799: Final Airports National Policy Statement published

Yesterday the government published the final Airports National Policy Statement.

This is the statement of need for a new runway at Heathrow and the impacts that an applicant for such a runway (ie Heathrow Airport Ltd) should address in its application, and the decision-maker (ie the Secretary of State for Transport) should address in reaching a decision.

Because the national press and the general public (and indeed members of the Transport Select Committee) are not intimately familiar with the Planning Act 2008 regime, reports of whether the runway now has the go-ahead have been confusing. The stage we are at is that policy support for the new runway has nearly been established, and will be established should the Commons vote to approve the NPS, which will happen sometime in the next five weeks (ie by 11 July). The NPS does not give ‘outline planning permission’ for expansion, by the way, just policy support for it.

If it is voted through, it will then be formally ‘designated’ by the government a short time later. That designation is certainly going to be challenged in the courts, and so that will need to be resolved. Meanwhile, Heathrow Airport Ltd are preparing an application for a Development Consent Order (DCO) for the project, which, if approved, would be the real ‘go-ahead’ for the project. They have carried out a round of non-statutory consultation, and must subsequently carry out at least one round of statutory consultation before putting the application in. Technically, they don’t need to wait until the NPS is designated and free of legal challenge, but it would be a good idea if they did.

Timetable:

• Commons vote – by 11 July 2018
• Designation – by 24 July 2018
• Legal challenge – launched by 4 September 2018, disposed of, who knows?
• Statutory consultation – no official date, later this year or early next
• DCO application – late 2019 or early 2020, I would guess
• DCO decision – 2021?
• Legal challenge – launched up to six weeks later
• Construction – after that
• Operation – by 2026 according to the Secretary of State

We learn that there were over 72,000 responses to the consultation on the initial draft NPS, and a further 11,000 to the consultation on a revised draft published in October last year. Sir Jeremy Sullivan has reported on the conduct of the second consultation, and takes the blame himself for not taking action on his only criticism of it (paragraph 23).

Generally, the drafting of the NPS has hardly changed from the draft when it comes to mitigation, assessment and decision-making on impacts, as set out in the change log.

The government tells the Transport Select Committee in its response to their recommendations: 

‘It is our expectation that the mode share targets would become requirements of a development consent order.’ (Paragraph 1.57)

And yet the NPS itself only says the applicant should ‘include details’ of how it will meet these targets rather than saying such targets should be requirements.

Generally, though, the recommendations of the Transport Select Committee have been accepted to a greater or lesser degree. The only one that of the 25 that has explicitly not been accepted is to afford the Lakeside Energy from Waste plant with the same protection as two Immigration Removal Centres (ie that it should be replaced).

It is more robust on air quality (albeit unchanged since the draft):

‘Failure to demonstrate [that the construction and operation of the Northwest Runway will not affect the UK’s ability to comply with legal obligations] will result in refusal of development consent.’ (Paragraph 5.32)

Similarly on noise:

‘Development consent should not be granted unless the Secretary of State is satisfied that the proposals will … avoid significant adverse impacts on health and quality of life from noise.’ (Paragraph 5.68).

For most other impacts, the wording is along the lines of:

‘The Secretary of State will refuse consent where [x] harm would result, unless the benefits of the development (including need) clearly outweigh that harm.’

For anyone contemplating a non-Heathrow project, the document confirms the effect of the NPS on such projects, and the government’s position to make best use of existing runways at paragraphs 1.12 and 1.39:

‘1.12 The Airports NPS provides the primary basis for decision making on development consent applications for a Northwest Runway at Heathrow Airport, and will be an important and relevant consideration in respect of applications for new runway capacity and other airport infrastructure in London and the South East of England. Other NPSs may also be relevant to decisions on airport capacity in this geographical area.’

‘1.39 On 21 July 2017, the Government issued a call for evidence on a new Aviation Strategy. Having analysed the responses, the Government has confirmed that it is supportive of airports beyond Heathrow making best use of their existing runways. However, we recognise that the development of airports can have positive and negative impacts, including on noise levels. We consider that any proposals should be judged on their individual merits by the relevant planning authority, taking careful account of all relevant considerations, particularly economic and environmental impacts.’

One thing that might need to be changed is that the final NPS runs directly counter to the recent ‘People Over Wind’ case at paragraph 4.20 (recommendation: subscribe to this blog…):

‘4.20 The applicant is required to provide sufficient information with their applications for development consent to enable the Secretary of State to carry out an Appropriate Assessment if required. This information should include details of any measures that are proposed to minimise or avoid any likely significant effects on a European site. The information provided may also assist the Secretary of State in concluding that an Appropriate Assessment is not required because significant effects on European sites are sufficiently unlikely that they can be excluded. If it is concluded there is likely to be a significant effect, or such effects cannot be ruled out (alone or in combination), an Appropriate Assessment is required.’

To comply with the judgment, the word ‘not’ should be added to ‘This information should’.

So well done to the government for producing the finalised NPS in the first half of the year, with the potential for it to be voted on this month. It remains to be seen, however, if this version is approved by parliament and then cleared for take-off by the courts.