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Consultants say Heathrow ruling opens door to further challenges

28 Feb 20 Any developer planning a construction project now risks a legal challenge if they have not demonstrated that their scheme is zero-carbon, it is being suggested.

Yesterday’s landmark Court of Appeal hearing ruling Heathrow’s third runway project unlawful is set to have profound implications if not over-ruled.

The judges ruled that because the government’s Airports National Policy Statement (ANPS) in June 2018, which effectively enables Heathrow expansion, had failed to address climate change impact, as it is legally required to do, the document is void.

The judgment stated: “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.”

According to Julian Francis, director of external affairs at the Association for Consultancy & Engineering (ACE), which represents the companies that design infrastructure, the implications are massive.

“From now on, every infrastructure spending decision in the UK could face a legal challenge if it doesn't comply with the Climate Change Act, which mandates zero emissions by 2050,” he said. “It's not clear at present that this was an outcome that MPs intended when they signed up to the 2050 target, but in today's court ruling, it's what they've got.

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“The judgment’s implications are clearly wider than just Heathrow as the judges have stated that climate change must be kept at the heart of all planning decisions and that developers and public authorities can be held to account if their proposed schemes negatively impact UK climate change commitments.

“So I predict that the government will now be looking at ways to mitigate the implications of the judgment. However, in the short term, Heathrow is in limbo and as the prime minister has announced that he does not plan to appeal against the ruling, this will undoubtedly also call into question aviation expansion in the UK more generally – there is currently no viable technical fix to make planes zero-carbon.”

The government has said that it will not challenge the judgment, saying that it is up to the private sector to deliver the project, but Heathrow Airport Ltd said that it would appeal to the Supreme Court.

Jason Towell, partner and head of the planning team at law firm Cripps Pemberton Greenish, said: “If the decision is not overturned on appeal, the case is likely to have serious implications for future major infrastructure projects.”

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