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Plan B Earth v Secretary of State for Transport
Factual and Procedural Background
This judgment concerns appeals against the Divisional Court's dismissal of judicial review claims challenging the lawfulness of the Secretary of State's designation of the Airports National Policy Statement (ANPS) supporting the development of a third runway at Heathrow Airport. Heathrow is a major international airport and the busiest in Europe, with Gatwick as the busiest single runway airport. The Government's policy to increase aviation capacity, particularly through Heathrow expansion, has been politically contentious due to environmental concerns and climate change commitments.
The ANPS was designated under section 5 of the Planning Act 2008 on 26 June 2018. Five judicial review claims were initially brought against the designation decision, with three claims proceeding before the Divisional Court and this Court of Appeal: claims by local authorities and environmental groups (referred to collectively as the Hillingdon claimants), Friends of the Earth Ltd., and Plan B Earth. The Divisional Court dismissed all claims, and the appellants appealed. WWF-UK was granted permission to intervene by written submissions.
The main legal issues agreed for determination relate to the operation of the Habitats Directive, the SEA Directive, the United Kingdom's climate change commitments including the Paris Agreement, and the question of relief.
Legal Issues Presented
- The appropriate standard of judicial review under article 6(4) of the Habitats Directive.
- Whether the Secretary of State lawfully excluded the Gatwick second runway scheme as an alternative solution under the Habitats Directive on the basis it failed to meet the hub objective.
- Whether exclusion of the Gatwick scheme due to potential harm to a Special Area of Conservation (SAC) breached the Habitats Directive.
- Whether the Divisional Court erred in distinguishing alternative solutions under the Habitats Directive from reasonable alternatives under the SEA Directive.
- Whether questions concerning the interpretation of alternative solutions under the Habitats Directive should be referred to the Court of Justice of the European Union under article 267 TFEU.
- The appropriate approach to assessing compliance with the SEA Directive, including the adequacy of the environmental report.
- Whether the Secretary of State breached the SEA Directive by failing to provide an outline of the relationship between the ANPS and other relevant plans and programmes.
- Whether the Secretary of State failed to identify the environmental characteristics of areas likely to be significantly affected by the ANPS in accordance with the SEA Directive.
- Whether the designation of the ANPS was unlawful for failing to take into account the Paris Agreement and the United Kingdom's climate change commitments under section 10 and section 5(8) of the Planning Act.
- Whether the Secretary of State erred in failing to consider non-CO2 climate impacts of aviation and emissions beyond 2050.
- The appropriate relief to be granted if any grounds of challenge succeed.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pham v Secretary of State for the Home Department [2015] UKSC 19 | Factors influencing the degree of scrutiny in judicial review, including nature of rights and decision-making process. | Supported the Divisional Court's approach to applying Wednesbury irrationality standard to complex policy decisions involving scientific and technical assessments. |
| Kennedy v Information Commissioner [2014] UKSC 20 | Judicial review principles regarding intensity of scrutiny. | Referenced in considering appropriate standard of review. |
| Office of Fair Trading v IBA Health Ltd. [2004] EWCA Civ 142 | Judicial review principles including Wednesbury unreasonableness. | Considered in context of reviewing administrative decisions. |
| R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564 | Enhanced margin of appreciation for technical and scientific assessments. | Supported substantial margin of appreciation for Secretary of State's decisions based on expert reports. |
| Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 | Standard of review under the Habitats Directive is Wednesbury irrationality. | Divisional Court and Court of Appeal followed this standard for assessing compliance with article 6(3) and (4) of the Habitats Directive. |
| R. (on the application of Mynydd y Gwynt) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 231 | Wednesbury rationality standard applies to Habitats Directive compliance. | Confirmed the standard of review applied by the Divisional Court. |
| R. (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin) | Standard of review for adequacy of environmental reports under the SEA Directive. | Divisional Court applied Blewett approach as appropriate standard of review for environmental report. |
| R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 | Difference in evaluation of alternatives under SEA and EIA Directives. | Rejected argument for more intense review under SEA Directive; supported conventional review principles. |
| Walton v Scottish Ministers [2012] UKSC 44 | Complementarity of SEA and EIA Directives and judicial review principles. | Supported application of conventional Wednesbury principles to review of environmental assessments. |
| Mass Energy Ltd. v Birmingham City Council [1994] Env. L.R. 298 | Heightened test for granting leave to apply for judicial review in certain circumstances. | Rejected as inappropriate in this context due to availability of rolled-up hearings. |
| Simplex GE (Holdings) Ltd. v Secretary of State for the Environment [1988] 3 P.L.R. 25 | Test for granting relief in judicial review: must exclude that the same decision would inevitably have been made. | Discussed and modified by statutory amendments; court applied the modern test in determining relief. |
| Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2004] ECR I-07405 | Precautionary principle in EU environmental law. | Referenced in relation to the precautionary principle applicable to environmental assessments. |
Court's Reasoning and Analysis
The court began by emphasizing the limited role of the judiciary in these proceedings, which is to determine whether the ANPS was lawfully produced, not to decide on the merits of airport expansion policy.
Regarding the Habitats Directive, the court agreed with the Divisional Court that the appropriate standard of review is Wednesbury irrationality, including for article 6(4) assessments concerning alternative solutions. The court accepted the Secretary of State's hub objective as a genuine and critical policy aim, and held that the exclusion of the Gatwick second runway scheme as an alternative solution was lawful because it failed to meet that objective. The court also upheld the distinction between alternative solutions under the Habitats Directive (substantive) and reasonable alternatives under the SEA Directive (procedural), allowing the Gatwick scheme to be treated differently under each regime without inconsistency.
The court declined to refer questions on the interpretation of alternative solutions to the Court of Justice of the European Union, finding the law sufficiently clear.
On the SEA Directive, the court endorsed the Divisional Court's application of the Blewett approach, which applies a conventional Wednesbury standard of review to the adequacy of environmental reports. The court rejected arguments for a more intensive review, emphasizing the broad discretion afforded to the Secretary of State in deciding what information is reasonably required. The court found that the Appraisal of Sustainability adequately addressed the relationship with other relevant plans cumulatively, and that the use of indicative flight paths and the 54 dB LAeq 16-hour noise threshold were lawful exercises of judgment supported by expert advice.
Turning to climate change issues, the court held that the Secretary of State erred in law by failing to take into account the Government's commitment to the Paris Agreement when designating the ANPS, as required by section 5(8) of the Planning Act. The court found that the Paris Agreement constituted government policy within the ordinary meaning of that term and was a material consideration that had to be taken into account and explained. The court rejected arguments that the Secretary of State was legally precluded from considering the Paris Agreement and emphasized that the duty was to take it into account, not necessarily to act in accordance with it.
The court also accepted submissions that the Divisional Court had insufficiently addressed the non-CO2 climate impacts of aviation and emissions beyond 2050, concluding these matters should be considered on reconsideration. The court applied the precautionary principle in holding that scientific uncertainty is not a reason for ignoring significant environmental impacts.
On the question of relief, the court rejected the application of a heightened test for granting permission to apply for judicial review and found that the statutory test under the Senior Courts Act applied. It concluded that the Secretary of State's failure to take the Paris Agreement into account was a material error that vitiated the designation of the ANPS and that it was not highly likely that the outcome would have been substantially the same if the error had not occurred. The court recognized the importance of the issues and public interest in granting appropriate relief.
The court determined that a declaration that the designation decision was unlawful and that the ANPS has no legal effect until the Secretary of State undertakes a review in accordance with statutory requirements was the appropriate remedy. It declined to quash the ANPS or make a mandatory order for review, leaving the timing and scope of any review to the Secretary of State's discretion.
Holding and Implications
The Court of Appeal allowed the appeals in part, declaring that the designation of the Airports National Policy Statement was unlawful due to the Secretary of State's failure to take into account the Government's commitment to the Paris Agreement as required by section 5(8) of the Planning Act 2008.
The direct effect of this decision is that the ANPS has no legal effect unless and until the Secretary of State conducts a review of it in accordance with the statutory provisions, including sections 6, 7, and 9 of the Planning Act. This judgment does not decide the merits of airport expansion or preclude the possibility of a third runway at Heathrow. It requires the Government to reconsider the ANPS taking into account its climate change commitments under the Paris Agreement.
No new precedent was set regarding the merits of the expansion scheme or the underlying policy considerations. The judgment clarifies the legal obligations of the Secretary of State in preparing national policy statements, particularly the duty to take into account relevant government policy, including international commitments that form part of government policy.
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