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NPS for Heathrow faces six legal challenges

This article draws heavily on an article originally published by Angus Walker of Bircham Dyson Bell, entitled “Six Challenges to Airports NPS”. The original article can be found here.

The deadline for making legal challenges to the Airports National Policy Statement (NPS), which sets out the Government’s support for a new runway at Heathrow, closed on Tuesday 7thAugust. In total, six cases have been brought.

The NPS was voted through parliament on Monday 25th June and was formally designated the following day. This triggered the start to a six-week period, in which any applications for judicial review of its designation, must be lodged.

The first challenge is being brought by a group of local authorities, which include Hillingdon, Wandsworth, Richmond, Hammersmith & Fulham, and the Royal Borough of Windsor & Maidenhead, together with the Mayor of London, Sadiq Khan and Greenpeace. The grounds of this challenge are on “air quality, inadequate environmental assessment, climate change, surface access, breach of the habitats directive and a flawed consultation process”.

Rival expansion firm, Heathrow Hub, which believes that the best way to add capacity at Heathrow Airport is to extend one of the existing runways instead of building a new one, is also taking legal action. Their idea was rejected by a government-appointed commission in 2015 in favour of the option to build a dedicated third runway, but Heathrow Hub argues that elements of the decision-making process were flawed.

Friends of the Earth announced on Tuesday that they too would be taking legal action on the grounds of climate change. They argue that the NPS amounts to a breach of the UK’s climate change policy, as well as its sustainable development duties. “The government’s airport strategy completely ignores its obligations to tackle climate change”, says director of campaigns Liz Hutchins, “this is short-sighted, incredibly reckless and we believe it is  unlawful”.

The fourth challenge comes from climate change campaigning charity, Plan B. They argue that “the proposal breaches legal obligations in the Planning Act to alleviate the impact of climate change” and highlight that the NPS gives no consideration to the Government’s obligations under the Paris Agreement on Climate Change.

The final two challenges are being brought by individuals. The first is Neil Spurrier, solicitor and member of AEF, whose case covers grounds that the Government did not respond adequately to the recommendations of the Transport Select Committee, the body charged with providing official parliamentary scrutiny of the draft NPS. Finally, Birmingham resident, Robin Clarke, is bringing his case on the grounds that “the designated project will not deliver the claimed economic benefits”.

What happens next?

According to Angus Walker, of law firm, Bircham Dyson Bell:

The High Court will now consider each of the claims and decide whether or not they should be heard. They may decide to have a ‘rolled up’ hearing, where both the decision on whether to hear the claim and the hearing of the claim are taken together. It may also be decided to join two or more of the claims and hear them together.

The court is not able to directly block the new runway from being built but a judge can strike out an offending part of the Government’s plan or order the policy to be changed or rewritten.

If the NPS survives legal challenge, Heathrow will continue with its plans to make the application for a Development Consent Order. In fact, it can do so even if the challenges are ongoing, or the NPS is overturned, though it may well choose to wait given that the NPS provides the appropriate policy framework that the DCO must demonstrate it meets. As a result of these legal challenges, the airport’s plans to start work in 2021 and have the new runway in operation by 2026 could face delays.