Friends of the Earth warn Chris Grayling that DfT process is pre-determining approval of Heathrow runway
Friends of the Earth (FoE) have sent a letter to Chris Grayling at the DfT, highlighting concerns over the way approval of a Heathrow runway is being done. The letter accused the government of ‘substantive procedural flaws’. It raises concerns that Heathrow had been named as the selected site for the major development without the decision undergoing the legal planning process. FoE the government decision ‘pre-empts the will of parliament’ and ‘predetermines the outcome of any planning application’. FoE’s Head of campaigns, Andrew Pendleton, said that the PM had ‘announced the decision as if it was a done deal, but there are many MPs who recognise the devastating effect expanding Heathrow will have on our climate, who will want to vote against these proposals’. If FoE does not receive what it deems to be sufficient assurances over how the government came to its decision, it could be the basis of a legal challenge in the future. The letter says “the decision (as quoted) risks illegality in two respects, namely: a. pre-empts the will of Parliament (by assuming that a planning application will follow parliamentary consideration of the NPS – parliament may resolve the reject the NPS) and b. predetermines the outcome of any planning application submitted concerning the development of the third runway (since it states that “construction will follow” the determination of the application by yourself).”
Statement by Friends of the Earth:
The decision to expand Heathrow airport is not only bad for our climate and clean air but pre-empts the will of parliament says Friends of the Earth, as it sets out its legal concerns in a letter sent to the government today (28 October).
The letter describes how Theresa May’s government appears to have predetermined the outcome of the planning process and side-lined MPs by announcing Tuesday’s decision as a done-deal.
Andrew Pendleton, Friends of the Earth Head of Campaigns said:
“Prime Minister May announced the decision like it was a done deal, but there are many MPs who recognise the devastating affect expanding Heathrow will have on our climate, who will want to vote against these proposals.
“With a decision as monumental as Heathrow, MPs shouldn’t be side-lined, nor the planning process circumvented. The fight to prevent the expansion of Heathrow is far from over.”
Andrew Pendleton added:
“As the government is poised to sign the Paris Agreement, a decision to expand Heathrow makes UK climate promises seem like just hot air.”
(Statement by Friends of the Earth)
Some extracts from the letter from Friends of the Earth, to Chris Grayling, Secretary of State for Transport:
We refer to the full text of the decision as published on the gov.uk website on 25 October
published in your name. Under the heading “Further facts”, the decision states:
“Airport expansion will be delivered through a thorough, faster planning process, under the 2008 Planning Act and 2011 Localism Act. The government will set out the
airport scheme it wants, along with supporting evidence, in its NPS. Public and
Members of Parliament will be consulted and there will be a vote in the House of
Commons. This will be followed by a planning application by the airport to the
Planning Inspector who will take a view and advise government of his decision. Final
sign off will be by the Secretary of State for Transport and then construction will
start.” [[This paragraph contains inaccuracies by the DfT. See below for corrections. AW note]]
6. The decision continues:
“In time a new runway will also require the redesign of the airport’s flightpaths. This
will form part of a wider programme of airspace modernisation which is already
needed across the country in the coming years. The government expects to consult in
the new year on a range of national proposals covering noise and airspace.
Expansion at Heathrow Airport Ltd will be accompanied by a comprehensive package
of mitigation measures which will be subject to consultation with the public as part of
the draft NPS consultation process. The measures will also be subject to regulatory
approval by the CAA.”
7. The decision (as quoted) risks illegality in two respects, namely:
a. pre-empts the will of Parliament (by assuming that a planning application will follow
parliamentary consideration of the NPS – parliament may resolve the reject the NPS)
b. predetermines the outcome of any planning application submitted concerning the
development of the third runway (since it states that “construction will follow” the
determination of the application by yourself).
and it goes on to say:
Whilst a NPS is not a piece of legislation, they are adopted pursuant to legislation and intended to carry significant weight in the resolution of planning applications to which they apply. They are, we argue, strongly analogous to legislation for these reasons. In any event, and partly in recognition of their status in the planning system, they are subject to approval by parliament before being made. It follows that you are not entitled to presume as to the outcome of parliamentary consideration of the NPS, since this would risk infringing on the role and will of Parliament as envisaged in planning law and contrary to case law in any event 3.
[Footnote 3. R v Secretary of State for Health, ex parte C  1 FLR 627 – the Secretary of State is said to enjoy “the same liberties as a private individual and a private individual was entitled to act as he or she pleased, subject to the constraints imposed by the substantive law or the requirement not to infringe the rights of others” (our emphasis). ]
10. It is well established that a public law decision maker must approach a decision with an “open mind”4 . The test is whether the fair-minded and informed observer would conclude that there was a real possibility of predetermination5 . There is no need to prove actual predetermination – it is about the appearance of predetermination6 .
11. We believe that the statement that “construction will follow” the determination of a planning application clearly meets this threshold, since it must follow from your statement that construction “will follow” your “sign off” of the application, because you intend to grant the application come what may. No conditionality or nuance is admitted by the wording of the decision, nor is it clear that it implied. It is clear that you have a closed mind in relation to the Third Runway application; that the decision is itself undermined in law as a result; and any decision by you in relation to a planning application in relation to the Runway would be unlawful as a result.
Corrected version of the paragraph in the DfT statement of 25.10.2016 (which is still incorrect on the DfT website)
[Law firm Bircham Dyson Bell say the paragraph by the DfT contained inaccuracies. Below is the DfT paragraph, with the sections that are incorrect shown in light orange, and the corrections from BDB shown in red italics.]
Airport expansion will be delivered through a thorough, faster planning process, under the 2008 Planning Act and 2011 Localism Act. The government will set out the need for the airport scheme it wants, along with supporting evidence, in its National Policy Statement. The public and Members of Parliament will be consulted and there will be a vote in the House of Commons on the final draft of the NPS. This will be followed by a planning application development consent order by the airport to the Planning Inspectorate who will examine the application take a view and advise government of his decision its recommendation. Final sign off will be by the Secretary of State for Transport and then construction will start once any pre-commencement requirements have been discharged.