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Government must review Airports National Policy Statement, Court of Appeal rules

The Court of Appeal has ruled that the decision to designate the Airports National Policy Statement was unlawful.

In June 2018, the ‘Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England’ (ANPS) was designated by the then Secretary of State for Transport. The ANPS was prepared under section 5 of the Planning Act 2008.

Section 5(7) of the Planning Act 2008 provides that ‘A national policy statement must give reasons for the policy set out in the statement’ and section 5(8) states that ‘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.’ The designation of the ANPS fell foul of section 5(8) as it did not take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, with a commitment to 80% carbon reductions by 2050.

As the Planning Act 2008 was not fully complied with in the designation of the ANPS, the Court of Appeal ruled that it cannot remain effective it its current (unlawful) form. However, it did not quash the ANPS in its entirety, giving the Government the opportunity to review and amend it.

The Court of Appeal went to great lengths to emphasise that it was not giving judgment on the merits of expanding Heathrow; that was a matter for Government. The court’s role was simply to rule on the lawfulness of the decision to designate the ANPS and that the failure to take climate commitments into account was “legally fatal” to the ANPS designation.

What will happen next?

The Government will need to review the ANPS in accordance with the relevant statutory provisions. As stated by the Court of Appeal ‘the initiation, scope and timescale of any review must and will be a matter for the Secretary of State to decide.’

The Government has made a statement that it will not appeal the decision and that any expansion at Heathrow must be led by the industry.  Heathrow’s Chief Executive, John Holland-Kaye, has indicated that Heathrow will be bringing a Supreme Court challenge to the Court of Appeal’s decision. Earlier this week, in response to an urgent question on airport expansion, Kelly Tolhurst, Parliamentary Under-Secretary of State for Transport, made assurances that the government is committed to increasing connectivity across the UK and airport expansion is a core part of this. She pointed out that the Court of Appeal’s judgment is complex and ran to more than 100 pages, and said that the government will come forward with next steps as soon as possible.

What does the decision mean for other airport operators?

When the ANPS was designated in June 2018, it set the path for National Policy Statements (NPS) to be designated in relation to airport expansion. Other airport operators could, therefore, have benefited from similar NPS, which would have made the Nationally Significant Infrastructure Project (NSIP) and Development Consent Order (DCO) process more accessible. The Court of Appeal’s decision is likely to slow down the designation of any further NPS, pending the review of the ANPS.

What does the decision mean for wider infrastructure projects?

It is a particularly interesting ruling  as it is also possible that other infrastructure projects may be challenged if the Paris Agreement is not considered during the decision making process.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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