Permission to appeal decisions
7 May 2020
The Supreme Court has today announced its decision on the following permission to appeal applications.
These decisions were made by a panel of three Supreme Court Justices (Lord Reed, Lord Hodge and Lord Sales) following a review of the relevant written submissions.
R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant)
R (on the application of Friends of the Earth Ltd and others) (Respondents) v Arora Holdings Ltd (Appellant)
On appeal from the Court of Appeal Civil Division (England and Wales)
In December 2015 the Paris Agreement was concluded as an agreement within the United Nations Framework Convention on Clime Change ("UNFCCC"). It was adopted on 12 December 2015. This enshrines an aspiration to achieve a net zero greenhouse gas emissions level during the latter half of the 21st century. The United Kingdom ratified the Paris Agreement on 17 November 2016. The Secretary of State for Transport, on 25 October 2016, announced the Government wished to build a new runway at Heathrow Airport (the "north-west runway"). An Airports National Policy Statement ("ANPS"), which recommended the north-west runway, was laid before Parliament and approved by the House of Commons in 2018. On 26 June 2018 The Secretary of State adopted the ANPS under s 5(1) Planning Act 2008. This was a step towards building the north-west runway. The ANPS did not take account of the Paris Agreement. The applicants challenged the ANPS on the basis of, inter alia, its failure to take account of the Paris Agreement.
The issue is:
Whether the Government's failure to take account of the United Kingdom's climate change commitments, as represented in the Paris Agreement, when deciding whether or not to build a new runway at Heathrow Airport rendered the decision unlawful.
The Court ordered that permission to appeal be granted in these cases.
Please note, the Court does not have a date for the hearing at this stage.
R (on the application of London Borough of Hillingdon and others) (Appellants) v Secretary of State for Transport and others (Respondents)
On appeal from the Court of Appeal Civil Division (England and Wales)
On 1 July 2015 the Airports Commission published a final report on aviation capacity. The report gave three options for development; two were at Heathrow Airport and one at Gatwick Airport ("the Gatwick Scheme"). The Secretary of State for Transport, on 25 October 2016, announced the Government wished to build a new runway at Heathrow Airport (the "north-west runway"). An Airports National Policy Statement ("ANPS"), which recommended the north-west runway, was laid before Parliament and approved by the House of Commons in 2018. On 26 June 2018 The Secretary of State adopted the ANPS under s 5(1) Planning Act 2008. This was a step towards building the north-west runway. The Appellants argue that the decision to reject the Gatwick Scheme breached various European Union law requirements. The Appellants were unsuccessful in the High Court and Court of Appeal. They now ask the Supreme Court to allow an appeal.
The issue is:
Whether the Secretary of State breached planning law in adopting a scheme for a third runway at Heathrow Airport as opposed to a second runway at Gatwick Airport.
The Court ordered that permission be refused on the ground that the application does not raise any arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, bearing in mind that the matter has already been the subject of judicial decision and reviewed on appeal. In relation to the points of EU law raised, it is unnecessary to refer those questions to the CJEU, as some of them are acte clair and the others are not material to the outcome of the appeal. In so far as questions of law are raised which are arguable and of general public importance, they appear to the panel to be academic in the circumstances of these proceedings, given the findings of fact made by the courts below.
R (on the application of Heathrow Hub Ltd and another) (Appellants) v Secretary of State for Transport and others (Respondents)
On appeal from the Court of Appeal Civil Division (England and Wales)
The Secretary of State chose one scheme ("NWR Scheme") for expanding Heathrow Airport over another scheme ("ENR Scheme"). The promoters of the ENR Scheme, if that scheme had been chosen, would have required the promoter of the NWR Scheme's cooperation to deliver the project, since the promoter of the NWR Scheme owned Heathrow Airport. The Secretary of State mentioned the same to the promoters of the ENR Scheme before he chose the NWR Scheme. The promoters of the ENR Scheme say the same rendered the Secretary of State’s decision to choose the NWR Scheme unlawful.
The issue is:
Was the Secretary of State for Transport's decision to designate "Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England" ("the ANPS") unlawful by virtue of an unlawful breach of the Appellant's legitimate expectations?
The Court order that permission be refused on the ground that the application does not raise any arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, bearing in mind that the matter has already been the subject of judicial decision and reviewed on appeal. In relation to the points of EU law raised, it is unnecessary to refer those questions to the CJEU, as they are not material to the outcome of the appeal. In so far as questions of law are raised which are arguable and of general public importance, they appear to the panel to be academic in the circumstances of these proceedings, given the findings of fact made by the courts below.