Plan B to appeal against the Court’s judgment on Heathrow
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.”
Today Plan B filed its appeal against the Court’s judgment on Heathrow:
Details of the Appeal are at
APPELLANT’S SKELETON ARGUMENT IN SUPPORT OF AN APPLICATION FOR PERMISSION TO APPEAL AGAINST THE REFUSAL OF PERMISSION TO APPLY FOR JUDICIAL REVIEW
(Short summary below … incomplete)
1 This is an application for permission to appeal against the judgment of Hickinbottom LJ and Holgate J ([CB/x/y])) dated 1 May 2019 refusing permission to bring a claim for judicial review.
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.
2. In refusing permission, the judges below made the following errors:
(i) 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”) s. 1, 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. It is clear that Government Policy may exceed the 80% emissions reduction target, as the CCA establishes only a minimum level of reductions of “at least 80%” by 2050, which the Court failed to take into account.
(ii) Consequently the Court erred in law in holding that neither the Paris Agreement Temperature Limit (“Paris Temperature Limit”) nor the Government’s policy of introducing a net zero target in accordance with the Paris Agreement, formed any part of “government policy relating to … climate change” for the purposes of section 5(8) of the Planning Act 2008 and that they were otherwise irrelevant considerations: By the time of the designation of the ANPS, not only had the Government advanced, signed and ratified the Paris Agreement, it had publicly committed to introducing a net zero target in accordance with the Paris Agreement, and specifically to decarbonising the economy by 2050. The Court erred in law in treating these matters as irrelevant to Government policy on climate change.
(iii) The Court erred in law in holding that the historic, discredited 2˚C temperature limit was a relevant consideration: In addition to the CCA target, the Secretary of State assessed the ANPS against the historic and discredited 2˚C global temperature limit, rejected by 195 governments including the UK Government, in December 2015. The Court was wrong to consider the historic 2˚C limit a relevant consideration, which it was proper for the Secretary of State to take into account
(iv)The Court erred in law in treating as irrelevant the Secretary of State’s failure to explain to Parliament the basis of his decision: It was only as a result of the Appellant’s legal action that it emerged that the Secretary of State had used the 2˚C target as the basis for assessment and that he had 3 treated the Paris Agreement as irrelevant. The Secretary of State’s failure to explain the basis of his decision to Parliament was of itself a breach of s.5(8) of the 2008 Act, which the Court was wrong to ignore.
and it continues at length ….
See the full Appeal (18 pages)
The local authorities will also be appealing, as will Friends of the Earth. Mr Spurrier will not appeal, due to the prohibitive cost.
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 …
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.”
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.
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.”