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08 August 2018

804: Six challenges to Airports NPS

Today’s entry reports on judicial reviews made against the designation of the Airports National Policy Statement.

The deadline for making legal challenges to the Airports National Policy Statement (NPS), endorsing a new north-western runway at Heathrow and nowhere else, expired on Tuesday 7 August, being six weeks after the NPS was designated. The defendant is the Secretary of State for Transport, Chris Grayling MP, who did the designating a day after the House of Commons approved the NPS (a point that he will no doubt make).

By my calculations no fewer than six challenges were made, one by seven joint parties, making 12 parties in total. The Thames Tideway Tunnel Development Consent Order successfully weathered four challenges, previously the most to be made under the Planning Act 2008 regime. Two of those lost because they were made a day late, but I think all the current ones were made on time.

The multi-party challenge has been made by the London Boroughs of Hammersmith & Fulham, Hillingdon, Richmond and Wandsworth, Windsor & Maidenhead Council (home to the Prime Minister’s constituency), the Mayor of London and Greenpeace. According to a press release from Hillingdon the grounds of challenge are on air quality, inadequate environmental assessment, climate change, surface access, breach of the habitats directive and a flawed consultation process. Other than that, it was fine.

A separate challenge was launched by rival runway promoter Heathrow Hub, whose proposal was one of the three alternatives shortlisted by the Airports Commission and analysed subsequently by the Government. Their runway was also at Heathrow, but was an extension of the existing northern runway. In an article by their lawyer the grounds are summarised, and are mainly that the process leading to choosing the Heathrow Airport Ltd option over the Heathrow Hub one was unfair and unlawful.

A third challenge has been launched by Friends of the Earth – see their press release here – on the principal ground of climate change.

Who needs actions when you got words? The fourth challenge has been made by Plan B, not the singer but an environmental campaigning charity. According to their press release the challenge is similar to that of Friends of the Earth, being concerned with climate change obligations.

The fifth and sixth challenges are by two litigants in person. The first is by Neil Spurrier, a solicitor, resident of Twickenham and member of the Teddington Action Group. According to his tweet he filed the claim in good time on 13 July. The second is by Robin Clarke, a resident of Birmingham. I have read the two claims; the first covers similar ground to the multi-party one, and the second one’s grounds appear to be principally that the designated project will not deliver the claimed economic benefits.

The High Court will now either consider the claims on paper and decide whether they should be heard, or have a ‘rolled up’ hearing where whether to hear the claims and the actual claims are heard together. Slightly contradictory, I know, but faster.

It may also decide to join two or more of the claims and hear them together, and will probably do so.

What of the merits? I have not seen the details of all of the claims, but I think that ‘hard’ issues (where there are absolutes in law) such as air quality and habitats will come to the fore over ‘in the balance’ issues (where there a judgment is taken). There may also be useful caselaw for other promoters – or objectors – on consultation issues.

If the NPS survives these challenges then Heathrow Airport Ltd will continue with its plans to make the actual application for the runway (and in fact can do so even if the challenges are ongoing or the NPS is overturned, although success would be more difficult in the latter case). It is expected to carry out statutory consultation next year and make its application the year after.

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