by Hazel Nash
As many of us are enjoying the delights of national airports at this time of year, (particularly Ryan Air customers), the expansion of Heathrow Airport is facing mounting challenges.
Following the approval by the Government’s economic sub-committee, of the plans to extend Heathrow Airport, as set out in the Airports National Policy Statement (ANPS), Friends of the Earth filed papers with the High Court on 6 August 2018 challenging the lawfulness of the policy.
Whilst there has been fierce opposition to the various proposals for a third runway at Heathrow over the years, it is with the approval of the ANPS that legal challenges have been launched. Since the introduction of the Planning Act 2008, amended by the Localism Act 2011, those developments categorised as nationally significant infrastructure projects (NSIPs), which include airport-related developments, fall outwith the standard planning application route. Instead, they require a development consent order (DCO) and therefore follow a separate process. The granting of a DCO rests with the appropriate Secretary of State, depending on the nature of the project, and the project will be decided in accordance with National Policy Statements (NPSs). NPSs are designated by the Secretary of State and their purpose is to set out national policy in relation to one or more of the NSIPs. Importantly, they can only be approved by resolution of the House of Commons following a period of 21 sitting days and it must be demonstrated that the statutory publicity and consultation requirements have been met.
Within its ninety-one pages, the ANPS provides the primary basis for decision-making on development consent applications for the northwest runaway at Heathrow Airport. Indeed, paragraph 1.15 of the ANPS explains: “…the Secretary of State will use the ANPS as the primary basis for making decisions on any development consent application for a new Northwest Runway at Heathrow Airport, which is the Government’s preferred scheme…”. Chapter 3 of the ANPS then goes on to discuss in greater detail the Government’s preferred scheme for expansion of Heathrow, namely the Northwest runway with an illustrative masterplan set out under Annex II of the document.
In bringing a challenge against the ANSP under section 13 of the Planning Act 2008, it must be filed within six weeks from the date the statement was designated. In addition, as set out in the Civil Procedures Rule, Part 54, the claimant for judicial review (which is the procedure for challenging the lawfulness of a decision) must be considered to have locus standi, otherwise referred to as demonstrating they have a sufficient interest in the decision and they must also have a ground or basis on which to bring the challenge. Friends of the Earth (FoE) has filed its claim at the very end of the six week period, FoE are considered by the Courts to have sufficient interest by virtue of their role as a public interest and pressure group. Their challenge centres on the claim that the Secretary of State has failed in the duty under section 10 of the Planning Act 2008 to contribute to the achievement of sustainable development by having regard to the desirability of, amongst other things, mitigating and adapting to climate change. Equally, they contend that Part 1 of the Climate Change Act 2008 (which establishes carbon reduction targets and carbon budgets through until 2050), has not been adequately considered in the ANSP, focusing on carbon dioxide impacts and failing to recognise the other harmful greenhouse gases. For further discussion on the environmental impacts associated with the project see Claudia Carter’s earlier blog: Runway Economic or Plane Stupid.
This challenge is the most recent in a line of proceedings begun by various parties including the campaign group ‘Plan B’ who are challenging the Department of Transport’s decision to support the expansion of Heathrow. Furthermore, Greenpeace, the London Mayor (Sadiq Khan) and a number of councils including Hillingdon, Richmond and Maidenhead have formed a coalition and in July launched their own judicial review challenge, making three separate challenges in total. They argue the ANSP fails to demonstrate satisfactory consideration of and mitigation against the impact of air quality, climate change, noise and congestion which would be associated with the proposed northwest runway.
The High Court’s determination on whether there will be a full hearing to the challenge is not due until the Autumn, and until then the plans for expansion to Heathrow remain grounded. I will certainly be watching this (air)space for the landing of this highly controversial and important decision.
Dr Hazel Ann Nash, Senior Lecturer in Planning Law, Birmingham City University.
Hazel joined BCU in January 2018. She is a planning and environmental law specialist. She has worked in Central Government and local government in planning policy and development management positions and has a particular interest in planning for waste management infrastructure and minerals planning.
Sources of information / Further reading
Department for Transport (2018) Airports National Policy Statement: New runway capacity and infrastructure at airports in the south East of England: Moving Britain Ahead. Annex B Illustrative Heathrow Northwest Runway Masterplan. June 2018. Department of Transport, London. Available online at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/714106/airports-nps-new-runway-capacity-and-infrastructure-at-airports-in-the-south-east-of-england-web-version.pdf [accessed 15/08/2018].
Ministry of Justice (2018) Civil Procedure Rules. 98th Edn, MoJ, London. Available online at: http://www.justice.gov.uk/courts/procedure-rules/civil/rules [accessed 15/08/2018].
Smith, L. (2017) Briefing Paper: Planning for Nationally Significant Infrastructure Projects. Number 06881. 17 July 2017. House of Commons Library, London. Available online at: http://researchbriefings.files.parliament.uk/documents/SN06881/SN06881.pdf [accessed 15/08/2018].
 No ridicule intended. The author experienced first-hand the Ryan Air strikes last year.
 The right to challenge a national policy statement or anything done, or omitted to be done, by the Secretary of State in the course of preparing a statement is established under section 13 of the Planning Act 2008.
 Planning Act 2008, Section 14(1)(i).
 Planning Act 2008, Section 33.
 Planning Act 2008, Section 31.
 Planning Act 2008, s.5. Consultation and publicity requirements are established under sections 7 and 8. Section 9 contains the Parliamentary requirements for designation of an NPS.
 Transport Secretary, Chris Grayling, formally designated the ANSP on 26th June 2018.
 Broadly, there are three grounds for judicial review: Illegality, irrationality and procedural impropriety.
 R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd  1 All ER 611.