[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214 (27 February 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/214.html Cite as: [2020] WLR(D) 122, [2020] PTSR 1446, [2020] EWCA Civ 214 |
[New search] [Context] [View without highlighting] [Printable PDF version] [Buy ICLR report: [2020] PTSR 1446] [View ICLR summary: [2020] WLR(D) 122] [Help]
Neutral Citation Number: [2020] EWCA Civ 214
Case Nos: C1/2019/1053, C1/2019/1056 and C1/2019/1145
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
DIVISIONAL COURT
LORD JUSTICE HICKINBOTTOM AND MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27 February 2020
Before:
Lord Justice Lindblom
Lord Justice Singh
and
Lord Justice Haddon-Cave
- - - - - - - - - - - - - - - - - - - - -
Between: C1/2019/1053
|
R. (on the application of Plan B Earth) |
Claimant |
|
- and -
|
|
|
Secretary of State for Transport |
Defendant |
|
- and -
|
|
|
(1) Heathrow Airport Ltd. (2) Arora Holdings Ltd.
- and -
WWF-UK |
Interested Parties
Intervener |
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Tim Crosland, Director of Plan B Earth style='letter-spacing:-.15pt'> for the Claimant
Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Defendant
Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party
Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Interested Party
Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener
And between: C1/2019/1056
|
Claimant | |
|
- and -
|
|
|
Secretary of State for Transport |
Defendant |
|
- and -
|
|
|
(1) Heathrow Airport Ltd. (2) Arora Holdings Ltd.
- and -
WWF-UK |
Interested Parties
Intervener |
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr David Wolfe Q.C., Mr Peter Lockley and Mr Andrew Parkinson (instructed by Leigh Day) for the Claimant
Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Defendant
Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party
Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Interested Party
Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener
And between: C1/2019/1145
|
R. (on the application of (1) London Borough of Hillingdon Council (2) London Borough of Wandsworth Council (3) London Borough of Richmond upon Thames Council (4) Royal Borough of Windsor and Maidenhead Council (5) London Borough of Hammersmith and Fulham Council (6) Greenpeace Ltd. (7) Mayor of London) |
Appellants |
|
|
- and -
|
|
|
|
Secretary of State for Transport |
Respondent |
|
|
- and -
|
|
|
|
(1) Heathrow Airport Ltd. (2) Secretary of State for the Environment, Food and Rural Affairs (3) Transport for London (4) Arora Holdings Ltd.
- and -
WWF-UK |
Interested Parties
Intervener |
|
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Nigel Pleming Q.C., Ms Catherine Dobson and Ms Stephanie David (instructed by Harrison Grant) for the First, Second, Third, Fourth, Fifth and Sixth Appellants
Mr Ben Jaffey Q.C., Ms Catherine Dobson, Ms Flora Robertson and Ms Stephanie David (instructed by Transport for London Legal) for the Seventh Appellant
Mr James Maurici Q.C., Mr David Blundell, Mr Andrew Byass and Ms Heather Sargent (instructed by the Government Legal Department) for the Respondent
Mr Michael Humphries Q.C. and Mr Richard Turney (instructed by Bryan Cave Leighton Paisner LLP) for the First Interested Party
The Second and Third Interested Parties did not appear and were not represented
Mr Charles Banner Q.C. (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Fourth Interested Party
Ms Helen Mountfield Q.C. and Mr Raj Desai (instructed by WWF-UK) for the Intervener
Hearing dates: 17, 18, 22 and 23 October 2019
Further written submissions: 1 and 6 November 2019
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved by the court
for handing down
Lord Justice Lindblom, Lord Justice Singh and Lord Justice Haddon-Cave:
Introduction
1. This is the judgment of the court.
4. There were originally five claims for judicial review challenging the designation decision. Four of them came before the Divisional Court in March 2019 at a “rolled-up” hearing over seven days - as applications for permission to apply for judicial review, together with the claim itself if permission were granted. The fifth (Claim No. CO/3071/2018), brought by Heathrow Hub Ltd. and Runway Innovations Ltd., which raises issues of a different kind from the other four, is also the subject of an appeal before us. That appeal is dealt with in a separate judgment, also handed down today. One of the other four claims (Claim No. CO/2760/2018), brought by Mr Neil Spurrier, is no longer pursued. The three claims we are dealing with here are these: Claim No. CO/3089/2018 brought by seven claimants, five of them local authorities - the London Borough of Hillingdon Council and the councils of four adjacent London boroughs - Greenpeace Ltd. (“Greenpeace”) and the Mayor of London (“the Hillingdon claimants”); Claim No. CO/3147/2018 brought by Friends of the Earth Ltd. (“Friends of the Earth”); and Claim No. CO/3149/2018 brought by Plan B Earth.
5. Under the Greater London Authority Act 1999 (“the GLA Act”) the Mayor of London is required to have in place a London Environment Strategy that contains provisions dealing with climate change (sections 361A, 361B and 361D of the GLA Act), air quality (sections 362 to 369) and noise (section 370). He is subject to a specific “duty to address climate change, so far as relating to Greater London” (section 361A(1) and (2)). Greenpeace and Friends of the Earth are both non-governmental organisations concerned with the protection of the environment. Plan B Earth is a charity promoting efforts to arrest climate change.
7. The Divisional Court dismissed all four claims. Its reasons for doing so are lucidly set out in a judgment handed down on 1 May 2019 ([2019] EWHC 1070 (Admin)), which is fairly described as a “tour de force”. In Mr Spurrier’s claim the court refused permission to apply for judicial review on all grounds. In the Hillingdon claimants’ challenge, it granted permission to apply for judicial review on five grounds but dismissed the claim on each of those grounds, and refused permission on the others. In the Friends of the Earth’s claim and in Plan B Earth’s, it refused permission on all grounds.
8. The Hillingdon claimants, Friends of the Earth and Plan B Earth all appealed. On 22 July 2019 Lindblom L.J. granted permission to appeal in the Hillingdon claimants’ case, and in both the Friends of the Earth and Plan B Earth proceedings ordered that the application for permission to appeal and, if permission to apply for judicial review were granted on that application (under CPR r.52.8(5)), the claim itself (under CPR r.52.8(6)) would be heard together with each other and with the Hillingdon claimants’ appeal. Lindblom L.J. also made case management directions, which, among other things, required the parties in all three cases to agree the main issues for the court.
The main issues before us
11. The issues on the operation of the Habitats Directive are:
(1) what standard of review the court should apply when considering whether there has been a breach of the requirements of article 6(4) of the Habitats Directive;
(2) whether the Secretary of State breached the Habitats Directive in deciding that the scheme for a second runway at Gatwick was not an alternative solution to the scheme for the north-west runway at Heathrow on the basis that it would not meet the “hub objective”;
(3) whether the Secretary of State breached the Habitats Directive in deciding to exclude the Gatwick second runway scheme as an alternative solution to the north-west runway scheme at Heathrow because it would potentially harm a Special Area of Conservation (“SAC”) in which a priority species was present, and that an opinion of the European Commission might be required;
(4) whether the Divisional Court erred:
(i) in distinguishing between the obligation to consider “alternative solutions” in article 6(4) of the Habitats Directive and the obligation to consider “reasonable alternatives” under the SEA Directive; and
(ii) in determining that the Secretary of State could lawfully rule out the Gatwick second runway scheme as an alternative solution under the Habitats Directive while also treating it as a reasonable alternative for the purposes of the SEA Directive; and
(5) whether the court should refer the following questions to the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union (“TFEU”):
(i) Is the identification of an “alternative solution” under the Habitats Directive to be approached differently from the identification of a “reasonable alternative” under the SEA Directive? And what test should be applied?
(ii) Is it compatible with EU law for the court to limit its role to considering whether a process of identifying alternative solutions was not irrational?
12. The issues on the operation of the SEA Directive are:
(1) what approach the court should take when considering whether an environmental report complies with the SEA Directive, and in particular, whether or not it should apply the approach indicated in R. (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2004] Env LR 29;
(2) whether, in deciding to designate the ANPS, the Secretary of State breached article 5(1) and (2) of, and Annex 1(a) to, the SEA Directive by failing to provide an outline of the relationship between the ANPS and other relevant plans and programmes;
(3) whether, in deciding to designate the ANPS, the Secretary of State breached article 5(1) and (2) of, and Annex 1(c) to, the SEA Directive by failing to identify the environmental characteristics of areas likely to be significantly affected by the ANPS; and
(4) whether the Secretary of State breached the SEA Directive by failing to consider the Paris Agreement.
(1) whether the designation of the ANPS was unlawful because the Secretary of State, in breach of section 10(3)(a) of the Planning Act, failed to have regard to the desirability of mitigating, and adapting to, climate change in the light of the United Kingdom’s commitment to the Paris Agreement, the non-carbon dioxide (“non-CO2”) climate impacts of aviation, the effect of emissions beyond 2050, and to the ability of future generations to meet their needs;
(2) whether the Divisional Court erred by failing to give reasons for rejecting Friends of the Earth’s argument on the non-CO2 climate impacts of aviation and the effect of emissions beyond 2050, having regard to the ability of future generations to meet their needs;
(3) whether the Divisional Court erred in treating the then extant 2050 target of a reduction in greenhouse gas emissions of at least 80% (against the 1990 baseline) as precluding any consideration of government policies and commitments, implying a more stringent level of protection;
(4) whether the Divisional Court erred in holding that neither the “Paris Temperature Limit” nor “the Government’s policy commitment to introducing a net zero target” formed any part of relevant government policy within section 5(8) of the Planning Act, and that both were otherwise irrelevant;
(5) whether the Divisional Court erred in holding that the 2°C temperature limit was a relevant consideration; and
(6) whether the Divisional Court erred in treating as irrelevant the Secretary of State’s “failure to explain to Parliament the basis of his decision”.
The origins and genesis of the ANPS
“Do not set new UK emissions targets now. The UK already has stretching targets to reduce greenhouse gas emissions. Achieving them will be a positive contribution to global climate action. In line with the Paris Agreement, the Government has indicated it intends at some point to set a UK target for reducing domestic emissions to net zero. We have concluded it is too early to do so now, but setting such a target should be kept under review. The five-yearly cycle of pledges and reviews created by the Paris Agreement provides regular opportunities to consider increasing UK ambition.”
The report said that “[the] UK 2050 target is potentially consistent with a wide range of global temperature outcomes” (p.16).
29. On 17 November 2016, the United Kingdom ratified the Paris Agreement.
30. In December 2016, the Hillingdon claimants issued a claim for judicial review of the preference decision made on 25 October 2016. On 30 January 2017, that claim was struck out by Cranston J.. He concluded that the court had no jurisdiction to hear it because, under section 13 of the Planning Act, the matters it raised could only be pursued during the six-week period following the adoption or publication of a national policy statement, and the policy statement under challenge had not yet been adopted or published (R. (on the application of London Borough of Hillingdon Council) v Secretary of State for Transport [2017] EWHC 121 (Admin); [2017] 1 WLR 2166, at paragraphs 4 and 5).
“The topics in Appendix A include a review of policy and legislation which has been taken into account by the assessment of the NPS.
The scoping report also undertook a full review of policies, plans and programmes which may affect the Airports NPS (Appendix A of the Scoping Report). Section 4.3 summarises the key sustainability themes and objectives.”
Appendix A of the scoping report includes a list of international policy and legislation relevant to airport policy. The Paris Agreement is not in the list.
The Planning Act
“(1) The Secretary of State may designate a statement as a national policy statement for the purposes of this Act if the statement -
(a) is issued by the Secretary of State, and
(b) sets out national policy in relation to one or more specified descriptions of development.
…
(3) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement.
(4) A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with in relation to it and -
(a) the consideration period for the statement has expired without the House of Commons resolving during that period that the statement should not be proceeded with, or
(b) the statement has been approved by resolution of the House of Commons -
(i) after being laid before Parliament under section 9(8), and
(ii) before the end of the consideration period.
…
(7) A national policy statement must give reasons for the policy set out in the statement.
(8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change. … .”
An appraisal of sustainability is capable of constituting the environmental report for the purposes of articles 3 and 5 of the SEA Directive. This was so in the case of the ANPS.
“(1) The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so.”
Subsection (2) states that such a review “may relate to all or part of a national policy statement”. Section 6(3) provides:
“(3) In deciding when to review a national policy statement the Secretary of State must consider whether -
(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,
(b) the change was not anticipated at that time, and
(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.”
Subsection (4) contains equivalent provisions for a decision to “review part of a national policy statement”. Section 6(5) and (7) provides:
(5) After completing a review of all or part of a national policy statement the Secretary of State must do one of the following –
(a) amend the statement;
(b) withdraw the statement’s designation as a national policy statement;
(c) leave the statement as it is.
…
(7) A national policy statement must give reasons for the policy set out in the statement.”
“(1) This section sets out the parliamentary requirements referred to in sections 5(4) and 6(7).
(2) The Secretary of State must lay the proposal before Parliament.
(3) In this section “the proposal” means –
(a) the statement that the Secretary of State proposes to designate as a national policy statement for the purposes of this Act, or
(b) (as the case may be) the proposed amendment.
… .”
“(1) This section applies to the Secretary of State’s functions under sections 5 and 6.
(2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development.
(3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of -
(a) mitigating, and adapting to, climate change;
… .”
“(1) This section applies in relation to an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates.
…
(3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.
(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.
(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.
(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.
… .”
The Habitats Directive
45. Article 2(1) of the Habitats Directive states:
“(1) The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies.”
“(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
The effect of article 6(3), therefore, is that a competent national authority - here the Secretary of State - may only designate a national policy statement or grant a development consent order after an appropriate assessment under the Habitats Regulations has been performed and if satisfied, on the basis of that assessment, that the national policy statement or the development consent order would not “adversely affect the integrity” of the site concerned - subject to the derogation provisions in article 6(4).
49. Article 6(4) provides:
“(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
… .”
Article 6(4) also provides for the situation where an SAC hosts a “priority natural habitat type” or a “priority species”. Priority natural habitat types are “natural habitat types in danger of disappearance” (article 1(d)) and priority species are those which are “endangered” (article 1(g)(i)), “vulnerable” (article 1(g)(ii)), “rare” (article 1(g)(iii)), or “requiring particular attention” (article 1(g)(iv)), for the conservation of which “the Community has particular responsibility” (article 1(g) and (h)). In such cases, article 6(4) states that the only considerations that may be raised are restricted to “those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest”.
The SEA Directive and the SEA Regulations
“(1) Article 174 of the Treaty provides that Community policy on the environment is to contribute to, inter alia, the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources and that it is to be based on the precautionary principle … .”
“(9) This Directive is of a procedural nature, and its requirements should either be integrated into existing procedures in Member States or incorporated in specifically established procedures. … .”
“(14) Where an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme … .”
“1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
(a) which are prepared for … transport … and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC …
…
… .”
“1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.”
The information required by article 5(1) and Annex 1 is subject to articles 5(2) and (3) which state:
“2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
58. So far as is relevant here, Annex I states:
“The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the following:
(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes;
…
(c) the environmental characteristics of areas likely to be significantly affected;
(d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;
(e) the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation;
…
(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.
… .”
“1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public.”
61. Regulation 12 of the SEA Regulations states:
“12. - Preparation of environmental report
(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.
(2) The report shall identify, describe and evaluate the likely significant effects on the environment of -
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of –
(a) current knowledge and methods of assessment;
(b) the contents and level of detail in the plan or programme;
(c) the stage of the plan or programme in the decision-making process; and
(d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
…
(5) When deciding on the scope and level of detail of the information that must be included in the report, the responsible authority shall consult the consultation bodies.
… .”
The EIA Directive
The issues on the operation of the Habitats Directive
“299. During the course of oral submissions, as we understood it, it became common ground that, if and when a plan or scheme does not qualify as an “alternative solution” within the meaning of article 6(4), then it does not need to be considered any further under the Habitats Directive. If it is properly assessed as not qualifying as an “alternative solution” before an HRA has been conducted, it is not necessary for Habitats Directive purposes to consider that plan or scheme in any later HRA or otherwise at all. It was also common ground that articles 6(3) and (4) involve an iterative process, certainly for policy-making as a plan proceeds from an initial draft through consultation to its finally adopted form; and, in that iterative process, something which is considered by the competent authority to be an “alternative solution” at one stage may, in the light of further information and/or assessment, properly cease to be so regarded subsequently.”
“1.32. … [No] alternatives [to the preferred scheme] would deliver the objectives of the Airports NPS in relation to increasing airport capacity in the South East and maintaining the UK’s hub status. In line with Article 6(4) of the Directive, the Government considers that meeting the overall needs case for increased capacity and maintaining the UK’s hub status, as set out in chapter two, amount to imperative reasons of overriding public interest supporting its rationale for the designation of the Airports NPS. … .”
“3.18 Heathrow Airport is best placed to address this need by providing the biggest boost to the UK’s international connectivity. Heathrow Airport is one of the world’s major hub airports, serving around 180 destinations worldwide with at least a weekly service, including a diverse network of onward flights across the UK and Europe. Building on this base, expansion at Heathrow Airport will mean it will continue to attract a growing number of transfer passengers, providing the added demand to make more routes viable. In particular, this is expected to lead to more long haul flights and connections to fast-growing economies, helping to secure the UK’s status as a global aviation hub, and enabling it to play a crucial role in the global economy.
3.19 By contrast, expansion at Gatwick Airport would not enhance, and would consequently threaten, the UK’s global aviation hub status. Gatwick Airport would largely remain a point to point airport, attracting very few transfer passengers. Heathrow Airport would continue to be constrained, outcompeted by competitor hubs which lure away transfer passengers, further weakening the range and frequency of viable routes. At the UK level, there would be significantly fewer long haul flights in comparison to the preferred scheme, with long haul destinations served less frequently. Expansion at Heathrow Airport is the better option to ensure the number of services on existing routes increases and allows airlines to offer more frequent new routes to vital emerging markets.” (our emphasis).
Habitats Directive issue (1) - the standard of review
66. Having cited relevant authority, including the decisions of the Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591 and Kennedy v Information Commissioner [2014] UKSC 20; [2015] 1 AC 455, and observations made by Carnwath L.J., as he then was, in Office of Fair Trading v IBA Health Ltd. [2004] EWCA Civ 142; [2004] 4 All ER 1103 (at paragraphs 91 and 92) and of Sir Thomas Bingham M.R., as he then was, in R. v Ministry of Defence, ex p. Smith [1996] QB 517 (at p.556B), the Divisional Court said that in its view, “as well as the nature of the decision under challenge, the factors upon which the degree of scrutiny of review particularly depends include (i) the nature of any right or interest it seeks to protect, (ii) the process by which the decision under challenge was reached and (iii) the nature of the ground of challenge” (paragraph 151 of the judgment).
68. As the Divisional Court said, “the degree of scrutiny required by any challenge before [it] will be dependent upon … the strand of policy which is under review” (paragraph 166). It saw in the decision of this court in R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564; [2016] 1 WLR 4338 “a helpful reminder of well-established good law: the court should accord an enhanced margin of appreciation to decisions involving or based upon “scientific, technical and predictive assessments” by those with appropriate expertise”. It observed that “where a decision is highly dependent upon the assessment of a wide variety of complex technical matters by those who are expert in such matters and/or who are assigned to the task of assessment (ultimately by Parliament), the margin of appreciation will be substantial” (paragraph 179). And it accepted that, by analogy with the first instance decision in R. (on the application of Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin); [2013] Env LR 32, “the Secretary of State was entitled to attach great weight to the reports of [the Airports Commission], particularly [the Airports Commission’s] Final Report” (paragraph 180).
69. The Divisional Court concluded that the appropriate standard of review to be applied when considering whether there has been a breach of the requirements of articles 6(3) and (4) of the Habitats Directive is “Wednesbury” irrationality. In coming to this conclusion, it relied on the judgment of Sales L.J., as he then was, in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2016] Env LR 7 (at paragraphs 78 to 80), and the judgment of Peter Jackson L.J. in R. (on the application of Mynydd y Gwynt) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 231; [2018] Env. L.R. 22 (at paragraph 8). It said that “although a strict precautionary approach is required for article 6(3) of the Habitats Directive, the appropriate standard of review is [“Wednesbury” irrationality]: the court should not adopt a more intensive standard or effectively remake the decision itself” (paragraph 350). It saw no “arguable justification for a different standard of review to be adopted” when the court is assessing whether a project or plan meets core policy objectives under article 6(4) as opposed to article 6(3). Indeed, it went on to say that, “if anything, the assessment of whether a policy meets the core objectives of a policy-maker, assigned by Parliament with the task, is … even more essentially a matter for that policy-maker, and not the court which is peculiarly ill-equipped to make such assessments” (paragraph 351).
70. In coming to those conclusions, the Divisional Court distinguished R. (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41; [2016] AC 697 on its facts. The decision in that case - where the crucial issue was whether a quality assurance scheme for advocates was proportionate as a derogation from the freedom of establishment for providers of services under EU law - was, it said, of “no assistance in determining whether article 6(3) and (4) of the Habitats Directive are to be construed as incorporating a proportionality approach …” (paragraph 347). The relevant provision there - article 9(1)(b) and (c) of Parliament and Council Directive 2006/123/EC - explicitly required the use of a “less restrictive measures” test, which included proportionality (paragraph 345). The Habitats Directive imposes no such test. The passages in the judgment of Lord Reed and Lord Toulson relied on by the Hillingdon claimants (in particular, paragraphs 63 and 67) related to “national measures” derogating from “fundamental freedoms”. In this case there was no such derogation (paragraph 346 of the Divisional Court’s judgment).
“191(2) Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
… .”
The “precautionary principle”, Mr Jaffey submitted, should have been applied by the Secretary of State when preparing and designating the ANPS - because uncertainty remained over the environmental impacts of the Heathrow north-west runway. And the preference accorded to “alternative solutions” by article 6(4) of the Habitats Directive was an example of the requirement to take “preventive action”.
73. Mr Jaffey maintained that the application of a standard of review based on proportionality was consistent with the opinion of Advocate General Kokott in Case C-239/04 Commission v Portugal [2006] ECR I-10183 (at paragraphs 42 and 43). The identification of alternatives under the Habitats Directive was, he submitted, the same kind of exercise as establishing, in the second stage of a proportionality assessment, whether the means chosen are the least restrictive alternative. Measures that impair fundamental environmental protections granted by EU law are, he argued, comparable in their significance to a serious interference with fundamental rights under EU law. He relied again on the Supreme Court’s decision in Lumsdon. And he drew our attention to the opinion of Advocate General Kokott in Case C-723/17 Craeynest v Brussels Hoofdstedelijk Gewest [2020] Env LR 4, in which she said (in paragraphs 43 and 53):
“43. … [In] complex scientific or technical assessments and weighing up there is, as a rule, broad discretion which can be reviewed only to some degree. That discretion is nevertheless limited in certain cases and must therefore be reviewed more intensively, in particular where they are particularly serious interferences with fundamental rights.
…
53. … The rules on ambient air quality … put in concrete terms the Union’s obligations to provide protection following from the fundamental right to life under art. 2(1) of the Charter and the high level of environmental protection required under art. 3(3) TEU, art. 37 of the Charter and art. 191(2) TFEU. … .”
Mr Jaffey submitted that fundamental rights under article 37 of the Charter were interfered with by the ANPS, and the decision of the Secretary of State must therefore be “reviewed more intensively”.
“54. … [It] is clear from the Court’s case-law that, in the absence of EU rules, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, such as Directive 2008/50. However, the detailed rules provided for must not be less favourable than those governing similar domestic situations (principle of equivalence) and must not make it impossible in practice or excessively difficult to exercise rights conferred by EU law (principle of effectiveness). … .”
Thus the court effectively confirmed that it is for the Member States to determine the applicable standard of review, and that this is so in cases involving complex scientific or technical assessments in Directives concerned with environmental protection. Therefore, submitted Mr Maurici and Mr Banner, it is wrong to suggest that review on the basis of “manifest error” - equivalent in EU law to “Wednesbury” unreasonableness - is inadequate here. The Hillingdon claimants had failed to demonstrate that it would otherwise be “impossible in practice” to exercise rights conferred by EU law.
“80. I do not accept these submissions. In the similar context of review of screening assessments for the purposes of the Environmental Impact Assessment (EIA) Directive and Regulations, this Court has held that the relevant standard of review is the Wednesbury standard … . Although the requirements of Article 6(3) are different from those in the EIA Directive, the multi-factorial and technical nature of the assessment called for is very similar. There is no material difference in the planning context in which both instruments fall to be applied. There is no sound reason to think that there should be any difference as regards the relevant standard of review to be applied by a national court in reviewing the lawfulness of what the relevant competent authority has done in both contexts. … .”
“8. The proper approach to the Habitats Directive has been considered in a number of cases at European and domestic level, which establish the following propositions:
…
(9) The relevant standard of review by the court is the Wednesbury rationality standard, and not a more intensive standard of review: Smyth at [80].”
Habitats Directive issue (2) - the rejection of the Gatwick second runway scheme for its failure to meet the “hub objective”
“9.2.8 Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised for IROPI are those relating to human health or public safety, to beneficial consequences of primary importance for the environment. Airport capacity expansion is not applicable to those considerations. Accordingly given the potential for adverse effects to priority [habitats] at [the Gatwick second runway scheme] opinion from the European Commission would be necessary with regard to other IROPI; in the absence of such an opinion being obtained it is not possible to conclude that [the Gatwick second runway scheme] is a reasonable alternative. In Case C-258/11 [Sweetman v An Bord Pleanala [2014] PTSR 1092] the European Court said at para. 55 that maintaining protected sites in a favourable status was “particularly important” where there was a priority species/habitat and in Case C-404/09 [Commission v Spain] it was said, at para 163, that under the Habitats Directive Member States must take appropriate protective measures to preserve the characteristics of sites which host priority natural habitat types and/or priority [species] and should generally avoid “intervention when there is a risk that the ecological characteristics of those sites will be seriously compromised as a result”.
9.2.9 In conclusion based on the information available at this stage it has not been possible to identify any reasonable alternatives to the preferred scheme.”
“9.2.7 The LGW-2R scheme is not considered to meet the plan objectives of increasing airport capacity in the South East and maintaining the UK’s hub status, because expansion at Gatwick Airport would not enhance (and would consequently threaten) the UK’s aviation hub status. Gatwick Airport would largely remain a point to point airport, attracting very few transfer passengers. At the UK level, there would be significantly fewer long haul flights in comparison to the preferred scheme, with long haul destinations served less frequently. As such, it cannot be considered as an alternative solution.” (our emphasis).
“355. … Therefore, on the conclusions reached by the Secretary of State, this is not an issue about the extent to which the Gatwick 2R Scheme would meet the “hub objective”, which would be a matter of degree or relative attainment of that aim. Rather, the Secretary of State has concluded that the scheme would not meet that policy objective at all. That conclusion is not open to challenge by way of judicial review. The Secretary of State was entitled to decide that a proposal that would threaten the “hub objective” is not an “alternative solution” for the purposes of the Habitats Directive. That conclusion too is not open to legal challenge.
357. Finally, Mr Jaffey contends that the decision to reject the Gatwick 2R Scheme as an “alternative solution” for the purposes of the HRA is inconsistent with its retention as a “reasonable alternative” in the AoS for the purposes of the SEA Directive. We have already dealt with the language of these two regimes and their differing legal purposes (see paragraphs 320-322 above). The Gatwick 2R Scheme was not ruled out as an alternative at the beginning of the SEA process. An opportunity was given for the case for it to be advanced. The “sifts” of alternatives referred to by Mr Jaffey were carried out either by the AC or before the consultation stage under the SEA Directive.
358. Mr Jaffey then relied upon the description of the Gatwick 2R Scheme as an alternative in the final version of the AoS (June 2018) and the Post Adoption Statement (26 June 2018). But these documents are not to be construed as if they were legal instruments. Moreover, they plainly state that they are to be read together with the ANPS, and so the passages relied upon should be read compatibly with the policy statement unless that is made impossible by the language used. That is not the case here. The documents referred to by Mr Jaffey state that, even with a second runway, Gatwick would largely remain a point-to-point airport. In other words, as paragraph 3.10 of the ANPS states, Gatwick would attract “very few transfer passengers”. That is an assessment by the Secretary of State that is justified on the evidence. On the basis of that assessment, Gatwick would be the antithesis of a hub.
359. Furthermore, Annex C of the submission by officials to the Secretary of State on 25 September 2017 explained why Gatwick was retained in the consideration of alternatives in the AoS, having regard to the different purposes of the SEA regime, in accordance with the analysis set out above (paragraph 322), and to record and explain how the evidence underpinning the decision to select the NWR had been tested comprehensively. We see no merit in Mr Jaffey’s criticisms, which we consider overly forensic.”
“16.62 Whilst each of the three schemes shortlisted for detailed consideration was considered a credible option for expansion, the Commission has unanimously concluded that the proposal for a new northwest runway at Heathrow Airport … presents the strongest case.
16.63 … [It] is the most effective means of achieving the goal set out in the Commission’s original terms of reference to maintain the UK’s position as a global hub for aviation.”
However, as the Divisional Court acknowledged, the consistent view of the Secretary of State in the course of the ANPS process, accurately reflected in the Habitats Regulations Assessment, was that the Gatwick second runway scheme was not merely incompatible with the “hub objective” but inimical to it. It could therefore scarcely be considered a realistic “alternative solution” under article 6(4) of the Habitats Directive.
90. Mr Jaffey relied on a passage in the judgment of Hickinbottom J., as he then was, in R. (on the application of Friends of the Earth England, Wales and Northern Ireland Ltd.) v Welsh Ministers [2015] EWHC 776 (Admin); [2016] Env LR 1 (at paragraph 88 xi)):
“88 xi) … An assessment as to whether the objectives would be “met” by a particular option is therefore peculiarly evaluative; but an option will meet the objectives if, although it may not be (in the authority’s judgment) the option that best meets the objectives overall (i.e. the preferred option), it is an option which is capable of sufficiently meeting the objectives such that that option could viably be adopted and implemented. That, again, is an evaluative judgment by the authority, which will only be challengeable on conventional public law grounds. However, whilst allowing the authority a due margin of discretion, the court will scrutinise the authority’s choice of alternatives considered in the SEA process to ensure that it is not seeking to avoid its obligation to evaluate reasonable alternatives by improperly restricting the range options it has identified as such.”
Mr Jaffey sought to deploy those observations in support of his submission that the Secretary of State had consistently treated the Gatwick second runway scheme as an option that sufficiently met the Government’s objectives to make it a viable “alternative solution” under article 6(4).
92. As the Divisional Court said (in paragraph 341):
“341. … [The] correct approach to “alternative solution” in article 6(4) of the Habitats Directive is tolerably clear. In respect of an NPS, a proposed option is not an “alternative solution” unless it meets the core policy objectives of the statement. In this regard, Mr Jaffey’s concern that, at an early stage, objectives may be defined with deliberate narrowness so that potential alternatives are (he said) unreasonably or (we say) unlawfully excluded has some force; but the objectives must be both genuine and critical, i.e. objectives which, if not met, would mean that no policy support would be given to the development. It would be clearly insufficient to exclude an option simply because, in the policy-maker’s view, another, preferred option meets the policy objectives to a greater extent and is on balance more attractive. … But the extent to which an option meets policy objectives is different from an option not meeting a core policy objective at all.”
Habitats Directive issue (3) - was the exclusion of the Gatwick second runway scheme as an alternative solution because of its potential harm to an SAC in breach of the Habitats Directive?
“308. The submission document explained that, because it had not been possible at this policy-making stage to exclude the possibility of adverse effects of the NWR Scheme on European sites, an assessment had been made of potential “alternative solutions”. Increased capacity at Gatwick would generate additional traffic which was expected to have adverse effects on two European protected sites, the Ashdown Forest SPA/SAC and the Mole Gap to Reigate Escarpment SAC, by causing increases in NOX levels. The latter site is important for wild orchids, and therefore treated under the Habitats Directive as a priority habitat requiring enhanced protection. Consequently the Gatwick 2R Scheme “was discounted as an alternative solution”.”
“9.2.11 … Unlike the other European sites considered for LHR-NWR and LGW-2R, Mole Gap to Reigate Escarpment SAC contains a priority natural habitat type, which is defined as one in danger of disappearance, and for the conservation of which the European Community has particular responsibility (see Article 1(d) of the Habitats Directive).”
The following two paragraphs (paragraphs 9.2.12 and 9.2.13) were in identical terms to paragraphs 9.2.8 and 9.2.9 of the February 2017 draft Habitats Regulations Assessment (see paragraph 81 above). Thus a second runway at Gatwick was considered not to be an “alternative solution” because of the potential adverse effects on priority habitats.
“Paragraph 9.2.11, 9.2.12, 9.2.13 [of the Habitats Regulations Assessment]:
These sections identify the potential for air quality impacts from road traffic on Mole Gap to Reigate Escarpment SAC, with the presence of a priority natural habitat making an IROPI case challenging. This section concludes ‘based on the information available at this stage it has not been possible to identify any alternative solutions to the preferred scheme’.
Whilst we recognise this position for the strategic level assessment, we would advise that if the detailed project level HRA for Heathrow NWR also produces findings that are negative or uncertain, then a more detailed assessment of alternatives (including Gatwick) is needed. This would need to consider in more detail the ecological impacts of emissions on the Mole Gap to Reigate Escarpment SAC in view [of] its qualifying features and conservation objectives. For example if the priority features of interest do not fall within the distance criteria for air quality impacts (200m for roads), then such an impact may be able to be ruled out, which may affect the view taken on alternative solutions.”
“S2. Notwithstanding that, the purpose of this current RPS report is to present the results of a survey, undertaken by RPS for Gatwick, of the part of the MGRE SAC closest to the M25 to map the location of orchids and the condition of the grassland in general. The aim of the survey was to provide further clarification to the conclusions of the previous RPS work with respect to the potential for effects on priority habitat.
S3. The survey did not identify any orchids of any species on this small part of the SAC that lies within 200 m of the M25. As expected, orchids are restricted to areas that are not grazed or trampled and to those that can tolerate rougher grassland such as Common Twayblade, Common Spotted-orchid and possibly Bee-orchid. Therefore, based on the survey reported here, this part of the SAC does not currently support the Annex I priority habitat calcareous grassland with ‘important orchid sites’.
S4. Further, the grassland in the 200m buffer was found to be depauperate compared to the more species-rich swards on the steep slopes elsewhere in the SAC. Some small areas of more species-rich grassland did occur but these were rabbit grazed and subject to high visitor pressure. Therefore, it is highly unlikely that such grassland would support the rare orchid species characteristic of the priority habitat in its current condition.
…
S6. Based on the survey work carried out by RPS, this report concludes that the grassland within 200 m of the M25 is of a condition unlikely to support SAC quality orchidaceous rich grasslands. There are no plans to change the management of this area in the foreseeable future. Therefore there is no potential for an increase in traffic on the M25, as a result of LGW-2R, to have a significant effect with respect to the Annex 1 priority habitat calcareous grassland with ‘important orchid sites’.”
“370. … [We] accept that that leads to a further question: why should the Gatwick 2R Scheme have been completely discounted as an alternative solution at the ANPS stage because of this potential impact on an SAC near the M25 when, according to the advice of Natural England, a more detailed study at the project level stage for the NWR might be able to rule that impact out? In our view, before us, that question has not been satisfactorily answered.
“44. Among the alternatives short-listed …, the choice does not inevitably have to be determined by which alternative least adversely affects the site concerned. Instead, the choice requires a balance to be struck between the adverse effect on the integrity of the SPA and the relevant reasons of overriding public interest.”
103. Mr Jaffey also relied on the opinion of Advocate General Kokott in Case C-6/04 Commission v United Kingdom [2005] ECR I-9017 as supporting his submission that it may often not be possible to determine the outcome of compliance with the requirements of article 6(4) until final approval comes to be given, and it is essential therefore that potentially harmful impacts must be dealt with as fully as possible at every stage.
“49. The United Kingdom Government is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure.”
Habitats Directive issue (4) - did the Divisional Court err in distinguishing as it did between “alternative solutions” under the Habitats Directive and “reasonable alternatives” under the SEA Directive?
“322. Second, and more importantly, it is necessary to have well in mind fundamental differences in the operation of the Habitats Directive and the SEA Directive. Where a proposal (whether to adopt a policy or to grant consent for a project) adversely affects the integrity of a European site, the operation of article 6(3) and (4) of the Habitats Directive (and regulations 63 and 64 of the Habitats Regulations) determines the outcome of the process, according to the results of applying the tests laid down in those provisions. It is therefore rightly said by Mr Jaffey that these provisions are substantive in nature, and not merely procedural. In our judgment, an option which does not meet a core objective of a policy should not be allowed to affect the application of article 6(4). By contrast, the requirements of the SEA Directive for the content of an environmental report and for the assessment process which follows are entirely procedural in nature. Thus, the requirement to address “reasonable alternatives” in the environmental report (or AoS under section 5(3) of the PA 2008) is intended to facilitate the consultation process under article 6 (and section 7 of the PA 2008). The operator of Gatwick and other parties preferring expansion at that location would be expected to advance representations as to why the hub objective should have less weight than that attributed to it by the Secretary of State or that, contrary to his provisional view, the Gatwick 2R Scheme could satisfy that objective. The outputs from that exercise are simply taken into account in the final decision-making on the adoption of a plan, but the SEA Directive does not mandate that those outputs determine the outcome of that process.”
“7.4.52 On the basis of information that is available or can be reasonably obtained, and in accordance with the Precautionary Principle, it has not been possible to rule out adverse effects on the integrity of the above Natura 2000 sites, either alone or in combination with other plans and projects, with respect to each site’s conservation objectives.
…
7.4.55 … The assessment of alternative solutions has considered whether there are any feasible ways to deliver the overall objectives of the proposed plan, which will be less damaging to the integrity of the European sites affected. The two other schemes shortlisted by the Airports Commission have been considered against the objectives of the plan in relation to meeting the need to increase airport capacity in the South East and maintaining the UK’s hub status. Whilst the Heathrow Extended Northern Runway scheme (LHR-ENR) would meet both of these objectives, the Gatwick Second Runway scheme (LGW-2R) would not. The assessment of the LHR-ENR scheme shows it would be no less damaging to European sites and as such is not an alternative solution.
…
7.4.57 Notwithstanding the conclusion above, the AA undertaken for the two other shortlisted schemes also led to no suitable alternative solutions to LHR-NWR being identified. Further, the basis on which it could be concluded that the LHR-NWR scheme needed to be carried out for IROPI has been examined and it is considered that the needs case underpinning the Airports NPS sufficiently fulfils those reasons. In any event, the Airports NPS provides that no consent will be granted unless there is full compliance with Article 6(3) or Article 6(4) of the Habitats Directive and that any necessary compensatory measures will be secured in accordance with Regulation 66.”
Habitats Directive issue (5) - a reference under article 267 of the TFEU?
“43. The absence of alternatives cannot be ascertained when only a few alternatives have been examined, but only after all the alternatives have been ruled out. The requirements applicable to the exclusion of alternatives increase the more suitable those alternatives are for achieving the aims of the project without giving rise - beyond reasonable doubt - to manifest and disproportionate adverse effects.”
As Mr Jaffey pointed out, the court in its judgment did not adopt, or even comment upon, what the Advocate General had said about the “absence of alternatives”. He submitted that a reference is therefore necessary if this important issue of EU law is to be definitively decided. At the time of the hearing before us, “exit day” was to be 31 October 2019, but it was subsequently postponed to 31 January 2020. Mr Jaffey provided us with an outline of the likely effect of each of three scenarios for the United Kingdom’s departure from the EU on references under article 267. Subsequently, Parliament has enacted the European Union (Withdrawal Agreement) Act 2020, which, among other things, amends the European Union (Withdrawal) Act 2018. There is now to be an “implementation period” after exit day, until 31 December 2020. Given the view to which we have come on the merits of the application for a reference, it is not necessary to discuss those scenarios here.
The issues on the operation of the SEA Directive
SEA Directive issue (1) - the court’s approach when considering whether an environmental report complies with the SEA Directive
“41. … The Regulations should be interpreted as a whole and in a common-sense way. The requirement that “an EIA application” (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. … In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the “full information” about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting “environmental information” provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…, but they are likely to be few and far between.”
“419. … Sullivan J held that the starting point was that it was for the local planning authority to decide whether the information supplied by the applicant was sufficient to meet the definition of an environmental statement in the EIA Regulations, subject to review on normal [“Wednesbury”] principles (see [32]-[33]). Information capable of meeting the requirements in schedule 4 to the EIA Regulations should be provided (see [34]), but a failure to describe a likely significant effect on the environment does not result in the document submitted failing to qualify as an environmental statement or in the local planning authority lacking jurisdiction to determine the planning application. Instead, deficiencies in the environmental information provided may lead to the authority deciding to refuse permission, in the exercise of its judgment (see [40]). Thus, the statement in [41], that the deficiencies must be such that the document could not reasonably be described as an environmental statement in accordance with the EIA Regulations, was in line with the judge’s earlier observations in [32]-[33]. It simply identified conventional [“Wednesbury”] grounds as the basis upon which the court may intervene.”
and (in paragraph 420):
“420. In [Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin), at paragraph 73], Beatson J referred to a number of authorities which had taken the same approach in EIA cases to judicial review of the adequacy of environmental statements or the environmental information available: [R. v Rochdale Metropolitan Borough Council ex p. Milne [2000] EWHC 650 (Admin); [2001] Env LR 22, at paragraph 106], [R. (on the application of Bedford and Clare) v Islington London Borough Council [2002] EWHC 2044 (Admin); [2003] Env. L.R. 22, at paragraphs 199 and 203], and [Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321; [2012] Env LR 22, at paragraph 39]. In Bedford and Clare, Ouseley J held that the environmental statement for the development of a new stadium for Arsenal was not legally inadequate because it had failed to assess transportation impacts using the local authority’s preferred modal split, the loss of an existing waste handling capacity to make way for the development, noise effects at night and on bank holidays, contaminated land issues, and the effects of dust during construction. He considered that the significance or otherwise of those matters had been a matter for the local authority to determine. The claimant’s criticisms did not show that topics such as modal split or noise effects had not been assessed at all. Instead, they related to the level of detail into which the assessment had gone and hence its quality. That was pre-eminently a matter of planning judgment for the decision-maker and not the court.”
128. In Shadwell Estates, Beatson J., as he then was, said (in paragraph 73 of his judgment):
“73. As to the role of the Court, review of the adequacy of environmental appraisals, assessments, and impact statements, is on conventional [“Wednesbury”] grounds: see [ex p. Milne] [2001] Env LR 22 at [106] per Sullivan J (Environmental Assessment); [Bedford and Clare] at [199] and [203] per Ouseley J (Environmental Statement); R (Jones) v Mansfield DC [2003] EWCA Civ 1408 at [14] - [18] (Environmental Impact Assessment), and [Bowen-West], at [39] per Laws LJ (Environmental Impact Assessment and Environmental Statement).”
“434. Where an authority fails to give any consideration at all to a matter which it is explicitly required by the SEA Directive to address, such as whether there are reasonable alternatives to the proposed policy, the court may conclude that there has been non-compliance with the Directive. Otherwise, decisions on the inclusion or non-inclusion in the environmental report of information on a particular subject, or the nature or level of detail of that information, or the nature or extent of the analysis carried out, are matters of judgment for the plan-making authority. Where a legal challenge relates to issues of this kind, there is an analogy with judicial review of compliance with a decision-maker’s obligation to take reasonable steps to obtain information relevant to his decision, or of his omission to take into account a consideration which is legally relevant but one which he is not required (e.g. by legislation) to take into account ([Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at p.1065B]; [CREEDNZ Inc. v Governor-General [1981] N.Z.L.R. 172; [In re Findlay [1985] A.C. 318, at p.334]; [R. (on the application of Hurst) v HM Coroner for Northern District London [2007] UKHL 13; [2007] A.C. 189, at paragraph 57]). The established principle is that the decision-maker’s judgment in such circumstances can only be challenged on the grounds of irrationality (see also [R, (on the application of Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37, at paragraph 35]; [R. (on the application of France) v Royal London Borough of Kensington and Chelsea [2017] EWCA Civ 429; [2017] 1 WLR 3206, at paragraph 103]; and [Flintshire County Council v Jeyes [2018] EWCA Civ 1089; [2018] ELR 416, at paragraph 14]). The “Blewett approach” is simply an application of this public law principle.”
In the Divisional Court’s view, therefore, “… the question whether the decision-maker has acted irrationally, be they a local planning authority or a Minister, demands the intensity of review appropriate for those particular circumstances” (paragraph 435).
132. In the light of the decision of the Court of Justice of the European Union in Case C-567/10 Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale [2012] Env. L.R. 30, Mr Pleming submitted that an environmental report cannot be regarded as compliant with the SEA Directive simply because it refers to the requirements of article 5. In that case the court held (at paragraph 37) that “… given the objective of [the SEA Directive], which consists in providing for a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly”. Mr Pleming contended for an interpretation that is both broad and purposive. He referred to the basic objective identified in recital 14, and the mandatory requirements of articles 5 and 12. An appropriately purposive construction of article 5, he submitted, would indicate that the court should ask itself whether the environmental report is of sufficient quality to allow for effective comment by those affected. Any failure to fulfil this essential purpose would amount to non-compliance with the SEA Directive. Pointing to the language of article 12(2), which requires Member States to “ensure that environmental reports are of a sufficient quality to meet the requirements of this Directive”, Mr Pleming cited Save Historic Newmarket Ltd. v Forest Heath District Council [2011] EWHC 606 (Admin); [2011] J.P.L. 233, where Collins J. (at paragraph 12 of his judgment) said that “[quality] involves ensuring that a report is based on proper information and expertise and covers all the potential effects of the plan or programme in question”.
133. As Mr Pleming reminded us, a principle stated by Lord Mance in his judgment in Pham (at paragraph 96) is that, “[whether] under EU, Convention or common law, context will determine the appropriate intensity of review”. The relevant context here, submitted Mr Pleming, is set by the guiding objectives of the SEA Directive. Those objectives demand a structured review of the environmental report to ensure that compliance is achieved. This, he argued, accords with a modern approach to review commended by the Supreme Court in Pham, an approach more exacting than that adopted in Blewett. He referred to an observation by Advocate General Kokott in her opinion in Holohan and others v An Bord Pleanála Case C-461/17 [2019] Env LR 16 (at paragraph 90): that “[for] the purposes of a judicial challenge … an applicant must show which potential significant effects of the project concerned the developer has not adequately assessed and discussed”. He submitted that the Advocate General’s deliberate use of the word “adequately” is consistent only with a more demanding approach than review at the standard of “Wednesbury” irrationality.
134. Mr Maurici and Mr Banner disputed the proposition that article 5 and Annex I impose requirements justifying a more intensive review than traditional public law principle dictates. They do not lay down hard-edged legal requirements. They allow the Secretary of State a broad discretion to determine what “may reasonably be required …”. Mr Banner emphasized the fact that the SEA Directive does not prescribe a right of appeal against an authority’s decision to adopt a plan or programme. Where a challenge is made, he submitted, the use of conventional principles in domestic public law, including “Wednesbury” irrationality, is an orthodox application of the Member State’s discretion. He relied on the principle acknowledged by Advocate General Léger in his opinion in Case C-120/97 Upjohn Ltd. v Licensing Authority Established Under Medicines Act 1968 [1999] 1 WLR 927 (at paragraph 50): “[the] court has always taken the view that when an authority is required, in the exercise of its functions, to undertake complex assessments, a limited judicial review of the action which that authority alone is entitled to perform must be exercised, since otherwise that authority’s freedom of action would be definitively paralysed …”. Consistently with that principle, as Mr Maurici reminded us, the Court of Appeal accepted in Ashdown Forest Economic Development LLP v Wealden District Council [2015] EWCA Civ 681; [2016] Env LR 2 that, as Richards L.J. put it (in paragraph 42 of his judgment), “the identification of reasonable alternatives [under article 5(1) of the SEA Directive] is a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including [“Wednesbury”] unreasonableness”.
137. None of the authorities relied on by Mr Pleming casts doubt on the well-established principle in domestic case law that it is not the court’s task to adjudicate on the content of an environmental statement under the EIA Directive or an environmental report under the SEA Directive, unless there is some patent defect in the assessment, which has not been put right in the making of the decision (see, for example, R. (on the application of Squire) v Shropshire Council [2019] EWCA Civ 888; [2019] Env LR 36, at paragraphs 65 to 69). This principle is not inconsistent with the relevant jurisprudence in the Court of Justice of the European Union. In her opinion in Craeynest, the Advocate General said (at paragraph 42) that “EU law does not require the Member States to establish a procedure for judicial review of national decisions applying rules of EU law which involve a more extensive review than that carried out by the Court in similar cases”.
140. Our conclusion on this issue is, we think, consistent with the reasoning of Lord Hoffmann in R. (on the application of Edwards) v Environment Agency [2008] UKHL 22; [2009] 1 All ER 57 (at paragraph 61):
“61. In Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189 the German authorities gave consent to the construction of a power station without requiring the submission, eo nomine, of an environmental statement. (At that time the EIA directive had not yet been transposed into German law). Instead, the authorities required and published the information specified by the Bundesimmissionsschutzgesetz (Federal Pollution Protection Law). The Court of Justice found that as this information coincided with that required by the EIA directive and the public had been given the opportunity to make representations about it, the requirements of the directive had been satisfied. The same is in my opinion true of the application in this case. No doubt more information could have been provided, but the observations of Sullivan J in [Blewett] at para 41 … show that this does not make the statement inadequate. I should add that this is not a case like Berkeley v Secretary of State for the Environment [2001] 2 AC 603 in which the alleged environmental statement had to be pieced together from a number of documents emanating from different sources. The application itself, emanating from the applicant as the EIA directive requires, was perfectly adequate.”
There is nothing in those observations of Lord Hoffmann to suggest that the “Wednesbury” standard of review is not the appropriate standard. And they seem to us to support Mr Maurici’s argument that, although more information could have been provided in the Appraisal of Sustainability for the ANPS, this does not mean it was legally inadequate as an environmental report.
142. Mr Pleming sought to derive support for this argument in an observation made by Lady Hale in R. (on the application of HS2 Action Alliance Ltd and others) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, the case in which challenges to the HS2 project came before the court. Lady Hale said (in paragraph 133 of her judgment) that the “evaluation of alternatives [under the SEA Directive] is of a different order from that required for projects covered by the EIA Directive”. And Lord Carnwath observed (in paragraph 44 of his judgment) that the “difference between the two procedures [EIA and SEA Directive] is significant principally in relation to the treatment of alternatives”. Mr Pleming submitted that “a different order” in the treatment of alternatives necessarily implies “a different order” in the assessment itself. Thus, he argued, the “Blewett approach” cannot simply be read across from one process to the other.
144. This view seems consistent with both domestic and European authority. In Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, Lord Reed (in paragraphs 10 to 30 of his judgment), in the light of European case law including Terre Wallonne ASBL v Region Wallonne (Joined Case C-105/9 and C-110/09) [2010] ECR I-5611, recognized that the objectives and the procedures for environmental assessment in the SEA Directive and those in the EIA Directive are intended to complement each other. We have referred already to the observation of Beatson J. in Shadwell Estates (at paragraph 73) that “review of the adequacy of environmental appraisals, assessments and impact statements, is on conventional Wednesbury grounds”. In the same vein, in Seaport Investments Ltd., Re Application for Judicial Review [2007] NIQB 62; [2008] Env. L.R. 23, Weatherup J., as he then was, said (in paragraph 26 of his judgment) that “[the] responsible authority must be accorded a substantial discretionary area of judgment in relation to compliance with the required information for environmental reports”. He added that the court “will not examine the fine detail of the contents but seek to establish whether there has been substantial compliance with the information required”. And in No Adastral New Town Ltd. v Suffolk Coastal District Council [2015] EWCA Civ 88; [2015] Env. L.R. 28 this court too has, in effect, approved the application of the “Blewett approach” in a challenge to the adequacy of an environmental report prepared under regulation 12 of the SEA Regulations. At first instance ([2014] EWHC 223 (Admin); [2015] Env. L.R. 3), Patterson J. had found there were two flaws in the early stages of the process, but concluded that these had later been remedied. In the subsequent appeal Richards L.J. considered the judgment of Singh J., as he then was, in Cogent Land LLP v Rochford District Council [2012] EWHC 2542 (Admin); [2013] 1 P. & C.R. 2, where a similar issue arose. Singh J. had applied the approach of Sullivan J. in Blewett, and Richards L.J. concluded he was right to do so (see paragraphs 48 to 54 of Richards L.J.’s judgment). This, in our view, is a clear indication that the “Blewett approach” can and should be applied in claims alleging breaches of the legislative regime for SEA.
SEA Directive issue (2) - a failure to provide an outline of the relationship between the ANPS and other relevant plans or programmes?
“6.15.1 As described in Section 3, cumulative effects arise, for instance, where several developments each have insignificant effects but together have a significant effect, or where several individual effects of the plan (e.g. noise, dust and visual) have a combined effect. In the context of AoS, this is also taken to include PPPs as well as major projects. A review of PPPs and major infrastructure projects was undertaken and potential for cumulative effects identified. This is presented in Table 6.5 below. Potential cumulative effects have been included within the assessments described above and in the topic based assessments in Appendix A.
6.15.2 It should be noted that at the strategic level, this list is not exhaustive and cumulative effects arising from individual projects and plans should be revisited as part of a project level assessment.” (our emphasis).
The potential cumulative effects referred to in Table 6.5, “Potential cumulative effects of schemes for the NPS”, include effects arising from development planned by the councils among the Hillingdon claimants. The table lists local development plans, local mineral and waste plans, and the London Plan. It recognizes that local plans will provide for residential and commercial development and infrastructure, and that an increase in airport capacity would have cumulative effects with such development. It identifies the potential effects to be addressed, including the reduction in land available for other forms of development, the loss of “greenfield” land, noise and air quality impacts from aircraft, and the environmental effects of additional housing and commercial development and infrastructure. It recognizes the increasing difficulty of identifying suitable land for development faced by many local authorities, particularly around Heathrow, where the availability of land is “highly constrained”.
148. Table 6.5 states, under the heading “Plans: Local Development Plans”:
“The local authorities located in the vicinity of the expansion schemes have various plans for residential, commercial or infrastructure development. Cumulative effects with planned development can be anticipated, particularly where proposed new development is located in close proximity to the expansion schemes and the associated surface access improvements. A detailed consideration of the potential for cumulative effects arising would need to be undertaken as part of an EIA … .”
149. Bringing its various assessments together, the ANPS states, in paragraph 3.53:
“3.53. The Appraisal of Sustainability identifies that, in addition to changes due to local noise and air quality impacts, communities may be affected by airport expansion through loss of, and/or additional demand for housing, community facilities or services, including recreational facilities. In addition, there will be effects on parks, open spaces and the historic environment, which will affect the quality of life of local communities which benefit from access to these facilities and features. These effects will be of a higher magnitude for the two Heathrow expansion schemes and a lower magnitude for [the second runway at] Gatwick. Overall, each of the three schemes is expected to have negative impacts on local communities, with more severe impacts expected from the Heathrow schemes. Impacts of all three schemes will not be felt equally across social groups. … .” (our emphasis).
151. It went on to say (in paragraphs 457 and 458):
“457. The court was referred in Ms Stevenson’s evidence; and, in a table of key points submitted by Mr Maurici, to a large number of references where matters such as loss of housing, schools and community facilities, along with increased demand for such development and facilities, have been addressed at a strategic level. For example, the AoS states that the NWR Scheme is likely to generate a demand for 300 to 500 additional homes per local authority per year as well as support from additional schools, two additional health centres and two primary care centres per local authority to 2030. The AoS makes the judgment that overall impacts on housing demand will affect local authorities across London and the South East and that the demand will spread and be low in comparison to existing planned housing. Those effects were assessed as being negative in relation to the NWR Scheme (see paragraph 1.12.2 of Appendix A to the AoS).
458. So, it is plain that consequences of this kind (and not just impacts) have been assessed for the NWR Scheme, albeit on a cumulative basis. Essentially, the Hillingdon Claimant Boroughs’ complaint is limited to those consequences not having been assessed individually for each local authority area and the analysis having been carried out only at a “high level”. By the end of the argument, it had therefore become clear that this was a challenge solely to qualitative aspects of the assessment.”
153. It concluded (in paragraph 463):
“463. … [As] accepted by the Secretary of State … , the issues raised by the Hillingdon Claimant Boroughs, namely the consequences of the NWR Scheme for the areas of individual local authorities, taking into account environmental and planning constraints and the scope for distributing additional development across a number of areas, will remain to be considered in the EIA accompanying any application for development consent and the examination of that application through the DCO process. It follows that the Mayor and local planning authorities will be able to make representations in that process about harmful impacts of this nature, both for individual areas and cumulatively, and the findings about these matters will be taken into account and weighed in the balance under section 104(7) of [the Planning Act].”
SEA Directive issue (3) - a failure to identify the environmental characteristics of areas likely to be significantly affected by the ANPS?
“6.48. Airspace design falls outside the scope of the Airports NPS. As stated in the Airports NPS, precise flight path designs can only be defined at a later stage after detailed airspace design work has taken place. Once completed, the airspace proposal will be subject to consultation with local communities and relevant stakeholders in line with the requirements of the airspace change process which is owned by the Civil Aviation Authority (CAA). This is a very thorough and detailed process that covers all aspects of the proposal including safety and environmental impacts.”
It was made clear (in paragraph 7.13) that the use of the indicative flight paths for the three schemes was considered to be appropriate for the taking of “strategic” decisions at the ANPS stage:
“7.13. The AoS noise assessment is based on one set of indicative flightpaths. This is consistent with the approach adopted by the [Airports] Commission to compare the three expansion schemes in its final report. The purpose of this assessment is to draw out key strategic considerations relevant to noise. In light of this, the Government considers that the AoS is satisfactory, given that airspace design is currently highly uncertain, and the AoS follows the same approach as that used by the [Airports] Commission to compare the three expansion schemes in its final report.”
The time likely to be required for making changes in airspace design was emphasized (in paragraph 7.15):
“7.15. Proposals to change the UK’s airspace design are governed by the separate [CAA’s] airspace change process, which was made more rigorous from 2 January 2018. The design of new flight paths is highly technical and can take several years. It is a requirement of the CAA’s airspace change process that there must be adequate consultation. Airspace change sponsors would need to take account of the Government’s new policy on appraising options for airspace design, such as considering the use of multiple routes. It is therefore through this regulatory process that communities will see and have the opportunity to comment on detailed proposals for new flight paths which may affect them.”
Whilst the Government acknowledged that the Gatwick second runway scheme clearly performed better than the Heathrow schemes in the number of people likely to be significantly affected by aviation noise, this had been only one factor in the Secretary of State’s decision. When all “benefits and dis-benefits” were considered together, the Secretary of State considered that the north-west runway scheme at Heathrow would deliver the greatest “net benefits” to the United Kingdom (paragraph 7.20).
“7.54. The noise analysis that is presented in the AoS represents a strategic assessment of unmitigated noise impacts, based on indicative flightpaths. Its purpose is to draw out key strategic considerations relevant to noise. To this end, relevant noise metrics are presented in the AoS. The high level noise assessment presented in the AoS includes an assessment of unmitigated noise impacts at 54 dB LAeq, 16hr, which is consistent with the findings of the [Survey of Noise Attitudes] report. …
7.55. The Lowest Observed Adverse Effects Level (“LOAEL”)] recommended in the Government’s response to the consultation on UK Airspace Policy (51 dB LAeq 16hr) is specifically for comparing different options for airspace design. The AoS Noise Appendix explains why it would not be appropriate at this stage of the process to assess absolute noise levels and associated local population exposure below 54 dB LAeq 16hr. For practical reasons it becomes more difficult to estimate noise exposure accurately, and therefore population numbers affected, below this noise level. This is because it is difficult to measure aircraft noise levels at greater distances from an airport where aircraft noise levels are closer to those of other noise sources. Also, due to variability in aircraft position in the air at these greater distances from the airport, the absolute noise levels have a lower level of certainty.
166. On the use of indicative flight paths, the ANPS says this (in paragraph 5.50):
“5.50. The Airports Commission’s assessment was based on ‘indicative’ flight path designs, which the Government considers to be a reasonable approach at this stage in the process. Precise flight path designs can only be defined at a later stage after detailed airspace design work has taken place. This work will need to consider the various options available to ensure a safe and efficient airspace which also mitigates the level of noise disturbance. Once the design work has been completed, the airspace proposal will be subject to extensive consultation as part of the separate airspace decision making process established by the Civil Aviation Authority.”
“5.68. Development consent should not be granted unless the Secretary of State is satisfied that the proposals will meet the following aims for the effective management and control of noise, within the context of Government policy on sustainable development:
· Avoid significant adverse impacts on health and quality of life from noise;
· Mitigate and minimise adverse impacts on health and quality of life from noise; and
· Where possible, contribute to improvements to health and quality of life.”
“487. Ultimately, it was a matter of judgment for the Secretary of State, assisted by expert advice, to determine what information was reasonably required in relation to flight paths, so as to identify areas likely to be significantly affected. On the material before the court, it is impossible to say that the judgment he reached was irrational or that there has been a failure to comply with the SEA Directive in this respect.”
“490. We were invited to review the extensive evidence on this subject filed by both sides. Mr Stanbury says (in Stanbury 1, paragraph 28) that in its Air Navigation Guidance 2017 the Government has set the LOAEL at 51dB LAeq16hour based upon the CAA’s publication 1506: Survey of noise attitudes 2014: Aircraft. We note in passing that, in his footnotes 24 and 29, Mr Stanbury explains that, according to this survey, at the 51dB level 7% of the population would be “highly annoyed” compared with 9% at the 54dB level. The source for those results is table 31 of CAA publication 1506. To put that into context, the AoS treats 54dB LAeq16hour as signifying “a level at which significant community annoyance starts to occur” (Table 4.2 of Appendix A to the AoS).”
It concluded (in paragraph 491):
“491. … [Mott] again underscores that point. There was nothing that could be described as irrational in the Secretary of State’s approach to the selection of noise parameters. This issue did not involve any failure to comply with the SEA Directive.”
174. Mr Pleming submitted that if paragraph (c) of Annex 1 is read, as it should be, in the light of the precautionary principle and the aim of the SEA Directive to ensure that communities likely to be affected by a plan or programme are consulted and given an early and effective opportunity to comment, it is necessary to avoid underestimating the area over which flights may occur. Using only one set of indicative flight paths, as the Secretary of State did here, was not enough. It was probable that many people significantly affected by noise would not be under those flight paths. It was true that in the Divisional Court the Hillingdon claimants had not argued for the use of “actual flight paths” in the Appraisal of Sustainability (see paragraph 473 of the judgment). But in the absence of precise flight paths, the Secretary of State ought to have used areas instead, not indicative flight paths. Mr Pleming relied on the approach indicated in Advocate General Kokott’s opinion in Case C-290/15 D’Oultremont and others v Region Wallonne EU:C:2016:561 (at paragraph 37 to 45).
“3.3.39. … [In] aviation noise policy terms, a suitable threshold for identifying potentially significant adverse effects of aviation noise is considered to be 54 dB LAeq,16hr … . In the AoS, the assessment approach taken was that any predicted increases in exposure to the noise impact categories of 54 dB LAeq,16hr and above, due to an expansion scheme option, constituted a ‘significant negative effect’ - this is consistent with current national policy.”
As Mr Maurici also told us, the CAA, as regulator, specifically advised against the use of a threshold below 54 dB LAeq 16-hour.
The climate change issues
The judgment of the Divisional Court
“5.82 Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.”
190. In paragraphs 602 to 660, the Divisional Court considered in turn Plan B Earth’s grounds of challenge and Friends of the Earth’s grounds of challenge in the applications for permission to bring claims for judicial review then before it. The court concluded that none of the arguments were viable and refused permission to bring claims for judicial review. Some - but not all - of the arguments made to the Divisional Court have been resurrected before this court.
191. It is to be noted that Plan B Earth’s grounds centred upon the meaning and effect of section 5(8) of the Planning Act, with the support of the Hillingdon claimants, whereas the arguments for Friends of the Earth focused on section 10. Indeed, counsel for Friends of the Earth (Mr David Wolfe Q.C.) expressly distanced himself from the submissions of Plan B Earth based on section 5(8), accepting the relevant policy was no more and no less than that set out in the Climate Change Act (see paragraphs 605 and 636 of the judgment).
192. In paragraphs 606 and 607, the Divisional Court said:
“606. It is well-established that English law is a dualist legal system under which international law or an international treaty has legal force at the domestic level only after it has been implemented by a national statute (see, e.g., [J. H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 A.C. 418, at p.500] per Lord Oliver of Aylmerton, and [R. v Secretary of State for the Home Department, ex p. Brind 1 A.C. 696, at p.747F-H] per Lord Bridge of Harwich). Therefore, none of them having been incorporated, any obligation imposed on the UK Government by the Paris Agreement has no effect in domestic law.
607. But, in any event, as we have described, whilst expressing international objectives - notably, to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels - the Paris Agreement imposes no obligation upon any individual state to limit global temperatures or to implement the objective in any particular way. It expresses global objectives, and aspirations in respect of national contributions to meet those objectives; and it obliges each state party to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve”. Parties are required to pursue domestic mitigation measures, with the aim of achieving the objectives; and ensure they meet the requirement for successive nationally determined contributions to be progressive (article 4). But it clearly recognises that the action to be taken in terms of contributions to the global carbon reduction will be nationally determined “in the light of different national circumstances” (article 2(2)); and that, in that determination of national contributions, economic and social (as well as purely environmental) factors and the consideration of how other states are proposing to contribute will or may play a proper part. It is clearly recognised on the face of the Paris Agreement that the assessment of the appropriate contribution will be complex and a matter of high level policy for the national government.”
It went on to say (in paragraph 608):
“608. Parliament has determined the contribution of the UK towards global goals in the CCA 2008. Of course, that is not framed in terms of global temperature reduction - a national contribution could not be so framed - but it was clearly based on a global temperature limit in 2050 of 2°C above pre-industrial levels. No one suggests otherwise. However, the target set in section 1 of the Act - that the net UK carbon account for 2050 is at least 80% lower than the 1990 baseline - was set, by Parliament, having taken into account, not just environmental, but economic, social and other material factors. It is an entrenched policy, in the sense that that target cannot be changed other than in accordance with the Act, i.e. only if there have been significant developments in scientific knowledge about climate or in European or international law or policy, and then only after obtaining and taking into account advice from the CCC and being subject to the Parliamentary affirmative resolution procedure.”
and in paragraph 610:
“610. The most recent formally expressed view of the CCC is that the current target in section 1 of the CCA 2008 is potentially compatible with the ambition of the Paris Agreement to limit temperature rise to 1.5ºC and “well below” 2ºC, i.e. that ambition could be attained even if the current target is maintained, and therefore one possible rational response to the Paris Agreement is to retain the current CCA 2008 targets, at least for the time being.”
193. In paragraph 612, the court agreed with the submission of Mr Maurici in this regard, supported by Mr Wolfe for Friends of the Earth, “that Government policy in respect of climate change targets was and is essentially that set out in the CCA 2008”.
194. In paragraph 615, the Divisional Court said:
“615. The UK policy in this regard, now and at all relevant times, is and has been based on a national carbon cap. The cap is as set out the CCA 2008. It is based upon the 2ºC temperature limit. For the reasons we have given, that policy is “entrenched” and can only be changed through the statutory process. Despite the fact that Government policy could of course be outside any statutory provisions - and despite Mr Crosland’s submissions that, in some way, the CCA 2008 cap has to be read with the Paris Agreement (see, e.g., Transcript, day 7 pages 112 and 116) - neither policy nor international agreement can override a statute. Neither Government policy (in whatever form) nor the Paris Agreement can override or undermine the policy as set out in the CCA 2008. In our view, this way of putting the submission is inconsistent with Mr Crosland’s express and unequivocal concession that the carbon target in the CCA 2008 is Government policy and was a material consideration for the purposes of the ANPS. It seeks collaterally to undermine the statutory provisions. The same flaw permeated Plan B’s Amended Statement of Facts and Grounds and written submissions.”
and in paragraphs 618 and 619:
“618. For those reasons, in his decision to designate the ANPS, the Secretary of State did not err in taking the CCA 2008 targets into account; indeed, he would clearly have erred if he had not taken into account the targets as fixed by Parliament.
619. Nor, in our view, did he err in failing to take into account the Paris Agreement, or the premise upon which that Agreement was made namely that the temperature rise should be limited to 1.5ºC and “well below” 2ºC. This way of putting the ground substantially overlaps with Ground 12 pursued by Mr Wolfe on behalf of FoE, and we will not repeat our response to that ground here (see, rather, paragraphs 633 and following below). However, briefly, the Secretary of State was not obliged to have foreshadowed a future decision as to the domestic implementation of the Paris Agreement by way of a change to the criteria set out in the CCA 2008 which can only be made through the statutory process; and, indeed, he may have been open to challenge if he had proceeded on a basis inconsistent with the current statutory criteria. Nor was he otherwise obliged to have taken into account the Paris Agreement limits or the evolving knowledge and analysis of climate change that resulted in that Agreement.”
195. As that passage mentions, the court also addressed, and rejected, a similar argument that was advanced by Friends of the Earth (in paragraphs 633 to 649 of its judgment).
Relevant evidence
“458. In October 2016 the CCC said that the Paris Agreement “is more ambitious than both the ambition underpinning the UK 2050 target and previous international agreements”, but that the UK should not set new UK emissions targets now, as it already has stretching targets and achieving them will be a positive contribution to global climate action. Furthermore, the CCC acknowledged in the context of separate legal action brought by Plan B against the Secretary of State for Business, Energy and Industrial Strategy [here there is footnote 111] that it is possible that the existing 2050 target could be consistent with the temperature stabilisation goals set out in the Paris [Agreement]. Subsequently, in establishing its carbon obligations for the purpose of assessing the impact of airport expansion, my team has followed this advice and considered existing domestic obligations as the correct basis for assessing the carbon impact of the project, and that it is not appropriate at this stage for the government to consider any other possible targets that could arise through the Paris Agreement.” (our emphasis).
197. The document referred to in footnote 111 was the Committee on Climate Change’s response to Plan B Earth’s reply to the summary grounds of defence in the proceedings brought by Plan B Earth in 2018 against the Secretary of State for Business, Energy and Industrial Strategy.
“11(v) In considering the implications of the political agreement reached in Paris for the UK’s 2050 target, it is necessary to translate the temperature goal in the Agreement to what this could mean for UK emissions. Having considered this in our 2016 Report, we noted that “The UK 2050 target is potentially consistent with a wide range of global temperature outcomes” (page 16). The CCC recommended no change to the existing UK 2050 target (at that time, October 2016), not because a more ambitious target was infeasible, but rather because the existing UK target was potentially consistent with more ambitious global temperature goals, including that in the Paris Agreement.” (our emphasis).
199. In paragraph 9 it was stated:
“In any consideration of the need to amend the 2050 target for reducing emissions, there is an explicit role for the CCC. The Climate Change Act (2008) sets out (section 3(1)(a)) that before amending the 2050 target, the SoS must obtain and take into account the advice of the CCC. Following on from the Paris Agreement, reached towards the end of 2015, the CCC decided - and in the absence of a request from the Government - that it should provide advice to the SoS. This advice was provided in October 2016.”
and in paragraph 27:
“The CCC accepts that the Paris Agreement describes a greater level of global ambition, in terms of limiting temperature rise, than the one which formed the basis for setting the UK’s existing 2050 target. However, the Committee’s advice in its 2016 report was based on an updated assessment, taking account of the latest evidence, including the IPCC Fifth Assessment Report (AR5). That evidence had moved on, reflecting factors including:
a. The latest scientific understanding, including a wider range for climate sensitivity, i.e. the amount of warming that would result from a given amount of greenhouse gas emissions
b. Slower growth in global emissions since 2008 than had previously - in 2008 - been assumed (partly reflecting the effects of the global financial crisis)
c. The latest assessments of options for reducing emissions, including greenhouse gas removal technologies.
On this basis, as assessed in 2016, the evidence suggested an at least 80% emissions reduction target for the UK in 2050 could be consistent with achieving a less than 2ºC temperature rise globally.” (our emphasis).
In paragraph 32, in its summary, the document said the claimants’ argument in that case was based on a misinterpretation of the Paris Agreement and a confusion between the Committee on Climate Change’s advice relating to the 2050 target and that relating to the achievements of net zero emissions. The summary continued (at sub-paragraph b):
“The claim that the CCC’s advice in terms of consistency with the Paris Agreement is ‘untenable’. It was integral to the CCC’s advice that it should be consistent with the Paris Agreement. The long-term temperature goal in the Paris Agreement covers a range of ambition from ‘well below 2ºC’ to ‘efforts towards 1.5ºC’. It does not specify a separate 1.5ºC goal. The CCC’s 2016 advice reflected consideration of the range and concluded that the existing 2050 target was consistent with a wide range of global temperature outcomes. There will be opportunities, and further evidence, to look at this again.”
200. Mr Tim Crosland, on behalf of Plan B Earth, submitted that this was not evidence, still less was it an up to date statement of the Committee on Climate Change’s advice to the Secretary of State in April 2018. Rather it was no more than a cross-reference back to the Committee on Climate Change’s report of October 2016. Furthermore, he submitted, it was merely the interpretation of the person, presumed to be counsel, responsible for drafting the legal submissions of that report.
206. In section 1 of its report the Committee on Climate Change said:
“1. UK and international ambition
In December 2015 the UK, under the UN negotiations and alongside over 190 other countries, drafted the Paris Agreement to tackle climate change. It will enter into force by the end of 2016 having been ratified by the US, China, Brazil, the EU and others.
The Agreement describes a higher level of global ambition than the one that formed the basis of the UK’s existing emissions reduction targets:
· The UK’s current long-term target is a reduction of greenhouse gas emissions of at least 80% by the year 2050, relative to 1990 levels. This 2050 target was derived as a contribution to a global emissions path aimed at keeping global average temperature to around 2ºC above pre-industrial levels.
· The Paris Agreement aims to limit warming to well below 2ºC and to pursue efforts to limit it to 1.5ºC. To achieve this aim, the Agreement additionally sets a target for net zero global emissions in the second half of this century.
Alongside the Agreement nearly all parties have submitted pledges of action to 2030. Current pledges fall short of a path to meet either the stated temperature aim of the Paris Agreement or the implicit aim behind the UK target. However, the Agreement includes a process for taking stock of progress and increasing action around the world:
· Pledges by parties in total imply annual global emissions in 2030 of 56 billion tonnes of carbon dioxide equivalent (GtCO2e) whereas the parties to the Agreement agreed the need to reduce annual emission to 40 GtCO2e to be on a path to below 2ºC.
· The Agreement creates a ‘ratchet’ mechanism of pledges and reviews to facilitate parties increasing their ambition towards the temperature target. A UN dialogue to take stock of current pledges will take place in 2018. Starting in 2020 the parties will provide new pledges every five years, with stocktakes of the pledges occurring every five years from 2023.
· Parties are also asked to publish mid-century, long-term low greenhouse gas emission development strategies by 2020.
We welcome the Government’s commitment to ratifying the Paris Agreement by the end of the year. The clear intention of the Agreement is that effort should increase over time. While relatively ambitious, the UK’s current emissions targets are not aimed at limiting global temperature to as low a level as in the Agreement, nor do they stretch as far into the future.” (our emphasis).
208. In section 4 of the report the Committee on Climate Change said:
“4. Implications for UK policy priorities in the nearer term
Current policy in the UK is not enough to deliver the existing carbon budgets that Parliament has set. The Committee’s assessment in our 2016 Progress Report was that current policies would at best deliver around half of the emissions reductions required to 2030, with no current policies to address the other half. This carbon policy gap must be closed to meet the existing carbon budges, and to prepare for the 2050 target and net zero emissions in the longer term.
The existing carbon budgets are designed to prepare for the UK’s 2050 target in the lowest cost way as a contribution to a global path aimed at keeping global average temperature to around 2ºC. Global paths to keep close to 1.5ºC, at the upper end of the ambition in the Paris Agreement, imply UK reduction of at least 90% below 1990 levels by 2050 and potentially more ambitious efforts over the timescale of existing carbon budgets.
However, we recommend the Government does not alter the level of existing carbon budgets or the 2050 target now. They are already stretching and relatively ambitious compared to pledges from other countries. Meeting them cost-effectively will require deployment to begin at scale by 2030 for some key measures that enable net zero emissions (e.g. carbon capture and storage, electric vehicles, low-carbon heat). In theory these measures could allow deeper reductions by 2050 (on the order of 90% below 1990 levels) if action were ramped up quickly.
The priority now should be robust near-term action to close the gap to existing targets and open up options to reach net zero emissions:
· The Government should publish a robust plan of measures to meet the legislated UK carbon budgets, and deliver policies in line with the plan.
· If all measures deliver fully and emissions are reduced further, this would help support the aim in the Paris Agreement of pursuing efforts to limit global temperature rise to 1.5ºC.
· The Government should additionally develop strategies for greenhouse gas removal technologies and reducing emissions from the hardest-to-treat sectors (aviation, agriculture and parts of industry).
There will be several opportunities to revisit the UK’s targets in future as low-carbon technologies and options for greenhouse gas removals are developed, and as more is learnt about ambition in other countries and potential global paths to well below 2ºC and 1.5ºC:
· 2018: the Intergovernmental Panel on Climate Change (IPCC) will publish a Special Report on 1.5ºC, and there will be an international dialogue to take stock of national actions.
· 2020: the Committee will provide its advice on the UK’s sixth carbon budget, including a review of progress to date, and nations will publish mid-century greenhouse gas development plans.
· 2023: the first formal global stocktake of submitted pledges will take place.
We will advise on whether to set a new long-term target, or to tighten UK carbon budges, as and when these events or any others give rise to significant developments.” (our emphasis).
Statements made on behalf of the Government after its ratification of the Paris Agreement
“The UK played a central role in securing the 2015 Paris Agreement in which, for the first time, 195 countries (representing over 90 per cent of global economic activity) agreed stretching national targets to keep the global temperature rise [well] below two degrees. The actions and investments that will be needed to meet the Paris commitments will ensure the shift to clean growth will be at the forefront of policy and economic decisions made by government and businesses in the coming decades.” (our emphasis).
210. In the judicial review application (CO/16/2018) brought by Plan B Earth against the Secretary of State for Business, Energy and Industrial Strategy (see paragraphs 197 to 199 above), the Secretary of State served summary grounds of defence dated 29 January 2018. Those summary grounds included quotations from Government Ministers, upon which Mr Crosland now relies.
“23. … [While] the Government is fully committed to the objectives in the Paris Agreement, the legal obligation upon the Parties is to prepare, communicate and maintain nationally determined contributions to reduce net emissions, with a view to achieving the purpose of holding global average temperature increases to “well below 2ºC” above pre-industrial levels, and pursuing efforts to limit them to 1.5ºC. This is not the same as a legal duty or obligation for the Parties, individually or collectively, to achieve this aim. …” (emphasis in original).
“The Government believe we will need to take the step of enshrining the Paris goal of net zero emissions in UK law - the question is not whether, but how we do it, and there is an important set of questions to be answered before we do. The Committee on Climate Change is looking at the implications of the commitments made in Paris and has said it will report in the autumn. We will want to consider carefully its recommendations … .” (our emphasis).
“As confirmed last Monday during the Report stage of the Energy Bill, the Government will take the step of enshrining into UK law the long-term goal of net zero emissions, which I agreed in Paris last December. The question is not whether we do it but how we do it.” (our emphasis).
“The UK has a legally binding commitment to reduce greenhouse gas emissions under the Climate Change Act. The Government has also committed, through the Paris Agreement, to limit the rise in global temperature to well below 2ºC and to pursue efforts to limit it to 1.5ºC.
We were surprised that your statement to the House of Commons on the National Policy Statement on 5 June 2018 made no mention of either of these commitments. It is essential that aviation’s place in the overall strategy for UK emissions reduction is considered and planned fully by your Department.
…
· Our analysis has illustrated how an 80% economy-wide reduction in emissions could be achieved with aviation emissions at 2005 levels in 2050. Relative to 1990 levels this is a doubling of emissions, and an increase in its share of total emissions from 2% to around 25%. We estimate that this would allow for around 60% growth in aviation demand, dependent on the delivery of technological and operational improvements and some use of sustainable biofuels.
· Aviation emissions at 2005 levels in 2050 means other sectors must reduce emissions by more than 80%, and in many cases will likely need to reach zero.
· Higher levels of aviation emissions in 2050 must not be planned for, since this would place an unreasonably large burden on other sectors.
The Airports Commission also incorporated the CCC’s advice on aviation, concluding that ‘any change to [the] UK’s aviation capacity would have to take place in the context of global climate change, and the UK’s policy obligations in that area’.
We look forward to the Department’s new Aviation Strategy in 2019, which we expect will set out a plan for keeping UK aviation emissions at or below 2005 levels by 2050. To inform your work we are planning to provide further advice in spring 2019.” (our emphasis).
215. On 20 June 2018 the Secretary of State replied:
“I note your surprise that the UK’s commitments to reduce greenhouse gas emissions were not specifically addressed in the oral statement to the House of Commons but I can assure you that the Government remains committed to meeting our climate change target of an at least 80% emissions reduction below 1990 levels by 2050 and remains open and willing to consider all feasible measures to ensure that the aviation sector contributes fairly to UK emissions reduction. I hope you will understand that I am not always able to include all the detail I would like in an oral statement.”
216. It is clear, therefore, that it was the Government’s expressly stated policy that it was committed to adhering to the Paris Agreement to limit the rise in global temperature to well below 2ºC and to pursue efforts to limit it to 1.5ºC.
The Secretary of State’s stance as pleaded
217. In the amended detailed grounds for contesting the claim dated 29 November 2018 (and amended on 1 February 2019), it was submitted on behalf of the Secretary of State (at paragraph 30) that the Climate Change Act does not include emissions from international aviation. It was said that the Committee on Climate Change had advised that emissions from UK aviation (both domestic and international) should be no more than 2005 levels (37.5 MtCO2) in 2050. This is sometimes referred to as “the Planning Assumption”. Plan B Earth had referred to it as “the Aviation Target”. It was said that the Government had not yet decided whether to accept that advice. A decision on this was deferred by the Aviation Policy Framework and would be considered as part of the emerging Aviation Strategy to be adopted in 2019. This would re-examine how the aviation sector can best contribute its fair share to emissions reductions at both UK and global level.
218. In paragraph 61 of the amended grounds the Secretary of State submitted:
“61. There is no credible basis for a suggestion that the obligation in s.10(2) and (3) in some way extends further than s. 5(8) to cover (i.e. in the sense of mandating) “consideration of how the NPS policies relate to known developing areas of climate change policy”. Rather, those provisions provide a very strong pointer that such matters should not be considered: the clear intention of Parliament being that consideration should be given only to existing domestic legal obligations and policy commitments in relation to the mitigation of, and adaptation to, climate change. At the least, the provisions provide no statutory obligation to consider anything other than existing domestic legal obligations and policy commitments. There is, in sum, no warrant for the suggestion that Parliament was intending to set the Secretary of State the impossible task of assessing and taking into account in an NPS not just existing domestic legal obligations and policy commitments in relation to the mitigation of, and adaptation to, climate change but also any possible and as yet unsettled future policies and commitments.” (our emphasis).
He went on in paragraph 62(5) and (6) to submit:
“5) Unless and until the 2050 Target is amended following the proper processes under the CCA 2008, the correct approach is to consider existing domestic legal obligations and policy commitments and this is what the ANPS does. The relevant domestic legal and policy commitments being those found principally in or set under the CCA 2008 itself (which included for example the Clean Growth Strategy referred to paragraphs 8.5 and 8.6 of the Consultation Response) and the APF;
6) The Secretary of State and his officials did not ignore the Paris Agreement, or that there would be emerging material within Government evidencing developing thinking on its implications, but it was concluded that such material should not be taken into account, i.e. it was not relevant, since it did not form an appropriate basis upon which to formulate the policies contained in the ANPS. This included for the reasons set out in paragraph 34, above. Those reasons relate to the nature of the obligations set out in the Paris Agreement, its effect in domestic law as an unincorporated, international treaty, and to the fact that as at the date of designation of the ANPS, the CCC’s views on the implications of the Paris Agreement had not yet been sought, let alone received. As the Government’s statutory advisor on matters relating to climate change, the CCC has a critical advisory role in relation to the setting of relevant policy by the Government.” (our emphasis).
and in paragraph 63(9):
“9) Accordingly, the Secretary of State will not pursue any discretion argument that there: (a) was no emerging material within Government evidencing developing thinking on the implications of the Paris Agreement, or (b) that such material would highly likely have made no difference to the decision to designate the ANPS. There is no need for him to do so as the argument that he was obliged to consider such material in the first place is hopeless and should be refused permission.”
219. There were similar matters pleaded in the amended detailed grounds for contesting the claim brought by Plan B Earth, in particular at paragraph 10.
“The judge has read the recent exchange of emails on the Statement of Common Ground and climate change issues. His recollection of what occurred at the PTR is broadly along the lines recounted in the letter from Mr Crosland. The defendant’s “concession” (if that be the correct description), or rather helpful narrowing of issues, arose in the context of submissions regarding the applications for disclosure by FoE and Plan B. A principal submission by the Defendant was that once the real issue under the grounds of challenge were correctly defined, then the disclosure sought was unnecessary. Para 29 of his position statement says that the only issue is whether the Defendant was entitled as a matter of law to consider matters as against existing legal obligations and policy commitments as given effect by the Climate Change Act 2008. If he was, then this particular ground fails. If he was not, and the matter had to be considered as against the Paris Agreement, then the ground of challenge would be made out. Leading counsel for the Defendant confirmed to the court that that was the issue and that any other references in the Defendant’s documents which might be taken to suggest otherwise could be ignored. He also said that if the Defendant lost on this issue (defined in this way) he would not raise any discretion points which would justify further specific disclosure. Instead discretion points would be “generic” in nature. The indication given for the Defendant at the hearing was that in so far as the Paris Agreement differs from the 2008 Act in any relevant, significant way, then the matter was not taken into account.”
Climate change issues (3), (4), (5) and (6) - did the Government’s commitment to the Paris Agreement constitute government policy on climate change, which the Secretary of State was required to take into account?
222. As we have said, the grounds advanced on behalf of Plan B Earth by Mr Crosland focused principally on the requirements of section 5(8) of the Planning Act. Mr Crosland submitted in essence that the Government’s commitment to the Paris Agreement was part of “Government policy” within the meaning of that provision. Mr Crosland’s position was supported by Mr Pleming for the Hillingdon claimants. In our view, that submission is well-founded.
Climate change issue (1) - whether the designation of the ANPS was unlawful because the Secretary of State acted in breach of section 10(3) of the Planning Act
234. The grounds advanced on behalf of Friends of the Earth by Mr Wolfe focused in particular on the requirements of section 10 of the Planning Act. Mr Wolfe submitted:
(1) There was an error of law in the approach taken by the Secretary of State because he never asked himself the question whether he could take into account the Paris Agreement pursuant to his obligations under section 10.
(2) If he had asked himself that question, and insofar as he did, the only answer that would reasonably have been open to him is that the Paris Agreement was so obviously material to the decision he had to make in deciding whether to designate the ANPS that it was irrational not to take it into account.
235. We accept those submissions in essence.
WWF’s submissions
239. We had substantial written submissions placed before us on behalf of the intervener, WWF. This generated a great deal of dispute between the parties. With the permission of the court, the Secretary of State filed a 30-page response some time after the hearing had finished; together with a new witness statement and documents, taking up a lever arch file. There were replies by WWF and Friends of the Earth and an unsolicited response to those replies by the Secretary of State, dated 8 November 2019, for which no permission was granted and to which objection was taken by WWF and Friends of the Earth.
241. In the end we have not found it necessary to resolve these procedural and new substantive issues. This is because the submissions for WWF were made in support of the grounds advanced by Friends of the Earth, which we have in essence accepted for the reasons set out above.
SEA Directive issue (4) - did the Secretary of State breach the SEA Directive by failing to consider the Paris Agreement?
242. On behalf of Friends, of the Earth Mr Wolfe (under what he has called ground C in this appeal) also relied on an alleged breach of the duty to undertake a lawful strategic environmental assessment in accordance with the requirements of the SEA Directive and the SEA Regulations.
244. We accept those submissions on behalf of Friends of the Earth.
Climate change issue (2) - did the Secretary of State err in his consideration of non-CO2 impacts and the effect of emissions beyond 2050?
(1) the non-CO2 climate impacts of aviation; and
(2) the effect of emissions beyond 2050.
249. Mr Wolfe contended that these grounds of challenge were clearly raised in the arguments before the Divisional Court by Friends of the Earth. He submitted, first, that the total adverse impact of aviation on the climate is around twice that of its CO2 emissions if taken alone. These impacts are not accounted for under the Climate Change Act framework, which is only concerned with CO2 emission targets. Secondly, the Heathrow third runway project was envisaged to last until well into the second half of the present century. Its benefits were assessed in the ANPS up to 2085 but, Mr Wolfe submitted, there was no assessment of the climate change impacts beyond 2050. Furthermore, he argued, aviation is one of the very few sectors for which there are no current or currently envisaged credible alternatives to fossil fuel, it was obviously relevant to consider whether it was sustainable in the long-term to expand aviation activity in the light of the foreseen need to move to net zero emissions during the lifetime of the new runway and the potential need to move to net negative emissions.
251. It is clear from paragraph 659(iv) of the Divisional Court’s judgment that it was aware that two of the grounds of challenge brought by Friends of the Earth concerned non-CO2 emissions and the needs of future generations. However, submitted Mr Wolfe, the reasoning of the court that led to its conclusions in paragraph 659 did not separately deal with those two aspects at all.
254. In so far as the first submission is sound, which we would not accept, the consequence of this court’s conclusions above on the relevance of the Paris Agreement and the defect in the Secretary of State’s decision-making process would apply equally to these two further aspects. It is therefore unnecessary for us to dwell at length on what is in essence a “reasons” complaint under Friends of the Earth’s ground B. It will suffice that the preparation and designation of the ANPS will be remitted to the Secretary of State for reconsideration in accordance with the law, during which exercise the Secretary of State can take these further matters into account as well.
255. On the Secretary of State’s respondent’s notice we would make these observations.
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
The test for the grant of permission
“… in my view, the proper approach of this Court, in this particular case, ought to be … that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong; that is to say, is likely to succeed.”
Relief
269. On the question of relief, section 31 of the Senior Courts Act provides:
“(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements of subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”
270. The meaning of “conduct” for this purpose is defined by a new subsection (8), which provides:
“(8) In this section “the conduct complained of”, in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief.”
“(3C) When considering whether to grant leave to make an application for judicial review, the High Court –
(a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
(b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.
(3E) The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(3F) If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied.”
273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, “the threshold remains a high one” (see the judgment of Sales L.J., as he then was, in R. (on the application of Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] 1 All ER 142, at paragraph 89).
274. In this case, as we have said, the Secretary of State does not contend that relief should be refused by this court if otherwise the grounds of challenge relating to the Paris Agreement succeed. In contrast, HAL does make that contention. On its behalf Mr Humphries submitted that it is unnecessary and inappropriate to grant a remedy in these proceedings because policy in the ANPS requires the applicant for development consent to provide evidence of the carbon impact of the project “such that it can be assessed against the Government’s carbon obligations” (paragraph 5.76 of the ANPS) and that carbon emissions alone may be a reason to refuse development consent if they would be “so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets” (paragraph 5.82). Therefore, submitted Mr Humphries, the substance of the issues raised by the appellants can be considered by the Secretary of State at the stage of an application for development consent. And even that would not be the end of the matter. Even if a decision to grant development consent would be in accordance with the ANPS, the Secretary of State would not be bound to grant consent if to do so would lead to the United Kingdom being in breach of any of its international obligations (see section 104(4) of the Planning Act). This would include compliance with the Paris Agreement. Mr Humphries also pointed out, and emphasized, that the Secretary of State has agreed to consider a request from Plan B Earth to review the ANPS in light of the Committee on Climate Change’s advice of 2 May 2019. That request is being considered under section 6(3) and (4) of the Planning Act. Mr Humphries submitted that this development renders Plan B Earth’s proceedings academic.
279. We have given the parties the opportunity in the light of our draft judgment to agree the precise terms of the appropriate remedy. In the event, however, the parties have been unable to reach agreement on that matter. We have in mind that the relief we grant must properly reflect our conclusions on all the issues before us, in their entirety, and not merely the conclusions we have reached on the climate change issues. The Secretary of State, in his submissions in the light of the draft judgment, has not resisted the granting of relief, but has not suggested any particular form of remedy. HAL and Arora have contended for a stay of the ANPS and a mandatory order requiring the Secretary of State to undertake a review under section 6 of the Planning Act. Friends of the Earth and Plan B Earth have contended for a declaration and a quashing order. The Hillingdon claimants have also submitted that the ANPS should be quashed.
Conclusion