Bid to quash Heathrow expansion decision opens in court

The decision to permit the expansion of Heathrow Airport was irrational and unlawful, the High Court has heard.

A hearing, brought by 10 parties against the secretary of state for transport Chris Grayling, will judge if parliament will have to reconsider the airports national policy statement (NPS). The controversial document, which allows for the construction of a third runway to the north of the existing two, was approved last year.

Should the claimants’ arguments fail, construction is expected to begin in 2021, entering service in 2026. Should they succeed, then the options of extending a runway (known as Heathrow Hub) or opening a second runway at Gatwick would have to be reopened, despite the NPS clearing the Commons with a majority of 296.

In opening remarks yesterday, Nigel Pleming QC explained that he is acting on behalf of five local councils – Hillingdon, Wandsworth, Hammersmith and Fulham, Richmond upon Thames and Windsor and Maidenhead – and Greenpeace,  allied with a separate challenge by the mayor of London. They maintain that Grayling ignored crucial information when adopting the NPS.

The group considers that the indicative flight paths in the NPS were inadequate and did not properly demonstrate which communities would be affected by noise. Firmer flight paths were published for consultation only in January.

“The new development, if it goes ahead, will add, in effect, a new airport with the capacity of Gatwick to the north of Heathrow. The adverse consequences for affected residents in London and the South East are bound to be severe,” Pleming told the court.

Before the hearing, Gareth Roberts, leader of the London Borough of Richmond-upon-Thames, said: “The flight paths were drawn in such a way that the numbers of people affected were minimised. This meant the health and environmental costs of the north west runway were understated.”

The coalition is additionally challenging the secretary of state’s decision on habitats, surface access and air quality grounds, asking the court if it was rational for Grayling to select the third runway “knowing there would be a high risk that the air quality directive would be breached,” Pleming told the court.

There has been no commitment to increase rail access and expansion is expected to put 40,000 more vehicles on the roads around it each day, with “dire consequences” for air pollution, according to London’s deputy mayor for environment and energy Shirley Rodrigues.

The case being pursued by Friends of the Earth, to begin tomorrow, focuses on climate change. It considers that the NPS is incompatible with future carbon budgets, with advice from the Committee on Climate Change and the objective to keep warming below 2°C under the Paris Agreement. The document also fails to consider non-CO2 impacts on climate change, such as the emission of nitrogen oxides, it will argue.

Climate change campaign group Plan B Earth will make a similar claim on climate. Grayling at first said he had considered the Paris Agreement, then later argued that he considered it to be irrelevant, “or possibly an inconvenience” says the group. Doing so was irrational, it will argue.

In addition, the NPS may be incompatible with the Human Rights Act 1998. Climate change presents a threat to life and family life, as protected by the act, so the government is obliged to take “reasonable and proportionate measures to safeguard against that threat” says Plan B’s skeleton argument.

Lawyer and noise campaigner Neal Spurrier, acting for himself, will be heard on Thursday. His case also touches on human rights grounds, arguing that the extra noise and pollution from the third runway would be in breach of the European Convention on Human Rights. The scheme would also “place an unjustifiable burden upon the public purse” he says.

Lastly, the court will hear Heathrow Hub’s challenge to the NPS. The firm sought to extend the Heathrow’s existing northern runway, a plan deemed viable by the Airports Commission. Its case centres on competition grounds and that Grayling had made incorrect assumptions about its viability and benefits.

The government’s defence will begin on Thursday, with the case expected to end a week on Friday.

The Department of Transport has said that it anticipates legal challenges to major infrastructure projects but will robustly defend the decision to allow the Heathrow expansion. DfT officials say that the High Court case will not impact on the ongoing planning process or the timetable for delivery of a third runway.

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