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27 October 2016

725: Heathrow timetable and observations

Today’s entry reports on the government’s declaration of support for a third runway at Heathrow.

In a much-delayed but then much-heralded announcement, the Secretary of State for Transport Chris Grayling MP declared the government’s support for a third runway at Heathrow on Tuesday.

The announcement was accompanied by a press release (or in fact was first revealed by the press release), and was backed up with a number of technical reports. These cover issues such as air quality, and I would be grateful if someone could explain that one to me in particular.

The paragraph in the government press release concerning the Planning Act 2008 process contains a number of inaccuracies, and so I have produced a tracked change version below.

 

Timetable

The government says it will publish a draft National Policy Statement (NPS) in the new year, which I would expect to be earlier rather than later in 2017.

The NPS will set out the need for new airport capacity. It could be general but in this case will be specific, in specifying a site that is suitable or potentially suitable for an increase in capacity (i.e. Heathrow for a new runway). It may be silent on other airports, encouraging or discouraging (I would have thought Gatwick could argue that it should be included as potentially suitable since it made the shortlist).

Yesterday’s decision will almost certainly be challenged by means of judicial review and the government may wait before all that is sorted out before publishing the NPS, but doesn’t have to.

The NPS has quite a long statutory process of public and Parliamentary scrutiny that will take about a year, culminating in a vote in the House of Commons. The Conservatives insisted on adding that step when in opposition, which they duly enacted in 2011 – they may be regretting it now.

The public scrutiny involves consultation on the draft NPS and associated documents, and as it will specify a particular location for development, appropriate consultation in that vicinity, probably a series of consultation events. The Parliamentary scrutiny involves an ad hoc select committee or the select committee for the relevant department (and so far it has always been the latter, i.e. the Transport Select Committee in this case) interviewing witnesses and receiving written submissions, which it then crafts into a report. That report has carried the most weight of any submission in previous NPS consultations.

That will take us to mid 2018 for the Commons vote, by which time there will have been a lot of political water under the bridge (not tunnel), whereupon if it succeeds, the NPS will be ‘designated’, to use the word in the Planning Act 2008. That triggers another six-week judicial review challenge period, with the interesting prospect that the previous challenges may not have been disposed of by that point.

Probably next, although they do not need to wait until those challenges have been disposed of, or for the NPS to be designated or even published in draft for that matter, Heathrow Airport Ltd (HAL) will start the process of preparing an application under the Planning Act 2008. This will take the same form as all previous applications except at a bigger scale and with more scrutiny. Part of this involves public consultation on the proposed application, including more local consultation events. The post-challenge to NPS designation to HAL application stage could take about a year, taking us to late 2019/early 2020.

Once the application is made, the process takes about 17 months until the Secretary of State (not the ‘Planning Inspector’) decides it. The Planning Act prevents any legal challenges between application and decision, although there could be challenges on side issues before the application is made such as granting access to land for surveying purposes (which happened to the Hinkley Point C project). This may be the first application to have an extended examination given its scale, but arguably the Planning Act was designed for just this project (oh, and a few nuclear power stations), so it may still take the same time as all the other ones.

Once the application has been decided – we’re in mid 2021 by now – there is yet another legal challenge period. The Development Consent Order (DCO) will contain a number of pre-commencement conditions (called ‘requirements’ under the Planning Act, and not caught by the Neighbourhood Planning Bill provision to require the developer’s consent before they can be imposed). HAL can start discharging these straight away, and technically doesn’t have to wait for phase three of legal challenges to complete before starting construction, although I suspect it will.

How long does each legal challenge take? It depends on how far up the court hierarchy it gets – High Court, then Court of Appeal, then Supreme Court. The Hinkley Point C nuclear power station was granted consent in March 2013, and determined Irish conservation group An Taisce (‘an tashca’) took its case as far as the Supreme Court permission stage (losing at every stage), finally exhausting its ability to appeal in December 2014, more than 18 months later. The government may wish to expedite such challenges, though.

Taking all that into account, the first spade may not be put into the ground until 2022, although that assumes no overlapping of activities takes place. That is about two years more pessimistic than the official prediction so make of it what you will.

Observations

A lot will hinge on the precise wording of the National Policy Statement, both the initial draft and the final version against which any application(s) will be measured. Other projects have come a cropper, at least temporarily, because they didn’t satisfy the particular wording used. The wording on need and suitable sites will also determine how open the door is for any other runway applications.

A DCO cannot be consented if it is not in accordance with an NPS, although it can be refused even if it accords with the NPS, if its adverse impacts outweigh its benefits or if it offends an international obligation, e.g. a Directive (or following the Great Repeal Bill that will actually be a Great Enactment Bill) any UK enactment.

The time taken will depend to a large extent on the time legal challenges take at the three possible stages, minus any time the government or HAL decide to press ahead before they are resolved.

All this assumes a single DCO, but it is possible that parts of the project may be split up as separate DCOs so that they can proceed independently of each other, such as works to the M25 or the relocation of a power station. That somewhat flies in the face of the concept of a one-stop-shop for a project, but that concept is more concerned with different types of consent rather than different parts of the project.

So, a vital milestone is passed this week, but there are a lot more to tick off before construction can start.

27 October 2016

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