The ‘Heathrow’ Case: Polycentricity, Legislation, and the Standard of Review
| Date | 01 September 2020 |
| Author | Elizabeth Fisher,Joanna Bell |
| DOI | http://doi.org/10.1111/1468-2230.12555 |
| Published date | 01 September 2020 |
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Modern Law Review
DOI:10.1111/1468-2230.12555
The ‘Heathrow’ Case: Polycentricity, Legislation,
and the Standard of Review
Joanna Bell∗and Elizabeth Fisher†
The recent Court of Appeal decision in the ‘Heathrow’case, Plan B Earth vSecretary of State for
Transport is an illustration of the challenges of reviewing polycentric and expert decision-making.
The issues raised in the case concerning the Planning Act 2008 are an illustration of a court’s
expository role in such contexts. The Court tackled directly a series of interpretive questions
concerning the Planning Act 2008’s obligations regarding the consideration of climate change.
The Habitats and Strategic Environmental Assessment (SEA) Directiveissues raised in the appeal,
in contrast, were presented with the question of the intensity of review foregrounded in legal
argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it
to the government’s decisions. This way of framing the issue unfortunately sidelined the courts’
expository role in relation to intepreting the Habitats and SEA Directives,leaving key provisions
under-analysed.
Large-scale infrastructure projects have diverse benets and impacts. Making
decisions about infrastructure projects is an exercise in polycentric and ‘expert’
analysis.1Such decisions are also inevitably controversial as they involve incom-
mensurable values and uncertainties about the future. Legislation plays a key
role in ensuring that, while polycentric, infrastructure decision-making is not
legally unstructured.
When infrastr ucture decisions are judicially reviewed, challenging questions
arise about the role of the courts. Judicial review cannot and should not be a
review on the merits. Its province is er rors of law. Polycentricity and expertise
are often used as indicators that an issue is not easily subject to legal analysis.2But
that does not mean errors of law do not arise. The courts play two interrelated
roles in this eld. First, courts have an important expository role by providing
∗Associate Professor of Law, St Edmund Hall and Faculty of Law, University of Oxford. The authors
would like to thank Alistair Mills, Brian Preston, and an anonymous reviewer for comments on an
earlier draft of this article. Any errors or omissions remain our own.
†Professor of Environmental Law,Faculty of Law and Corpus Chr isti College,University of Oxford.
1 L. Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Har vard Law Review 353. See the
legal analysis in Bulga Milbrodale Progress Association Inc vMinister for Planning and Infrastructure and
Warkworth Mining Limited [2013] NSWLEC 48 in which polycentricity was used to structure
review of a large scale mining development.
(Mott) at [77] although see [78]. cf J. King, Judging Social Rights (Cambridge: Cambridge Univer-
sity Press, 2012) ch 7.
© 2020 The Authors. The Modern Law Review© 2020 The Moder n Law ReviewLimited. (2020)83(5) MLR 1072–1085
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