Heathrow Airport challenge successful – but is it running out of runway?

In R (on application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52; [2020] PLSCS 227, the Supreme Court considered whether the Airports National Policy Statement permitting expansion at Heathrow Airport was designated lawfully. This case could have implications for matters in the development consent order regime. There are numerous NPSs that are due for review, but at its heart this case is about reasonableness and rationality. Friends of the Earth and Plan B Earth previously succeeded in the Court of Appeal, where the ANPS was held to be unlawful as the secretary of state had failed to take into account the Paris Agreement (PA) on climate change. Heathrow Airport Ltd challenged this decision on numerous grounds. In the main, however, the grounds all amounted to the same thing – was the discretion used by the secretary of state unreasonably or irrationally used? The unanimous answer by the Supreme Court was no. The PA was ratified by the government in various ministerial statements, but these did not form part of the body of policies which the government must adhere to when making decisions or which are covered by section 5 of the Planning Act 2008. These statements and the PA are matters which ought to be taken into consideration, but the weight placed upon them must be decided by the decision-maker on a case-by-case basis. Widening this scope would create a chasm that government bodies, departments, ministers and civil servants could easily fall through. It is therefore incumbent on the courts to construe this meaning narrowly. The discretion should be used with reasonableness and rationality at the heart of the decision; without doing so leaves the decision-maker open to challenge in the usual way. This is also the point about environmental assessments: what should be included and the language used is a matter for the decision-maker. Environmental assessments, whether strategic assessments (as was the case here) or development-specific impact assessments, are for public scrutiny and consultation. It is an important factor that the language used must be kept engaging and not overly legalistic. The court reminded us again that it will be unlawful if the decision-maker’s use of that discretion was in an irrational or unreasonable way. Any reference for the specific schemes will be a matter for the DCO regime and that decision-maker, having regard to its own direction and reasonableness as set out above. This development application will now be a matter for the DCO regime and, while the ANPS has overcome these environmental challenges, the difficulties for the Heathrow Airport application are not over. The application will be expected to demonstrate compliance with new environmental or climate change policies or laws that have taken effect since the ANPS, which may prove to be significant additional hurdles. Claire Petricca-Riding is head of planning and environment at Irwin Mitchell