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Court of Appeal rules against Heathrow expansion on environmental grounds

Posted 27 February 2020 · Add Comment

The UK Court of Appeal has ruled in favour of local authorities, the Mayor of London, Greenpeace Ltd., Friends of the Earth Ltd. and Plan B Earth regarding a third runway and expansion at Heathrow Airport, with the Government's decision deemed unlawful as it did not account for climate commitments.

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The judges said that the Government had not adhered to UK policy by accounting for its commitment to the Paris climate agreement but that if future plans meet UK climate policy a third runway at Heathrow may be possible.
Commenting on the decision today by the Court of Appeal on Heathrow expansion , Tim Alderslade, Chief Executive of Airlines UK, the industry body representing UK-registered airlines, said:

“Today’s decision is extremely disappointing. The Sir Howard Davies Airports Commission spent several years looking at airport capacity in the South East and was clear Heathrow is the only game in town, with other schemes being considered and ultimately rejected. The economic prize is enormous if expansion is done right, with airlines ready to respond to the unlocking of new capacity by creating new routes and helping to connect the UK to new markets and destinations, and Heathrow to regions across the country. UK aviation has committed to net zero carbon by 2050 and this factors in the emissions created by Heathrow expansion. It is not a question of being pro-aviation or pro-environment. 
“Of course, the advantages of an extra runway won’t be realised if landing charges are ramped up and airlines can’t afford to operate at the airport – and our support for expansion will remain conditional upon Heathrow delivering on their commitment to keep charges at current levels – but we are clear that as a country we cannot keep fudging this issue if we are to maintain our credibility internationally, and we urge Ministers to appeal the decision, back expansion publicly, and ensure it delivers for the whole country.”
Airlines UK is the trade body for UK-registered airlines and other carriers with a UK operation, with members representing all sectors of the industry. Its 14 members are: 2Excel, British Airways, CargoLogicAir, DHL, easyJet, Flybe,, Jota Aviation, Norwegian UK, Ryanair, Tui Airways, Titan Airways, Virgin Atlantic and West Atlantic.

GMB, the union for airport workers, also responded to today’s Court of Appeal ruling on the Heathrow expansion, saying the Government must now come up with a proper aviation strategy for the UK.

Nadine Houghton, GMB National Officer, said: “GMB is disappointed by today’s court ruling.

“Heathrow expansion is a complicated issue, but we have consistently backed it because the benefits more than outweigh any risks. Expansion would protect the existing 80,000 jobs, create a further 114,000  - as well as 10,000 apprenticeships.

“Like everyone else, GMB members are very worried about climate change but we would have held Heathrow Airport Ltd’s feet to the fire on their target for zero carbon by the mid-2030s.

“The Government must now come up with a proper aviation strategy for the UK – and unions must be front and centre in those discussions.”

Will Rundle, head of legal at Friends of the Earth, said: “This ruling is an absolutely ground-breaking result for climate justice. We were fighting a project that would have had dire implications for present and future generations.”

The government’s decision to expand Heathrow Airport has been ruled 'unlawful' by the Court of Appeal, on climate change grounds, in one of the most important environmental law cases in this country for over a generation. This follows a successful legal challenge by environmental organisation Friends of the Earth, represented by Leigh Day, in a victory for local campaigners who have been battling against the third runway for years.

Will Rundle added: “This judgment has exciting wider implications for keeping climate change at the heart of all planning decisions. It’s time for developers and public authorities to be held to account when it comes to the climate impact of their damaging developments.”

Jenny Bates, climate campaigner at Friends of the Earth, said: “The UK government must take this ruling as an opportunity to play its full part in fixing the international climate crisis, especially in the year that it hosts crucial climate talks in Glasgow. This means finally moving on from the climate-wrecking Heathrow third runway project and ensuring the UK aviation sector actually cuts its climate emissions, rather than adding to them."

Rowan Smith, solicitor in the environmental law team at law firm Leigh Day, said: “What is emphatically clear in this judgment is that the Court of Appeal concluded that there was absolutely no legal means by which the Government could ignore its international climate change commitments under the Paris Agreement and that such an omission was a fatal flaw to the lawfulness of the policy to greenlight a third runway at Heathrow Airport.

"The Lord Justices simply followed the legal framework set by Parliament, citing as they did their fundamental function to maintain the rule of law, and found that the Paris Agreement was so obviously material to a decision on Heathrow Airport expansion that the Secretary of State was legally bound to consider it. The Government must now go back to the drawing board and come up with a new policy, which lawfully fulfils its sustainable development duties and protects future generations.”

In its historic ruling, the designation of the Airports National Policy Statement (ANPS) was found unlawful by the Lord Justices of appeal. In their judgment, the Secretary of State for Transport (at the time Chris Grayling) had breached s10 of the Planning Act 2008, and acted irrationally, by disregarding the Paris Agreement, the non-CO2 warming impacts of aviation, and the effects of climate change beyond 2050, when making the ANPS to expand Heathrow. He also breached his duty to undertake a lawful strategic environmental assessment in accordance with the requirements of the SEA Directive and the SEA Regulations.

The Court ruled that this case was one of “exceptional public interest”, noting that “the issue of climate change is a matter of profound national and international importance of great concern to the public – and, indeed, to the Government of the United Kingdom and many other national governments, as is demonstrated by their commitment to the Paris Agreement".

GMB London also called on Parliament and Government to change the laws to focus on cutting carbon emissions from air transport rather than restricting the ability of a growing London population to travel. Warren Kenny,  GMB London Regional Secretary, said "This decision is a direct result of Parliament and Government making climate change laws on the hoof without proper consideration of the true costs of achieving net zero carbon emissions by 2050.

"Parliament urgently needs to revisit the costs of the net zero carbon emissions and alternatives to turning the clock back on what sustains the prosperity of citizens. In particular Parliament and government need to go back and change the laws to focus on cutting carbon emissions by the industry rather than cutting the ability of passengers to travel by air. The aviation industry says that there is an alternative. The law should reflect this.

"Air travel has played a fundamental role in creating our contemporary networked world and restricting connectivity is a very backward step for humanity. So if this decision stands its is a very backward step for the population of London expected to grow to eleven million people by 2040. It will be negative for the economy of the entire country.

"There is no positive way of presenting this unwelcome decision. Unless the law is changed it will lead to an unwelcome rationing of air travel by a general strategy of pricing of it out of reach of ordinary people. It will be available only to those with way above average incomes.

"On the alternative frequent flyer tax it is very difficult to see it how could be operated without the introduction of a central government held data base containing the details of each and every flights taken by all citizens. This would be a very big 'big brother' step to take - particularly if there are viable other alternatives to avoid such a drastic step.”

Heidi Copland, partner and head of planning at City law firm DMH Stallard, said: "In a victory for climate campaigners, the Court of Appeal (Lindblom, Singh and Haddon-Cave LJJ) has today determined that the Secretary of State acted unlawfully in failing to take into account the 2015 Paris Agreement on Climate Change when deciding to designate the Airports National Policy Statement (ANPS) in support of the expansion of Heathrow Airport. The new runway, which would bring roughly 700 extra planes to the airport everyday would see a large increase in carbon emissions. Initial cost indications for the project of £14 billion are now claimed at more than double that.
"In its judgement the Court was careful to state that it was not making a decision that a third runway would always be incompatible with the UK’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, but as things currently stood, the ANPS was of no legal effect. The ANPS, which is a policy document, is not itself determinative of permission being granted to begin development. It would however be one of a number of key considerations in any application for Development Consent. Having deemed the ANPS to have no legal effect the Court of Appeal has effectively ensured that consent will be delayed until either this judgement is reversed by the Supreme Court or the Government re-examines the proposed expansion to take the Paris Agreement into account. 
"This is the first decision of its kind to hold that the temperature goal set out in the Paris Agreement has binding effect on those who signed up to it. In 2015 then Secretary of State for Transport Chris Grayling stated that 2015 Paris agreement, which amongst other goals set a target of keeping global temperature rise below 2C, was “not relevant” to climate policy. The effect of this ruling is to hold otherwise, and may open the door to further challenges of national planning policies which have failed to take the Paris Agreement into consideration, not just in the UK but in all member countries.
"Transport Secretary Grant Shapps has indicated that the Government will not appeal the decision, although a spokeswoman for Heathrow has said they are confident of victory at the Supreme Court. Whether the Supreme Court grant permission to appeal is a separate issue however and even if they do, the effect of today’s judgment is to give a significant boost to climate campaigners determined to hold Government and Industry to the obligations which were ratified in Paris."

Heathrow responded to the findings of the Judicial Review with the following statement: 'The Court of Appeal dismissed all appeals against the government - including on “noise” and “air quality” - apart from one which is eminently fixable. We will appeal to the Supreme Court on this one issue and are confident that we will be successful.  In the meantime, we are ready to work with the Government to fix the issue that the court has raised. Heathrow has taken a lead in getting the UK aviation sector to commit to a plan to get to Net Zero emissions by 2050, in line with the Paris Accord. Expanding Heathrow, Britain’s biggest port and only hub, is essential to achieving the Prime Minister’s vision of Global Britain. We will get it done the right way, without jeopardising the planet’s future. Let’s get Heathrow done'.


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