Not so terminal after all…

On 21 December 2020, the Supreme Court overturned the Court of Appeal’s judgment in R (Friends Of The Earth) v Secretary of State for Transport & Others [2020]. The Supreme Court’s decision could have important planning implications for major infrastructure projects in the UK.

Background

This case concerned the proposed development scheme for a third runway at Heathrow (“the Scheme”), estimated at approximately £14 billion.

Several environmental groups challenged the Scheme, arguing that a third runway would be a catalyst for more air travel and thus carbon emissions. This was stated to be a breach of the UK’s obligations under the 2016 Paris Agreement on Climate Change (“the Paris Agreement”) to reduce greenhouse emissions and commit to keeping global temperatures close to 1.5C. Furthermore, the Government’s Airport National Policy Statement (“the Statement”) had deliberately omitted any consideration of the UK’s environmental obligations under the Agreement.

The Court of Appeal held that the omission breached the Government’s statutory duty under the Planning Act 2008 (“the Act”). The Court of Appeal stressed that its judgment did not reflect the Scheme’s merits, as the pros and cons of a third Heathrow runway was not the Court’s concern. Rather, the Court was concerned with whether the Government had a duty under the Act to consider the Paris Agreement.

Heathrow Airport appealed the decision (the Government did not).

The Supreme Court’s decision

The Supreme Court held that the Government did not have a duty to consider the Paris Agreement. The Paris Agreement was not “Government Policy” (as defined by s5(7) of the Act) and so there was no duty under the Act to consider it. Consequently, the Statement was lawful and valid.

Implications

The most immediate implication is that Heathrow can now apply for planning permission to undertake the Scheme. That said, the Scheme’s future is less than certain. There is currently less impetus for a third runway at Heathrow, with the pandemic giving rise to sharp fall in global demand for flights. Additionally, any planning application will be subject to a public inquiry, giving environmentalists further opportunities to challenge the building of a third runway. The increasing climate consciousness in public discourse and the Government’s recent commitment to net-zero emissions by 2050 also put the Scheme’s future in doubt.

Less immediately, other major infrastructure projects are now less likely to face objections on the grounds that commitments made under the Paris Agreement have been ignored. Yet, the need for development consent means that the potential environmental impact of any future infrastructure project will be carefully scrutinised by the Planning Inspectorate.

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If you would like to discuss any issue relating to this blog, please do not hesitate to contact a member of the Real Estate Dispute Resolution Team on 01895 207835 or 01895 207295, or email us at propertydisputes@ibblaw.co.uk.