Heathrow Airport expansion ruled lawful

Did the Secretary of State’s failure to take account of the UK’s climate change commitments under the Paris Agreement render the designation of the Airports National Policy Statement (ANPS)

and its accompanying environmental report favouring the development of a third runway at Heathrow Airport unlawful?

This was the question before the Supreme Court in R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant). The Supreme Court unanimously allowed the appeal and the third runway, theoretically, can go ahead given the narrow reading of government policy by the Supreme Court.

The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework, but the ANPS does not grant development consent in its own right.

The Secretary of State for Transport declared that the Government accepted the case for airport expansion in 2015. He announced that the North West Runway (NWR) scheme was the preferred scheme in October 2016.

Objectors to the NWR scheme, including Friends of the Earth Ltd (FoE) and Plan B Earth, challenged the lawfulness of the Secretary of State’s designation. The Divisional Court dismissed all the objectors’ claims. The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earth’s grounds. It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS. Accordingly, the ANPS was of no legal effect.

The Secretary of State did not appeal the Court of Appeal’s decision. However, the company which owns Heathrow Airport, Heathrow Airport Ltd (HAL), was a party to the proceedings and granted permission to appeal to the Supreme Court. HAL had stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through.