Planning & Environment

The (English) Court of Appeal decision in the Heathrow case was national news, especially since it involved the Paris Agreement on climate change.

Although the decision focuses on English legislation, it does have implications for planning decision-making in Scotland.

“takes account of”

Although the case involved detailed legal arguments, the decision turned on whether the Paris Agreement fell within the requirement of section 5(8) of the Planning Act 2008:

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 [my emphasis]

Government policy

The Court commented that:

  • “Government policy” are words of the ordinary English language.
  • They do not have any specific technical meaning.
  • They should be applied in their ordinary sense to the facts of a given situation.
  • The concept of policy is necessarily broader than legislation.

It held that the Government’s commitment to the Paris Agreement was clearly part of “Government policy” by the time of the designation of the Airports National Policy Statement, following ratification of the agreement in November 2016, and firm statements reiterating Government policy of adherence to the Paris Agreement by relevant Ministers.

The Court’s decision

As the Court recognised:

it is necessarily implicit in that obligation [section 5(8)] that the Secretary of State must indeed first have taken that government policy into account

Unfortunately the Secretary of State had received legal advice that, not only did he not have to take the Paris Agreement into account, but that he was legally obliged not to take it into account at all. The Court said:

In our view, that was a clear misdirection of law and there was, therefore, a material misdirection of law at an important stage in the process That misdirection then fed through the rest of the decision-making process and was fatal to the decision to designate the ANPS itself.

The Court therefore declared the designation decision unlawful, preventing the ANPS from having any legal effect, unless and until the Secretary of State decides to conduct a review.

The incorrect legal advice meant that the approach to preparation of the ANPS was flawed. The Court did not therefore have to decide whether the ANPS was inconsistent with the Paris Agreement, so the decision is not directly about climate change.

Relevance to Scotland

The statutory provisions in Scotland are different. The new statutory duties require NPF4 to contain a statement about how the Scottish Ministers’ consider that development will contribute to various outcomes, including climate change. That is a more strenuous requirement than “takes account of”.

Where there are references in Scottish legislation, and in development plan policies, to “takes account of” – and probably also “have regard to” – the Court of Session is likely to take a similar approach to the Court of Appeal:

those words do not require the Secretary of State to act in accordance with any particular policy; but they do require him to take that policy into account

 

Neil Collar