Impact of the Heathrow decision on the construction industry

The Court of Appeal (CoA) has very recently handed down its decision in R (Friends of the Earth) v Secretary of State for Transport and others [27.02.20] halting plans for a third runway at Heathrow Airport.

The judgment held that the ‘Airports National Policy Statement’(the ANPS) issued by the Secretary of State for Transport (SoST), which set out the planning policy for decision making on development applications for the third runway, was unlawful for failing to take into account the UK Government’s policy and commitments on climate change.

The effect of this decision is still to be seen, but it brings into focus the need for the construction industry to align and adapt its working practices with the government’s commitment to combating climate change.

The Heathrow expansion

In 2016, the UK Government ratified the Paris Agreement which included a commitment to restrict the increase in the global average temperature and aspired to achieve net zero greenhouse gas emissions during the second half of the 21st century. In 2018, the SoST published the ANPS highlighting the government’s plans for new runway capacity and airport infrastructure in London and the South East of England.

Seven claimants that included the London Borough of Hillingdon, the Mayor of London, Friends of the Earth and Plan B Earth mounted a claim for judicial review challenging the ANPS. The salient question before the CoA was whether the Divisional Court erred in deciding that the ANPS’ support of plans for a third runway at Heathrow was lawful.

A win for the climate change activists

It was agreed between the parties that the SoST did not take the Paris Agreement into account when producing the ANPS. It was the SoST’s position that he did not need to, and in fact it was even unlawful to do so. The SoST submitted that “it was concluded that such material [the Paris Agreement] should not be taken into account i.e. it was not relevant, since it did not form an appropriate basis upon which to formulate the policies contained in the ANPS.” This was based on the nature of the obligations set out in the Paris Agreement and the SoST’s contention that for the purposes of domestic UK law, it was an unincorporated international treaty as at the date of issue of the ANPS.

The CoA disagreed. In their view, section 5(8) of the Planning Act 2008 requires a National Policy Statement (“NPS”) to explain how it takes into account government policy in relation to controlling climate change, and the term ‘government policy’ should be construed as “necessarily broader than legislation”. Therefore, the Court deemed that the Paris Agreement was part of ‘government policy’ for the purposes of the Planning Act 2008.

Consequently, in failing to explain how the Paris Agreement was taken into account when reaching its conclusions, the ANPS was unlawful and would not have any legal effect unless and until the SoST decides to conduct a review.

The CoA did make clear that it did not conclude that the ANPS was incompatible with the Paris Agreement and, most importantly, that section 5(8) of the Planning Act 2008 does not require the executive to conform to its policy commitments, only to take them into account and explain how it has done so.

How does this impact the construction industry?

Whether the decision will curtail the expansion of Heathrow or not will depend on the government’s desire to revisit the ANPS, and whether it can legitimately align these plans with its policy commitments on combating climate change.

In light of this decision, similar legal challenges may be commenced in relation to other major infrastructure projects. The impact will, however, be limited to projects which would be subject to an NPS by virtue of being a nationally significant infrastructure development in the energy, transport, water and waste sectors. Projects that are currently underway that could be affected are regional airports, HS2, Drax (the North Yorkshire power station) and other significant infrastructure developments such as strategic road improvements planned between Oxford and Cambridge.

It is now clear that the government will need to provide clear explanation as to why future infrastructure projects do, or why the government feel they do not need to, comply with government policy and in particular its policy commitments on climate change.

It remains to be seen how this will affect the construction industry as a whole. Key questions to consider will include:

  • Contingency planning for delays to current and existing projects and the associated costs.
  • The added expense of designing and building projects that are compliant with the government policy on the control of climate change (if deemed applicable).
  • Whether such projects will be economically feasible in light of additional requirements and/or compliance.

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