Flight Of Fancy?

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Flight Of Fancy?

Author: Jim Ryan

Key Contact: Steve Morris

Development Consent Orders, Judicial Review, and the tortuous and uncertain path towards a third runway at London’s Heathrow Airport

Following a consultation exercise which was completed in February 2008, in a paper entitled “Adding Capacity at Heathrow: Decisions Following Consultation) the then Labour Government announced its policy decisions on future development at Heathrow Airport.  This confirmed that a both a third runway and a 6th terminal would be built.  Such a decision was bound to be controversial – and it was.

In 2010 within days after the general election in May that year the then coalition government cancelled these expansion plans.  In 2012, an Airports Commission was established to consider how best to address a perceived shortage of hub airport capacity in the south east.

In July 2015, the Airports Commission’s Final Report recommended the expansion take place at Heathrow.  In October 2016, Heathrow was confirmed by the (then Conservative) government as the preferred option for expansion of airport capacity in the south east.

The proposed airport expansion was a designated major infrastructure project, and any specific proposal would be required to apply for and receive Development Consent pursuant to a Development Consent Order.  Before such an application could be made a National Policy Statement would need to be prepared, setting out a framework for any proposed development.  The Airports National Policy Statement (“ANPS”) was thus published in June 2018.

The lawfulness of the ANPS was challenged by Judicial Review by, among others, Friends of the Earth and Plan B Earth, on various grounds including that the failure of the government to take account of its endorsement of the United Nations Framework Convention on Climate Change (the “Paris Agreement”) in settling the ANPR.  In short, it was argued that the Paris Agreement was also government policy, which should have been taken into account, but was not.  Other matters were also argued but are not relevant to the Supreme Court’s judgment today.

The High Court dismissed all the claims for various reasons which need not concern us.

The litigation which has today been concluded by the handing down by the Supreme Court only concerns the lawfulness of that ANPS.  The court’s judgment does not, contrary to various newspaper headlines today mean that “Heathrow Airport third runway can go ahead” (Daily Telegraph), nor that “Supreme Court lifts ban on Heathrow third runway” (BBC), nor that “Supreme Court gives Heathrow third runway the green light”.

What the Supreme Court has decided, is the narrow point as to whether the government’s signature on the Paris Agreement is formal government policy which thus needed to be taken into account in preparing and then adopting the ANPS.  Disagreeing with the Court of Appeal, the Supreme Court has held that the objectives of the Paris Agreement are not government policy which had to be taken into account in bringing forward and adopting the ANPS.

The effect of this is that the ANPS is a lawful document setting out the government’s policy and it remains in force for the time being (although the government is of course entitled to withdraw it and/or revise it).  The Airport is now at liberty to make an application for a Development Consent Order seeking permission to proceed with the new runway, although it is perhaps unlikely to do so until the governments intentions about the ANPS are known.

Many questions however remain unanswered and as this is such a controversial proposed development, there is as yet no clarity on what may happen next.  The issues include:

  • whether the government will continue to support airport expansion in the south east as it chose not to participate in the Supreme Court Appeal, suggesting that its previous commitment might have been reduced.  By not participating, it seemed to be content that with the Appeal Court’s decision that the Paris Agreement is government policy;
  • awareness of climate change worldwide is probably greater that it was in 2016 when the government signed up to the Paris Agreement in 2016 and will the commitment survive that increased awareness?
  • Following the collapse of global travel during the ongoing pandemic, will demand for air travel recover to the extent that the expected need for expansion of airport capacity in the south east will remain as economies recover in due course?

For advice or assistance with any of the topics raised in this article please contact Jim Ryan.

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