Now that the government has stated its preference for a new runway at Heathrow Airport, John Hobson QC, a barrister at Landmark Chambers, discusses the planning procedure that lies ahead.
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What are the key aspects of the decision?
The government’s announcement, adopting the recommendation of the Airports’ Commission, is intended to reinforce Heathrow Airport’s role as the major hub airport in the UK. The government hopes that the expansion of Heathrow which the proposed new runway will enable, will bring forward wide economic benefits—both locally with up to 77,000 new jobs, and nationally amounting to £61bn benefits accruing. It is also claimed that it will benefit the regions by opening new routes and improving connectivity between London and the regional airports.
Most importantly, while declaring its preference for expansion with a new runway at Heathrow, the government’s announcement explains that the expansion will only be allowed to proceed on the basis of what is described as a ‘world class package of compensation and mitigation’. The proposed package includes a commitment to noise reduction including a proposal for a six and a half hour ban on scheduled night flights, more stringent night noise restrictions, ‘new legally binding noise targets’, a timetable of respite for those living under the final flight path, and a pledge to provide over £700m for noise insulation for residential properties.
Additionally, there will be a redesign of the airport’s flight paths, which will be a part of a wider programme of airspace modernisation which is already needed in view of the crowded airspace above the UK.
The most controversial aspects of the government’s intention to proceed with the expansion of Heathrow are likely to be the implications for air quality. The government’s press statement states that further work in this respect has been carried out, as recommended by the Airport’s Commission, and a new runway at Heathrow is deliverable within air quality limits. However, this is subject to the caveat that this will depend on whether ‘necessary mitigation measures are put in place’. Moreover, the government has confirmed that meeting air quality legal requirements will be made a condition of planning approval. In so far as the measures to be adopted include offsetting emissions against reductions from other sectors, eg vehicular traffic, this may prove difficult to achieve.
What is likely to be the proposed procedure for obtaining consent if the Heathrow expansion goes ahead?
The government has stated it proposes to follow the development consent order (DCO) procedure in accordance with the Planning Act 2008.
This procedure was introduced for the approval of nationally significant infrastructure projects (NSIP), including significant airport related development; avoiding the delays such as occurred in relation to Heathrow T5. The DCO, if granted is equivalent to planning permission. It may also authorise the compulsory purchase of land that is needed for the implementation of the NSIP.
The application for a DCO will be made to the Secretary of State for Transport. However, before submitting the application, Heathrow Airport Ltd will be required to carry out initial consultation, including consultation with local authorities affected and also the local community.
As part of the process local authorities will be invited to submit a written impact report giving details of the impact of the proposed development on their area.
When the Secretary of State has accepted the application, he must arrange for its examination and decide whether the application should be examined by a single Inspector or by a panel. He should decide the latter if he considers the case to be particularly complicated. The examining authority (EA) will be responsible for determining its own procedure, but the emphasis will be to avoid delays or the sort of formalities associated with public inquiries.
A preliminary meeting will be arranged at which the EA will indicate the initial assessment of the principal issues. Local authorities and interested parties will be able to make representations as to the procedure to be followed. When hearings are held, the procedure will be inquisitorial, with the EA conducting the questioning. Cross-examination will only be allowed when the EA considers it necessary for adequate testing of any representation, or to ensure that a party has a fair chance to put their case.
As mentioned, the emphasis will be to avoid delay. In this regard the examination process will be subject to a strict timetable: requiring its completion within six months of the date of the preliminary hearing. Time for the completion of the examination can be extended, but only by the Secretary of State and not the EA. The government is reluctant to extend deadlines, and in the case of the Thames Tideway Tunnel DCO, declined to do so.
On the conclusion of the examination the EA will report with a recommendation to the Secretary of State. He will then have three months to decide the application, giving reasons for his decision.
In deciding whether or not to approve the application the Secretary of State must have regard to any NPS relating to the application, and also any local impact report submitted be a local authority. The importance of an NPS in this respect is emphasised by section 103(4) of the Planning Act 2008, which provides that the application must be determined in accordance with the NPS, except in limited specified circumstances, including where the Secretary of State is satisfied that the adverse impact of the proposed development outweighs its benefits.
If the Secretary of State decides to approve the DCO he may impose requirements, equivalent to planning conditions, restricting the development. As mentioned below, whether an effective package of mitigating restrictions can be put in place is likely to be one of the critical aspects of the consideration of the proposed DCO for the new runway.
When the decision is made, it can only be challenged by way of an application for judicial review brought within six weeks of the date of the decision.
Would the government need to publish a national policy statement (NPS)?
Yes, and the government has indicated that it intends to do so, publishing a draft NPS in the New Year.
As the name indicates an NPS sets out national policy for specified descriptions of development. In relation to DCOs they are of particular importance because, as mentioned above, section 104(3) provides that where an NPS has effect the decision must be made in accordance with the NPS unless one of the limited specified exemptions applies.
An NPS is promulgated by the relevant Secretary of State. It must set out the reasons for the policy, including how it takes account of government policy in relation to the mitigation of, and adaptation to, climate change.
An NPS produced for the expansion of Heathrow as intended will be required to undergo a sustainability assessment and a strategic environmental assessment. It will also be the subject of requirements in relation to publicity and public consultation, consulting each local authority affected and also the GLA.
Although the Secretary of State is required to lay the proposed NPS before Parliament, it is not subject to parliamentary approval. However the Secretary of State must consider and respond to any resolution of either House that is passed in respect of the NPS.
A legal challenge to an NPS can only be brought on an application for judicial review within six weeks of the publication of the NPS.
What are the implications for local planning authorities in the area?
Local planning authorities will not have a decision-making role. Under the DCO procedure it is the Secretary of State for Transport, taking into account the recommendation of the examining authority, who will decide whether consent should be granted so that the scheme can go ahead. Local planning authorities for the area affected, including the GLA, must however be consulted both in relation to the draft NPS and also the proposed DCO. They should also be consulted by the promoting authority, Heathrow Airport Ltd, as to what should be included in the statement it must prepare indicating how it proposes to consult those living in the vicinity.
Also, as I’ve mentioned above, local authorities whose area is affected should be invited to submit a local impact report, which should be taken into account in reaching a decision on the application.
What happens next?
The next step is likely to be issue of a draft NPS in the New Year followed by a consultation process leading to its adoption. If it is published and survives the legal challenges that have been threatened, it will then form the basis for the application for the DCO which is required to permit the necessary development of the construction of the new runway.
The critical aspect is likely to be the impact of increased noise and air pollution and whether the government and Heathrow Airport Ltd are able to demonstrate that they can put together, and rely upon, ‘a comprehensive package of mitigation measures’ to overcome such harmful impacts. Details of this package are intended to be included in the draft NPS consultation and are likely to prove a key battleground in the process. If it cannot be demonstrated that an effective and legally binding set of restrictions cannot be put in place, it is likely to jeopardise the whole project as the government have made it clear that it will be a condition of approval that the air quality legal requirements will be met. It remains to be seen if this can be achieved.
John Hobson QC’s principal areas of practice are in the fields of planning, environmental, compulsory purchase and highway law, together with a broad range of local government and public law cases. He appears in the High Court, Court of Appeal and Supreme Court, as well as public inquiries throughout the country, representing a wide variety of clients including developers, local and other public authorities.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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