The government’s announcement this week that Heathrow is its preferred option for airport expansion in the South-East has fired the starting gun on a planning process that will take until at least 2021 to conclude, according to government papers. The application will be decided under the Planning Act 2008 regime for nationally significant infrastructure projects (NSIPs). But before Heathrow Airport can submit an application for development consent under the fast-track regime, the government must first designate a National Policy Statement (NPS) on airport capacity.
The role of the NPS is to guide the planning decision on the new runway. Duncan Field, head of planning at law firm Norton Rose Fulbright, said he expected that it will address the need for a new runway within a particular timescale, identify Heathrow as the most suitable location for a new runway, and set out a series of issues that will need to be examined during the application process.
According to a statement of principle agreed by the airport and ministers, the government has committed to designate the NPS "by no later than 31 July 2017". Field said that the suggested timescale for the NPS’s designation is "quick", given the fact that the last location-specific NPS - on nuclear power generation - took longer than this to designate and due to the controversy surrounding the runway proposals. However, Kevin Gibbs, partner at law firm Bond Dickinson, anticipated that the NPS would not require more than a year to be designated by Parliament, pointing out that most NPSs have been designated within 12 months.
Experts agreed that the NPS could leave the door open for Heathrow’s bitter rival, Gatwick, to make an application for its own expansion proposals. "I don’t think it would completely exclude Gatwick from expanding," Field said. Gatwick would have to demonstrate that its expansion proposals would not prejudice the delivery of a third runway at Heathrow, he said, adding that any delay to the timetable for Heathrow’s third runway could present an opportunity for Gatwick to make the argument that it can meet the need for runway capacity within the timescale identified in the NPS.
Gibbs said that Gatwick’s hopes would depend on what the NPS says about the need for extra runway capacity. "I suspect, given the growth that has taken place at Gatwick, [the NPS] could leave the door open for Gatwick to make an NSIP application," he said. However, Greg Dickson, head of transport infrastructure at consultancy Turley, said he thought it was unlikely that the NPS would provide for significant expansion elsewhere.
Once the NPS is adopted and free from legal challenge, a development consent order (DCO) application can be submitted. The statement of principle says that Heathrow Airport intends to submit an application for development consent by March 2020, with a view to securing a DCO for the scheme by September 2021. Gibbs said that, while the Planning Act 2008 regime has strict statutory timescales for determining an application once it has been submitted, the pre-application work involved is extensive. "There are 101 things you need to do to actually get your application in and signed off by the Planning Inspectorate as being valid," he said.
Given the strength of opposition to Heathrow’s third runway, observers expect the scheme to face legal challenges, with the designation of the NPS and the final decision on the DCO the most likely flashpoints. Legal challenges to the designation of the NPS could focus on how the consultation was conducted, how the strategic environmental assessment was carried out, and potentially on the reasonableness of some of the conclusions that have been reached, possibly in relation to air quality, Field suggested.
He added that a challenge to the DCO could "add a year’s delay, if not longer". Given the timetable set out by Heathrow and the government, this would mean it is likely to be 2022 at the earliest before the scheme is free from legal challenge. However, Gibbs said that the planning court - set up in 2014 with specialist planning judges and a fast-track process for larger schemes - could help to minimise any legal delays.
Dickson added that the DCO process appears to be robust. "As I understand it, no challenge to a DCO has been wholly successful so far," he said. "You’d like to think that, although challenges may come forward, the DCO process is robust."