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

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Reed,Lord Hodge,Lady Black,Lord Sales,Lord Leggatt
Judgment Date16 Dec 2020
Neutral Citation[2020] UKSC 52

[2020] UKSC 52

Supreme Court

Michaelmas Term

On appeal from: [2020] EWCA Civ 214

before

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

Lord Anderson of Ipswich KBE QC

Michael Humphries QC

Richard Turney

Malcolm Birdling

(Instructed by Bryan Cave Leighton Paisner LLP)

Respondent (1)

David Wolfe QC

Peter Lockley

Andrew Parkinson

(Instructed by Leigh Day (London))

Respondent (2)

Tim Crosland, Director,

Plan B Earth

Respondents:

(1) Friends of the Earth

(2) Plan B Earth

Heard on 7 and 8 October 2020

Lord Sales

Lord Hodge AND( with whom Lord Reed, Lady Black and Lord Leggatt agree)

Introduction
1

This case concerns the framework which will govern an application for the grant of development consent for the construction of a third runway at Heathrow Airport. This is a development scheme promoted by the appellant, Heathrow Airport Ltd (“HAL”), the owner of the airport.

2

As a result of consideration over a long period, successive governments have come to the conclusion that there is a need for increased airport capacity in the South East of England to foster the development of the national economy.

3

An independent commission called the Airports Commission was established in 2012 under the chairmanship of Sir Howard Davies to consider the options. In its interim report dated 17 December 2013 the Airports Commission reached the conclusion that there was a clear case for building one new runway in the South East, to come into operation by 2030. In that report the Airports Commission set out scenarios, including a carbon-traded scenario under which overall carbon dioxide (CO 2) emissions were set at a cap consistent with a goal to limit global warming to 2°C. The Commission reduced the field of proposals to three main candidates. Two of these involved building additional runway capacity at Heathrow Airport, either to the north west of the existing two runways (“the NWR Scheme”) or by extending the existing northern runway (“the ENR Scheme”). The third involved building a second runway at Gatwick airport (“the G2R Scheme”).

4

The Airports Commission carried out an extensive consultation on which scheme should be chosen. In its final report dated 1 July 2015 (“the Airports Commission Final Report”) the Commission confirmed that there was a need for additional runway capacity in the South East by 2030 and concluded that, while all three options could be regarded as credible, the NWR Scheme was the best way to meet that need, if combined with a significant package of measures which addressed environmental and community impacts.

5

The Government carried out reviews of the Airports Commission's analysis and conclusions. It assessed the Airports Commission Final Report to be sound and robust. On 14 December 2015 the Secretary of State for Transport (“the Secretary of State”) announced that the Government accepted the case for airport expansion; agreed with, and would consider further, the Airports Commission's short-list of options; and would use the mechanism of a national policy statement (“NPS”) issued under the Planning Act 2008 (“the PA 2008”) to establish the policy framework within which to consider an application by a developer for a development consent order (“DCO”). The announcement also stated that further work had to be done in relation to environmental impacts, including those arising from carbon emissions.

6

In parallel with the development of national airports policy, national and international policy to combat climate change has also been in a state of development. The Climate Change Act 2008 (“the CCA 2008”) was enacted on the same day as the PA 2008. It sets a national carbon target (section 1) and requires the Government to establish carbon budgets for the UK (section 4). There are mechanisms in the CCA 2008 to adjust the national target and carbon budgets (in sections 2 and 5, respectively) as circumstances change, including as scientific understanding of global warming develops.

7

In 1992, the United Nations adopted the United Nations Framework Convention on Climate Change. 197 states are now parties to the Convention. Following the 21st Conference of the parties to the Convention, on 12 December 2015 the text of the Paris Agreement on climate change was agreed and adopted. The Paris Agreement set out certain obligations to reduce emissions of greenhouse gases, in particular CO 2, with the object of seeking to reduce the rate of increase in global warming and to contain such increase to well below 2°C above, and if possible to 1.5°C, above pre-industrial levels. On 22 April 2016 the United Kingdom signed the Paris Agreement and on 17 November 2016 the United Kingdom ratified the Agreement.

8

An expansion of airport capacity in the South East would involve a substantial increase in CO 2 emissions from the increased number of flights which would take place as a result. The proposals for such expansion have therefore given rise to a considerable degree of concern as to the environmental impact it would be likely to have on global warming and climate change. This is one aspect of the proposals for expansion of airport capacity, among many others, which have made the decision whether to proceed with such expansion a matter of controversy.

9

On 25 October 2016, the Secretary of State announced that the NWR Scheme was the Government's preferred option. In February 2017 the Government commenced consultation on a draft of an Airports NPS which it proposed should be promulgated pursuant to the PA 2008 to provide the national policy framework for consideration of an application for a DCO in respect of the NWR Scheme. A further round of consultation on a draft of this NPS was launched in October 2017. There were many thousands of responses to both consultations. In June 2018 the Government published its response to the consultations. It also published a response to a report on the proposed scheme dated 1 November 2017 by the Transport Committee (a Select Committee of the House of Commons).

10

On 5 June 2018 the Secretary of State laid before Parliament the final version of the Airports NPS (“the ANPS”), together with supporting documents. As is common ground on this appeal, the policy framework set out in the ANPS makes it clear that issues regarding the compatibility of the building of a third runway at Heathrow with the UK's obligations to contain carbon emissions and emissions of other greenhouse gases could and should be addressed at the stage of the assessment of an application by HAL for a DCO to allow it to proceed with the development. As is also common ground, the ANPS makes it clear that the emissions obligations to be taken into account at the DCO stage will be those which are applicable at that time, assessed in the light of circumstances and the detailed proposals of HAL at that time.

11

On 25 June 2018 there was a debate on the proposed ANPS in the House of Commons, followed by a vote approving the ANPS by 415 votes to 119, a majority of 296 with support from across the House.

12

On 26 June 2018 the Secretary of State designated the ANPS under section 5(1) of the PA 2008 as national policy. It is the Secretary of State's decision to designate the ANPS which is the subject of legal challenge in these proceedings.

13

Objectors to the NWR Scheme commenced a number of claims against the Secretary of State to challenge the lawfulness of the designation of the ANPS on a wide variety of grounds. For the most part, those claims have been dismissed in the courts below in two judgments of the Divisional Court (Hickinbottom LJ and Holgate J) in the present proceedings, [2019] EWHC 1070 (Admin); [2020] PTSR 240, and an associated action ( [2019] EWHC 1069 (Admin)) and in the judgment of the Court of Appeal in the present proceedings: [2020] EWCA Civ 214; [2020] PTSR 1446.

14

The Divisional Court dismissed all the claims brought by objectors, including those brought by the respondents to this appeal (Friends of the Earth — “FoE” — and Plan B Earth). FoE is a non-governmental organisation concerned with climate change. Plan B Earth is a charity concerned with climate change.

15

However, the Court of Appeal allowed appeals by FoE and Plan B Earth and granted declaratory relief stating that the ANPS is of no legal effect and that the Secretary of State had acted unlawfully in failing to take into account the Paris Agreement in making his decision to designate the ANPS. The Court of Appeal set out four grounds for its decision:

(i) The Secretary of State breached his duty under section 5(8) of the PA 2008 to give an explanation of how the policy set out in the ANPS took account of Government policy, which was committed to implementing the emissions reductions targets in the Paris Agreement (“the section 5(8) ground”);

(ii) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, to have regard to the desirability of mitigating and adapting to climate change, in that he failed to have proper regard to the Paris Agreement (“the section 10 ground”);

(iii) The Secretary of State breached his duty under article 5 of the Strategic Environmental Assessment Directive (“the SEA Directive”, Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment) to issue a suitable environmental report for the purposes of public consultation on the proposed ANPS, in that he failed to refer to the Paris Agreement (“the SEA Directive ground”); and

(iv) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, in that he failed to have proper regard to (a) the desirability of mitigating...

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