R (on the application of Plan B Earth) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Singh,Lord Justice Haddon-Cave |
| Judgment Date | 27 February 2020 |
| Neutral Citation | [2020] EWCA Civ 214 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2019/1053, C1/2019/1056 and C1/2019/1145 |
| Date | 27 February 2020 |
and
and
and
and
R. (on the application of
and
and
[2020] EWCA Civ 214
Lord Justice Lindblom
Lord Justice Singh
and
Lord Justice Haddon-Cave
Case Nos: C1/2019/1053, C1/2019/1056 and C1/2019/1145
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LORD JUSTICE HICKINBOTTOM AND MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
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 Lindblom, Lord Justice Singh and
Introduction
This is the judgment of the court.
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.
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.
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.
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.
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.
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.
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.
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
-
R (on the application of Friends of the Earth Ltd and another) v Secretary of State for Transport (Heathrow Airport Ltd, interested party)
...in failing to take the Paris Agreement into account and to explain how he had done so in making the decision to designate the ANPS (193 ILR 535).6 The appellant appealed to the Supreme Court. Held (unanimously):—The appeal was allowed. (1) The Government's commitment to the Paris Agreement ......
-
EFW Group Ltd v Secretary of State for Business, Energy and Industrial Strategy
...see SSCLG v South Gloucestershire Council [2016] EWCA Civ 74 at paragraph 25 and R(Plan B Earth) v Secretary of State for Transport [2020] PTSR 1446 at paragraph 273 for instance. Obviously, the proper evaluation of the question posed by section 31(2A) is one which will vary from case to c......
-
The King on the application of Together Against Sizewell C Ltd v Secretary of State for Energy Security and Net Zero
...to the “Airports National Policy Statement” designated in June 2018 ( Spurrier and R (Plan B Earth) v Secretary of State for Transport [2020] PTSR 1446). 1 But they lend no support to the claimant's 126 The Court of Appeal held that the standard of review in relation to both art.6(3) and ar......
-
The King (on the application of Associated Society of Locomotive Engineers and Firemen and 10 Others) v The Secretary of State for Business and Trade
...lose sight of their fundamental function, which is to maintain the rule of law.’: R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at [273]. xii) It follows that where particular facts relevant to the substantive decision are in dispute, the court must not ‘take on a......
-
Climate change commitments lead to invalidity of Heathrow Airport extension policy
...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
...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
...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
...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 publ......
-
Table of Cases
...Resilient Energy Severndale Ltd [2019] UKSC 53, [2019] 1 WLR 6562 97, 112, 125–30 R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 4 R (Redcar & Cleveland BC) v Secretary of State for Business Enterprise and Regulatory Reform & EDF Energy [2008] EWHC......
-
Introduction
...ambition in all areas of the UK. The CCC also 5 Mention should be made of R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, where the Court of Appeal ruled unlawful the Secretary of State’s (SoS’s) National Policy Statement (NPS) on Airports designating a third runway......