Government First-Tier Tribunal to hear Heathrow appeal against having to disclose environmental information

Heathrow is trying to overturn a ruling in February 2020 that it must disclose environmental information. The Information Commissioner’s decision that Heathrow counts as a public authority and must disclose the information will be subject to an appeal next week. The ruling last year followed a similar one concerning energy producers and suppliers, extending a duty that the water industry has been subject to since 2015. They all resulted from the ambiguity of the Environmental Information Regulations 2004, which states that any organisation that “that carries out functions of public administration”, or has public responsibilities, functions or provides services related to the environment, is subject to the law. Heathrow does not want to have to answer demands for information about planning applications, aircraft noise or environmental impacts of the airport. The appeal comes as the Good Law Project, which is pursuing a legal challenge against government policy approving the third runway, said that it was making “a focussed request for documents and communications between Heathrow Airport and the DfT, for a Development Consent Order, for a 3rd runway.
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Tribunal to hear Heathrow EIR appeal

By Gareth Simkins (Ends report)

24 Mar 2021

Heathrow Airport is attempting to overturn a ruling that it must disclose environmental information.

The Information Commissioner’s decision that Heathrow Airport counts as a public authority and must disclose environmental information will be subject to an appeal next week.

The ruling last year followed a similar one concerning energy producers and suppliers, extending a duty that the water industry has been subject to since 2015. They all resulted from the ambiguity of the Environmental Information Regulations 2004, which states that any organisation that “that carries out functions of public administration”, or has public responsibilities, functions or provides services related to the environment, is subject to the law.

Though a private company, Heathrow Airport Ltd inherited certain powers vested in the former British Airports Authority by the Airports Act 1986, including  powers of compulsory purchase, to make bye-laws and charge airlines based on the noise and other emissions from their planes.

The firm formally lodged its appeal to the General Regulatory Chamber of the First-tier Tribunal shortly after the regulator’s decision, which was handed down in February last year. It left the airport vulnerable to demands for details of planning applications, noise emissions from aircraft and the energy efficiency of its buildings, for example. Such information was being pursued by an environmental consultancy acting for the Arora Group, which owns land around the airport which it sought to develop as an alternative to a third runway.

The appeal comes as the Good Law Project, which is pursuing a legal challenge against government policy approving the third runway, said that it was making “a focussed request for documents and communications between Heathrow Airport Limited and the Department for Transport” (DfT) in relation to the airport’s expected application for a development control order, which if successful would give final permission for the controversial runway to go ahead.

Soon after the Supreme Court found late last year that the Airports National Policy Statement (ANPS) was lawful, the campaigning lawyers launched a fresh challenge, calling on the government to review the policy in light of the 2050 net zero commitment and the UK’s 2030 climate goal. It threatened to bring a judicial review if the DfT did not agree that the statement, under which the DCO would be framed, was no longer lawful.

In a recent update on the case, the campaigning lawyers accused the government of “moving the goalposts” by refusing to say when it would decide on the matter. But our concern is that, meanwhile, the operators of Heathrow Airport might make a DCO application which would be considered under the current (we believe unlawful) version” of the ANPS.

The DfT also provided what the lawyers described as a “quite extraordinary” response to a demand that under no circumstances would a DCO application be considered until after the secretary of state had finished considering a request for review.

But the Government Legal Department replied that there is no need to make such a commitment due to the length of time it would take for the application to reach him, around 13 months. “It is therefore quite clear that there is no prospect of a DCO application in relation to Heathrow expansion being determined by the secretary of state imminently. Your request is accordingly baseless,” said its letter, dated 16 March.

However, “All of this begs the question – why won’t the secretary of state make the commitment? If government is serious about its climate change commitments, it should say, and clearly, that it won’t consider the application until after it has made up its mind on the policy,” the lawyers said, adding that environmentalist George Monbiot had joined green entrepreneur Dale Vince as a potential co-claimant in the case.

https://www.endsreport.com/article/1710905/tribunal-hear-heathrow-eir-appeal

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The First-tier Tribunal is a government body.

https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber

Administered by HM Courts & Tribunals Service

This says:

We handle applications, appeals and references relating to disputes over property and land.

Residential property disputes that we handle include:

  • rent increases for ‘fair’ or ‘market’ rates
  • leasehold disputes
  • leasehold enfranchisement
  • disputes about park homes
  • improvement notices and prohibition orders where your notice is under the Housing Act 2004
  • disputes about licences for houses in multiple occupation
  • the right to buy your council home being refused because it’s deemed suitable for elderly people

Land registration matters that we handle include:

  • disputes over a change to the land register
  • applications to correct or cancel certain documents relating to registered land

and it continues ….

https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber


See earlier:

Heathrow ruled to be a “public authority” for information-access, so FoI requests can be made on environmental issues

The Information Commissioner’s Office (ICO) has issued a decision, holding that Heathrow is a “public authority” for the purposes of the Environmental Information Regulations 2004 (EIR). This opens up the potential for anyone to ask HAL for information it holds relating to the environment, through a Freedom of Information (FoI) question. This could be on development applications, emissions, buildings, energy consumption, waste and noise.  The EIR operate alongside the Freedom of Information Act (FOI Act), and oblige public authorities to disclose environmental information upon request (unless an exemption to disclosure applies).  This has arisen because rival builder of Heathrow’s runway etc, Arora, asked Heathrow for information. It was withheld. Arora then appealed to the Information Commissioner. They decided that as Heathrow “carries out functions of public administration” it is indeed a public authority, not just a company.  This is justified “given the importance of the efficient provision of services at Heathrow Airport to the economy and citizens of the UK”.  Heathrow may appeal. Other airports might also be considered as public authorities in future…?   

https://www.airportwatch.org.uk/2020/02/heathrow-ruled-to-be-a-public-authority-for-information-access-so-foi-requests-can-be-made-on-environmental-issues/

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