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Posted on: 4 March 2020
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In this latest environmental law news update Gordon Wignall, Christopher Badger and Mark Davies consider the decision on Heathrow’s third runway, a reversal of the Government’s position on onshore wind and solar and a new authority on legal professional privilege.
Heathrow third runway grounded; permanently?
Apart from anything HS2-related, it is difficult to think of an infrastructure project getting the press coverage that the Court of Appeal’s decision regarding the third runway at Heathrow got in R (oao Plan B Earth) v Secretary of State for Transport and R (oao Friends of the Earth Ltd) v Secretary of State for Transport  EWCA Civ 214 (there were, as no doubt readers will be aware, many other parties involved in the case, too numerous to set out here, but all playing an important role). The question is, is it worth the hype?
The arguments of primary interest concerned the determination of the legality of the production of the ‘Airports National Policy Statement’ (or ‘ANPS’), which, designated by the then Secretary of State in June 2018, is a national policy statement prepared under s.5(1) of the Planning Act 2008, in part concerning the possible addition of a third runway to Heathrow Airport.
The Court of Appeal (Lindblom LJ, Singh LJ and Haddon-Cave LJ) were at pains in the judgment to repeatedly point out that the decision of the court does not touch on the policy decision as to whether to expand the UK’s aviation capacity by the introduction of a third runway at Heathrow. That decision, the judges stressed, is the responsibility of Government and Government alone.
The decision of the Court of Appeal to overrule the Divisional Court’s ruling concerned s.5(8) of the Planning Act 2008, which requires that the reasons for a policy set out in a National Policy Statement, like the ANPS, include an explanation of how the policy takes account of Government policy relating to the mitigation of, and adaptation to, climate change. The ANPS, the Court of Appeal concluded, was unlawful by reason of a failure to take into account the UK Government’s commitments in the Paris Agreement, those being stated Government policy in relation to the mitigation of, and adaption to, climate change.
All of which must lead to this being the main takeaway from the case; whilst the ruling of the Court of Appeal might have put the third runway at Heathrow on ice for now, it has not been permanently shelved and it will doubtless be revisited by the Government when it reassesses the ANPS in due course. So, despite the furore, the Court of Appeal’s ruling might not be as ground-breaking as has been reported.
However, that is not in any way to say that nothing of interest will come from the Court of Appeal’s ruling. Whilst the Government has announced that it will not be appealing the ruling, this author would be astounded if the case was not heard again by the Supreme Court. In addition there will doubtless there be further challenges brought to other major projects on similar grounds (indeed in the news yesterday a challenge to HS2 fronted by naturalist Chris Packham was announced) and, probably, further challenges to numerous other adopted National Policy Statements that, it might be argued, fall foul of the same failure to account.
Should the Heathrow case proceed to the Supreme Court it will be interesting to see whether a distinction is drawn between the Paris Agreement as an international instrument providing overriding direction for UK policy and the government of the day’s stated policies in relation to the mitigation of, and adaption to, climate change. Could it be that a government could simply acknowledge the Paris Agreement as guiding its policies, yet still commend the third runway at Heathrow? Indeed, what would happen if a government were to be elected that positively disavowed the commitments made by the UK under the Paris Agreement? Could that government then simply assert that the runway could go ahead without the need to consider any commitments made by the UK in the Agreement?
Whatever the answers, this is not the end of the story.
Government reverses position on onshore wind and solar
The Government is under pressure to come up with policies that will enable the UK to hit its net zero target by 2050. The latest development is that the Government has reversed its 4-year ban on subsidies for onshore wind projects. The Department of Business, Energy and Industrial Strategy has announced a new consultation on its proposed changes to the Contracts for Difference (CfD) scheme.
Put simply, the Government doesn’t appear to believe that there will be the rate of scale of new projects needed in the near term to support decarbonisation of the power sector and meet the net zero commitment at a reasonable cost. There is some force in this. Last year, in the absence of these contracts, just one new onshore wind farm was completed in the UK. The rollout of new onshore wind projects has fallen to its lowest levels since 2011.
A new CfD auction will allow cheap renewable sources like onshore wind and solar to compete for contracts which enable new projects to be financed – the first such auction since 2015. In order to meet our net zero emissions target, the Committee on Climate Change advised Government that the UK needs to quadruple the amount of power that it generates from renewables. The price of onshore wind is expected to compete with that of offshore wind and become the cheapest new energy source in the UK, to deliver lower energy bills to customers.
There will also be proposals to include floating offshore wind, proposed to be classified as a separate technology to offshore wind so that it can compete in future auctions for ‘less established technologies’.
It is reported that onshore wind has overwhelming public support, albeit not necessarily in the areas where the projects are to be built. Recognising this, the consultation also seeks views on best practice in engagement between developers and local communities.
The consultation can be found here. The deadline for responses is 22 May 2020.
New authority on legal professional privilege
Recent authorities such as R v Paul Jukes  2 Cr.App.R. 9 and Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd  1 WLR 791 have created a little uncertainty in the litigation privilege landscape, particularly in the context of regulatory investigations. The latest relevant authority is Sports Direct International v. FRC (CA, 18 February 2020), a case about the powers of regulators to acquire documents from a third party which is not the subject of regulatory notice. It has specific application in the context of the Civil Procedure Rules.
To start with the minor of two points considered by the Court: just because a document has been attached to an email which is privileged, that does not make the document privileged. Legal professional privilege (LPP) does not protect the document or the fact that it was sent to a legal adviser under cover of a privileged communication. The CPR requires the disclosure of all free-standing documents.
Then, as to the second (major) point, the Court of Appeal began by reiterating the common law rule that any regulatory powers intended to override legal professional privilege which have been conferred by Parliament must be very clearly drafted to have that effect. In the absence of express wording, then it is possible for LPP not to apply by reason of a necessary implication of that effect.
The Court then went on to clarify that there is no special rule carving out an exception to the ordinary application of the LPP rule. Mr Justice Arnold had been wrong to decide that this exception applies where the holder of the privilege is someone other than the person who is at risk of an adverse finding as a result of the use of the information which the regulator would have obtained (if it were not for the LPP rule).
The first instance judge had applied an exemption said to have been identified by Lord Hoffmann (obiter) in R (Morgan Grenfell) v. Special Commissioner of Income Tax  1 AC 563, one which had been much criticised in academic writings. This supposed carve-out had come to be known as the “no infringement” rule (i.e. no material infringement of the privilege due to the holder of the right).
It had been argued that the “no infringement” rule applied: (i) on an application by a regulator, (ii) where the regulator was under a duty of confidentiality in the use of the information and (iii) (as set out above) where the holder of the privilege is someone other than the person who is at risk of an adverse finding as a result of the use of the information.
The very detailed reasoning can be derived from the case. Any regulator seeking to finding a lacuna to the general common law rule upholding LPP will have to look elsewhere. The Hoffmann gap has been plugged.
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