Heathrow expansion given the green light after the High Court concludes Airport NPS is not flawed by legal error

Campaigners trying to block the expansion of Heathrow Airport have failed in their bid to persuade the High Court that the Government’s decision to designate the Airports National Policy Statement (“ANPS”), including the process which led to the designation, was flawed by legal error.

The ANPS is a policy document which sets out the Government’s position on the need for new airport capacity in the South East of England and the preferred scheme, namely a new 3,500 metre runway at Heathrow which would enable at least 26,000 extra flights per annum.

On Wednesday 1 May 2019, the High Court dismissed five claims for judicial review which challenged the Government’s decision to designate the ANPS under section 5(1) of the Planning Act 2008. The decisions, which were handed down in two separate judgments by Mr Justice Holgate, Lord Justice Hickinbottom and Mr Justice Marcus Smith, are available to view here.

The first four claims for judicial review challenged the Government’s decision on 22 grounds ([2019] EWHC 1070 (Admin)). The claimants comprised the London Borough of Hillingdon and four adjacent boroughs, the Mayor of London, several non-Government environmental organisations (including Greenpeace, Friends of the Earth and Plan B Earth) and one individual claimant (Mr Spurrier) who all oppose the expansion of Heathrow. The grounds that the Court considered arguable concerned matters relating to climate change, air quality, surface access, noise and habitats.

In respect of climate change, the claimants unsuccessfully argued that the Secretary of State acted unlawfully by not taking into account the Paris Agreement. They also claimed he failed to apply the precautionary principle and acted irrationally by concluding that the new runway wouldn’t breach UK’s obligations under the Air Quality Directive, and that he relied upon unjustified assumptions about the deliverability of public transport schemes and the effectiveness of Clean Air Zones. On the surface access point, they argued the Secretary of State failed to take into account information and modelling which considered the adverse impacts of more people travelling to and from Heathrow by road as a result of the additional runway, and that he erred in adopting unrealistic mode share targets in the ANPS. Claims relating to the inadequacy of the noise assessment and the consideration of alternatives under the Habitats Directive were also dismissed.

The fifth claim ([2019] EWHC 1070 (Admin)) was brought by the promoters of a rival Heathrow expansion scheme – Heathrow Hub Limited and Runway Innovations Limited. Unlike the other four claims, the claimants did not challenge the ANPS insofar as it establishes the need for new airport capacity which is best met by expanding Heathrow. Instead, they argued that the Secretary of State wrongly preferred the proposal for a ‘new’ runway at Heathrow over their scheme, which would double the length of the existing northern runway to allow it to operate as two independent runways. The arguments focussed on legitimate expectation and anti-competition however were unsuccessful on all five grounds.

The claimants may apply for permission to appeal and some of the campaigners have already come out saying they will continue to fight the controversial expansion – a battle which has been ongoing since the 1980s and isn’t showing any signs of slowing down soon. Even if this hurdle is overcome, the next stage of the planning process is an application for a development consent order which presents further opportunities for opponents to make representations on the proposal. According to the Planning Inspectorate website, this application is expected to be submitted by Heathrow Airport Limited in 2019/2020.

If you have any questions relating to the development consent process, please don’t hesitate to get in touch with a member of our team.

Author: Lisa Bazalo, Associate (New Zealand), Planning, London

For further information please contact:

Catherine Howard
Catherine Howard
Partner, planning, London
+44 20 7466 2858
Lisa Bazalo
Lisa Bazalo
Associate (New Zealand), planning, London
+44 20 7466 2957

Charlotte Dyer
Charlotte Dyer
Of counsel, planning, London
+44 20 7466 2275

Air quality – further developments this week

Authors: Julie Vaughan, Senior Associate, Environment and Helena Thompson, Associate, Planning and Environment, London

There have been a number of developments in relation to air quality since our blog post last week:

  1. Revision of the National Emissions Ceilings Directive was agreed at EU level.
  2. The Committee on Climate Change queried the Government's ability to meet future carbon targets if the Heathrow expansion is allowed to proceed.
  3. Courts have given the Government 8 months to produce a new national air quality plan.

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Air quality update

Authors: Julie Vaughan, Senior Associate, Environment and Helena Thompson, Associate, Planning and Environment, London

This blog gives an overview of the current position on air quality following the recent ClientEarth (No.2) court decision regarding DEFRA's air quality plan. In this blog we will consider:

  1. the ClientEarth (No.2) decision
  2. Sadiq Khan's approach
  3. new domestic legislation?
  4. impact on Heathrow expansion
  5. impact on development
  6. Brexit

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Q1 Healthcheck / Q2 Predictions: Brexit, Mayor, PRS, Housing and Planning Bill, airport expansion

Author: Matthew White, Partner and Head of Planning, Real Estate, London

In the week before Christmas, the daffodils were blooming, the birds were chirping and it was warm enough to cycle to work in shorts. In the week before Easter … well, nothing much has changed. And that pretty much sums up the ‎development market in Q1. Transactions held over from December were duly completed, but the dealflow since then has been been falteringly slow.

MIPIM, always a good barometer of market sentiment, was summed up by the weather too – it was not nearly as ‎balmy as expected and left you feeling let down and a bit foolish that you'd brought your sunglasses.

Much of this is being driven by Brexit. Whilst I don't think the vote will make a big difference to development in the UK ‎either way, it is the uncertainty of whether we will end up in or out that is causing stasis. Like Schrodinger's cat being alive and dead at the same time until the box is opened and the quantum waveforms collapse, investment decisions ‎are quite reasonably being held back until the outcome of the referendum is known.

In London, we also have a Mayoral election to contend with. Ken Livingstone and Boris Johnson may have been at opposite ends of the political spectrum, but both were firmly pro-development. Looking at Sadiq Khan and Zac Goldsmith on the hustings, I am not convinced that the next four years ‎will be quite so developer-friendly.

Development has always been a Q2/Q4 business of course, so a slow winter is not that unusual. This feels like a pause for reflection rather than a sign of deeper retrenchment. To lift a metaphor off the back of England's Grand Slam victory, we're just waiting for the referee to call "set" before the front row engages again.

So, here are my predictions for Q2:

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What to look forward to in 2016: Planning changes on the horizon

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Herbert Smith Freehills' real estate development team are monitoring a number of areas of law likely to change during 2016.  Here is a summary of some key areas of change we expect in the field of planning (from a development perspective), highlighting some opportunities these changes may present. 

For more information please contact Matthew White or Lucy Morton at Herbert Smith Freehills.

1. Office-to-residential conversion rights to be made permanent

2. Housing and Planning Bill due to become law

3. CIL Review Panel to report on whether CIL is meeting its objectives

4. Government's response expected on the National Planning Policy Framework consultation (including changes to green belt and affordable housing policies)

5. Affordable housing renegotiation provisions to expire on 30 April 2016, unless extended

6. Government due to respond to the Airports Commission Final Report (which recommended Heathrow expansion)

7. International property measurement standards changing

8. Carbon offsetting requirements expected to be amended or abolished

9.  National Infrastructure Commission to report at Budget 2016

 

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