United Kingdom
Air pollution, Climate Change, Environmental Impact Assessments, Evidence, Remedies, Standing, Permits, Damages
The claimants challenged decisions by the secretary of state to confirm policy support for a third runway at Heathrow. The statements had first been contained in a white paper on airport strategy in which the government said that its support was conditional on certain measures concerning climate change, noise and surface access. Following a consultation process, the secretary of state informed parliament of his support and that the conditions could be met. The claimants argued, among other things, that the aviation policy needed to be revised in the light of a report by the climate change committee. The secretary of state said that under the Planning Act 2008, he would issue a national policy statement (NPS) on airports and this would take all developments into account. When issued, an NPS would have legal effect. An issue arose on the judicial review application about the status of the defendant’s policy statements. They had no substantive effect and the defendant could not limit the factors to be taken into account in formulating the national airport strategy. Despite this Carnwath LJ held that such statements were in principle subject to judicial review. However, their preliminary nature and their ‘high-level’ strategic character meant that the grounds for review were limited. Any failure in the consultation process could be put right at a later stage as could a failure to take account of relevant considerations. The claimants would have not only to show an error of law but that it required the court’s intervention at this stage. It would, though, be different if the policy was affected by ‘a “show-stopper”: that is, a policy or factual consideration which makes the proposal so obviously unacceptable that the only rational course would be to abort it altogether without further ado’ (para 69). Applying this approach, the argument sbased on climate change and economic justification did not merit judicial review. There were technical arguments but these could be dealt with in the course of the coming policy review. However, the same was not true of the defendant’s decision on surface access. The defendant had determined that this condition would be satisfied, but it was not possible to say what he had actually decided about it or how he had dealt with objections. The application succeeded to that extent, but given that the defendant’s decision had no substantive effect it was not appropriate to grant a quashing order. In the event, the case appears to have been dealt with by the secretary of state giving an undertaking that he would not seek to import the policy statements into the NPS.