R (Friends of the Earth Ltd) v Heathrow Airport Ltd

The Supreme Court allowed the appeal by Heathrow Airport Ltd and held that the Secretary of State lawfully designated the Airports National Policy Statement (ANPS). Key legal principles applied were (i) the interpretation of "Government policy" in section 5(8) of the Planning Act 2008, (ii) the duty in section 10 of that Act to act with the objective of contributing to sustainable development (including mitigation of and adaptation to climate change), and (iii) the procedural requirements of the Strategic Environmental Assessment Directive (Directive 2001/42/EC) as transposed.

The court held that (a) "Government policy" in section 5(8) denotes established, clear and unambiguous statements of policy and does not extend to inchoate or developing positions or to ratified international treaties as such; (b) the Secretary of State had rationally and lawfully exercised his discretion under section 10 by following expert advice from the Committee on Climate Change (CCC) and by relying on the domestic framework in the Climate Change Act 2008 (CCA 2008) to ensure that future applications for development consent would be assessed against up-to-date carbon obligations; and (c) the environmental report (the appraisal of sustainability) complied with the SEA Directive because the Secretary of State had reasonably judged the level of detail required and conducted consultation such that the public had an effective opportunity to comment.

The Court rejected the Court of Appeal's conclusion that the ANPS was of no legal effect because the Secretary of State had failed to take proper account of the Paris Agreement, post-2050 emissions or non-CO₂ aviation effects; the Secretary of State had considered those matters, had rationally decided how to treat them in light of scientific uncertainty and the developing aviation policy, and had provided for further assessment at the DCO stage.

Background and parties. The ANPS set the national policy framework for a proposed third runway at Heathrow (the North West Runway). Heathrow Airport Ltd (HAL) promoted the scheme. Friends of the Earth and Plan B Earth challenged the Secretary of State’s decision to designate the ANPS under section 5(1) of the Planning Act 2008. The Secretary of State did not appeal the Court of Appeal judgment; HAL appealed.

Procedural history. The Divisional Court (Hickinbottom LJ and Holgate J) dismissed the objectors’ claims. The Court of Appeal ([2020] EWCA Civ 214) allowed the appeals by FoE and Plan B Earth, granted declaratory relief that the ANPS was of no legal effect and identified four principal grounds: (i) failure under section 5(8) to explain how the ANPS took account of Government policy (the Paris Agreement); (ii) breach of section 10 by failing to have regard to the Paris Agreement; (iii) breach of the SEA Directive for omission of the Paris Agreement from the environmental report; and (iv) failure under section 10 to have regard to post-2050 and non-CO₂ aviation emissions. HAL appealed to the Supreme Court.

Nature of the claim / relief sought. Judicial review of the Secretary of State’s designation of the ANPS. Respondents sought declarations that the ANPS was of no legal effect for failure to take into account the Paris Agreement and related obligations and for failure to comply with the SEA Directive and section 10.

Issues framed by the Court. Whether the Secretary of State: (1) breached section 5(8) by failing to explain how the ANPS took account of Government policy as manifested by the Paris Agreement; (2) breached section 10 by failing to have regard to mitigation and adaptation obligations (in particular the Paris Agreement); (3) breached the SEA Directive by omitting reference to the Paris Agreement in the environmental report; and (4) failed under section 10 to have regard to post-2050 emissions and non-CO₂ aviation effects.

Court’s reasoning and conclusions. The court adopted a purposive construction of "Government policy" in section 5(8) and concluded that it denotes clear, established and unambiguous governmental policy statements; ministerial remarks and treaty ratification did not, of themselves, meet that test. On section 10, the court applied established public law principles about materiality and judicial review of discretionary assessments (Fewings / Wednesbury approach). It concluded that the Secretary of State had rationally followed CCC advice, taken domestic obligations under the CCA 2008 into account and left detailed assessment and any changed targets to the DCO stage and to the statutory mechanisms (carbon budgets, possible amendment of the CCA 2008). On the SEA Directive, the court held that article 5(2)-(3) affords a discretion as to the level of detail in an environmental report and that the assessment must be reviewed on a Wednesbury standard; the Secretary of State had acted within that discretion and had provided a sufficient basis for consultation. On post-2050 and non-CO₂ effects, the court held that it was rational to quantify CO₂ through the established appraisal period while keeping non-CO₂ effects and any post-2050 policy under review, to be addressed at the DCO stage and in the developing Aviation Strategy.

Wider context noted by the court: the court observed the iterative nature of climate-policy development, the role of the CCC and the existence of mechanisms to update domestic targets; it emphasised that the ANPS required future DCO applications to be assessed against up-to-date carbon obligations.

Appeal allowed. The Supreme Court held that the Secretary of State acted lawfully in designating the ANPS. The court construed "Government policy" in section 5(8) of the Planning Act 2008 narrowly to require established, clear and unambiguous policy statements; it concluded that the Secretary of State rationally exercised his section 10 duties by following CCC advice and relying on the domestic framework in the Climate Change Act 2008, and that the environmental report complied with the SEA Directive because the level of detail required was a matter for the decision-maker to judge and was subject to Wednesbury review. The Court therefore reversed the Court of Appeal's declaration that the ANPS was of no legal effect.

Claimants sought judicial review under section 13 of the Planning Act 2008. The Divisional Court (Hickinbottom LJ and Holgate J) dismissed the claims: [2019] EWHC 1070 (Admin); an associated action [2019] EWHC 1069 (Admin). The Court of Appeal allowed appeals by Friends of the Earth and Plan B Earth: [2020] EWCA Civ 214. The Secretary of State did not appeal; Heathrow Airport Ltd (joined as interested party) appealed to the Supreme Court, which allowed the appeal: [2020] UKSC 52.