Heathrow expansion: Ruling that third runway is ‘unlawful’ to be appealed at Supreme Court

Airport chief told MPs earlier this week that expansion might not be back on the agenda for a decade

(EPA)

The legal battle over the government’s decision to give a third runway at Heathrow Airport the green light is set to be heard by the UK’s highest court.

The Supreme Court announced on Thursday that it has granted permission to Heathrow Airport for an appeal over its expansion proposals.

The announcement comes a day after Heathrow’s chief executive told MPs expansion would not be on the agenda for another 10 to 15 years now many flights have been grounded amid the Covid-19 pandemic.

A panel of justices will be asked to determine whether the decision to give the go-ahead for Heathrow expansion was “unlawful” as a result of the government’s failure to take account of the UK’s climate change commitments.

No date has yet been set for the hearing.

In February, the Court of Appeal concluded that when setting out support for the project in a National Policy Statement (NPS), Chris Grayling, then-Secretary of State for Transport, failed to take account of the government’s commitments to tackling climate change.

The effect of that ruling was that Grant Shapps, the current transport secretary, will have to review the NPS to ensure it accords with the government’s commitments on climate change.

Campaigners hailed the ruling as a victory, and said it had “killed off” plans for a third runway for good and that the project is now “politically unacceptable”.

At the time, Heathrow Airport insisted it will press on with expansion and will work with the government on the climate change issue, with a spokesperson saying it is “eminently fixable”.

It had previously stated it hoped to open the runway between early 2028 and late 2029.

However, giving evidence to the Transport Select Committee on Wednesday, Heathrow chief executive John Holland-Kaye said: “In terms of the third runway, my focus is thoroughly on protecting jobs, protecting our business and serving the country at the moment.

“I am not thinking about the third runway. However, in 10 or 15 years’ time, if we are successful in rebooting the UK economy and getting us back to full strength, then I think we will need the third runway at that point.”

Giving the Court of Appeal’s ruling, Lords Justice Lindblom, Singh and Haddon-Cave said the NPS was unlawful because then-transport secretary Chris Grayling failed to take account of the government’s commitment to the Paris Agreement – which commits signatories to tackling climate change by taking measures to limit global warming to well below 2C.

Read more

Lord Justice Lindblom said, that having seen the decision in advance, the government did not oppose a declaration that the NPS was unlawful and did not seek permission to appeal to the Supreme Court.

However, Heathrow Airport and Arora Holdings – a group of companies which own land earmarked for the development that plans to create and operate an airport terminal there – have been given the go-ahead to challenge the Court of Appeal’s ruling at the UK’s highest court.

Friends of the Earth and other environmental charities said they will oppose Heathrow and Arora’s appeal.

Will Rundle, head of legal at Friends of the Earth, said: “Climate change must be front and centre in all planning and infrastructure decisions, and it is irresponsible for them to try and avoid the Court of Appeal’s verdict against them on climate change by this appeal.”

Boris Johnson opposed the expansion of the west London airport when he was London’s mayor and promised to “lie down... in front of those bulldozers” to stop the runway being built.

In February, the prime minister said there was “no immediate prospect” of construction beginning.

Press Association