Commercial Awareness Update – W/C 14th December 2020

The Brexit negotiations continue, as reported in previous weeks, but without any decisive answer on the deal. With further extensions announced, we do not expect to be any closed to the outcome and much-needed certainty about the future relationship between the EU and the UK. In the meantime, there have been significant developments in the debate surrounding Heathrow’s third runway.

Revival of Heathrow’s Third Runway and the irony it brings

Reported by Catherine Allen

This weeks briefing asks you to cast your mind back pre-coronavirus (hard to imagine?) to the plans to extend Heathrow airport via a third runway.

Background

In February 2020 the Court of Appeal handed down its’ judgment that the Secretary of State for Transport’s  decision to develop the third runway at Heathrow had been unlawful owing to the fact that the Transport Minister had not adequately taken into account the government’s climate change initiatives. These were to be found in the Paris agreement (regarded as Government Policy through domestic legislation: s5(8) Planning Act 2008) and the Climate Change Act- which included a target reduction of CO2 emissions of at least 80% by 2050. When the government creates policy statements such as that in question it is, through s5(8) of the Planning Act 207, required not only to take into account Governmental Policy on climate change but also to provide an explanation as to how such environmental initiatives  have been taken into account- I.e., how proposed policies have been adapted to mitigate the effects to the environment.

The court found that, as the Secretary of State for Transport had (because of a legal misdirection of government lawyers) avoided taking the Paris Agreement into account they had not fulfilled their obligation when making the decision on the third runway and therefore had acted unlawfully.

Although the court stressed that this did not prevent a third runway at Heathrow being built completely, if such a policy was wanting to be carried any further it would require the government to go back and reconsider its’ third runway plans  giving regard to the climate change policies.

This initial finding was not only great success for climate change institutions and charities that are focused upon preventing global warming and climate change such as Friends of the Earth and Plan B who were the claimants bringing the judicial review of the Secretary of State for Transport’s decision. But, it was also a ‘win’ for Boris Johnson who had adamantly refused to endorse the plans for the expansion at Heathrow- at one point even stating that he would “lie down in front of those bulldozers and stop the construction”. Such objections stemmed from the fact that he is MP of a nearby constituency which would be detrimentally affected by noise, pollution and traffic by increased flights from Heathrow.

Supreme Court Overruling

However, on appeal to the Supreme Court the opposite decision was reached with the court concluding that in fact, the government had properly taken the Paris agreement into account meaning that the Secretary of State for Transport had acted lawfully when drawing up the policy for the third runway at Heathrow Airport.

Consequentially, this means that Heathrow Airport is now able to apply for planning permission for such a third runway.

Ironic?

The original dispute arose out of the need for the UK to expand its’ aviation capacity to maintain its’ status as a leading aviation “hub” because it was reaching its’ limit. The expansion of Heathrow Airport with a third runway was viewed as the most efficient way of meeting the growing flight demand. However, it is ironic how- at a time when the aviation industry (and connected hospitality industries) is struggling and there is not only a legal restriction upon travelling but a lack of desire on behalf of the public owing to health fears that such a momentous success has been achieved for the industry. Therefore, despite the original momentum behind the third runway initiative, it is unlikely that this will be pursued for many years. This is because Heathrow Airport is unlikely to have the financial capacity to expand at the present- instead wishing to focus on ‘maintaining services during the pandemic’- and simply because the decreased demand for flights and lack of travel, which is likely to be sustained through the next few years, simply means a third runway is not as necessary as it was before.

The position of environmental rights

One concern that does rise out of the overruling of the Court of Appeals’ decision is the diminishing of the importance of environmental targets. The importance and necessity of mitigating and working to combat climate change is obvious- the world is in a desperate state with the effects of climate change being felt by the poorest and most vulnerable despite being caused by richer countries. This is something that was recognised by the Court of Appeal who can be seen to have actively held the government to their environmental obligations. However, the retreat from such a strong stance by the Supreme Court reaffirms the general view that environmental rights and concerns carry little legal influence.

Conclusion

Since initial plans regarding the building of the third runway circumstances have drastically changed. One thing that has not changed is the lack of seriousness given to environmental concerns and this is an issue. The Supreme Court’s recent decision has widened the potential for the building of a third runway. However, owing to such a change of circumstance and Boris Johnson’s continued objection to the development it is unlikely to make any headway soon. This does not leave the decision without influence- it removes the legal barrier (simply leaving social- COVID- and political- Prime Minister objections) to such a development and shines a light on the position and [lack of] influence of, what should be important, environmental concerns and policies.