This morning saw the Supreme Court judgment on R (Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52 overturning a Court of Appeal ruling that declared the Government’s designation of its Airports National Policy Statement (NPS) unlawful. The 2019 judgment was largely because the Minister was judged not to have taken account of the Paris Agreement on Climate Change, and had been widely welcomed by climate change campaigners, environmental lobby groups and local authorities adjacent to the Airport. The Supreme Court has reversed the decision. Are there implications for public consultation?

1. The Court of Appeal decision had appeared to many to leave large infrastructure projects vulnerable to challenge if a consultation was considered not to have fairly represented the case against actions and policies which might compromise our net-zero carbon targets Today’s judgment does not, in my view entirely remove the threat. The Supreme Court decision may be narrower than it looks – being centred in the main around the extent to which the NPS did, in reality, take these matters into consideration. Consultation on such a Policy Statement is very different from a consultation about a forthcoming road or rail project. Our clients in these areas will still need to be alert in preparing such consultations.
2. This case shows yet again that the law of consultation is far from stable or certain. Although this neither establishes nor undermines any great issue of consultation principle, It illustrates the demanding standards to which consultations can be held when communities challenge whether they are fair. Even as we leave the EU, the Planning Directives which underpin the Sustainable Environmental Appraisal (SEA) regulations require project promoters and developers to be ultra-conscientious in disclosing the likely impacts. There have been cases as to whether an ‘environmental’ report is sufficiently comprehensive – and whether it can be supplemented during a consultation – something which all consultors need to bear in mind in respect of the Gunning Two principle
3. Controversial policies and proposals will continue to attract opposition, especially as regards the ‘climate emergency’ and as Councils and central Governments strive for a ‘new normal’. If Court action continues to become a lottery … and if the law continues to be uncertain in its outcome, it is inevitable that attention will focus equally on other means of winning the argument. This is where consultation plays a major part, and why the Institute believes that it will gain in importance in the coming years. The Court went out of its way to explain that there is a very long road ahead for the Third Runway, if it happens. The Planning Act 2008 will oblige the promoters to obtain a Development Consent Order (DCO) – and, contrary to the fears of local residents, this will mean convincing the Planning Inspector that it can address and mitigate carbon emissions targets, not when the NPS was approved, but at a time when the DCO will be determined. That could be a significant difference.
4. There are lessons to be learnt from previous consultations. The interminable saga of runway capacity on the South-East is punctuated by regular public consultations – some better than others. Civil Servants and Project developers are not always the best at heeding the lessons of previous exercises, and there has been much re-invention of wheels. The Institute plans to remedy this deficiency and has started to work on a definitive data warehouse of significant public consultations in this, and allied sectors. It will contain much data and insight into each one, and although, primarily a resource for the Consultation Institute – it will be available to academic researchers, sector specialists and interested parties in the coming months. Contact Sheena Ahmed (tel 01767 318350) if interested.

As with all legal cases, the Institute prepares briefings for its clients, members and supporters. For details of our unique online Law of Consultation course, please see the Institute’s website

Rhion H Jones LL.B

Founder Director

15 December 2020