The Secretary of State for Transport has today published a draft Airports National Policy Statement (NPS) for consultation. As expected, the NPS frames the policy position for the Northwest Runway Scheme at Heathrow, together with proposals for new terminal capacity between the airport and the Northwest Runway and the reconfiguration of Heathrow’s existing central terminal.

As drafted, the NPS will only have effect in relation to the Government’s preferred scheme at Heathrow, and acknowledges that separate applications may be made in relation the Northwest Runway and the terminal works. The NPS will not have effect in relation to proposed development at airports other than Heathrow, although the NPS will be an important and relevant consideration in the determination of such applications, particularly in relation to development in London or the South East of England.

The publication of the NPS follows hot on the heels of a High Court judgment, handed down on Monday (the Judgment), which dismissed a judicial review brought by a consortium, including a number of local authorities and Greenpeace, to the Secretary of State for Transport’s decision in October 2016 to deliver airport expansion in the South East by supporting a Northwest Runway at Heathrow.

The reasoning behind the Judgment was that such a judicial review was premature and could only be brought once the NPS had been designated.

What does an NPS do?

An NPS sets the national policy for a relevant Nationally Significant Infrastructure Project (NSIP), and it is the key piece of policy in the policy hierarchy that applies to an application for a development consent order (DCO) for that NSIP.

When the NPS is designated, the Secretary of State will be under a statutory duty to decide an application for a DCO in accordance with it (subject to certain exceptions). If the NPS is not designated, the Secretary of State will be under no such duty and, whilst the Secretary of State must have regard to certain information, the policy position and decision making process will be less certain.

The designation of the NPS will mark a significant step in the delivery of airport expansion at Heathrow, as well as potentially further afield in the south east.

The NPS establishes need, in recognising that aviation demand will increase significantly by 2050 and that the major airports in the South East of England (being Gatwick, Heathrow, London City, Luton and Stansted) will be full by 2040. The economic case for expansion is put strongly, with both direct passenger impact and wider economic impacts projected to cost many billions of pounds in the absence of expansion. The Government is currently updating its passenger demand forecasts and will issue a document setting out these new forecasts, and the impacts of these forecasts on the case for expansion at Heathrow, as soon as possible during the consultation period.

The NPS also identifies the specific impacts of the Northwest Runway at Heathrow that will need to be assessed, together with the mitigation that an applicant will need to provide and requirements that will need to be met in order for an application for a DCO to be successful. These address the specific issues associated with airport expansion including air quality and noise.

In relation to air quality, for example, any applicant will be obliged to demonstrate that the construction and operation of a Northwest Runway will not affect the UK’s ability to comply with air quality limit values.

The NPS Timeframe

The consultation will run for 16 weeks and will close on 25 May 2017, and a period of Parliamentary scrutiny will also run until Parliament’s summer recess.

The target for a vote remains Winter 2016-2017, and it is likely that the NPS will be designated in early 2017. This reflects the timeframe for the designation of other national policy statements, such as that for national networks, which was issued for consultation in December 2013 and was designated by the Secretary of State in January 2015.

There is a specific statutory right to challenge the designation of an NPS by way of judicial review. Given the recent Judgment, we can expect further attempts to challenge the NPS following its designation.

Given this risk of challenge and the specific nature of the NPS, it will be important that the statutory procedure is properly followed. To manage this process, the Secretary of State for Transport has appointed Sir Jeremey Sullivan, a respected former judge and the former Senior President of Tribunals, to oversee the NPS consultation process and ensure that best practice is upheld. This independent scrutiny should mitigate the risk of procedural impropriety, but given the historic battle over airspace and the strength of local opposition to such schemes, further challenge remains inevitable.

Airspace Policy

In addition to the NPS, the Government is consulting more widely on UK airspace policy which includes proposals to modernise the way the UK airspace is managed. The consultation on airspace policy has been published alongside new air navigation guidance and a strategic rationale for upgrading the UK’s airspace. Of particular interest is the new call-in function which is being proposed in relation to airport changes, and which will operate in a similar manner to the existing ability that Government has to call-in planning applications.

The Secretary of State for Transport has further announced that the Department for Transport is currently progressing work to develop a new strategy for UK aviation, and the Secretary of State is expected to make further announcements on the plans for this strategy in the coming weeks.