Supreme Court lifts ban on third runway at Heathrow


Re: R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52

The Supreme Court has unanimously allowed this appeal concerning whether the Secretary of State for Transport’s failure to take account of the UK’s climate change commitments under the Paris Agreement rendered the designation of the Airports National Policy Statement (“ANPS”) favouring the development of a third runway at Heathrow Airport unlawful.

In June 2018, the Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the “PA 2008”). The ANPS supports the development of a third runway at Heathrow Airport to deliver additional hub airport capacity in the South East of England.

In December 2015 the UK government adopted the Paris Agreement on Climate Change, which enshrines an aspiration to achieve a net zero greenhouse gas emissions level during the latter half of the 21st century. The UK ratified the Paris Agreement on 17 November 2016.

The respondents (and others) challenged the ANPS on the basis of its failure to take account of the Paris Agreement. The High Court dismissed their application for judicial review, but the Court of Appeal allowed their appeal and held that the ANPS was unlawful. The appellant then appealed to the Supreme Court.

HELD: The Supreme Court unanimously allowed the appeal. Inter alia, the Court held that the reasons in the ANPS, required by section 5(7) of the PA 2008, did not need to refer to the Paris Agreement Targets to comply with section 5(8). Additionally, the Secretary of State did not breach his duty under section 10(2) and (3) of the PA 2008 on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account (by deciding that full consideration would be given to all climate change impacts by reference to the latest requirements as part of the Development Control application process) and, to the extent that its obligations were already covered by the measures in the Climate Change Act 2008, ensured that these were incorporated into the ANPS framework. Furthermore, the Court dismissed the respondents’ argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non-CO₂ emissions. The court expressed no view on the Court of Appeal’s conclusion that Paris was “obviously material” (i.e. a mandatory consideration).

David Wolfe QC was involved in this case.