Supreme Court revives prospect of third Heathrow runway

Heathrow Airport has triumphed at the Supreme Court in an appeal against a ruling that the government had failed to take account of its commitment to the Paris Agreement on climate change when setting out its support for a third runway at Heathrow in its Airports National Policy Statement (ANPS). The decision clears one major hurdle in the way of the expansion of Heathrow Airport, but in a year in which government support for the third runway has weakened and the Covid-19 pandemic has had a devastating impact on air travel, considerable issues stand in the way of the development going ahead. The secretary of state designated the ANPS as national policy on 26 June 2018, but objectors to the third Heathrow runway, including Friends of the Earth and Plan B Earth, challenged the lawfulness of the designation on a number of grounds. The High Court dismissed all of the objectors’ various claims, but earlier this year the Court of Appeal found in favour of the campaigners on certain issues, including that the Paris Agreement ought to have been taken into account by the secretary of state for transport in the preparation of the ANPS and an explanation given as to how it was taken into account. The government elected not to challenge that decision, indicating that it had washed its hands of the project. However, Heathrow Airport took the case to the highest court in the land, and today the Supreme Court unanimously allowed its appeal. The court rejected the argument that the reasons in the ANPS needed to refer to the Paris Agreement targets in order to comply with section 5(8) of the Planning Act 2008. The decision means that the ANPS will stand – however, it does not grant development consent in its own right. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. Lord Hodge and Lord Sales, giving the Supreme Court’s decision, said that Heathrow Airport “has already invested large sums of money” in promoting the scheme and “wishes to carry it through by applying for a DCO in due course and then building the proposed new runway”. They said: “The secretary of state has chosen not to appeal and has made no submissions to us. However, Heathrow Airport Ltd is entitled to advance all the legal arguments which may be available in order to defend the validity of the ANPS.” Duncan Field, partner at Town Legal LLP said that, as a result of the Supreme Court judgment, the ANPS is reinstated and, with it, “support for the principle of a third runway at Heathrow”. He said that the court considered that the government did not have to refer to the Paris Agreement in its reasons for designating the ANPS because at that time (June 2018) it was not established government policy, and that in discharging its duties under the Planning Act 2008, the government had in fact taken the Paris Agreement into account and acted reasonably in doing so. He continued: “The court also noted that Heathrow will be required to show that its proposals are compatible with the up-to-date requirements of the Paris Agreement and the targets in the Climate Change Act 2008 (currently net zero by 2050) at the time when their application for development consent is determined. “This is good news for Heathrow – the judgment enables them to continue their significant investment in the proposal for a third runway with a degree of confidence. “However, from a practical point of view, they will be alive to the fact that the government’s climate change policy is evolving and we are likely soon to discover how this will affect the government’s approach to aviation when it publishes its new Aviation Strategy in the coming months.” To send feedback, e-mail jess.harrold@egi.co.uk or tweet @estatesgazette