Hillingdon and the other 4 Councils seek permission to appeal Heathrow ruling
Following the Divisional Court’s decision on 1 May 2019 to dismiss the legal challenge brought by Hillingdon Council and others, expert legal opinion has been sought by them in relation to whether there are any grounds to appeal this decision. There is no automatic right of appeal and permission to appeal is needed, in the first instance, from the court which heard the legal challenge. Therefore, an application for permission to appeal is being made to the Divisional Court on behalf of Hillingdon Council and the other local authorities involved in the legal challenge (Wandsworth, Richmond, Hammersmith & Fulham, Windsor & Maidenhead) – it will be supported by Greenpeace and the Mayor of London. The appeal is on 2 specific grounds which both have their origin in European Law. 1). Relating to the Habitats Directive, and 2). the relationship of the Airports National Policy Statement (ANPS) to the Councils’ Local Plans, and the noise assessment and metric used by the government, under the SEA Directive. If the Divisional Court refuses the application, the Councils can apply for permission to appeal directly to the Court of Appeal. Plan B and Friends of the Earth are also appealing, on different grounds. The Councils have always known this would be a long slog …
Councils seek permission to appeal Heathrow ruling
8th May 2019 (Hillingdon Council press release)
Following the Divisional Court’s decision on 1 May 2019 to dismiss the legal challenge brought by Hillingdon Council and others, expert legal opinion has been sought by them in relation to whether there are any grounds to appeal this decision.
There is no automatic right of appeal and permission to appeal is needed, in the first instance, from the court which heard the legal challenge.
Therefore, an application for permission to appeal is being made to the Divisional Court today on behalf of Hillingdon Council and the other local authorities involved in the legal challenge – it will be supported by Greenpeace and the Mayor of London.
The application for permission to appeal is based on two specific grounds which both have their origin in European Law. The first ground relates to the Habitats Directive which is designed to preserve protected species and the second concerns the relationship of the Airports National Policy Statement to the councils’ Local Plans also the noise assessment and metric used by the government, both of which fall under the umbrella of the Strategic Environmental Assessment Directive.
In considering whether to grant permission to appeal, the Divisional Court will have to determine whether there is a realistic prospect of an appeal succeeding.
If the Divisional Court refuses the application, there is a right to make a further application for permission to appeal directly to the Court of Appeal which will also have to consider whether an appeal has a realistic prospect of succeeding.
Hillingdon Council Leader, Ray Puddifoot, said: “As I said when the legal action commenced, this would be a long battle and I remain convinced that we will ultimately succeed. Both Heathrow Airport Ltd and the Dept of Transport are aware of the weakness of their case and will try to stop our action by challenging our right to use public funds to defend our residents and our environment.
“As I promised our residents in our manifesto for the council election last year, we have set aside sufficient funding to cover the cost of this action over the coming years and we will accept no advice on the correct use of public money from the Secretary of State for Transport given his lamentable record on both HS2 and the ferry company with no ferries that actually saw £50 million written off on the same day he was criticising us on the Heathrow legal case costs.”
Wandsworth Council Leader, Ravi Govindia, said: “The negative impact of Heathrow’s operations has been a constant blight on the quality of life for our residents for many years. The noise and disturbance along with its damaging effect on air quality are issues we simply cannot ignore. Our residents expect us to continue to stand up for their interests and to challenge the view that Heathrow expansion can be achieved without serious environmental cost.”
Hillingdon is one of a coalition of councils challenging proposed Heathrow expansion. The group comprises the London boroughs of Hillingdon, Wandsworth, Richmond and Hammersmith and Fulham, Windsor and Maidenhead Council, the Mayor of London and Greenpeace.
Plan B to appeal against the Court’s judgment rejecting the Heathrow legal challenges
Plan B Earth is to Appeal against the decision of the Judges, on 1st May, to reject the legal challenges by the five councils etc, by Friends of the Earth, Plan B Earth, and Mr Paul Spurrier (as well as Heathrow Hub). Plan B Earth has published its application for permission to appeal against the judgment of Hickinbottom LJ and Holgate J . “The Appellant wishes to challenge the Secretary of State’s decision … to designate the Airports National Policy Statement (“the ANPS”) in support of the expansion of Heathrow Airport under the Planning Act 2008 (“the 2008 Act”), on the basis of his failure to give proper consideration to the climate change impacts of the proposal. Plan B mention specific errors, including that the “Court erred in law in treating the minimum target of 80% greenhouse gas emissions reduction by 2050, established by the Climate Change Act 2008 (“CCA”) as precluding Government policy which implied emissions reduction of greater than 80%: The Court proceeded on the basis that “Government policy relating to … climate change” could not differ at all (or at least could not differ materially) from the base level of the emissions target set out in the CCA. That approach is fundamentally flawed.”
Heathrow Hub appeals High Court judgment that rejected its legal challenge to the ANPS
Heathrow Hub, the independent proposal for expanding Heathrow Airport via an extension to the existing Northern Runway, has started proceedings to appeal the High Court judgement handed down on the 1st May 2019, which refused a judicial review. The DfT, Chris Grayling and Heathrow hoped the ruling would clear the way for Heathrow to get on with its plans. But now 3 of the other 4 claimants are also appealing – the councils, Friends of the Earth, and Plan B. Heathrow Hub is majority owned by Anthony Clake, a senior partner at Marshall Wace, a global hedge fund in London. Heathrow Hub has been advised that it also has grounds for appeal, and has applied for permission to do so. They cite the legal flaws as including: The court did not set out the legal test of overriding public interest or acknowledge that the burden of discharging it lay with the secretary of state. Furthermore, it did not allow Heathrow Hub to address the court on this matter resulting in a clear error of law. The role of the court in a judicial review is to review the exercise of discretion by the decision-maker, not to exercise the discretion itself.”
and earlier :
Judges reject judicial review challenges against DfT’s Heathrow 3rd runway NPS
The judges at the High Court have handed down their judgement, which was to reject all the legal challenges against the DfT and the Secretary of State for Transport, on the government decision to approve a 3rd Heathrow runway, through the Airports NPS (National Policy Statement). The judges chose to make their ruling exclusively on the legality, and “rationality” of the DfT decision, ignoring the facts and details of the Heathrow scheme and the NPS process – or the areas where relevant information was ignored by the DfT. In the view of the judges, the process had been conducted legally. They threw out challenges on air pollution, surface access, noise and habitats – as well as carbon emissions. The latter being on the grounds that the Paris Agreement, though ratified by the UK government, has not been incorporated into UK law, so the DfT did not have to consider it. The Paris Agreement requires countries to aim for only a global 1.5C rise in temperature, not 2 degrees (as in the current UK Climate Change Act). Read comments by Neil Spurrier, one of those making a legal challenge. There are now likely to be appeals, perhaps even direct to the Supreme Court.