Heathrow Airport – Taxiing Towards the Third Runway?

Recent announcements in relation to airports, and in particular the proposal for a third runway at Heathrow, have led to press reports that the Government has delayed its decision on airport expansion. That is not the case, and the Prime Minister’s recent statement about a future Parliamentary vote points to a key, and entirely expected, step in the planning process.

The Prime Minister has confirmed that the Government will take a decision on the appropriate site for expanded airport capacity in the south east this month; we understand this will be taken next week. This will then lead to the production of a draft airports National Policy Statement (NPS), which must be consulted on and approved by Parliament.

We discuss the NPS in more detail below. Essentially, it provides the important policy basis for any subsequent application for development consent for airport expansion in the south east.

The fact that a vote on the NPS will not take place for around a year has led to accusations of delay, but in reality this is the likely timeframe for the formation of, consultation on and approval of an NPS.

The announcement that an airports NPS will be prepared further confirms that Heathrow’s third runway will be consented as a Nationally Significant Infrastructure Project (NSIP) under the Planning Act 2008 (PA 2008). It has previously been indicated that this would be the preferred consenting route for the third runway.

As an NSIP, an application would need to be made for a development consent order (DCO) under the PA 2008 in order for the third runway to be consented. This brings with it a more certain timetable for a decision than other consenting routes, such as pursuing a Hybrid Bill. The NSIP procedure was introduced to expedite the consenting process for large scale infrastructure, largely due to the delay in the consenting of Heathrow’s last major expansion, Terminal 5.

What does the Government’s announcement mean, and what is an NPS?

An NPS sets the national policy for an NSIP, and it is the key piece of policy in the policy hierarchy that applies to an application for an NSIP. The airports NPS will establish need, will set the policy for meeting that need and will identify mitigation requirements.

An NPS can set out key issues in relation to NSIPs, including suitable locations for development and the amount, type or size of development which is appropriate. Given the history in reaching a decision for airport expansion in the south east, an NPS which specifies such information will be crucial and the Prime Minister’s announcement that a preferred site will be announced suggests that the NPS may be site specific.

The confirmation of the introduction of an NPS is important, as the decision making process for an application for a DCO differs depending on whether or not there is a relevant NPS in place.

Where an NPS is in place, the Secretary of State is under a statutory duty to decide the DCO application in accordance with the relevant NPS (subject to certain exceptions). Where no NPS is in place, the Secretary of State has no such duty and, whilst the Secretary of State must have regard to certain information, the policy position and decision making process is less certain.

By announcing its decision and its intent to formulate an airports NPS, the Government is looking to provide certainty to the consenting process. The designation of an airports NPS will mark a significant step in the delivery of airport expansion in the south east.

The NPS process is not specific to the proposed third runway at Heathrow, or airports generally, and an NPS can be designated in relation to any form of NSIP development.

There are already a number of NPSs in place: for example, a suite of NPSs exist in relation to energy infrastructure, and there is a transport NPS in place in relation to national networks, which applies to road and rail.

What are the next steps and what procedure must be followed before the NPS can be adopted?

The next step will be for a draft airports NPS to be prepared by the Department for Transport, to give effect to the Government’s announcement.

Ultimately, the airports NPS will need to be designated by the Secretary of State for Transport. However, the national significance of NPSs means that before they can be designated they are subject to Parliamentary approval.

The Secretary of State is also under a duty to consult upon, and publicise, a draft NPS and the Secretary of State has a duty to have regard to consultation and publication responses. Given the importance of an airports NPS, the consultation will be wide ranging and is likely to attract a huge number of responses.

In terms of parliamentary requirements, an NPS must be laid before Parliament before it can be designated. There are opportunities for either House to make a resolution or recommendation on the proposal. It is understood that the majority of MPs support expansion at Heathrow.

Once the consultation and publicity requirements have been undertaken, and the airports NPS has been laid before Parliament, the airports NPS can be designated.

There is a specific statutory right to challenge the designation of an NPS by way of judicial review. Given the hard fought battle to date, an airports NPS may well be challenged. This would further delay an application for a DCO being made and would potentially extend the NPS stage towards the next planned general election, adding a further political dimension.

The Timeframe

The timeframe suggested by the Prime Minister for a vote on the NPS is appropriate, and is in line with other NPSs. It does not represent delay. For example, the national networks NPS was first issued for consultation in December 2013, was laid before Parliament in December 2014 and was designated by the Secretary of State in January 2015.

Given that there is an available route of legal challenge to the designation of the NPS, it will be important that the procedure is properly followed and the proposals properly consulted upon.

Once an airports NPS has been designated, preparatory work for the consenting process can start in earnest and with greater certainty.

The DCO process is front-loaded, and the pre-application work involved, including numerous rounds of consultation, for a project can take between 18 months and two years.

Once an application for a DCO is made, a strict examination timetable means that a decision on the application for a project is likely to take between 16 and 18 months.

Therefore, it is unlikely that any airport expansion will receive consent before 2021, in spite of these recent developments. This also ignores the timing impacts of legal challenges along the way, which must be expected based on previous airport expansion and the experience of other nationally significant transport infrastructure.

For now, we await next week’s announcement, possibly as early as Tuesday, in the House of Commons.