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On appeal from: [2020] EWCA Civ 214

The Supreme Court has unanimously allowed this appeal concerning whether the Secretary of State for Transport’s failure to take account of the UK’s climate change commitments under the Paris Agreement rendered the designation of the Airports National Policy Statement (“ANPS”) favouring the development of a third runway at Heathrow Airport unlawful.

On 26 June 2018, the Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the “PA 2008”). The ANPS supports the development of a third runway at Heathrow Airport to deliver additional hub airport capacity in the South East of England.

On 12 December 2015 the UK government adopted the Paris Agreement on Climate Change, which enshrines an aspiration to achieve a net zero greenhouse gas emissions level during the latter half of the 21st century. The UK ratified the Paris Agreement on 17 November 2016.

The respondents (and others) challenged the ANPS on the basis of its failure to take account of the Paris Agreement. The High Court dismissed their application for judicial review, but the Court of Appeal allowed their appeal and held that the ANPS was unlawful. The appellant then appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal. Lord Hodge and Lord Sales gave the main judgment with which Lord Reed, Lady Black and Lord Leggatt agreed.

Government policy

The Secretary of State designated the ANPS under section 5(1) of the “PA 2008”. Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change.

The Court rejects the respondents’ argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8). The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Government’s commitment to the Paris Agreement constitutes “Government policy” in the sense in which that term is used in the statute.

Section 1 of the Climate Change Act 2008 (the “CCA 2008”) sets a national carbon target. Section 4 obliges the Government to establish carbon budgets for the UK. These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement. The Court holds that, at the point the ANPS was designated in June 2018, there was no established “Government policy” on climate change beyond that already reflected in the CCA 2008.

Sustainable development

Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental, economic and social objectives that make up sustainable development. He must, in particular, have regard to the desirability of mitigating and adapting to climate change.

The Court dismisses the respondents’ argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework.

Post-2050 and non-CO₂ emissions

The Court dismisses the respondents’ argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non-CO₂ emissions.

The UK’s policy in respect of the Paris Agreement’s global goals, including the post-2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018. The Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be formulated. The Secretary of State’s department was also still considering how to address the effect of non-CO₂ emissions in June 2018.

Environmental report

Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS. This is also required by EU law.

The Court dismisses the respondents’ complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement. Emphasising that the purpose of these reports is to provide the basis for informed public consultation, it holds that an unduly legalistic approach should not be taken when assessing their adequacy. Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of State’s discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable decision-maker would have made. In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UK’s obligations under the Paris Agreement sufficiently into account. The Court therefore upholds this ground of appeal as well.

For judgment, please see: Judgment

For press summary, please see: Press summary

Watch hearing
07 Oct 2020 Morning session Afternoon session
08 Oct 2020 Morning session Afternoon session