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. 



1st May 2019  (From Teddington Action Group, TAG)Result of the Judicial Review of the Airports National Policy Statement – Observations of Neil Spurrier, one of the claimantsRegrettably all the claimants in the Heathrow Judicial review lost their claims in the High Court.

Basically, the Court decided that it was not going to consider the merits of the Airports National Policy Statement, but only whether any rules of law were broken. Although some would have different opinions, the Judges were of the view that none of the rules had yet been broken.

Full text of the judgment and the press statement are available at


The main judgement on the environmental challenges (184 pages) is at 


While the decision is very disappointing, the Judges did emphasise that they were not commenting on the merits of the National Policy Statement. The judgment is long, stretching to over 650 paragraphs and 250 pages.

The postscript of the judgment stated that :

“There was a tendency for the substance of parties’ positions to take more of a centre stage than perhaps it should have done, in a hearing that was concerned only with the legality (and not the merits) of the ANPS”.

Similarly the press statement just issued by the Court states that:

It must be emphasised that the court was not concerned with the merits of increasing airport capacity or of satisfying any need by way of a third runway at Heathrow“. 

That is, at least, something that we can push back at Heathrow and the Government, if and when either suggests that Heathrow expansion is going full steam ahead – which it is not, without further and extensive examination in the Development Consent Order (DCO) process, from which the expansion scheme may yet fail.

It is yet to be seen whether any of the claimants will appeal.

There is the possibility of an appeal to the Court of Appeal and then on to the Supreme Court. There is some discussion of a possible “leapfrog appeal” direct to the Supreme Court, which bearing in mind that the case is of national importance and relates to the construction of the Planning Act 2008, is a possibility.

The central focus of the Government’s defence was that the National Policy Statement was only required to show that potentially the Heathrow expansion scheme was deliverable and that, in showing this possibility, the Government were only required to show that they had considered the relevant matters set out in the legislation.

Due to the considerable publicity and thought that had gone into the National Policy Statement, it was not possible (so said the Government) to say that the decision was so irrational or unreasonable that no reasonable person would have come to it – the so-called Wednesbury rules (named after the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)). Ultimately the Court agreed with this.  [The DfT probably was aware of the likelihood of legal challenge, and did all it could to protect itself from future challenges all through the NPS process. AW comment]

There is still much to be argued about at the Development Consent Order stage (the National Policy Statement is just a policy and not a planning consent). Clearly, air quality can only potentially be compliant, and many people think that the likelihood is that it will not be compliant, and consent should not be granted on that ground alone.

The Court declined to get involved in whether noise was unbearable now or would be unbearable in the future. The Court’s view was that to have a decibel level of 54dB LAeq did not fall foul of the Wednesbury rules, even if it was claimed that the level did breach WHO guidance.

I spent a lot of time arguing about the difference between the WHO Night-Time Noise Guidelines of 2009 and the SoNA (2014 Survey of Noise Attitudes) report of the CAA. The Court did not consider that the forum of judicial review of the National Policy Statement was the appropriate place for that discussion.

Similarly, the Court showed reluctance to become involved in air quality, particularly the claimed error in the forecast emissions from aircraft themselves. The Boroughs had argued that there was an 80% chance that the emissions near the airport would be above the permitted amount, as defined in the Appraisal of Sustainability as “High”.

The Government countered that by saying that the definitions in the Appraisal of Sustainability meant that they would be within the 10% of the limit. Either way the risk is substantial that expansion will not comply with the Air Quality Regulations.

I had argued extensively that three studies, all specially referred to by the Air Quality Expert Group of DEFRA, show that harmful ultrafine particulates and NOx from aircraft can travel for more than 20 kilometres downwind from the point of emission, rather than the 2 kilometres stated by the Government.

The amount of emissions could be 4 to 5 fold the norm under the flight paths up to 10 kilometres and even 20% above the norm at 40 kilometres from the airport. One of the surveys was at Los Angeles Airport, in which the report stated that:

“We measured at least a 2-fold increase in PN concentrations over unimpacted baseline PN concentrations during most hours of the day in an area of about 60 km2 that extended to 16 km (10 miles) downwind and a 4- to 5-fold increase to 8−10 km (5−6 miles) downwind. Locations of maximum PN concentrations were aligned to eastern, downwind jet trajectories during prevailing westerly winds and to 8 km downwind concentrations exceeded 75 000 particles/cm3, more than the average freeway PN concentration in Los Angeles.”

Evidence from Queen Mary’s University hospital was produced showing the damage caused by ultrafine particulates going deep into the blood stream and being passed down to the next generation by entering the placenta surrounding an unborn foetus. Unfortunately, the judges were having none of it at this stage. That is not to say that it cannot be raised later, but it does seem that an opportunity has been missed by the court.

Climate Change featured prominently in all the environmental arguments. Perhaps one of the more remarkable features was the defence of the Government to the claim of Plan B Earth that global warming should be kept to 1.5⁰C above pre-industrial levels contained in the Paris Agreement and as set out in the special report of 2018 of the Intergovernmental Panel on Climate Change.

The Government argued (successfully) that as the Paris Agreement had not been adopted into domestic law, there could be no complaint that it had not been observed – the law remained as set out in the Climate Change Act 2008 providing for an 80% reduction of CO2 emissions by 2050, and no more.

As has been made evident by the recent demonstrations by Extinction Rebellion and the speeches of Greta Thunberg from Sweden, this may well be nothing like enough. Although this defence was successful, it may come back to haunt the Government as showing just how irresponsible it is being over climate change.

In addition, the concept of the UK signing an international treaty such as the Paris Agreement, and then dishonouring it because the government has failed to pass the treaty into domestic law, will leave a very sour taste in the mouths of many people.

This Government has criticised Donald Trump for walking away from climate change. Perhaps our government should consider the gospel according to St. Matthew chapter 7 verse 4 “How can you say to your brother, ‘Let me take the speck out of your eye,’ while there is still a beam in your own eye?”

The Committee on Climate Change is responding on May 2nd to the Government with its advice on what level of greenhouse gas emissions reduction is required to combat climate change. It will be interesting to see how the Government reacts to that.

I had argued that climate change had not been taken into consideration sufficiently because no apportionment between airport expansion across the Country had been considered. If Heathrow expands, how can other airports expand (as they are doing and planning to do) when all the quota of greenhouse gas emissions has been taken up by Heathrow?

This cut no ice with the Judges who considered that at the National Policy stage, it was sufficient to show that climate change had been considered and that a possibility of Heathrow expansion within the greenhouse gas emissions limits had been considered (which, of course it had, since the Airports Commission had considered it, however warped one might consider the extent of the consideration).

All this does not mean that climate change will not be considered again at the Development Consent Order stage – and it almost certainly will be and the expansion scheme may well fail on that point. Extinction Rebellion may see to that.

At the end of the day the madness of expanding airport capacity in the south-east, which is already so over-crowded may have to be left to the good offices of the various campaign groups and a 16 year old school girl from Sweden. Perhaps soon, this Government with its mad transport policies, will be elected out of office and we will have some sanity brought back into life.



Commenting on the judgement:

Paul McGuinness, Chair of the No 3rd Runway Coalition, said:

“This is not a win – but not a loss.

“The judges were constrained by the legislation, stating that all these contentious matters need to be considered at the planning stage.

But the fact remains that Heathrow expansion is a bad policy – economically, as well as environmentally. It should not go ahead and won’t go ahead. It will be challenged until defeated”


John McDonnell, MP for Hayes & Harlington, who was at the High Court for the judgment said:

“The Government has got off the hook because they are not willing to recognise Paris Agreement in law. Obviously, there will now be appeals, as it is matter of common sense that Paris Agreement must be taken into account in full.”


The group, Hammersmith & Fulham No 3rd Runway said:

Campaigners’ resolve has only been strengthened following the disappointing Court judgements on the judicial reviews today.

There will be appeals against these judgements. This will create delay which is always helpful to our cause.

Importantly, the whole debate round climate change has sharpened even in the few weeks since this case was heard. Government will be under pressure to enact the Paris Climate Change Agreement, which would change the legal landscape.


See also

Comment by Plan B Earth and Extinction Rebellion, on Judges’ rejection of Heathrow legal challenges

The High Court dismissed all the legal challenges to the Government’s plans to expand Heathrow, including the claims brought by Friends of the Earth and Plan B on the grounds of inconsistency with the Paris Agreement on climate change. Tim Crosland, Director of Plan B and a legal adviser to Extinction Rebellion, said: “…it is increasingly difficult to see how the Government’s reckless plans to expand Heathrow Airport can proceed. Following the recent Extinction Rebellion protests there is widespread recognition that we are in a state of climate and ecological emergency. The Court has upheld Chris Grayling’s surprising contention that the Paris Agreement is “irrelevant” to Government policy on climate change. It ignored the fact that the Government stated in May last year that it planned to decarbonise the economy by 2050. Instead it accepted Grayling’s argument that the CCC considers the current target of 80% emissions reductions by 2050 to be consistent with the Paris Agreement. Tomorrow the CCC is expected to expose the fallacy of that position by recommending that the Government implement a target of net zero by 2050,… Since that recommendation is obviously inconsistent with the expansion of Heathrow, presumably the plans will now need to be reviewed.”

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See also

Heathrow ruling: High Court approves third runway despite escalating climate change crisis

‘Government is kicking our children in the teeth over climate’, say campaigners following defeat

By Harry Cockburn (Independent)

The High Court has rejected a legal challenge against a controversial third runway at Heathrow Airport, despite growing alarm at the climate crisis.

Judges delivered their ruling on Wednesday following separate judicial reviews of the government’s decision to approve the plans, brought by a group of councils, residents, environmental charities and Mayor of London Sadiq Khan.

Ahead of the ruling, Nigel Pleming QC, who was representing five London boroughs, Greenpeace and Mr Khan, said the plans could see the number of passengers using the airport rise to an estimated 132 million, an increase of 60 per cent.

The case had been brought against transport secretary Chris Grayling by local authorities and residents in London affected by the expansion and charities including Greenpeace, Friends Of The Earth and Plan B.

Under current laws, the government has a legal obligation to reduce greenhouse gas emissions by 80 per cent, compared with 1990 levels, by 2050.

But the release of the Climate Change Committee’s report on Thursday will call for emissions to be reduced to net zero by 2050.

Key parts of the legal challenge against the government argued the third runway is not compatible with climate change targets in UK domestic law, and also those agreed under international obligations in the Paris agreement in 2015.

The House of Commons overwhelmingly voted in favour of the £18bn third runway plans at Heathrow last year, approving Mr Grayling’s plans by 415 votes to 119.

Responding to the airport being given the go-ahead from the High Court, Greenpeace said while the campaigners may have lost this judgment, the government is losing the argument on whether such expansion is “morally justifiable”.

John Sauven, executive director of Greenpeace UK said: “Chris Grayling has won a court case over whether the third runway is legally permissible, but he’s lost the argument over whether it’s morally justifiable.

“This verdict will not reduce the impact on local communities from increased noise and air pollution, nor will it resolve Heathrow Ltd’s financial difficulties or the economic weakness in their expansion plans.

“But our main concern is allowing Heathrow, the UK’s biggest carbon emitter, to expand in the middle of a climate emergency.

“For as long as climate change remains an afterthought in government decisions they are kicking our children in the teeth.”

Speaking after the ruling, shadow chancellor John McDonnell said the decision let the government “off the hook”.

Mr McDonnell said: “What I find extraordinary in the judgment is that, on the issues with regard to climate change, the government gets off the hook simply because it has not adopted the Paris agreement into UK law.

“So, even though our belief is that [the expansion] completely undermines the ability to abide by the climate change targets of the Paris agreement, because the Paris agreement is not in UK law as yet the government gets off the hook.”

Caroline Russell, the chair of the London Assembly environment committee, described the High Court decision as “devastating news”.

“Have any of the judges noticed what David Attenborough, Mark Carney, Greta Thunberg and Extinction Rebellion have been saying?” she wrote on Twitter.

In a statement she said: “Although the government’s policy on Heathrow has survived this court hearing, it is still not the right course for London or the environment.

“The government’s own figures show that the extra traffic caused by expansion will worsen air pollution widely across London, shortening Londoners’ lives. At the same time, 200,000 more people will be affected by noise from an expanded Heathrow.”

The chair of the London Assembly transport committee, Caroline Pidgeon added: “It is bitterly disappointing that the High Court has made this decision. The London Assembly has long been opposed to the expansion of Heathrow – all advice from the Assembly, protestors and experts seems to have fallen on deaf ears.

“This committee has consistently raised the issue of the government’s lack of planning for improving surface transport access to Heathrow Airport, yet the situation remains largely unchanged.

“The government has persisted with this decision without proper preparation for the influx of people that would be travelling to and from Heathrow by car, train and many other means.”

Friends of the Earth today appeared to be considering a further challenge to the court judgement, and said the decision was “out of step with the world”.

“Parliament’s decision to green-light Heathrow was morally wrong, but today we believe the courts have got it legally wrong too. We are examining the judgement in detail and will consider all options,” they said.

The organisation added: “Heathrow airport is already the single biggest climate polluter in the UK, expansion will only exacerbate the problem.”

Gareth Redmond-King, head of climate change at WWF, said: “The climate emergency is here, and yet we are acting as if we have time to waste. When the Committee on Climate Change report is published tomorrow, politicians will say that they are committed to tackling climate change. But how can they be taken seriously if they press ahead with expanding airports?”

Chris Grayling responded to the court’s judgement saying the new runway would “benefit every corner of the United Kingdom”.

He said: “The expansion of Heathrow is vital and will provide a massive economic boost to businesses and communities across the length and breadth of Britain, all at no cost to the taxpayer and within our environmental obligations.

“I welcome the court’s judgment today. It makes clear we followed a robust and legally sound process throughout.

“I now call on all public bodies not to waste any more taxpayers’ money or seek to further delay this vital project which will benefit every corner of the United Kingdom.”

In a statement a Heathrow spokesperson said: “We are delighted with today’s ruling which is a further demonstration that the debate on Heathrow expansion has been had and won, not only in Parliament, but in the courts also. We are getting on with delivering the once-in-a-generation project that will connect Britain to global growth, providing thousands of new jobs and an economic boost for this country and its future generations.”

The High Court findings come on the same day Mr Grayling said he was terminating contracts with three ferry companies which were too expand lorry freight capacity in the event of the UK leaving the EU without a deal.

He decided to terminate the agreements after the deadline for the UK’s departure was extended until the end of October, but the Department for Transport will still have to pay £50m for part of the value of the contracts.

The £50m bill comes on top of a £33m payment to Eurotunnel, earlier this year, to settle its legal case over the cross-Channel contracts.

Shadow transport secretary Andy McDonald responded to Mr Grayling’s announcement saying: “His career as a minister has left a trail of scorched earth and billions of pounds of public money wasted.

“This country cannot afford Chris Grayling.”