R v Heathrow Airport Ltd

For a national policy statement, “Government policy” means established and readily identifiable policy. It will ordinarily appear in a formal written statement. Inchoate ministerial statements and ratification of an unincorporated treaty do not alone qualify.

A decision-maker’s treatment of discretionary considerations is reviewable only for Wednesbury irrationality. An environmental report under the strategic environmental assessment regime need include only information reasonably required. Its adequacy is reviewed on the same conventional standard.

At the policy stage, a decision-maker may rationally leave uncertain future emissions standards for assessment at the development-consent stage, where the proposal must satisfy the law and policy then in force.

The Secretary of State designated the Airports National Policy Statement under the Planning Act 2008. It identified a third runway at Heathrow as the preferred means of increasing airport capacity. Friends of the Earth and Plan B Earth challenged the designation, principally because of the treatment of the Paris Agreement, post-2050 emissions and aviation’s non-CO₂ effects.

The Divisional Court dismissed the challenges or refused permission after a rolled-up hearing: [2019] EWHC 1070 (Admin); [2020] PTSR 240. The Court of Appeal allowed the respondents’ appeals and declared the policy statement to be of no legal effect: [2020] EWCA Civ 214; [2020] PTSR 1446.

Heathrow Airport Ltd appealed. The central questions were whether the Secretary of State had misunderstood “Government policy” in section 5(8), acted irrationally under section 10, or produced an inadequate environmental report under the Strategic Environmental Assessment Directive.

1. Appeal allowed unanimously. Lord Hodge and Lord Sales delivered the joint judgment, with which Lord Reed, Lady Black and Lord Leggatt agreed. The Secretary of State had acted lawfully on all four grounds considered. The Court of Appeal’s conclusion that the Airports National Policy Statement was of no legal effect could not stand.

2. Section 5(8) of the Planning Act 2008 sought coherence between a national policy statement and established government-wide climate policy. “Government policy” therefore had a relatively narrow meaning. Its epitome was a carefully formulated written statement of established policy. At an absolute minimum, a statement had to be clear, unambiguous and devoid of relevant qualification. The ministerial statements relied upon described developing policy and did not satisfy that standard. Ratification of the Paris Agreement occurred on the international plane and did not itself constitute domestic Government policy. The section 5(8) challenge therefore failed.

3. The court applied the three categories of consideration described in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037. A consideration which legislation neither requires nor forbids is discretionary unless it is so obviously material that omission would be irrational. Where the decision-maker considers it but assigns limited or no further weight, the same Wednesbury standard applies. The Secretary of State had considered the Paris Agreement through the existing target and carbon budgets under the Climate Change Act 2008. Reliance on the Climate Change Committee’s advice, and the decision not to take the Agreement further into account, were rational.

4. Article 5(2) and (3) of the Strategic Environmental Assessment Directive gave the plan-making authority a wide judgment about the information reasonably required in an environmental report. Following R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin), adequacy was reviewable on conventional Wednesbury principles. The regime required an adequate basis for effective public consultation, not perfection. The Secretary of State rationally concluded that the domestic statutory targets sufficiently reflected the United Kingdom’s then applicable Paris obligations. A separate reference to the Paris Agreement was unnecessary, and consultees had in fact raised and received a response on it.

5. Post-2050 emissions had been modelled to 2085/2086. It was rational not to assess them against policies which had yet to be formulated. It was also rational not to quantify non-CO₂ effects in the policy statement because their measurement remained scientifically uncertain, the approach accorded with expert advice, and relevant policy was still developing. The precautionary principle did not replace the applicable irrationality test.

6. The policy statement was only the first stage. Any development-consent application would be assessed against the emissions law and policy then current. Sections 104 and 120 of the Planning Act 2008 permitted refusal, departure from the policy statement, or the imposition of requirements where later legal, international or environmental considerations demanded it. It was unnecessary to determine the separate remedial ground.

1. United Kingdom Supreme Court: In [2020] UKSC 52, unanimously allowed Heathrow Airport Ltd’s appeal and rejected all four grounds on which the Court of Appeal had held the Airports National Policy Statement unlawful.
2. Court of Appeal: In [2020] EWCA Civ 214; [2020] PTSR 1446, allowed the objectors’ appeals and declared the policy statement to be of no legal effect unless and until the identified errors were rectified.
3. Divisional Court: In [2019] EWHC 1070 (Admin); [2020] PTSR 240, dismissed the claims for which permission was granted and refused permission on the grounds considered by the Supreme Court after a rolled-up hearing.