Draft timeline from the DfT of how they hope the Heathrow runway will proceed to completion

The DfT has put forward its anticipated timeline, of how it envisages the  various stages progressing. This will start with a draft Airports National Policy Statement being published early in 2017 – followed by a consultation for 16 weeks. There will be a series of local and regional events around the country and in the vicinity of Heathrow.  The NPS then goes to a Commons Select committee (probably the Transport Select committee) which scrutinises it and gives MPs and others the opportunity to present evidence to the committee. This could be 12 weeks. The Select Committee makes its report to Parliament. The Government reviews all the responses to the consultation. The NPS and its supporting documents will be amended and updated by the DfT, taking account of the consultation responses and the Parliamentary scrutiny process. By now it is autumn 2017. By perhaps late autumn Government publishes final NPS in Parliament, with a subsequent debate, followed by a vote.  [It goes to the Lords as well as the Commons].  There could be legal challenges at various stages, which might hold things up. (This is not yet clear).  If the NPS is voted through, it is then “designated” (ie. comes into force) by the Transport Secretary. That might be by the start of 2018.  Once the NPS is agreed, then Heathrow can begin the formal process of seeking planning permission, which includes further consultation with local communities. The DfT has this down as perhaps 3 years, 2018 – 2021 or 2022.  There will be a General Election by May 2020, perhaps in the middle of this.  The DfT hope the runway would be operational by some time after 2025 or the late 2020s.
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Early 2017

Draft Airports National Policy Statement (NPS) published
The NPS will set out the Government’s position for developing a new runway by 2030.

Early 2017

Start of national and local consultation on contents of draft NPS
This will include a series of local and regional events around the country and in the vicinity
of the selected airport. Expected to last for 16 weeks until Spring 2017.

Spring – Summer 2017

Select Committee Scrutiny of Draft NPS
The opportunity for parliamentary scrutiny of the draft NPS by the appointed Select
Committee.

Summer – Autumn 2017

Analysis and review of responses & revision of NPS
Full analysis of all responses received during the public consultation and associated
events. Government reviews responses to the consultation and final report from the Select
Committee and the NPS is revised to take these into account.

Late 2017/early 2018

Publication of final Airports National Policy Statement
Government publishes final NPS in Parliament, with a subsequent debate followed by a vote.

Late 2017/early 2018

Designation of National Policy Statement
Assuming the final NPS passes the parliamentary vote, it can be designated by
the Transport Secretary.

2018 – 2021/22

Promoter [Heathrow airport presumably] takes forward scheme
Once the National Policy Statement has been designated, Heathrow is able to begin the
formal process of seeking planning permission, which includes further consultation with local communities.

[ May 2020 or before – General Election ]

2025 – late 2020’s

New runway operational
Assuming the planning and construction process runs in line with the timetable set out by Heathrow, the new runway is expected to be operational between 2025 and late 2020’s.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/562915/heathrow-airport-expansion-summary-document.pdf

and it says:

Putting commitments on a legal basis

Communities will want to ensure that Heathrow is held to the promises it has made. There are a number of commitments that have been made by the airport operator that could become planning obligations, such as a ban on scheduled night flights and compliance with noise targets.

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NPSs have a special status under the Planning Act and go through an extensive process of consultation, parliamentary scrutiny and designation which means that after designation their contents are not open for debate at public inquiries held in relation to individual developments. This means that NPSs have the potential to speed up the process for receiving development consent and reduce the risk of legal challenge through the development consent process

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http://www.publications.parliament.uk/pa/cm201516/cmselect/cmtrans/784/78403.htm

April 2016

Revised timeline for decision and construction

In his December 2015 statement the Secretary of State said that: “the mechanism for delivering planning consents for airport expansion will be a national policy statement (NPS) for airports, following which a scheme promoter would need to apply for a development consent order”.72 In his evidence to us the Secretary of State set out in more detail the steps and timeline from summer 2016. These were:

  • a decision by the Government on the preferred location (following a recommendation from the Economic Affairs (Airports) sub-committee of the Cabinet);73
  • a draft national policy statement published for consultation and laid in Parliament (to be published a minimum of four weeks after the announcement on the runway location to avoid the legal risk of pre-determination);
  • up to 16 weeks’ public consultation (no decision taken yet on the length of the public consultation);
  • Select Committee scrutiny of the draft NPS (12 weeks immediately following the public consultation);
  • final NPS is laid followed by debate and a vote to approve it within 21 sitting days (if the final NPS were not approved the Secretary of State could make changes and lay a new NPS on which a vote to approve would take place 21 sitting days later);
  • the developer then submits a development consent order to the planning inspectorate;
  • planning inquiry and examination (six months);
  • the planning inspector submits his report to the Secretary of State (within three months);
  • the Secretary of State considers the report and announces a decision (within 3 months); and
  • Any Judicial Reviews would follow within a six-week period (but could also occur at any point if the correct process was not followed).74

39.The Secretary of State told us that the Planning Act 2008 had already been used to speed up the planning process for other nationally significant infrastructure projects.75 He was confident that there was plenty of time to complete the process before the additional capacity needed to be available in 2030.76

http://www.publications.parliament.uk/pa/cm201516/cmselect/cmtrans/784/78403.htm


An article in the Times on 3.11.2016 discusses the possible stages for the process.

Why Heathrow plan faces a bumpy ride

By Edward Fennell

Times article at

http://www.thetimes.co.uk/article/why-heathrow-plan-faces-a-bumpy-ride-0wlrs2f7j


The process and the possible legal challenges, and impact of Brexit

The government announcement amounted to no more than the very start of work on shaping a draft national policy statement (NPS). This is expected to be published early in the new year and it will have to lay out why the government believes there is a need for the new runway, and why it should be at Heathrow. The NPS has to specify a detailed set of criteria the scheme would have to meet (particularly in terms of environmental obligations on noise and air pollution, and on climate change).

Legal challenges to the NPS must be submitted within 6 weeks of its publication, but these challenges can only be brought on the lawfulness of the NPS.

Legal challenges have to argue that the NPS is flawed because of issues such as the correct planning process not having been followed. In the case of the Teddington Action Group challenge, it would be on the alleged bias of Sir Howard Davies, who had financial links with Heathrow.

The consultation process will probably be given to the Transport Select Committee in the Commons. They then have the opportunity to examine the proposal in detail, and get witnesses to give evidence. The NPS has to be approved (but the Transport Committee is very pro-Heathrow, and pro-runways). The NPS has to be approved finally by the Committee, otherwise it cannot go ahead.

After the Select Committee, the draft NPS then goes to the House of Commons. A defeat in the Commons for the NPS would mean the Heathrow runway would not go ahead. If MPs do approve the NPS, then an application for a development consent order will be made. That process would include planning permission, compulsory purchase powers and many other legal authorisations that would be needed for the runway, like moving or altering roads.

There would also be an opportunity at the development consent order stage for legal challenges, on issues such as human rights for those whose homes are to be compulsorily purchased, air quality, noise and carbon emissions.

A lawyer from Dentons told the Times: “On climate change, the UK is subject to carbon-reduction commitments under its own Climate Change Act, which could present an obstacle. But air quality offers a more potent area of challenge since we are bound by measurable EU-imposed obligations. A battle between rival technical experts on air-quality implications is likely to form an important part of the planning consultation process.”

Appeals might follow, but lawyers say the Court of Appeal and Supreme Court are able to act quickly when required. However, given the time taken for the process to go through, the UK is likely to have left the EU by then. The UK may no longer have to comply with relevant EU environmental law (including the EU emissions trading system for aviation CO2) in the event of a “hard Brexit”. So Brexit could be useful to the government in pushing through an environmentally damaging runway, at the development consent order stage, with fewer environmental safeguards and lower standards, outside the EU. It may only be possible if EU rules no longer apply.

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Law firm Bircham Dyson Bell comments: 

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 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

https://www.bdb-law.co.uk/blogs/planning-act-2008/725-heathrow-timetable-observations/

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