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20/12/2016

Heathrow expansion: What happens next?

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The government’s approval of a proposal for a third runway at Heathrow is just the start of a lengthy planning process in which little can be taken for granted, says Bond Dickinson’s Kevin Gibbs

The lengthy debate around airport expansion in the South-East has finally moved on with the government giving the go-ahead to build an additional third runway at Heathrow, the second busiest airport in the world. 

The decision has triggered many reactions and has left many questions unanswered, including what happens next? 

The answer lies, in part, in the Planning Act 2008. This legislation was approved by the Labour administration following the 17 years it took to give Heathrow’s Terminal 5 the go-ahead in the 1990s. The act’s purpose is to provide a robust but speedy system to grant all the consents and land rights needed to implement Nationally Significant Infrastructure Projects (NSIPs).

Consents for such projects are determined by independent planning inspectors based on designated National Policy Statements (NPSs). NPSs are designated by Parliament following statutory consultation that can take up to a year, or possibly longer.

On 25 October, the government released an announcement to confirm that a draft NPS will be published next year, which would set out the reasons why the government believes that the third runway for the scheme is needed and is the right one for the UK. The draft NPS is likely to highlight the benefits this would have on the economy, employment and tourism. 

Critically, the NPS will also provide the detailed guidance against which an airport NSIP will be determined. The announcement also confirmed that there will be public consultation on the draft NPS proposals as required by law.  

In addition, a ‘Statement of Principles’ between Heathrow Airport and the transport secretary indicates that the government could designate the NPS “by 31 July 2017”.

“It is unlikely that the draft National Policy Statement will completely close the door on other airports, such as Gatwick, to promote a DCO”

But following designation, all National Policy Statements are subject to a six-week period during which a legal challenge may be brought. If this was to happen here, a challenge would unlikely be disposed of before the end of 2017/early 2018. But the government is likely to have already factored into the timetable any potential challenges. 

All being well (and absent further challenge) this would then allow Heathrow Airport to bring forward its application for the development consent order (DCO) from 2018. Allowing for about 18 months for approval to be achieved then, if all goes well, the scheme could be approved by 2020/2021, and therefore in line with the operator’s target to deliver by 2026. The next general election is in 2020, so one can expect that it is likely to be the transport secretary in the next Parliament who will determine the DCO.  

Until the NPS is drafted, there remains a degree of uncertainty. But it is unlikely that the draft will completely close the door on other airports, such as Gatwick, to promote a DCO in accordance with the finally designated NPS. Although it is the government that provides guidance, it will be the market that responds.

We know, for instance, that Gatwick Airport has had early pre-application meetings with the Planning Inspectorate. Also Gatwick’s CEO Stuart Wingate has spoken out recently on the issue, stating that Gatwick is at least 15 years ahead of the Airports Commission’s forecast of where they would be. He also strongly reaffirmed its commitment to the expansion of Gatwick Airport, stating that a new runway at Gatwick is needed regardless to what happens at Heathrow.

In the months and years ahead parliamentary, legal and planning challenges can be expected, although the formation of the Planning Court in 2014 should mean that these challenges are heard fairly swiftly given the significance of any dispute. Opposition from MPs can also be expected during Parliamentary scrutiny of the draft NPS. The government will need to be vigilant in defending the scheme to receive the final stamp of approval.

Kevin Gibbs is planning and infrastructure partner at law firm Bond Dickinson LLP, which is a member of the Airport Operators Association

Photo | Shutterstock

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