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12 Gough Square
London
EC4A3DW
Direct
Main
fax
Rt Hon Grant Shapps MP
The Secretary of State for Transport
Great Minster House
33 Horseferry Rd
Westminster
London
SW1P 4DR
18 December 2020
Dear Secretary of State
Suspension and review of Airports National Policy Statement
1. We write on behalf of our clients (1) Dale Vince OBE who is the founder of Ecotricity, a renewable
energy company; and (2) the Good Law Project Limited which is a not-for-profit organisation that
brings strategic litigation on matters of public interest. Our clients have recently concluded their
claim for judicial review (CO/1832/2020) against the Secretary of State for Business, Energy and
Industrial Strategy following his concession in a recent White Paper to review the Energy National
Policy Statements.
Request
2. Our clients request by way of this letter that the Secretary of State for Transport:
(i) Considers whether it is appropriate to review the Airports National Policy Statement on
new runway capacity and infrastructure at airports in the South East of England (ANPS)
pursuant to section 6 of the Planning Act 2008 (PA 2008); and
(ii) Considers whether it is appropriate to suspend all or part of the ANPS pursuant to section
11 of the PA 2008.
3. Our clients’ position is that the Secretary of State is legally obliged to consider whether it is
appropriate to suspend and review the ANPS. In this regard, our clients say that the conditions for
review and suspension under sections 6(3) and 11(2) and (3) of the PA 2008 are met in that there
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18 December 2020
have been significant changes of circumstances on the basis of which the ANPS was designated
which were not anticipated at the time and which would, if they had been anticipated, have
resulted in a materially different policy.
4. To this end, we explain below:
a. The significant changes in the science and domestic policy on Climate Change since
designation of the ANPS in June 2018 and not envisaged at the time (paragraphs 6-10)
b. The impact of Covid-19, particularly on the likelihood of a need for additional capacity for
airports (paragraphs 11-12)
c. The structural need for review before any application is made for a Development Consent
Order for an additional runway at Heathrow (paragraphs 13-15)
d. The Secretary of State’s legal obligations in the circumstances (paragraphs 16-17)
e. And finally, why our clients say this is the right time to suspend and review the Airport
NPS (paragraphs 18-19)
5. Should the Secretary of State’s position ultimately be that he will not suspend and review the ANPS,
our clients intend to bring judicial review proceedings.
Significant changes in the science and domestic policy on Climate Change
6. In the Supreme Court this week (R (Friends of the Earth and ors) v Heathrow Ltd [2020] UKSC 52)
(the “Heathrow judgment”) it was made clear that the designation of the ANPS on 26 June 2018
was not unlawful by reason of a failure to treat the Paris Agreement as government policy. The
Court was, however, careful to tie its conclusion to the position as it stood at the date of designation
in June 2018 (see, for instance, paragraph 111 of the Heathrow judgment). It was recognised by the
Supreme Court that the scientific understanding and government policy on climate change has been
developing since the date of designation: see paragraphs 111, 112, 122.
7. The Heathrow judgment emphasises the distinction between the Paris Agreement (an
unincorporated international agreement) and section 1 of the Climate Change Act 2008 (CCA 2008),
a commitment in domestic legislation. The amendment by which the figure of 80% was replaced by
100% in section 1 of the CCA 2008 (by the Climate Change Act 2008 (2050 Target Amendment)
Order 2019/1056) was, by section 2 of the CCA 2008, premised on “significant developments in
scientific understanding” and indeed it consciously reflected developments in scientific
understanding of climate change. Those developments were recognised in the IPCC Special Report