Friends of the Earth Ltd & Ors, R (on the application of) v Heathrow Airport Ltd [2020] UKSC 52

The Supreme Court unanimously allowed Heathrow Airport Ltd's appeal, overturning the Court of Appeal and holding that the Secretary of State lawfully designated the Airports National Policy Statement supporting a third runway at Heathrow, having adequately considered climate change obligations including the Paris Agreement.

Facts

Following recommendations from the Airports Commission chaired by Sir Howard Davies, the Government identified the North West Runway Scheme (NWR) at Heathrow as its preferred option to expand airport capacity in South East England. On 26 June 2018, the Secretary of State for Transport designated the Airports National Policy Statement (ANPS) under section 5(1) of the Planning Act 2008 (PA 2008), following Parliamentary approval by 415 votes to 119. The ANPS provides the policy framework within which Heathrow Airport Ltd (HAL) would apply for a development consent order (DCO).

In parallel, the UK signed the Paris Agreement in April 2016 and ratified it in November 2016, committing to limit global warming to well below 2°C and pursuing efforts towards 1.5°C above pre-industrial levels. The Climate Change Act 2008 (CCA 2008) set a statutory target (at the relevant time) of an 80% reduction in carbon emissions by 2050, later amended to net zero in June 2019.

Friends of the Earth (FoE) and Plan B Earth challenged the designation. The Divisional Court dismissed their claims, but the Court of Appeal held the ANPS was of no legal effect, finding the Secretary of State had failed to take the Paris Agreement into account. HAL appealed to the Supreme Court. The Secretary of State chose not to appeal.

Issues

The Supreme Court considered four principal grounds:

• Section 5(8) ground: Whether the Secretary of State breached his duty to explain how the ANPS took account of Government policy on mitigating climate change, by failing to address the Paris Agreement.
• Section 10 ground: Whether the Secretary of State breached his duty to have regard to the desirability of mitigating and adapting to climate change by failing to have proper regard to the Paris Agreement.
• SEA Directive ground: Whether the environmental report (the Appraisal of Sustainability) was defective under article 5 of the Strategic Environmental Assessment Directive for not referring to the Paris Agreement.
• Post-2050 and non-CO₂ emissions ground: Whether the Secretary of State breached section 10 by failing to have regard to post-2050 climate impacts and non-CO₂ aviation emissions.

Arguments

For HAL (Appellant)

HAL contended that ‘Government policy’ in section 5(8) was confined to established, formal policy; the Paris Agreement’s obligations were already reflected in domestic law through the CCA 2008; the Secretary of State had a discretion under section 10 which was lawfully exercised; and that the Wednesbury standard applied to the adequacy of the environmental report.

For the Respondents (FoE and Plan B Earth)

The respondents argued that ministerial statements and ratification of the Paris Agreement rendered it ‘Government policy’ for section 5(8) purposes; that the Secretary of State wrongly believed he was legally precluded from considering the Paris Agreement; that the environmental report was defective for omitting reference to the Agreement; and that post-2050 and non-CO₂ impacts were so obviously material that failure to consider them was irrational.

Judgment

Ground (i) – section 5(8)

Lord Hodge and Lord Sales (with whom Lord Reed, Lady Black and Lord Leggatt agreed) held that ‘Government policy’ in section 5(8) has a relatively narrow meaning, referring to formally written, clear statements of established policy. Adopting criteria analogous to those for legitimate expectations, a statement must be ‘clear, unambiguous and devoid of relevant qualification’. The statements of Andrea Leadsom MP and Amber Rudd MP in 2016 did not meet that threshold, being qualified and reflecting policy still under development. Ratification of an international treaty does not in itself constitute domestic Government policy. In June 2018, Government policy on adapting to the Paris Agreement was still being developed.

Ground (ii) – section 10

The Court classified the Paris Agreement within the third category of considerations identified in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037 — matters the decision-maker may, in discretion, consider. The test for obligatory consideration is Wednesbury irrationality (per Baroness Cumberlege [2018] EWCA Civ 1305). Contrary to the Court of Appeal’s reading, the Secretary of State did not treat the Paris Agreement as legally irrelevant. The evidence of Ms Low and Ms Stevenson showed that he followed the Committee on Climate Change’s advice that existing CCA 2008 obligations were consistent with the Paris goals and decided, in the exercise of discretion, not to go further. This was plainly rational.

Ground (iii) – SEA Directive

Applying the Blewett approach ([2003] EWHC 2775 (Admin)), endorsed in R (Edwards) v Environment Agency [2008] UKHL 22, the Court held that article 5(2)-(3) of the SEA Directive confers a wide discretion on the decision-maker as to what information ‘may reasonably be required’ in an environmental report. Review is on conventional Wednesbury principles. The Secretary of State rationally decided, on CCC advice, that the Paris Agreement was sufficiently reflected through the CCA 2008 references. The public was in any event able to, and did, make representations about the Paris Agreement during consultation.

Ground (iv) – post-2050 and non-CO₂ emissions

The Court held the Secretary of State’s approach was rational. Post-2050 emissions had been modelled up to 2085/2086; future policy was yet to be formulated; and the DCO stage (with sections 104 and 120 of the PA 2008) provided mechanisms to ensure compliance with then-current obligations. As to non-CO₂ emissions, the Court identified six reasons justifying rationality: scientific uncertainty, CCC advice, the developing Paris response, the forthcoming Aviation Strategy, the safeguards available at the DCO stage, and the requirement that DCO applicants address current environmental rules.

The Court further observed that the precautionary principle, as invoked by the Court of Appeal, ‘adds nothing to the argument in this context’ and is not equivalent to a finding of irrationality.

Implications

The decision clarifies several significant aspects of planning and public law:

• Meaning of ‘Government policy’: For section 5(8) of the PA 2008, ‘Government policy’ is confined to formal, clear, unambiguous and unqualified statements, not inchoate or developing positions, ministerial observations, or the mere ratification of unincorporated treaties.
• Unincorporated treaties: An unincorporated international treaty such as the Paris Agreement falls within the third Fewings category — a matter that may, but need not, be considered unless Wednesbury irrationality would otherwise result.
• Standard of review: Adequacy of both environmental statements (EIA) and environmental reports (SEA) is assessed on conventional Wednesbury principles, with the decision-maker having a wide editorial discretion as confirmed by Blewett.
• Staged decision-making: The judgment emphasises that NPS designation is only the first stage. The DCO stage provides further safeguards, including by reference to section 104 (which permits departure from an NPS where international obligations would otherwise be breached) and section 120 (conditions).
• Limits of the decision: The Court expressly left open whether, had the Secretary of State failed to think about the Paris Agreement at all, that omission would have constituted an error of law.

The decision is of considerable practical importance for promoters of nationally significant infrastructure, government departments preparing NPSs, environmental campaigners, and planning practitioners. It reinforces the latitude afforded to decision-makers in the policy-making stage while recognising that climate obligations must be assessed against law and policy current at the DCO stage.

Verdict: The Supreme Court unanimously allowed Heathrow Airport Ltd’s appeal on all four grounds (i) to (iv), holding that the Secretary of State had not acted unlawfully in designating the Airports National Policy Statement. The Court of Appeal’s decision was reversed and the Divisional Court’s dismissal of the claims restored. It was not necessary to decide ground (v) concerning relief.

Source: Friends of the Earth Ltd & Ors, R (on the application of) v Heathrow Airport Ltd [2020] UKSC 52