“A key problem with the current system of planning for major infrastructure is that national policy and, in particular, the national need for infrastructure, is not in all cases clearly set out. This can cause significant delays at the public inquiry stage, because national policy has to be clarified and the need for the infrastructure has to be established through the inquiry process and for each individual application. For instance, the absence of a clear policy framework for airports development was identified by the inquiry secretary in his report on the planning inquiry as one of the key factors in the very long process for securing planning approval for Heathrow Terminal 5. Considerable time had to be taken at the inquiry debating whether there was a need for additional capacity. The Government has since responded by publishing the Air Transport White Paper to provide a framework for airport development. This identifies airport development which the Government considers to be in the national interest, for reference at future planning inquiries. But for many other infrastructure sectors, national policy is still not explicitly set out, or is still in the process of being developed.”
“(5) The policy set out in [an NPS] may in particular— (a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; (b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development; (c) set out the relative weight to be given to specified criteria; (d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development; (e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development; (f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact of a specified description of development. (6) If [an NPS] sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development. (7) [An NPS] must give reasons for the policy set out in the statement. (8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”
“(1) In deciding an application for an order granting development consent, the Secretary of State may disregard representations if the Secretary of State considers that the representations— (a) … (b) relate to the merits of policy set out in [an NPS]…”. (2) In this section ‘representation’ includes evidence.”
“A court may entertain proceedings for questioning [an NPS] or anything done, or omitted to be done, by the Secretary of State in the course of preparing such a statement only if— (a) the proceedings are brought by a claim for judicial review, and (b) the claim form is filed before the end of the period of 6 weeks beginning with the day after— (i) the day on which the statement is designated as [an NPS] for the purposes of this Act, or (ii) (if later) the day on which the statement is published.”
“Expansion can be delivered within existing air quality requirements, and this will be a condition of planning approval”
“National policy” and “Government policy”
“Reasons for the policy”
“... carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal.”
“First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”
“38. Such wide-ranging consultation, in respect of the exercise of a local authority’s exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decisionmaking process. 39. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know ‘what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response’ (R v North and East Devon Health Authority ex parte Coughlan[1999] EWCA Civ 1871 ;[2001] QB 213 at [112] per Lord Woolf MR).”
“Developments of 10 units or 1000 sq m or less (including annexes and extensions) would be excluded from affordable housing levies and tariff based contributions.”
“The court judges on an objective basis whether the process has been so unfair as to be unlawful in all the circumstances; R (JL Baird) v Environment Agency[2011] EWHC 939 (Admin) , Sullivan LJ. A consultation process is not unlawful because it could be improved on, let alone with the benefit of hindsight. The person undertaking the consultation process has a wide discretion as to its scope, when in the decision-making process it is carried out, so long as it is still at the formative stage, and how it should be carried out – the more so where the process is nationwide and includes issues of a general policy nature; R (Greenpeace) v Secretary of State for Trade and Industry[2007] EWHC 311 (Admin) ; [2007] Env LR 29 at [62].”
“The consultation responses were given conscientious consideration. The DNS and related decision documents did not have to go through the responses as if a decision letter following a Public Inquiry. The real question is whether the response to the problems is rational.”
“It would be wrong to suppose that conscientious consideration of consultation responses on what the proposal should be, required a fully reasoned decision letter as if one following a Public Inquiry into the substantive decision.”
“[B]oth reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context”
“91. Thus, at one end of the spectrum, a ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political judgment’ (de Smith, para 13-056-7). Examples are R v Secretary of State, Ex p Nottinghamshire County Council[1986] AC 240 , and R v Secretary of State ex parte Hammersmith and Fulham London Borough Council[1991] 1 AC 521 , where the decisions related to a matter of national economic policy, and the court would not intervene outside of ‘the extremes of bad faith, improper motive or manifest absurdity’ (per Lord Bridge of Harwich at pages 596597). At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with ‘absurdity’ or ‘perversity’, and a ‘lower’ threshold of unreasonableness is used: ‘Review is stricter and the courts ask the question posed by the majority in Brind [R v Secretary of State for the Home Department ex parte Brind[1991] 1 AC 696 ] namely, ‘whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable.’’ (de Smith para 13-060, citing [Brind] at page 751 per Lord Ackner).” 92. A further factor relevant to the intensity of review is whether the issue before the tribunal is one properly within the province of the court. As has often been said, judges are not ‘equipped by training or experience, or furnished with the requisite knowledge or advice’ to decide issues depending on administrative or political judgment: see [Brind] at page 767 per Lord Lowry. On the other hand where the question is the fairness of a procedure adopted by a decision-maker, the court has been more willing to intervene. Such questions are to be answered not by reference to Wednesbury unreasonableness, but ‘in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge’. (R v Panel on Take-overs and Mergers ex parte Guinness plc[1990] 1 QB 1 46 at page 184 per Lloyd LJ).”
“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policyladen, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.”
“ ‘Policy’ as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside. So much the respondents readily concede. At the other extreme the selection of the exact line to be followed through a particular locality by a motorway designed to carry traffic between the destinations that it is intended to serve would not be described as involving government policy in the ordinary sense of that term. It affects particular local interests only and normally does not affect the interests of any wider section of the public, unless a suggested variation of the line would involve exorbitant expenditure of money raised by taxation. It is an appropriate subject for full investigation at a local inquiry and is one on which the inspector by whom the investigation is to be conducted can form a judgment on which to base a recommendation which deserves to carry weight with the minister in reaching a final decision as to the line the motorway should follow. Between the black and white of these two extremes, however, there is what my noble and learned friend, Lord Lane, in the course of the hearing described as a ‘grey area’. Because of the time that must elapse between the preparation of any scheme and the completion of the stretch of motorway that it authorises, the department, in deciding in what order new stretches of the national network ought to be constructed, has adopted a uniform practice throughout the country of making a major factor in its decision the likelihood that there will be a traffic need for that particular stretch of motorway in 15 years from the date when the scheme was prepared. This is known as the ‘design year’ of the scheme. Priorities as between one stretch of motorway and another have got to be determined somehow. Semasiologists may argue whether the adoption by the department of a uniform practice for doing this is most appropriately described as government policy or as something else. But the propriety of adopting it is clearly a matter fit to be debated in a wider forum and with the assistance of a wider range of relevant material than any investigation at an individual local inquiry is likely to provide; and in that sense at least, which is the relevant sense for present purposes, its adoption forms part of government policy.”
“A flaw in the consultation process should not be fatal if it can be put right at a later stage. There must be something not just ‘clearly and radically wrong’, but also such as to require the intervention of the court at this stage. Similarly, failure to take account of material considerations is unlikely to justify intervention by the court if it can be remedied at a later stage. It would be different if the failure related to what I described in argument as 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.”
“The contexts of these cases and the evidence before the bodies whose decisions were challenged are different from the position in the present case. In [Downs] there were differences between different experts, and in the Abolition of Vivisection case… the view of the decision-maker was supported by other experts. As well as those factors, the scope of judicial review is acutely sensitive to the regulatory context and, in particular, decisions involving what Professor Lon Fuller called ‘polycentric’ questions pose particular challenges to a judicial review court. Notwithstanding the differences and recognising the importance of sensitivity to context and flexibility, I consider that these cases provide general assistance in considering the approach to the decisions of the agency.”
“In the present case the decisions were based on three principal factors. First, the agency’s assessment on the basis of the shortfall in egg deposition that the salmon fishery in the Wye is at risk of becoming unsustainable, which was not challenged. Secondly, the views of the researchers and the agency, reflecting a broad scientific consensus, that salmon return to their rivers of origin to spawn. Thirdly, the genetic data gathered from the 55 fish taken from the estuary and the ONCOR, GeneClass2 and cBayes models used in the Exeter report to estimate their rivers of origin. The decisions were thus made against an unchallenged assessment as to the risk to the Wye and a background assumption on which there is scientific consensus that salmon return to their river of origin to spawn. The decisions were then the result of an amalgam of assessments which are in part factual and in part predictive in nature. They also involved consideration of other factors, such as how to balance the interests of those primarily affected with the wider public interest, and how factors such as the ‘heritage installation’ aspect should be factored into the decision and are in this sense ‘polycentric’. I respectfully agree with the statement of Lightman J in [Cellcom] at [26] that ‘if . . . the court should be very slow to impugn decisions of fact made by an expert and experienced decision-maker, it must surely be even slower to impugn his educated prophecies and predictions for the future’”
“The Government… wishes to see the number of journeys made to airports by sustainable modes of transport maximised as much as possible. This should be delivered in a way that minimises congestion and environmental impacts, for example on air quality.”
“5.21 The applicant’s proposals will give rise to impacts on the existing and surrounding transport infrastructure. The Secretary of State will consider whether the applicant has taken all reasonable steps to mitigate these impacts during both the development and construction phase and the operational phase. Where the proposed mitigation measures are insufficient to effectively offset or reduce the impact on the transport network, arising from expansion, of additional passengers, freight operators and airport workers, the Secretary of State will impose requirements on the applicant to accept requirements and/or obligations to fund infrastructure or implement other measures to mitigate the adverse impacts, including air quality. 5.22 Provided the applicant is willing to commit to transport planning obligations to satisfactorily mitigate transport impacts identified in the transport assessment (including environment and social impacts), with costs being considered in accordance with the [DfT]’s policy on the funding of surface access schemes, development consent should not be withheld on surface access grounds.”
“12. In zones and agglomerations where the levels of sulphur dioxide, [NO 2], PM 10, PM2.5, lead, benzene and carbon monoxide in ambient air are below the respective limit values specified in Annexes XI and XIV, Member States shall maintain the levels of those pollutants below the limit values and shall endeavour to preserve the best ambient air quality, compatible with sustainable development.”
“Member States are required to ensure that, throughout zones and agglomerations, levels of sulphur dioxide, PM 10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex IX. In respect of [NO 2] and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein…”
“Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans [‘AQPs’] are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV. In the event of exceedances of those limit values for which the attainment deadline is already expired, the [AQPs] shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The [AQPs] may additionally include specific measures aiming at the protection of sensitive population groups, including children. Those [AQPs] shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed. Where [AQPs] must be prepared or implemented in respect of several pollutants, Member States shall, where appropriate, prepare and implement integrated [AQPs] covering all pollutants concerned.”
“32. In the light of the authorities, the following points seem clear. It is article 23 of the Air Quality Directive that specifies the steps a Member State must take to achieve compliance with limit values. A Member State’s failure to comply with the requirements in article 13 attracts the consequences explicitly provided for in article 23…. Article 23 does not require any steps beyond the preparation and implementation of an efficacious [AQP]. The effect of articles 13 and 23, read together, is that a Member State must meet the relevant limit values by the deadlines imposed…; that where article 13 is breached and no application has been made by the Member State to postpone the relevant deadline, article 23(1) requires it to establish an [AQP] complying with the specified requirements…; that a Member State enjoys some discretion in deciding on the content of an [AQP]…; that the measures included in the [AQP] must be proportionate [i.e. no more than necessary to remedy the continuing breach]…; that those measures must, however, ensure that the period for which the limit values is exceeded is as short as possible…; and that compliance with article 23 must be decided case by case…. The preparation of an [AQP] is the single prescribed means of addressing the breach. But it does not follow that a breach of article 13 is automatically removed when an [AQP] is adopted. 33. Dove J’s description of article 23 as providing the ‘specific and bespoke remedy’ for a breach of article 13 therefore seems apt. This does not mean that Member States may not also adopt other measures to address a breach of article 13, in addition to preparing and putting into effect an [AQP] complying with article 23. But nor does it mean that Member States are compelled by any provision of the Air Quality Directive to do that. A demonstrable breach of article 13 does not generate some unspecified obligation beyond the preparation and implementation of an [AQP] that complies with article 23. The case law does not suggest, for example, that in such circumstances a Member State must ensure that land use planning powers and duties are exercised in a particular way – such as by imposing a moratorium on grants of planning permission for particular forms of development, or for development of a particular scale, whose effect might be to perpetuate or increase exceedances of limit values, or by ensuring that decisions on such proposals are taken only at ministerial level.”
“As such, it is considered that where modelled concentrations are less than 20% of the limit value, it is unlikely that the limit value will be exceeded (low risk) – because this would mean that 90% of modelled concentrations would be likely to be within the limit value – but that a high risk of exceedance exists when the modelled concentrations lie within 10% of the limit value – in this case, 25% of modelled concentrations would be likely to exceed the limit value.”
“On this road, the impact of the airport is small and the risk of noncompliance is determined to a large degree by the magnitude of the PCM model projection rather than the magnitude of the airport impact. On the critical link, the impact of the airport is small and related entirely to highway trips to the airport. The impact of airside emissions on the link, and on the compliance risks for the option overall, is negligible. … In the vicinity of the airport, impacts on Bath Road (A4…) and the A312… are assessed but the links are not the critical link in that, for this option, they do not trigger noncompliance of the zone or experience a worsening of exceedance of the limit value in any scenario.”
“With the implementation of actions as set out in the [AQP 2017], the option does not impact on modelled compliance with limit values in any particular opening year (2026 onwards). Given the inherent uncertainties in air quality modelling, there remains, however, a risk that the option could delay compliance with limit values.”
“The risk of an impact on compliance with limit values increases the earlier the assumed opening year for the option. The risk of impact on compliance is high up to 2029 since the option potentially impacts on compliance in Central London and exists whether or not the [AQP 2017] actions are fully implemented. From 2030 onwards, the risk falls to medium. The level of risk is primarily dependent on the timing of the introduction of, and effectiveness of, actions in the [AQP 2017] to reduce emissions from vehicles on the wider road network, together with effective Real-[World] Driving Emissions… legislation. It is largely independent of assumptions relating to the impact of the option itself or the direct mitigation of optionrelated emissions. Impacts near the airport do not, in general, affect zone compliance. Additional measures aimed at targeting high [NO 2] concentrations at the local level and across London could potentially mitigate this risk further.”
“7.4.87 WSP’s updated reanalysis of the AC’s impact assessment in relation to compliance with the EU Directive limit values, taking into consideration the [AQP 2017], indicates that [NWR Scheme] does not impact on modelled compliance with limit values in the re-analysis core scenario (i.e. taking account of updated vehicle emissions factors, and with the measures set out in the [AQP] implemented). 7.4.88 The conclusion is, however, subject to uncertainty. The risk of an impact on compliance with limit values increases the earlier the assumed opening year. For early opening (assessed for 2026 in the re-analysis), the risk is high and the option is likely to impact on compliance with limit values due to impacts in central London. The risk falls to medium in 2030. 7.4.89 Impacts near the airport do not, in general, affect zone compliance. That is to say, whilst the scheme impacts on compliance with EU limit values alongside some roads in the vicinity of the airport in some sensitivity tests in the updated reanalysis, total pollutant concentrations in central London with the scheme are generally higher. 7.4.90 As such, the level of risk is primarily dependent on the timing of the introduction of, and effectiveness of, measures in the [AQP 2017]. It is largely independent of assumptions relating to the impact of the option itself, the rate of growth in demand or the direct mitigation of option-related emissions.”
“There is a high probability that the emissions arising from operational activities will have adverse effects on air quality.”
“The Government also acknowledges the local and national environmental impacts of airports and aviation, for example noise and emissions, and believes that capacity expansion should take place in a way that satisfactorily mitigates these impacts wherever possible. Expansion must be deliverable within national targets on greenhouse gas emissions and in accordance with legal obligations on air quality.”
“… The [DfT] has conducted further analysis to assess the impact that this updated evidence base would have on estimated compliance with EU limit values of expansion options at Heathrow Airport and Gatwick Airport [i.e. the WSP October 2017 AQ Re-analysis]. This analysis has been updated to take account of the revised aviation demand forecasts and the Government’s final [AQP]. The result of this analysis helped inform the Government’s view that, with a suitable package of policy and mitigation measures, including the Government’s modified [AQP], the [NWR Scheme] would be capable of being delivered without impacting the UK’s compliance with air quality limit values.”
“The applicant should undertake an assessment of the project, to be included as part of the environmental statement, demonstrating to the Secretary of State that the construction and operation of the Northwest Runway will not affect the UK’s ability to comply with legal obligations. Failure to demonstrate this will result in refusal of development consent.”
“The Secretary of State will consider air quality impacts over the wider area likely to be affected, as well as in the vicinity of the scheme. In order to grant development consent, the Secretary of State will need to be satisfied that, with mitigation, the scheme would be compliant with legal obligations that provide for the protection of human health and the environment.”
“The contribution of airport emissions to ground-level pollutant concentrations falls off rapidly with increasing distance from the airport boundary and is very small beyond a distance of a few kilometres. The ‘Principal Study Area’ for each Scheme has been selected to focus on sensitive properties and habitats likely to be substantially affected by the Scheme and encompasses a 2km radius around each Scheme boundary. In addition, a ‘Wider Study Area’ has been defined for the assessment of potential exceedances of the EU Limit Values (defined on Defra future projections) and for the potential impacts on sensitive ecosystems. This Wider Study Area includes all roads for which a substantial change in traffic characteristics has been forecast in the 2030 With Scheme scenario and has been based on criteria in the Highways Agency guidance Design Manual for Roads and Bridges Guidance (HA207/07 Air Quality) and the [AC’s] traffic change criteria set out within the Appraisal Framework.”
“1. The aim of this Directive shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. 2. Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. 3. Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.”
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
“Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”
“The strategic level [HRA], conducted in accordance with theConservation of Habitats and Species Regulations 2010 , concluded that the potential for the preferred scheme to have adverse effects on the integrity of European sites for the purposes of Article 6(3) of the Habitats Directive could not be ruled out. This is because more detailed project design information and detailed proposals for mitigation are not presently available and inherent uncertainties exist at this stage. The [ANPS] has thus been considered in accordance with Article 6(4) of the Habitats Directive. Consideration has been given to alternative solutions to the preferred scheme, and the conclusion has been reached that there are no alternatives that would deliver the objectives of the [ANPS] in relation to increasing airport capacity in the South East and maintaining the UK’s hub status. In line with Article 6(4) of the Directive, the Government considers that meeting the overall needs case for increased capacity and maintaining the UK’s hub status, as set out in chapter two, amount to imperative reasons of overriding public interest supporting its rationale for the designation of the [ANPS]. At detailed design stage, and in so far as it may be necessary, the matters set out in the Airports NPS will be relevant to determining whether there are alternative solutions and imperative reasons of overriding public interest, provided that the design remains consistent with the objectives of the [ANPS].”
“3.18 Heathrow Airport is best placed to address this need by providing the biggest boost to the UK’s international connectivity. Heathrow Airport is one of the world’s major hub airports, serving around 180 destinations worldwide with at least a weekly service, including a diverse network of onward flights across the UK and Europe. Building on this base, expansion at Heathrow Airport will mean it will continue to attract a growing number of transfer passengers, providing the added demand to make more routes viable. In particular, this is expected to lead to more long-haul flights and connections to fast-growing economies, helping to secure the UK’s status as a global aviation hub, and enabling it to play a crucial role in the global economy. 3.19 By contrast, expansion at Gatwick Airport would not enhance, and would consequently threaten, the UK’s global aviation hub status. Gatwick Airport would largely remain a point to point airport, attracting very few transfer passengers. Heathrow Airport would continue to be constrained, outcompeted by competitor hubs which lure away transfer passengers, further weakening the range and frequency of viable routes. At the UK level, there would be significantly fewer long haul flights in comparison to the preferred scheme, with long haul destinations served less frequently. Expansion at Heathrow Airport is the better option to ensure the number of services on existing routes increases and allows airlines to offer more frequent new routes to vital emerging markets.”
“This is also an important objective and one which has been included a number of times in the draft [ANPS] and other government announcements.”
“The Government has already stated that only expansion at Heathrow Airport will maintain the UK’s hub status. We do not therefore consider that expansion at Gatwick is an alternative solution to the Government’s preferred scheme because it cannot meet this objective; as already stated in the draft [ANPS], expansion at Gatwick Airport would not enhance, but consequently threaten the UK’s global aviation hub status.”
“The argument that Gatwick does not meet the ‘hub status’ objective is also likely to be strongly challenged especially given the updated passenger demand forecasts and the strengthened economic case for expansion at the UK’s second biggest airport.”
“1. If we were to maintain the current approach in the draft HRA, Government's position would remain that the Gatwick [2R Scheme] is not an alternative solution to the [NWR Scheme] under the Habitats Directive from an ecological perspective, but it would be assumed to be an alternative solution in respect of meeting the overall objectives of the plan.” “4. As part of its response to the consultation, [GAL] has undertaken its own assessment of its scheme, which concludes that based on its own consultants’ modelling there would be no significant increase in NOx concentration at the site, even at the closest point to the M25 (junctions 8 and 9). GAL also state that the [NWR Scheme] would create increased traffic on this same section of the motorway, therefore if the Gatwick Second Runway is considered to adversely impact the SAC so too would the [NWR Scheme]. The draft HRA screening process did not consider the SAC to be within the zone of influence of the [NWR Scheme].” “5. Whilst it is likely that air quality projections for both these schemes will improve following implementation of the Government’s updated [AQP], given the Gatwick [2R Scheme] only affects two sites and only on air quality grounds, it is possible that GAL would be able to demonstrate no likely impacts on these sites. If that were the case, Government would have no option under the Habitats Regulations but to choose the Gatwick [2R Scheme] as it would be assumed to meet the plan’s objectives.” 6. Our own consultants (WSP) have conducted a review of GAL’s critique of our draft HRA and determined that the conclusions made in the draft HRA are valid and in accordance with the data available at the time of the assessment.”
“78. A further issue arising from Mr Jones’s submissions concerns the standard of review by a national court supervising the compliance by a relevant competent authority with the legal requirements in article 6(3) of the Habitats Directive. Although the legal test under each limb of article 6(3) is a demanding one, requiring a strict precautionary approach to be followed, it also clearly requires evaluative judgments to be made, having regard to many varied factors and considerations. As Advocate General Kokott explained in paragraph 107 of her Opinion in Waddenzee [i.e. Landelijke Vereniging to Behoud van de Waddenzee v Staatsecretaris van Landbouw, Natuurbeheer en Visserij (2005)Case C-127/02 ;[2005] 2 CMLR 31 ] the conclusion to be reached under an ‘appropriate assessment’ under the second limb of article 6(3) cannot realistically require the attainment of absolute certainty that there will be no adverse effects; the assessment required ‘is, of necessity, subjective in nature’. The same is equally true of the assessment at the screening stage under the first limb of article 6(3). Under the scheme of the Habitats Directive, the assessment under each limb is primarily one for the relevant competent authority to carry out. 79. Mr Jones submitted that Patterson J erred in treating the assessment by the Inspector of compliance of the proposed development with the requirements of article 6(3) as being a matter for judicial review according to the Wednesbury rationality standard. He said that in applying EU law under the Habitats Directive the national court is required to apply a more intensive standard of review which means, in effect, that they should make their own assessment afresh, as a primary decisionmaker. 80. I do not accept these submissions. In the similar context of review of screening assessments for the purposes of the Environmental Impact Assessment (EIA) Directive and Regulations [see paragraph 378 below], this Court has held that the relevant standard of review is the Wednesbury standard, which is substantially the same as the relevant standard of review of ‘manifest error of assessment’ applied by the CJEU in equivalent contexts: see R (Evans) v Secretary of State for Communities and Local Government[2013] EWCA Civ 114 ; [2013] JPL 1027 at [32]-[43], in which particular reference is made toCase C-508/03 , Commission of the European Communities v United Kingdom[2006] QB 764 , at [88]-[92] of the judgment, as well as to the Waddenzee case. Although the requirements of article 6(3) are different from those in the EIA Directive, the multi-factorial and technical nature of the assessment called for is very similar. There is no material difference in the planning context in which both instruments fall to be applied. There is no sound reason to think that there should be any difference as regards the relevant standard of review to be applied by a national court in reviewing the lawfulness of what the relevant competent authority has done in both contexts. Like this Court in the Evans case (see para. [43]), I consider that the position is clear and I can see no proper basis for making a reference to the CJEU on this issue.”
“Paragraph 9.2.11, 9.2.12, 9.2.13: These sections identify the potential for air quality impacts from road traffic on Mole Gap to Reigate Escarpment SAC, with the presence of a priority natural habitat making an IROPI case challenging. This section concludes ‘based on the information available at this stage it has not been possible to identify any alternative solutions to the preferred scheme’. Whilst we recognise this position for the strategic level assessment, we would advise that if the detailed project level HRA for Heathrow NWR also produces findings that are negative or uncertain, then a more detailed assessment of alternatives (including Gatwick) is needed. This would need to consider in more detail the ecological impacts of emissions on the Mole Gap to Reigate Escarpment SAC in view its qualifying features and conservation objectives. For example if the priority features of interest do not fall within the distance criteria for air quality impacts (200m for roads), then such an impact may be able to be ruled out, which may affect the view taken on alternative solutions.”
“Article 174 of the Treaty provides that Community policy on the environment is to contribute to, inter alia, the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources and that it is to be based on the precautionary principle. Article 6 of the Treaty provides that environmental protection requirements are to be integrated into the definition of Community policies and activities, in particular with a view to promoting sustainable development.”
“Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.” 381. Recital (9) states: “This Directive is of a procedural nature, and its requirements should either be integrated into existing procedures in Member States or incorporated in specifically established procedures. With a view to avoiding duplication of the assessment, Member States should take account, where appropriate, of the fact that assessments will be carried out at different levels of a hierarchy of plans and programmes.”
“The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.”
“The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.”
“‘environmental report’ shall mean the part of the plan or programme documentation containing the information required in Article 5 and Annex I”
“Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.”
“(2) The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. (3) Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision-making or through other Community legislation may be used for providing the information referred to in Annex I”
“(2) The report shall identify, describe and evaluate the likely significant effects on the environment of – (a) implementing the plan or programme; and (b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme. (3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of – (a) current knowledge and methods of assessment; (b) the contents and level of detail in the plan or programme; (c) the stage of the plan or programme in the decision-making process; and (d) the extent to which certain measures are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment”
“The proper test for the court to apply when appraising whether an environmental report complies with the mandatory requirements of the SEA Directive. In particular, whether the court should in considering the SEA issues apply the Blewett approach, as applied to SEA in Shadwell[2013] EWHC 12 (Admin) , or whether it should apply some different approach.”
“Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Schedule 4 to the [EIA] Regulations [i.e. then, theTown and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293)] that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common sense way. The requirement that ‘an EIA application’ (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council ex parte Brown[2000] 1 AC 397 at page 404, the purpose is ‘to ensure that planning decisions which may affect the environment are made on the basis of full information’. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…, but they are likely to be few and far between.”
“Member States shall ensure that environmental reports are of a sufficient quality to meet the requirements of this Directive and shall communicate to the Commission any measures they take concerning the quality of these reports.”
“Where an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme; Member States should communicate to the Commission any measures they take concerning the quality of environmental reports.”
“A detailed consideration of the potential for cumulative effects arising would need to be undertaken as part of an EIA.”
“The [AoS] identifies that, in addition to changes due to local noise and air quality impacts, communities may be affected by airport expansion through loss of, and/or additional demand for housing, community facilities or services, including recreational facilities. In addition, there will be effects on parks, open spaces and the historic environment, which will affect the quality of life of local communities which benefit from access to these facilities and features. These effects will be of a higher magnitude for the two Heathrow expansion schemes and a lower magnitude for Gatwick [2R Scheme]. Overall, each of the three schemes is expected to have negative impacts on local communities, with more severe impacts expected from the Heathrow schemes. Impacts of all three schemes will not be felt equally across social groups. Equality impacts are set out in chapter four.”
“Development consent should not be granted unless the Secretary of State is satisfied that the proposals will meet the following aims for the effective management and control of noise, within the context of Government policy on sustainable development: • Avoid significant adverse impacts on health and quality of life from noise; • Mitigate and minimise adverse impacts on health and quality of life from noise; and • Where possible, contribute to improvements to health and quality of life.”
“The [AC’s] assessment was based on ‘indicative’ flight path designs, which the Government considers to be a reasonable approach at this stage in the process. Precise flight path designs can only be defined at a later stage after detailed airspace design work has taken place. This work will need to consider the various options available to ensure a safe and efficient airspace which also mitigates the level of noise disturbance. Once the design work has been completed, the airspace proposal will be subject to extensive consultation as part of the separate airspace decision making process established by the Civil Aviation Authority [‘CAA’].”
“The AoS noise assessment is based on one set of indicative flight paths. This is consistent with the approach adopted by the [AC] to compare the three expansion schemes in its final report. The purpose of this assessment is to draw out key strategic considerations relevant to noise. In light of this, the Government considers that the AoS is satisfactory, given that airspace design is currently highly uncertain, and the AoS follows the same approach as that used by the Commission to compare the three expansion schemes in its final report.”
“6.48. Airspace design falls outside the scope of the [ANPS]. As stated in the [ANPS], precise flight path designs can only be defined at a later stage after detailed airspace design work has taken place. Once completed, the airspace proposal will be subject to consultation with local communities and relevant stakeholders in line with the requirements of the airspace change process which is owned by the [CAA]. This is a very thorough and detailed process that covers all aspects of the proposal including safety and environmental impacts. 7.15. Proposals to change the UK's airspace design are governed by the separate [CAA] airspace change process, which was made more rigorous from2 January 2018 . The design of new flight paths is highly technical and can take several years. It is a requirement of the CAA’s airspace change process that there must be adequate consultation. Airspace change sponsors would need to take account of the Government’s new policy on appraising options for airspace design, such as considering the use of multiple routes. It is therefore through this regulatory process that communities will see and have the opportunity to comment on detailed proposals for new flight paths which may affect them.”
“[I]n the absence of actual flight paths, a representative spatial area should have been used – an area within which it is likely that landings and take offs causing noise pollution will occur.
“The Claimants’ case is that there should be use of “the geographical area over which flight paths may be located” – see, for example, Stanbury paragraphs 11 and 12.”
“The only relevant question can be whether at the time of advising the making of the Order in Council the ministers genuinely addressed themselves to the statutory criteria and were of the opinion that the criteria were satisfied. If they did hold that opinion at that time, the fact that all or some of them may have formed and declared the same opinion previously does not make the Order invalid. No doubt, if ministers had approached the matter with minds already made up, the inference would readily be drawn that they could not genuinely have considered the statutory criteria when advising the making of the Order in Council. But the newspaper reports fall short of showing closed minds.”
“What is fair in a given situation must depend on the circumstances. The application of the rules against bias must be tempered with realism. It would be unrealistic to expect Ministers to have completely open minds as to the criteria set out in section 3(3) of the National Development Act or as to the desirability in the public interest of a proposed work. An assumption that the Governor-General in Council may be predisposed to apply the provisions of the National Development Act to a project is not enough. It is not expected that Ministers will approach their consideration of the application under section 3(3) with perfect detachment. Before the decision can be set aside on the grounds of disqualifying bias it must be established on the balance of probabilities that in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria under the section, they simply went through the motions.”
“It would be surprising if they did not have views. But that was not a disqualification so long as they approached the application with an open mind bona fide prepared to consider any contrary views on their merits. Therefore, the fact that in their investigation and consideration of various matters prior to that time the Ministers, or any one of them, may have formed views in favour of the project did not render invalid the decision reached on the advice which they tendered at the meeting of the Executive Council.”
“It [i.e. the designation of Stevenage as a new town] was going to be done… [T]he project will go forward, because it must go forward. It will do so more surely and more successfully with your help and co-operation. Stevenage will in a short time become world famous. People from all over the world will come to Stevenage to see how we here in this country are building for the new way of life.”
“In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. … … [A] decision as to the public interest (what I shall call for short a ‘policy decision’) is quite different from a determination of right. The administrator may have a duty, in accordance with the rule of law, to behave fairly (‘quasi-judicially’) in the decisionmaking procedure. But the decision itself is not a judicial or quasi-judicial act. It does not involve deciding between the rights or interests of particular persons. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.”
“It is for the court to assess whether committee members did make the decision with closed minds or that the circumstances did give rise to such a real risk of closed minds that the decision ought not in the public interest to be upheld.”
“The fundamental rule of natural justice that no one should be a judge in his own cause has been the subject of considerable elaboration over the years. It is axiomatic that no person making a decision which is subject to judicial review should in fact be biased; in most cases it is axiomatic that there should also be no appearance of bias in the sense that a decision will be liable to be quashed if a fair-minded observer, knowing all the relevant facts, would think that there was a real possibility that the decision-maker would be biased. This latter proposition has, however, been qualified in cases in which allegations of what I may call institutional or structural bias are made. Then it is not open to a litigant to say that a person or body entrusted by Parliament to make a decision cannot be allowed to do so because there is a real possibility of bias, provided that there are sufficient safeguards in place to ensure that the decision is lawful: see [Alconbury].”
“What is objectionable, however, is ‘pre-determination’ in the sense I have already stated, namely, that a relevant decisionmaker made up his or her mind finally at too early a stage. That is not to say that some arguments cannot be regarded by any individual member of the planning authority as closed before (perhaps well before) the day of decision, provided that such arguments have been properly considered. But it is important that the minds of members be open to any new argument at all times up to the moment of decision.”
“The particular kind of apparent bias, the real risk of which was alleged (and found by the judge) to exist in the present case, is that of ‘pre-determination’ namely, that one or more members of the decision-making committee had made up their minds and come to a determination before the right moment for decision had come.”
“Planning decisions entrusted to a local authority are very different from ministerial decisions taken by government and I do not consider that authorities relating to apparent predetermination in that latter context can automatically apply to the former context since the risk of bias is institutionally present and permitted to be so by the relevant legislation. The CREEDNZ Inc case is very similar to [Alconbury] and cannot carry Mr Drabble home in the present case.”
“The scheme [a new runway at Heathrow] will now be taken forward in the form of a draft “National Policy Statement” (NPS) for consultation”
“… [O]n October 25th I announced the government’s support for a new northwest runway at Heathrow. There were 3 good proposals on the table. But the new runway at Heathrow was the right decision – for Britain and the aviation industry. With room for an extra 260,000 aircraft movements a year, the new runway will deliver more flights, more destinations and more growth. The benefits to passengers and the wider economy will be worth up to£61 billion . It will bring more business and tourism to Britain, and offer more long-haul flights to new markets. By expanding Heathrow, we will show that we are open for business, confident about who we are as a country, and ready to trade with the rest of the world. And the project will include a world-leading package of compensation and mitigation for local communities. Worth up to£2.6 billion , it will address air quality, noise disturbance and provide generous compensation for any loss of homes. And we’re going to get cracking building the new runway as soon as possible. That’s why we’re delivering it using [an NPS]. Once the statement has been designated by a vote in the House of Commons, we will grant a development consent order and the airport operator can submit a detailed planning application, confident that the high-level arguments are settled and won’t be re-opened by the planning inspector.”
“I was proud to be the Transport Secretary who announced that we intend to go ahead and build a third runway at Heathrow Airport. Subject to the necessary consultation work and securing the backing of Parliament, we are aiming to give it the formal go-ahead in the first half of next year.”
“We are currently considering responses to the draft [ANPS]. Plans remain on track for a vote in Parliament in the first half of this year. However, I also want to stress that now is not the time to undermine the scheme in any way. Until the Parliamentary process is complete and the vote in Parliament has been delivered, we need the whole aviation industry to support the new runway. With such manifest benefits for airlines, other UK airports, and the wider economy, we need to keep focused on the prize to come and work together as an industry to deliver the right expansion programme at the right price.”
“Despite countless consultations, inquiries, commissions, reports and white papers… the key question of how we secure our long-term hub capacity in the south-east…and maintain London’s position as one of the best-connected cities in the world…remains unanswered. But today as the government makes its final considerations ahead of a likely vote in Parliament this summer on the new runway at Heathrow, we are closer than ever before to providing that answer… and delivering the long-term capacity… that passengers need… that airlines need… that London needs… and that the whole country needs. I cannot of course pre-empt the Government’s final decision. That will come after carefully considering all the consultation responses and the Transport Committee’s recommendations. … But that doesn’t mean we can’t continue to build support for the project at this late stage. No matter how familiar we are with its benefits… It is absolutely vital that we keep articulating the case for the proposed runway… Getting our messages across to those who may be unaware of the huge economic implications of this decision. Above all, this is a decision that should be taken in the national interest, a massive infrastructure scheme that would create tens of thousands of local jobs and apprenticeships and very many more in the wider economy, that would increase choice and value, with cheaper fares and fewer delays for passengers and that would boost domestic connections, plugging every region of Britain into the global economy. But Parliamentary support is far from a done deal. I cannot stress that enough. So over the coming days and weeks, we must continue to hammer home our message why new hub capacity is so important to Britain. With Heathrow already losing ground to competitors like Paris, Amsterdam and Dubai and with demand for air travel growing even faster than we thought a few years ago, we need to make clear the implications if Heathrow cannot grow for tourism, for inward investment and for businesses and jobs. So, I urge everyone here… in the run up to any parliamentary vote this summer, when these issues will be debated at length in the media… to give vocal support to the scheme.”
“It is the duty of the Secretary of State [then, the Secretary of State for Energy and Climate Change: now, the Secretary of State for BEIS] to ensure that the net carbon account for the year 2050 is at least 80% lower than the 1990 baseline”
“This 2050 target was derived as a contribution to a global emissions path aimed at keeping global average temperatures to around 2ºC above pre-industrial levels.”
“Reducing emissions in other sectors by 85% in 2050 on 1990 levels is at the limit of what is feasible, with limited confidence about the scope for going beyond this. It is of course possible that there may be scope to reduce emissions more in other sectors, which would allow aviation demand to grow by more than 60% in 2050. However, this may well be the limit, here and in other developed countries, compatible with achieving the internationally agreed climate objective.”
“1. In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognising that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty. 2. Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. 3. Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”
“The 2050 target is potentially consistent with a wide range of global temperature outcomes.” 582. The report acknowledged that: “The [Paris] Agreement describes a higher level of global ambition than the one that formed the basis of the UK’s existing emissions reduction targets: • The UK’s current long-term target is a reduction in greenhouse gas emissions of at least 80% by the year 2050, relative to 1990 levels. This 2050 target was derived as a contribution to a global emissions path aimed at keeping global temperatures to around 2°C above pre-industrial levels. • The Paris Agreement aims to limit warming to well below 2°C and to pursue efforts to limit it to 1.5°C. To achieve this aim, the Agreement additionally sets a target for net zero global emissions in the second half of the century.”
“Current policy in the UK is not enough to deliver the existing carbon budgets that Parliament has set. The Committee’s assessment in our 2016 Progress Report was that current policies would at best deliver around half of the emissions reductions required by 2030, with no current policies to address the other half. This carbon policy gap must be closed to meet the existing carbon budgets, and to prepare for the 2050 target and net zero emissions in the longer term. The existing carbon budgets are designed to prepare for the UK’s 2050 target in the lowest cost way as a contribution to a global path aimed at keeping global average temperature to around 2°C. Global paths to keep close to 1.5°C at the upper end of the ambition in the Paris Agreement, imply UK reductions of at least 90% below 1990 levels by 2050 and potentially more ambitious efforts over the timescale of existing carbon budgets. However, we recommend the Government does not alter the level of existing carbon budgets or the 2050 target now. They are already stretching and relatively ambitious compared to pledges from other countries. Meeting them cost-effectively will require deployment to begin at scale by 2030 for some key measures that enable net zero emissions (e.g. carbon capture and storage, electric vehicles, low-carbon heat). In theory these measures could allow deeper reductions by 2050 (of the order of 90% below 1990 levels) if action were ramped up quickly. The priority now should be robust near-term action to close the gap to existing targets and open up options to reach net zero emissions… There will be several opportunities to revisit the UK’s targets in future as low-carbon technologies and options for greenhouse gas removals are developed, and as more is learnt about ambition in other countries and potential global paths to well below 2°C and 1.5°C: • 2018: the Intergovernmental Panel on Climate Change (‘IPCC’) will publish a Special Report on 1.5°C, and there will be an international dialogue to take stock of national actions. • 2020: the Committee will provide its advice on the UK’s sixth carbon budget, including a review of progress to date, and nations will publish mid-century greenhouse gas development plans. • 2023: the first formal global stocktake of submitted pledges will take place. We will advise on whether to set a new long-term target, or to tighten UK carbon budgets, as and when these events or any others give rise to significant developments.”
“The actions and investments that will be needed to meet the Paris commitments will ensure the shift to clean growth will be at the forefront of policy and economic decisions made by governments and businesses in the coming decades.”
“The Government agrees with the [AC’s] assessment that a new runway [as part of the NWR Scheme] is deliverable within the UK’s climate change obligations.”
“3.61 Although not a differentiating factor between the three short-listed schemes, the Government has considered the issue of carbon emissions, given the Government’s commitment to tackle climate change, and its legal obligations under the [CCA] 2008. 3.62 The [AC] identified carbon impacts from expansion in four areas: a net increase in air travel; airside ground movements and airport operations; changes in travel patterns as a result of the scheme’s surface access arrangements; and construction of new infrastructure. Emissions from air travel, specifically international flights, are by far the largest of these impacts. 3.63 To address uncertainties over the future policy treatment of international aviation emissions, the [AC] used two carbon policy scenarios in its analysis. 3.64 The first was a ‘carbon capped’ scenario, in which emissions from the UK aviation sector are limited to the [CCC’s] planning assumption for the sector of 37.5 [MtCO 2] in 2050. The second was a ‘carbon traded’ scenario, in which emissions are traded as part of a global carbon market, allowing reductions to be made where they are most efficient across the global economy. 3.65 The [AC] then assessed whether the needs case could be met under each of these scenarios, that is whether expansion would still deliver the necessary improvements and provide benefits to passengers and the wider economy. The Government has updated this analysis to take account of the latest passenger demand forecasts. 3.66 This further analysis reinforces the conclusion that any one of the three short-listed schemes could be delivered within the UK’s climate change obligations, as well as showing that a mix of policy measures and technologies could be employed to meet the [CCC’s] planning assumption. 3.67 Of the three short-listed schemes, the [NWR Scheme] produces the highest carbon emissions in absolute terms. However, this is in part due to the greater additional connectivity provided by the scheme, and, in relation to the increase in emissions caused by expansion under any of the schemes, the differences between the schemes are small. Both of the carbon policy scenarios incorporated measures to ensure that the increased emissions from any of the short-listed schemes were not additional overall either at the global level (in the carbon traded case) or at the UK level (in the carbon capped case). 3.68 The further analysis also shows that, in both carbon policy scenarios, the [NWR Scheme] would deliver significant benefits to passengers and the wider economy (such as lower fares, improved frequency and higher productivity), and would do so more quickly than the [Gatwick 2R Scheme]. Both Heathrow schemes provide more passenger benefits by 2050 than the [Gatwick 2R Scheme]. 3.69 The Government has considered this further analysis, and concludes both that expansion via a Northwest Runway at Heathrow Airport (as its preferred scheme) can be delivered within the UK’s carbon obligations, and that the scheme is the right choice on economic and strategic grounds regardless of the future regime to deal with emissions from international aviation.”
“Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.”
“In its projections, the [CCC] has made a relatively generous provision for aviation emissions compared to other sectors: • Our analysis has illustrated how an 80% economy-wide reduction in emissions could be achieved with aviation emissions at 2005 levels in 2050. Relative to 1990 levels this is a doubling of emissions, and an increase in its share of total emissions from 2% to around 25%. We estimate that this would allow for around 60% growth in aviation demand, dependent on the delivery of technological and operational improvements and some use of sustainable biofuels. • Aviation emissions at 2005 levels in 2050 means other sectors must reduce emissions by more than 80%, and in many cases will likely need to reach zero. • Higher levels of aviation emissions in 2050 must not be planned for, since this would place an unreasonably large burden on other sectors.”
“10(1) This section applies to the Secretary of State’s functions under sections 5 and 6. (2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development. (3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of— (a). mitigating, and adapting to, climate change;…” 634. Section 5(7) and (8) provide: “5(7) [An NPS] must give reasons for the policy set out in the statement. (8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”
“… At a very high level, the objective of sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs.”
“… [T]he judge speaks of a ‘decision-maker who fails to take account of all and only those considerations material to his task’. It is important to bear in mind, however,… that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decisionmaker may decide just what considerations should play a part in his reasoning process.”
“For the purposes of subsection (2) the Secretary of State must (in particular) have regard to…”
“The Act sets up a framework for the UK to achieve its longterm goals of reducing greenhouse gas emissions and to ensure steps are taken towards adapting to the impact of climate change.”