 75–80, 87–124).

6. SEA information requirements left substantial evaluative discretion, reviewable on conventional public law grounds. The Blewett approach applied. Aggregate assessment of local plans, indicative flight paths and the selected noise threshold were lawful in the strategic context. Later project assessment could refine those matters (paras 135–183).

7. The court could not find it highly likely that a lawful designation process would have produced a substantially unchanged outcome. Exceptional public interest independently justified relief. A declaration rendered the designation unlawful and prevented the statement having legal effect pending a lawful statutory review. The court declined to quash the statement or compel a review. The Secretary of State retained discretion over initiating, defining and timing any review (paras 267–280).

• Court of Appeal: In [2020] EWCA Civ 214 , the court upheld the challenges concerning failure to consider the Paris Agreement. It rejected the Habitats Directive challenges and the remaining SEA challenges. It declared the designation unlawful and prevented the Airports National Policy Statement having legal effect pending a lawful statutory review.
• High Court, Divisional Court: In [2019] EWHC 1070 (Admin) , Hickinbottom LJ and Holgate J dismissed the permitted grounds of the local authorities' challenge and refused permission on its remaining grounds. They refused permission on all grounds advanced by Friends of the Earth and Plan B Earth.
• High Court: An earlier challenge to the Government's preference decision was struck out in [2017] EWHC 121 (Admin) . Section 13 of the Planning Act 2008 prevented that challenge before adoption or publication of the national policy statement.