The Court of Appeal has upheld a legal challenge brought by environmental campaign groups and several local authorities, including the mayor of London.
The law lords decided that when the Department for Transport produced its Airports National Policy Statement (ANPS) in June 2018, effectively enabling Heathrow expansion, it had failed to address climate change impact, as it is legally required to do under the Planning Act 2008. Therefore the ANPS is void.
Friends of the Earth, one of the environmental groups that brought the appeal, described the ruling as 'groundbreaking', with profound implications for infrastructure planning.
The secretary of state for transport at the time was Chris Grayling.
“We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016,” the judgment from Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cove states.
“We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not. That, in our view, is legally fatal to the ANPS in its present form.”
The judges stressed that they have not made any ruling on whether or not there should be a third runway, only that correct procedures have not yet been followed.
“The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed,” they said.
An appeal from Heathrow Hub, an organisation campaigning for an extended northern runway instead of a third runway, was thrown out.
Following the announcement by the Court of Appeal, a Heathrow Airport spokesperson said: “The Court of Appeal dismissed all appeals against the government – including on ‘noise’ and ‘air quality’ – apart from one which is eminently fixable. We will appeal to the Supreme Court on this one issue and are confident that we will be successful.
“In the meantime, we are ready to work with the government to fix the issue that the court has raised. Heathrow has taken a lead in getting the UK aviation sector to commit to a plan to get to Net Zero emissions by 2050, in line with the Paris Accord.
“Expanding Heathrow, Britain’s biggest port and only hub, is essential to achieving the prime minister’s vision of Global Britain. We will get it done the right way, without jeopardising the planet’s future. Let’s get Heathrow done.”
Grant Shapps, the current transport secretary, said: “Airport expansion is core to boosting global connectivity. We also take seriously our commitment to the environment. This government won’t appeal today's judgement given our manifesto makes clear any Heathrow expansion will be industry led.”
Mayor of London Sadiq Khan said: “This is huge. I’m delighted that the Court of Appeal has recognised that the government cannot ignore its climate change responsibilities. I will continue to stand up for Londoners’ concerns by doing everything I can to stop the Heathrow expansion.”
Will Rundle, head of legal at Friends of the Earth, said “This ruling is an absolutely ground-breaking result for climate justice. We were fighting a project that would have had dire implications for present and future generations.”
“We are delighted with The Court of Appeal’s ruling, which goes to show the massive importance of the legal system to check the clear abuse of state power by government, such as in this case.
“Shockingly, this case revealed that the government accepted legal advice that it should not consider the Paris Agreement when giving the third runway the go-ahead. The Court has said very clearly that was illegal.
“This judgment has exciting wider implications for keeping climate change at the heart of all planning decisions. It’s time for developers and public authorities to be held to account when it comes to the climate impact of their damaging developments.”
Jenny Bates, climate campaigner at Friends of the Earth, said: “The UK government must take this ruling as an opportunity to play its full part in fixing the international climate crisis, especially in the year that it hosts crucial climate talks in Glasgow. This means finally moving on from the climate-wrecking Heathrow third runway project and ensuring the UK aviation sector actually cuts its climate emissions, rather than adding to them.
“The Court has specifically recognised how the climate crisis needs to be at the heart of major infrastructure decisions. It’s time that the government catches up with this fact and stops pursuing its outdated climate-wrecking transport projects, such as major new roads and airport expansion at Heathrow or elsewhere, and instead gives us the clean transport network we need.”
Rowan Smith, solicitor in the environmental law team at law firm Leigh Day, which acted for Friends of the Earth, added: “What is emphatically clear in this judgment is that the Court of Appeal concluded that there was absolutely no legal means by which the Government could ignore its international climate change commitments under the Paris Agreement, and that such an omission was a fatal flaw to the lawfulness of the policy to greenlight a third runway at Heathrow Airport.
"The Lord Justices simply followed the legal framework set by Parliament, citing as they did their fundamental function to maintain the rule of law, and found that the Paris Agreement was so obviously material to a decision on Heathrow Airport expansion that the Secretary of State was legally bound to consider it. The government must now go back to the drawing board and come up with a new policy, which lawfully fulfils its sustainable development duties and protects future generations.”
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