Possible (The 10:10 Foundation) v Secretary of State for Transport

Hearing dates: 1 – 4 April 2025

Approved Judgment

This judgment was handed down remotely at 12 noon on 8 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Claimants seek to challenge, by way of judicial review, the Defendant's decision of 19 July 2022 to publish the Jet Zero Strategy (“the JZS”), setting out the Government's strategy for decarbonising the UK aviation sector by 2050, and the Defendant's 2023 Review decision (“the 2023 Review”) that the JZS remained the appropriate strategy to pursue aviation decarbonisation. The Claimants' primary issue is that the Defendant has not proposed in the JZS Direct Demand Management (“DDM”) measures to limit and control aviation. However, they recognise that the merits of this strategy are a matter for the elected government to decide, not judges ( R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, at [54]–[56]).

Possible (The 10:10 Foundation) (“Possible”) is a climate action charity and pressure group, campaigning for a zero-carbon society, by measures such as a frequent flyer levy.

The Group for Action on Leeds Bradford Airport (“GALBA”) is an unincorporated association, comprising a group of concerned individuals from West Yorkshire whose aim is to prevent any expansion of Leeds Bradford Airport. It acts by Mr Hodgkinson, who is a member of GALBA's Committee.

Possible's first claim (“Possible Claim 1”), which challenged the Defendant's JZS decision, was issued on 18 October 2022. Possible subsequently filed its second claim (“Possible Claim 2”), issued on 31 January 2024, which challenged the 2023 Review.

On 14 March 2023, Sir Duncan Ouseley, sitting as a Judge of the High Court, refused permission to apply for judicial review on ground 1 of Possible Claim 1, and adjourned the permission application on grounds 2, 3, 4 and 5 to be heard at a “rolled-up hearing”. Sir Duncan Ouseley also ordered that Possible Claim 1 should be case managed and heard together with the GALBA claim.

On 15 July 2024, I directed that Possible Claim 2 should be heard, as a rolled-up hearing, on the same occasion as Possible Claim 1 and the GALBA claim.

Possible has not pursued its renewed application for permission on ground 1 of Possible Claim 1, which alleged that the Defendant failed to interpret and properly apply his obligations under section 13(1) of the Climate Change Act 2008 (“CCA 2008”). Possible has also not pursued ground 3 of Possible Claim 1, which alleged that the Defendant unlawfully failed to give cogent reasons for departing from the advice of the Climate Change Committee (“CCC”). Possible has conceded that these grounds are not arguable, in the light of the Court of Appeal's decision in R (Global Feedback Limited) v Secretary of State for Environment, Food and Rural Affairs and Secretary of State for Energy Security and Net Zero [2024] 1 WLR 2923 (“ Global Feedback”), and the Supreme Court's dismissal of the application for permission to appeal 1. Possible accepts that “the duty in section 13(1) of the CCA 2008 does not apply to the SST” 2.

On 17 March 2025, Sir Peter Lane, sitting as a High Court Judge, granted Possible permission to amend its grounds in Possible Claim 1 to add ground 6.

The grounds of challenge in Possible Claim 1 may be summarised as follows:

i) Ground 1: No longer pursued, in the light of the decision in Global Feedback.

ii) Ground 2: In developing and adopting the JZS, the Defendant breached (a) the Tameside duty of inquiry and (b) the requirement to have regard to obviously material considerations, both on the basis that either (i) the JZS was a policy or proposal or a package of policies or proposals, prepared by the Defendant for the purpose of the continuing obligation on the relevant Secretary of State under section 13(1) of the CCA 2008; or (ii) the JZS sets out the policies relied upon by the Defendant in relation to how he intends to decarbonise aviation.

iii) Ground 3: No longer pursued, in the light of the decision in Global Feedback.

iv) Ground 4: The Defendant's decision was based on a consultation which was unlawful because he had a closed mind in relation to DDM measures.

v) Ground 5: The Defendant's decision to exclude DDM measures unlawfully failed to take account of an obviously material consideration, namely, that DDM is by far the most effective way to reduce aviation's non-CO2 climate impacts.

vi) Ground 6: The Defendant failed to have or give any rational reasons when rejecting the firm advice of his officials, set out in a ministerial submission dated 29 April 2021, that he needed to address the issue of DDM in the forthcoming consultation.

The grounds of challenge in Possible Claim 2 may be summarised as follows:

i) Ground 1: No longer pursued.

ii) Ground 2: Unlawfully, the Defendant's 2023 Review was not informed by a process of public consultation.

iii) Ground 3: No longer pursued, in the light of the decision in Global Feedback.

iv) Ground 4: The Defendant unlawfully breached the Tameside duty of inquiry and failed to have regard to other obviously material considerations in deciding to maintain the “High Ambition” scenario set out in the JZS.

v) Ground 5: No longer pursued, in the light of the decision in Global Feedback.

vi) Ground 6: The Defendant unlawfully failed to discharge the Tameside duty of inquiry in the context of considering the DDM policy options.

vii) Ground 7: The Defendant unlawfully fettered his discretion and/or failed to conscientiously consider (for the purposes of this further decision) even the responses to the original JZS consultation.

viii) Ground 8: No longer pursued.

The GALBA claim was issued on 19 October 2022. On 14 March 2023, Sir Duncan Ouseley, sitting as a Judge of the High Court, refused permission on ground 1, and adjourned the permission application on all other grounds to be heard at a rolled-up hearing. Sir Duncan Ouseley also ordered that the GALBA claim should be case managed and heard together with Possible Claim 1. GALBA's grounds of challenge (as amended and re-numbered on 6 September 2024) may be summarised as follows:

i) Ground 1: The Defendant failed to carry out a lawful consultation. The Defendant's stated “red line” approach to DDM measures meant that an option of central significance was excluded from the consultation, such that the Defendant (i) did not consult at a formative stage; and (ii) failed conscientiously to consider consultee responses (including as regards non-CO2 emissions). Subsequent consideration of the consultee responses a year after the decision could not cure the legal error.

ii) Ground 2: The Defendant failed to carry out a cost/benefit impact assessment. The Defendant's decision not to carry out an impact assessment on the apparent (and erroneous) basis that the JZS was a “strategy” as opposed to “policy” was a breach of his Tameside duty to make sufficient inquiries.

iii) Ground 3: The Defendant failed to take into account relevant planning decisions on airport expansion, which were an obviously material consideration, thereby creating a lacuna in addressing the climate change impacts of airport expansion.

iv) Ground 4: The Defendant failed to discharge his public sector equality duty (“PSED”) contrary to section 149 of the Equality Act 2010 (“EA 2010”). The Defendant accepted that the JZS may have impacts on those who share the protected characteristic of race, but failed to evidence that this was known personally to ministers and that it fed into the final JZS.

The Defendant resists all the Claimants' grounds on the basis that they are unarguable and permission should be refused. Alternatively, if permission is granted, the claims should be dismissed. The Defendant further submits that the effect of the 2023 Review is that the challenges to the lawfulness of the JZS consultations in JZS1 (Possible Claim 1, ground 4 and the GALBA claim, ground 1) and relating to the PSED (the GALBA claim, Ground 4) are now academic, because there has been a fresh decision to continue to pursue the JZS in any event. Alternatively, the Court is invited to refuse to grant permission to apply for judicial review for these grounds pursuant to section 31(3D) Senior Courts Act 1981 (“SCA 1981”), or to refuse relief pursuant to section 31(2A) SCA 1981, because it is highly likely that the decision to adopt the JZS would have been the same, even if any legal error of the type alleged had not occurred.

Background and facts

The facts set out in this section are drawn from the documentary evidence and from the two witness statements of Ms Holly Greig (“Greig 1/x and Greig 2/x”), who is the Deputy Director, Integrated National Transport Strategy at the Department for Transport.

The CCA 2008 and the Net Zero Strategy

In June 2019, the CCA 2008 was amended to include a target of net...