So what are we waiting for and what has happened?
A judicial review was sought by a number of claimants, including local authorities, the Mayor of London, Greenpeace, Friends of the Earth, Plan B Earth and a member of TAG, to declare that the Airports National Policy Statement (ANPS) was unlawful and therefore void on a number of grounds. The grounds were extensive but essentially comprised:
• Noise: the proposal would create noise above the prescribed limits and many more people would be affected than stated to either Parliament or the public
• Air Quality: there would be a significant deterioration in air quality which already fails to comply with the legal minimum requirements
• Habitats: the EU Habitats Directive had not been followed
• Environment: the EU environment directive requiring a strategic environment assessment (the “SEA” Directive) had not been followed
• The requirements on mitigation of climate change had not been followed, so that the UK would be less likely to be able to comply with its obligations on reducing greenhouse gas emissions
In the High Court all the claimants lost on all grounds.
All the claimants, apart from the TAG member who withdrew, appealed to the Court of Appeal. The Court of Appeal dismissed the appeals apart from those of two claimants relating specifically to Climate Change. Friends of the Earth and Plan B Earth had claimed that the building of a third runway would infringe our climate change obligations. In particular, the question of the Paris Agreement was considered in detail and the Court of Appeal found for both Friends of the Earth and Plan B Earth. The Court declared the ANPS unlawful and therefore void because of the breach of two statutory provisions concerning climate change. The Government (which was then a different government to that in place when the High Court case was heard) decided that they would accept the verdict of the Court of Appeal. Heathrow decided not to accept it and appealed to the Supreme Court. The other claimants who had appealed (the local authorities and the Mayor of London) decided not to appeal. The Supreme Court heard the appeal of Heathrow on the 7th and 8th October and judgement is expected sometime in January 2021
The original Climate Change Act 2008 provided that the UK should reduce its CO2 emissions by 80% over 1990 levels by 2050. The Paris Agreement made on the 12th December 2015 approached the problem from a different perspective. All signatories agreed to do whatever they could to keep global warming down to well below 2⁰C above pre-industrial levels by 2050. Later it was further agreed that “well below” would require as near as 1.5⁰C above pre-industrial levels as was possible. The Government had argued in the High Court that as the Paris Agreement had not been passed into English law, it should not yet be considered by the Secretary of State in its National Policy Statement (even though the UK Government had signed the Paris Agreement).
The Court of Appeal disagreed. The Planning Act 2008 requires the Government, when designating a National Policy Statement to firstly set out the criteria in the policy that will mitigate climate change. Secondly, the Government must have regard to the desirability of mitigating climate change. The Court of Appeal agreed with both Friends of the Earth and Plan B Earth that both of these duties must include consideration of the Paris Agreement in limiting global warming to 1.5⁰C above pre-industrial levels. As the Paris Agreement was signed by the UK government and been specifically referred to in Parliament, it must be part of Government Policy. As the Government had excluded the Paris Agreement, the ANPS was not lawful. Heathrow do not agree and appealed to the Supreme Court
So; if Heathrow lose in the Supreme Court, the ANPS is dead. But is it the end of the matter? Well may be not.
Notwithstanding the Covid pandemic, the DfT and CAA are still determined to progress their airspace change program. This involves the use of satellite navigation (called “Performance Based Navigation” or PBN for short) giving ultra-precise aircraft routes or “motorways in the sky”. This is so that there can be “greater resilience” to delays from over-crowding and more direct routes. It will inevitably mean the capacity for more planes with more noise. The CAA admitted in their proposals published in 2016 that there may be “winners and losers” and “there will have to be trade-offs”. The Government’s new Airspace Change Organising Group have themselves admitted in their report of 2020 that there will be “trade-off decisions”. Both have been conspicuously quiet about what the extent of those decisions will be and what will be the effect upon residents under a flight path. The record of the CAA on quality of assessment of noise has to date been pretty atrocious, so there is likely to be plenty to argue about! There has not been a single introduction of PBN anywhere is the World that has not brought howls of protest from residents. We have written about this at http://www.teddingtonactiongroup.com/2020/04/20/tag-lodges-its-response-to-the-caa-consultation-on-the-airspace-change-masterplan/