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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