No lift off for Heathrow third runway

27/02/20

The Court of Appeal has today handed down two judgments in a series of appeals relating to the Government’s decision to expand airport capacity in the South East of England by way of a third runway at Heathrow Airport.

In 2019, five sets of Claimants brought judicial review proceedings seeking to challenge the decision of the then Secretary of State for Transport, the Right Hon Chris Grayling MP, to designate and publish an Airports National Policy Statement (the “ANPS”), which decided that the UK’s need for additional airport capacity would be met by way of a third runway at Heathrow. In particular, claims were brought by Friends of the Earth and Plan B, who sought to challenge the ANPS on climate change grounds; a number of London Boroughs and the Mayor of London, who along with Neil Spurrier principally sought to challenge the ANPS on the basis of the community and noise impacts that a third runway at Heathrow would have; and, finally, Heathrow Hub Ltd, which is a promoter of an alternative scheme for expansion at Heathrow Airport. Heathrow Hub sought to challenge the ANPS on a number of domestic public law and EU competition law grounds. In particular, Heathrow Hub brought what is thought to be the first Article 106(1) TFEU claim to be heard by the English courts.

All grounds of challenge were dismissed at first instance, by a three bench Divisional Court (with permission being granted, following a two week rolled up hearing, only in respect of the Heathrow Hub grounds of challenge).

In the two judgments handed down today, the Court of Appeal has dismissed the appeals of Heathrow Hub and the London Boroughs / London Mayor, but allowed the appeal of Friends of the Earth and Plan B. In particular, the Court has found that the ANPS was unlawful because the Secretary of State failed to take into account, when making his decision, the Government’s commitment to the 2015 Paris Agreement as he should have done. The judgment explains that the Secretary of State was “materially misdirected” by his advisers as to what the law required of him at any early stage in the selection process. The Court of Appeal has declared the ANPS unlawful in its current form, unless and until the Secretary of State completes a review of the ANPS under section 6 of the Planning Act 2008. In consequence, the Government will now have the opportunity to reconsider the ANPS, in accordance with the requirements of the Planning Act 2008.

The Secretary of State has not sought permission to appeal that decision to the Supreme Court, but both the owners of Heathrow Airport (Heathrow Airport Limited) and the owners of surrounding the land at Heathrow (Arora Holdings) have indicated they will seek permission to appeal. Heathrow Hub is also intending to pursue an appeal in respect of the judgment in its claim.