R (on the application of Plan B Earth) v Secretary of State for Transport

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Singh,Lord Justice Haddon-Cave
Judgment Date27 February 2020
Neutral Citation[2020] EWCA Civ 214
Docket NumberCase Nos: C1/2019/1053, C1/2019/1056 and C1/2019/1145

[2020] EWCA Civ 214

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

DIVISIONAL COURT

LORD JUSTICE HICKINBOTTOM AND MR JUSTICE HOLGATE

[2019] EWHC 1070 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lindblom

Lord Justice Singh

and

Lord Justice Haddon-Cave

Case Nos: C1/2019/1053, C1/2019/1056 and C1/2019/1145

Between:
R. (on the application of Plan B Earth)
Claimant
and
Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Ltd.
(2) Arora Holdings Ltd.
Interested Parties

and

WWF-UK
Intervener
And Between:
R. (on the application of Friends of the Earth Ltd.)
Claimant
and
Secretary of State for Transport
Defendant

and

(1) Heathrow Airport Ltd.
(2) Arora Holdings Ltd.
Interested Parties

and

WWF-UK
Intervener

R. (on the application of

And Between:
(1) London Borough of Hillingdon Council
(2) London Borough of Wandsworth Council
(3) London Borough of Richmond Upon Thames Council
(4) Royal Borough of Windsor and Maidenhead Council
(5) London Borough of Hammersmith and Fulham Council
(6) Greenpeace Ltd.
(7) Mayor of London)
Appellants
and
Secretary of State for Transport
Respondent

and

(1) Heathrow Airport Ltd.
(2) Secretary of State for the Environment, Food and Rural Affairs
(3) Transport for London
(4) Arora Holdings Ltd.
Interested Parties

and

WWF-UK
Intervener

Mr Tim Crosland, Director of Plan B Earth for the Claimant

Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Defendant

Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party

Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Interested Party

Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener

Mr David Wolfe Q.C., Mr Peter Lockley and Mr Andrew Parkinson (instructed by Leigh Day) for the Claimant

Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Defendant

Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party

Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Interested Party

Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener

Mr Nigel Pleming Q.C., Ms Catherine Dobson and Ms Stephanie David (instructed by Harrison Grant) for the First, Second, Third, Fourth, Fifth and Sixth Appellants

Mr Ben Jaffey Q.C., Ms Catherine Dobson, Ms Flora Robertson and Ms Stephanie David (instructed by Transport for London Legal) for the Seventh Appellant

Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Respondent

Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party

The Second and Third Interested Parties did not appear and were not represented

Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Fourth Interested Party

Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener

Hearing dates: 17, 18, 22 and 23 October 2019 Further written submissions: 1 and 6 November 2019

Judgment Approved by the court for handing down

Lord Justice Haddon-Cave

Lord Justice Lindblom, Lord Justice Singh and

Introduction

1

This is the judgment of the court.

2

Heathrow is a major international airport – the busiest in Europe, and the busiest in the world with two runways. Each year it handles about 70% of the United Kingdom's scheduled long-haul flights, 80 million passengers, and up to 480,000 air traffic movements. Gatwick is the busiest single runway airport in the world and each year handles about 11% of the United Kingdom's scheduled long-haul traffic. If the United Kingdom is to maintain its status as a leading aviation “hub”, it is argued that its aviation capacity must increase. Whether this increase in capacity should be supported in national policy, and in particular whether it should involve the construction of a third runway at Heathrow, has long been a matter of political debate and controversy, intensified by concerns over the environmental cost of achieving it, and more recently by the concerted global effort to combat climate change by reducing carbon emissions. These judicial review proceedings, which have reached us in the form of an appeal from the Divisional Court (Hickinbottom L.J. and Holgate J.) and two applications for permission to appeal, do not draw us into that political debate. They do not face us with the task of deciding whether and how Heathrow should be expanded. That is not the kind of decision that courts can make, and is ultimately a political question for the Government of the day. Rather, we are required to consider whether the Divisional Court was wrong to conclude that the Government's policy in favour of the development of a third runway at Heathrow was produced lawfully. That is the question here. It is an entirely legal question.

3

The policy is contained in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (“the ANPS”), designated by the Secretary of State for Transport (“the Secretary of State”) under section 5 of the Planning Act 2008 (“the Planning Act”) on 26 June 2018.

4

There were originally five claims for judicial review challenging the designation decision. Four of them came before the Divisional Court in March 2019 at a “rolled-up” hearing over seven days – as applications for permission to apply for judicial review, together with the claim itself if permission were granted. The fifth (Claim No. CO/3071/2018), brought by Heathrow Hub Ltd. and Runway Innovations Ltd., which raises issues of a different kind from the other four, is also the subject of an appeal before us. That appeal is dealt with in a separate judgment, also handed down today. One of the other four claims (Claim No. CO/2760/2018), brought by Mr Neil Spurrier, is no longer pursued. The three claims we are dealing with here are these: Claim No. CO/3089/2018 brought by seven claimants, five of them local authorities – the London Borough of Hillingdon Council and the councils of four adjacent London boroughs – Greenpeace Ltd. (“Greenpeace”) and the Mayor of London (“the Hillingdon claimants”); Claim No. CO/3147/2018 brought by Friends of the Earth Ltd. (“Friends of the Earth”); and Claim No. CO/3149/2018 brought by Plan B Earth.

5

Under the Greater London Authority Act 1999 (“the GLA Act”) the Mayor of London is required to have in place a London Environment Strategy that contains provisions dealing with climate change (sections 361A, 361B and 361D of the GLA Act), air quality (sections 362 to 369) and noise (section 370). He is subject to a specific “duty to address climate change, so far as relating to Greater London” (section 361A(1) and (2)). Greenpeace and Friends of the Earth are both non-governmental organisations concerned with the protection of the environment. Plan B Earth is a charity promoting efforts to arrest climate change.

6

In each of the three claims in these proceedings, and in the claim brought by Heathrow Hub and Runway Innovations, the defendant or respondent is the Secretary of State. In the Hillingdon claimants' proceedings, Transport for London (“TfL”) is an interested party. TfL has responsibility, under section 154 of the GLA Act, for implementing the Mayor of London's strategy for transport in London. In all three claims Heathrow Airport Ltd. (“HAL”) and Arora Holdings Ltd. (“Arora”) are interested parties. HAL is the airport operator at Heathrow, and is promoting a scheme for the north-west runway. Arora represents a group of companies that own land within the boundary of that development and intend to build and operate a new terminal constructed as part of it.

7

The Divisional Court dismissed all four claims. Its reasons for doing so are lucidly set out in a judgment handed down on 1 May 2019 ( [2019] EWHC 1070 (Admin)), which is fairly described as a “tour de force”. In Mr Spurrier's claim the court refused permission to apply for judicial review on all grounds. In the Hillingdon claimants' challenge, it granted permission to apply for judicial review on five grounds but dismissed the claim on each of those grounds, and refused permission on the others. In the Friends of the Earth's claim and in Plan B Earth's, it refused permission on all grounds.

8

The Hillingdon claimants, Friends of the Earth and Plan B Earth all appealed. On 22 July 2019 Lindblom L.J. granted permission to appeal in the Hillingdon claimants' case, and in both the Friends of the Earth and Plan B Earth proceedings ordered that the application for permission to appeal and, if permission to apply for judicial review were granted on that application (under CPR r.52.8(5)), the claim itself (under CPR r.52.8(6)) would be heard together with each other and with the Hillingdon claimants' appeal. Lindblom L.J. also made case management directions, which, among other things, required the parties in all three cases to agree the main issues for the court.

9

On 18 September 2019, the court received an application by WWF-UK (“WWF”) for permission to intervene by the making of oral or written submissions on the significance of the UN Convention on the Rights of the Child to the Secretary of State's duty in section 10(2) of the Planning Act when exercising its functions with the objective of achieving “sustainable development”. That application was opposed by the Secretary of State. On 4 October 2019 Lindblom L.J. granted WWF permission to intervene by written...

To continue reading

Request your trial
20 cases
  • David Gathercole v Suffolk County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 9 September 2020
    ...was pre-eminently a matter of planning judgment for the decision-maker and not the court.” 55 When the Heathrow case went to appeal, ( [2020] EWCA Civ 214), this court agreed with that approach. They also agreed with [434] of the Divisional Court decision, to the effect that “decisions on ......
  • The Queen (on the Application of Durand Education Trust) v Secretary of State for Education
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 December 2020
    ...ensure that the judicial review process remains flexible and realistic.” On the other hand, in R (Plan B Earth) v Transport Secretary [2020] EWCA Civ 214, [2020] PTSR 1446, the Court of Appeal (Lindblom, Singh and Haddon-Cave LJJ) warned at paragraph 273 that “courts should still be cauti......
  • R (on the application of Plan B Earth) v Secretary of State for Transport
    • United Kingdom
    • Supreme Court
    • 16 December 2020
    ...[2020] UKSC 52 Supreme Court Michaelmas Term On appeal from: [2020] EWCA Civ 214 Lord Reed, President Lord Hodge, Deputy President Lady Black Lord Sales Lord Leggatt R (on the application of Friends of the Earth Ltd and others) (Respondents) and Heathrow Airport Ltd (Appellant) Appellant Lo......
  • R ClientEarth v Secretary of State for Business, Energy and Industrial Strategy
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 May 2020
    ...has acted irrationally (see e.g. Spurrier [2020] PTSR 240 at [434] and R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at [126] to [144]). Once again, there is no material here upon which the court could conclude that the Secretary of State's approach was 257 Mr Tai......
  • Request a trial to view additional results
6 firm's commentaries
  • Climate change commitments lead to invalidity of Heathrow Airport extension policy
    • United Kingdom
    • Mondaq UK
    • 4 March 2020
    ...net-zero emissions by 2050, in line with the Paris Agreement. 4 R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214 at 5 R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214 at [228]. Note that the Court of Appeal ......
  • Supreme Court overturns block on Heathrow’s expansion
    • United Kingdom
    • JD Supra United Kingdom
    • 27 January 2021
    ...Airport Ltd (Appellant)[2020] UKSC 52. On appeal from: R (on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214. 2 Paragraph 105. 3 Paragraph 106. 4 Paragraph 108. 5 Paragraph 115. 6 Paragraphs 87-124. 7 Council Directive 2001/42/EC of 27 June 2001 (the ......
  • Climate change disputes: emerging trends for a global emergency
    • United Kingdom
    • JD Supra United Kingdom
    • 22 February 2021
    ...of the Earth Ltd) v. Heathrow Airport Ltd [2020] UKSC 52↩ R. (on the application of Plan B Earth) v. Secretary of State for Transport [2020] EWCA Civ 214↩...
  • The Convergence Of Human Rights Law And Environmental And Climate Change Litigation In Australia
    • Australia
    • Mondaq Australia
    • 12 June 2020
    ...United Kingdom: On 27 February 2020 the Court of Appeal hand down its decision in R v Secretary of State for Transport & Ors [2020] EWCA Civ 214. Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave (per Curiam) found that the Secretary of State for Transport, when it ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT