Runway capacity: With airport expansion high on the political agenda, Martha Grekos looks at the two methods of approval for the UK’s next runway
The Airports Commission has just submitted its final report to the newly formed government, favouring Heathrow for additional runway capacity. The report states that adding capacity at Heathrow provides the greatest benefits for business passengers, freight operators and the broader economy, but acknowledged that the new runway should come with severe restrictions to reduce the environmental and noise effects.
The government will now be pressed to make a decision on airport expansion, but is not bound to abide by the commission’s findings. It is expected to decide by the end of this year whether to accept the recommendation, but the decision could be put back until after the 2016 London mayoral election. Whatever the government’s response, one overarching question needs to be addressed: what consenting route should airport expansion take?
There are two options: (1) a development consent order (DCO) under the Planning Act 2008 (“the 2008 Act”); or (2) a hybrid bill examined in parliament by a combination of both public bill and private bill procedures.
Development consent orders
The DCO regime has been specifically designed to deal with nationally significant infrastructure schemes of this type and their “associated development”. There is a strong presumption that the DCO route is the appropriate mode of authorisation for infrastructure that is sponsored by a private investor.
The procedure is de-politicised. The management of the application and the examination process rests with the Planning Inspectorate (PINS) and the final decision would be in the hands of the Secretary of State for Transport (SoS).
However, securing consent via the DCO process would largely be dependent on the successful designation of a national policy statement (NPS) on aviation, which has been strategically environmentally assessed.
There is currently no aviation NPS. It is feasible that an NPS could be designated within two years of the government deciding to act on the Airport Commission’s recommendations, if there were no legal challenges to the designation process. Airport expansion could be pursued through a DCO without an NPS, but there would be a greater evidential burden to overcome at examination.
Also, the application and decision-making process is heavily regulated, involving prescribed pre-application consultation procedures and tight timescales, including six months for examination with no extension allowed (see the Thames Tideway Tunnel DCO).
It is also front-loaded. Depending on the size and complexity of the project, it can take two to three years to carry out the pre-application consultation requirements (see the Hinkley Point C DCO). Nonetheless, this level of stakeholder engagement may be welcomed by some and also seen as appropriate. There are many opportunities for legal challenge by way of judicial review under the DCO regime. The mitigation of these risks lies in the hands of PINS.
The 2008 Act disapplies some, but not all, consents under other enactments, replacing them with equivalent controls (say, listed building consent) that are dealt with as part of the DCO application. Also, consents prescribed by the SoS, for example, consents under the Conservation of Habitats and Species Regulations 2010, can only be removed with the consent of that body which has the function of granting the prescribed consent.
Promotion of airport expansion would include a suite of consents that would need to be dealt with by other bodies and the implementation of such a project would depend on those consents being obtained.
Regardless of the modifications made by the Growth and Infrastructure Act 2013 to the special parliamentary procedure (SPP) in the 2008 Act, the SPP still applies to the compulsory acquisition of/right over National Trust land, common land, open spaces or fuel or field garden allotments. These provisions can be disapplied in a bill but cannot be disapplied by a DCO.
Once a DCO is made, the requirements have to be discharged by the local planning authority, which still retains an element of control over the project. In addition, the process for changing a DCO differs depending on when that change is proposed (before or after the DCO is made) and whether the change is considered to be “material” or “non-material”, which is not always clear-cut.
Hybrid bills
A bill can only be used as a means of authorising a project if the government of the day undertakes its promotion. There is no need for the promoter to prove the bill and the principle is determined by
the second reading, so the practical ability to use the select committee process as a vehicle for general public opposition and to influence those examining the project provisions is very limited.
There are also no specific pre-deposit consultation requirements and the suite of application documents to be deposited in parliament is much less extensive than for a DCO. However, during the run-up to the promotion of the bill, it is possible for the SoS’s decisions to be challenged on the basis of insufficient consultation, as was the case with the unsuccessful judicial review of the HS2 project.
Another advantage to the promoter is that there are much stricter limitations on those who may petition and appear before the select committee. Except through normal parliamentary democratic processes, members of the public without locus have no means of registering their objections or having them considered.
Unlike a DCO, the bill can include provisions relating to airport/aviation regulatory matters and miscellaneous statutory consents can be modified to facilitate project authorisation. It is possible to include within the scope of the project any development that could conveniently be carried within the main airport site. It is not necessary to show that it is “associated” to the airport.
Unlike the DCO regime, local authorities have no special role under the bill procedure. Local authorities have the opportunity to petition against the bill but, once it passes into law, they would have only very limited opportunity to impede its implementation – assuming that they are given functions in relation to planning matters similar to those in the Crossrail Act 2008.
Changes to bills are made by the publication of “additional provisions” which follow their own detailed programme. With a bill, there is no difference in terms of whether changes are proposed while the bill is proceeding through parliament or once it becomes an Act, though it is more likely that, once enacted, a new bill would be proposed for further changes.
Opportunities for legal challenge post-royal assent are limited to allegations that there have been breaches of EU requirements. However, there are other issues that could affect delivery timescales: the number of petitions deposited, the time that parliament would need to hear them, and parliamentary capacity.
For a bill to gain royal assent could
take the same time as it would to secure a DCO. A DCO may start slowly because of the pre-consultation requirements compared with a bill, which hits the ground running pretty quickly, but the DCO speeds up thanks to its strict timetable requirements whilst the bill slows down due to the petitions being heard in Parliament.
Lastly, to promote a bill, a “Roll A” parliamentary agent has to be appointed. There are only 14 such parliamentary agents in just seven firms of solicitors.
Outcome
It is clear that whatever consenting route is chosen, the risks associated with the process and the potential delay are equal to both options, albeit for different reasons. Each procedure strikes a different balance between the importance of detailed consideration of proposals and public participation on the one hand, and the need for projects to undergo a procedure that is not disproportionately lengthy on the other.
| Issues affecting DCOs and hybrid bills | ||
|---|---|---|
| DCOs | Hybrid bills | |
| Strict timescales for the grant of consent – approximately 15 months from submission to grant of DCO | Depending on number of petitions and time that parliament would need to hear them, it can take two to four years for a Bill to pass through | |
| Strict pre-application requirements. Can take up to three years to carry out the pre-application consultation requirements | No specific pre-deposit consultation requirements | |
| Likely to depend on final production of an NPS, involving its own consultation arrangements and completion of a strategic environmental assessment. Greater evidential burden if pursued without NPS | Principle of bill would be approved by parliament giving the hybrid bill a second reading | |
| Scope limited to specified nationally significant infrastructure plus “associated development” | No limit on project scope | |
| De-politicised process as management of application and examination rests with PINS and final decision with SoS | Government would need to promote it | |
| No extension of time to timetable | Government would have overall control of timing and conduct of process but no control over select committee timetable | |
| Local planning authorities have a substantial role | Local planning authorities have a reduced role | |
| Procedural requirements require detailed information and face risk of challenge if not met | Once hybrid bill passes standing orders committee, a procedural challenge cannot take place | |
| Consents prescribed under the 2008 Act cannot be disapplied | Can include provisions relating to airport/aviation regulatory matters and miscellaneous statutory consents can be modified to facilitate project authorisation | |
| Difficult to achieve post-application variations | Easier to achieve post-application variations | |
| Once DCO made, subject to judicial review challenge | Legal challenge limited to allegations that there were breaches of EU requirements | |
| Lack of parliamentary time | ||
| Limited numbers of parliamentary agents who can promote hybrid bill | ||
Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell
