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

The impact of purdah on planning and a recent decision on judicial review

Author: Fiona Sawyer, Professional Support Lawyer, Planning, London

This week, we have links to two pieces of interest to developers:

  • "Getting away with purdah" – an article in EG by Matthew White, Head of Planning, and Annika Holden, Associate (Australia), Planning, London discussing the impact of the convention of purdah, brought into play by the unexpected announcement of the snap general election. Purdah has the potential to severely disrupt and delay the planning process; recent experience has shown that it is often inconsistently applied, can cause confusion and can be invoked as an excuse to avoid controversial decisions. The article comments on the history, status and potential exploitation of purdah, highlighting relevant caselaw. For the full article, see here.
  • "Failure to comply with statutory conditions will lead to quashing unless it is 'highly likely' the error would have made no difference" – an ebulletin by our London Administrative and Public Law team, discussing the impact of a recent planning judicial review case concerning a council's decision to adopt a document setting out an interim approach to negotiating affordable housing contributions. Key points include that the High Court must generally refuse relief on an application for judicial review if it appears "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". For the full ebulletin, see here.

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Grants of planning permission against officer recommendation – managing the legal risk

Author: Annika Holden, Associate (Australia), Planning, London

The Court of Appeal has recently upheld challenges in two cases where planning permission was granted by planning committee against officer recommendation (see Oakley v South Cambridgeshire District Council & Anor [2017] EWCA Civ 71 and Campaign To Protect Rural England, Kent (CPRE), R (On the Application Of) v Dover District Council [2016] EWCA Civ 936). From a legal perspective, Oakley is particularly interesting as a rare look by the Court of Appeal at the question of whether planning authorities have a general common law duty to give reasons on the grant of planning permission – see the excellent e-bulletin from my public law colleagues here for more on that. On a practical level, the cases represent a good reminder of how carefully all parties need to tread whenever planning permission is granted against officer recommendation.

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The changing cost of environmental claims

Authors: Andrew Lidbetter, Partner, London and Jasveer Randhawa, Of Counsel, London

 

In environmental (Aarhus Convention) claims, judges can now award costs that take into account the claimant's financial resources. As of 28 February 2017, judges in environmental judicial review claims and statutory challenges now have the ability to vary previously fixed costs caps or remove them altogether. This is due to changes to the Civil Procedure Rules governing environmental claims. It is worth noting that three non-governmental organisations, ClientEarth, Friends of the Earth and the RSPB, are challenging the new rules.

 

Herbert Smith Freehills has produced a bulletin setting out more detail on this, which can be found here.

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Judicial Review deadlines

The time limit for lodging an application for judicial review of a planning decision is now a fixed six weeks from the date of the decision. This will usually be the date the planning permission is actually issued (not the date of the resolution to grant).

Some planning decisions nevertheless remain subject to the old three month judicial review period, e.g. decisions under the Highways Act.

The courts have recently considered how to count the six weeks (apparently not a simple question), so always take advice on drafting in agreements which are conditional on planning or where decisions are being made on when a permission should be regarded as "safe". Always remember that the courts retain a discretion to accept legal challenges outside the relevant period.

For more information please contact:

Matthew White
Matthew White
Partner and Head of Planning, London
+44 20 7466 2461
Lucy Morton
Lucy Morton
Professional Support Lawyer, Planning, London
+44 20 7466 2626

 

Council which agreed to vary a development agreement in order to assist viability is subject to a successful judicial review

On 11 February 2015, pursuant to an application for judicial review by a local resident, the High Court ruled that a redevelopment project in Winchester had to be put out to competitive tender under the EU procurement rules. This obligation arose when the Council agreed to make substantial variations to a development agreement that had originally been entered into 2004. The case illustrates the severe problems which can arise when regeneration projects are awarded, or subsequently amended, without due regard for the procurement rules.

1. The facts

2. The High Court ruling

3. Lessons to be learned

4. Post-script: new procurement regulations are about to enter into force

 

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