“Thinking without a bannister”: reflections on the Court of Appeal ruling on the Airports National Policy Statement Designation

Posted on: May 20, 2020 by

In these extraordinary times of the Covid-19 pandemic, the ascendant market-oriented ideologies of the last five decades have been placed on lock down. We are all being forced to think about the society we live in and which outcomes should be prioritised. How do we balance the health of citizens against the growth of the economy?

A pre-Covid example of the Government’s answer to this question was recently under scrutiny during the High Court (March 2019) and Court of Appeal (October 2019) Judicial Review hearings concerning the designation of the Airports National Policy Statement (the “ANPS”), which declares the proposed North West runway at Heathrow (the “NWR”) as the Government’s preferred route to expansion of airport capacity in the South East of England.

Grade I listed Harmondsworth Great Barn – one of the heritage assets predicted to be affected by the Heathrow Airport expansion (Image Credit: Prioryman CC BY-SA 3.0 via Wikimedia Commons)

The ANPS may well be of concern to many readers of this blog with an interest in the historic environment, who may recall our earlier mention of developments in this regard. If the NWR proceeds, according to Historic England, this will cause the loss of “twenty one designated heritage assets as a result of the land required for the new runway, including the unprecedented total loss of the Longford village conservation area and a substantial part of the Harmondsworth conservation area”. An additional 220 designated heritage assets would experience damaging effects upon their setting.[1] In short, a potential heritage catastrophe awaits.

To set the context, a brief foray into the history of land use planning is required. Following the devastation of the Second World War, Britain needed to conduct an efficient, well-planned reconstruction of infrastructure: houses, industry, transportation and so forth. To enable this, in 1947, Government nationalised land use development control, creating a powerful economic and political tool. This seismic and, previously unthinkable, removal of landowner rights was accepted as legitimate and justified at that time, in that social and political context, as being in the national interest. The conditio sine qua non of public or national benefit not only framed and justified the creation of the planning system, but continues to be used as a key justification in major infrastructure decisions.[2]

Whilst aviation has always received special treatment from Government, successive Governments have struggled (and failed) to formulate a comprehensive national airports planning policy and indeed an integrated national infrastructure strategy.  Heathrow Airport (originally “London Airport”) was approved and built in 1944 under the guise of a military airport, thus avoiding a controversial public planning process. The planning system and Heathrow have matured together, and the continued controversial expansion of Heathrow has impacted the planning system to such an extent that the lengthy Heathrow Terminal Five Inquiry (ending 1999) was used by Government to justify removing infrastructure planning and placing it within its own unique system, created by the Planning Act 2008.[3] The ANPS was designated under this new system. An infrastructure National Policy Statement, such as the ANPS, once designated by the Secretary of State, creates, in effect, outline planning permission, which can be challenged only in very limited circumstances, generally by way of Judicial Review.

The Secretary of State presented the ANPS designation as being “in the national interest”[4]: benefiting the economy, growing GDP, and providing air travel improvements for individuals, business and ‘belly freight’ goods transported in the lower deck of passenger aircraft.

The counter-arguments raised throughout the ANPS designation process were many and varied. The overwhelming economic benefits claimed by the Government were disputed, given that a purported £10bn worth of state funding was required to build surface transport[5] to service the reconfigured airport (for example relocating or burying some of the M25 and rerouting a river). Other arguments focused on projected impacts on ‘the many’ versus the potential gain for ‘the few’:

  • there was a failure to prove effective mitigation or reduction of potentially significant climate change, pollution and other environmental impacts;[6]
  • there would be impacts on an estimated 1,000,000 people;[7]
  • there would be ‘unprecedented’ destruction of national heritage;[8]
  • data shows that a mere 10% of the population take around 60% of flights[9] and, in the year preceding September 2019, 48% of the population did not fly at all;[10]
  • the NWR would be owned and profits would accrue to an overseas-owned company.[11]

Following designation, a Judicial Review of the ANPS was brought by inter alia Friends of the Earth, Greenpeace, Transport for London, several London Borough Councils, the Mayor of London and Plan B Earth.

No substantive discussion of Government policy was possible because Judicial Review challenges are limited to reviewing decision-making on grounds of illegality, procedural unfairness and irrationality.

An artist’s impression of the plans for Heathrow expansion (Image Credit: Ohole12 CC BY-SA 4.0 via Wikimedia Commons)

The High Court (1 May 2019) upheld as lawful the designation of the ANPS. An appeal was heard in October 2019 in the Court of Appeal. In a judgment handed down on 27 February 2020, the designation of the ANPS was held to be unlawful. The Secretary of State for Transport had, during the designation process, received legal advice that he was legally obliged not to take the Paris Agreement into account and as such there was a “material misdirection of law at an important stage in the process…fatal to the decision” (Lindblom LJ).[12] The Paris Agreement aims to limit global warming to well below 2ºC and to pursue efforts to limit it to 1.5ºC. To achieve this aim, it sets a target for net zero global emissions in the second half of this century. (This would be extremely difficult to achieve if the NWR went ahead without major changes in society and business).

Although the designation was declared unlawful, the ANPS was not quashed, but would now require re-designation observing due process. However, the Government has not appealed the ruling.[13] The ruling has, naturally, been welcomed by opponents of the NWR. Some commentators[14] now suggest that many infrastructure planning decisions should be reconsidered with respect to the Paris Agreement.

The legal challenge against designation was successful owing to a failure to comply with due process. This was not a victory involving any moral or value based assessment of Government policy. This case does however raise questions as to how society balances national economic benefits of infrastructure development against the impacts on those affected thereby.

Economic growth was not the primary justification for nationalising land use control and the creation of the planning system in 1947.  In infrastructure planning, the definition of outcomes which provide public benefit has changed over time. Does Heathrow, a private project which would impose negative impacts on many citizens, perhaps present us with a case which should cause us to ask –  can we find a better way to assess a truly national benefit and to mitigate and compensate those affected?

Hannah Arendt believed that questions about values and judgements should be part of our democratic life, maintaining open value systems – to “think without a bannister” in order to ensure the health of modern democracy. Thinking without a bannister – interrogating the default priority given to economic growth (as we see in Covid-19 decisions) – could serve us well in Government decision-making about infrastructure policy.

 

Pamela Campion, a member of IAL and a speaker at the IAL Study Forum at New College Oxford in July 2018 on “The Rise and Fall of State Involvement in Planning and Heritage”

[1] Historic England Response to Heathrow Airport Expansion Consultation (28 March 2018).

[2] Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England Moving Britain Ahead, presented to Parliament under section 9(8) Planning Act 2008, June 2018, Chapter 2 The need for additional airport capacity: The importance of aviation to the UK economy (June 2018, Department for Transport).

[3] Select Committee on Procedure, Minutes of Evidence: Annex 2 The Heathrow Terminal Five Inquiry.

[4] HC Deb 5 June 2018, vol 642, col 169 per Chris Grayling (The Secretary of State for Transport).

[5] According to MP Stephen Hammond (former Transport Minister) as reported in ‘Heathrow third runway: public bill up to £10bn hidden, says Tory MP’ The Guardian (26 October 2016). In the same article, it is reported that Transport for London in fact estimated the cost for new roads and rail links at a total of £18.4bn.

[6] ‘Landing the Right Airport’, The Mayor of London (March 2016).

[7] Mayor of London’s response to the Airports Commission recommendation for a three-runway Heathrow, October 2015.

[8] Historic England, above, note 1.

[9] Professor David Bannister, Emeritus Professor of Transport studies at Oxford University, ‘Who will benefit most from Heathrow Airport Expansion?’ Oxford Science Blog (26 June 2018).

[10] According to Department for Transport Survey as reported in ‘1% of English residents take one-fifth of overseas flights, survey shows’ The Guardian (25 September 2019).

[11] Ownership of Heathrow Airport Holdings Limited is largely comprised of overseas entities.

[12] R (Friends of the Earth) v. Secretary of State for Transport and others [2020] EWCA Civ 213, per Lindblom LJ at paragraph [227].  

[13] ‘Heathrow third runway ruled illegal over climate change’ The Guardian (27 February 2020).

[14] ‘Ruling against Heathrow expansion – impacts and significance’ Friends of the Earth (28 February 2020).