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08 March 2019

821: Largest Planning Act judicial review about to start

Today’s entry reports on the Airports National Policy Statement judicial review.

On Monday, the largest litigation related to the Planning Act 2008 regime to date will begin, indeed it is one of the largest cases to have been heard in the High Court. A total of twelve claimants, five interested parties and one defendant (a Mr Chris Grayling) will be contesting five joined judicial reviews before two judges (Mr Justice Holgate and Lord Justice Hickinbottom) in two courts over a period of two weeks.

The matter in question is the designation of the Airports National Policy Statement (NPS), which took place on 26 June 2018. As I have said before it is really the Airport (singular) NPS, for it deals almost exclusively with a new runway at Heathrow, the north-west runway option promoted by Heathrow Airport Ltd. Note that it does not grant consent for a new runway, that will be the subject of an application for a Development Consent Order (DCO) expected next year, it is merely the declaration that the Government has a policy of supporting a single new runway in the south-east of England at that location (and nowhere else).

It is somewhat ironic that the planning system that preceded the Planning Act 2008 was derided as ‘a banquet for barristers’, given the number that are involved in this litigation – Landmark Chambers alone boasts that nine of its members are involved, for example. Having said that, this not a run-of-the-mill NPS, and the only other one to be challenged was the nuclear power one.

What are the grounds of claim? I have not seen all the official documents, but I understand that they are:

  • air quality: the increased surface transport will necessarily breach air quality limits and/or slow down their achievement;
  • bias: the decision to choose the north-west runway over the other options was a foregone conclusion;
  • climate change: the Climate Change Act and the Paris convention were not properly taken into account;
  • habitats: Heathrow was chosen over Gatwick even though it potentially affects many more European-level protected sites compared to Gatwick;
  • noise: the effect of noise from an expanded Heathrow has not been properly assessed; and
  • surface access: the impact on the surrounding road network has not been properly assessed.

The Department for Transport’s defence will no doubt contain the theme ‘this is just the policy, wait for the actual application, which must deal with all these issues’.

How will the case unfold? I am advised that there will be a ‘media circus’ outside the High Court on Monday morning, following which the case will start. Plan B, one of the claimants (not the singer of ‘She Said’, although that song does have the appropriate line ‘so now I’m up in the courts, pleading my case from the witness box’), has helpfully published various documents relating to the cases on its website, include the trial timetable. The full two weeks has been allocated; it will be interesting to see whether this timetable is adhered to.

What will happen once the case has been heard? Given its size I would not expect judgment on it for a couple of months, after which the losing side may well appeal to the Court of Appeal. Meanwhile, Heathrow Airport Ltd is preparing an application for a DCO. A consultation it held on airspace and future operations just closed on Monday and a full statutory consultation is planned for June. If the judicial review is successful and part or all of the NPS has to be reconsidered, Heathrow could still carry on – it is not necessary for an NPS to be in place for a DCO application to be made and decided. Several highway DCOs were decided before the corresponding NPS was designated, for example. HAL will have to decide whether to press on with its consultation and then the preparation of its application depending on the outcome of (or continuing litigation about) the judicial reviews.

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