Tue, 31 Jan 2017
National Policy Statements under the 2008 Act are challengeable by judicial review, in much the same way as DCOs for NSIPs. The timing of such challenges has itself proved challenging. It cropped up in R (Blue Green London Plan) v. Secretary of State for Environment, Food and Rural Affairs  EWHC 495 (Admin) re the Thames Tideway Tunnel in the context of when the six week challenge period ends. That case prompted amendment to the 2008 Act.
On 30 January 2017, the High Court struck out the claim of a consortium of claimants who sought to challenge the decision to include a third runway at Heathrow within an NPS. The Court did so because the time for challenge had not begun: LB Hillingdon and others v Secretary of State for Transport  EWHC 121 (Admin). Cranston J held [57, 58]:
"In my view the meaning of the words of section 13, when understood in their context, is that proceedings can only be brought in the six week period once the NPS is designated or published. Judicial review challenges both before and after that six week period are prohibited. Since in this case any designation or publication of an NPS is not expected to occur until late 2017 at the earliest, any claim before that is precluded.
As explained earlier in the judgment, the scheme of the 2008 Act is that where it is proposed that an NPS is location specific, a necessary step in the process of preparing a draft NPS for consultation is deciding on the location to include in the draft. Once a draft NPS and accompanying Appraisal of Sustainability are published and laid before Parliament, there is public consultation and an opportunity for MPs to debate it. A highly respected former judge, Sir Jeremy Sullivan, has been appointed to oversee the fairness of the consultation process for this development. Following that process the Secretary of State "must have regard to the responses in deciding whether to proceed with the proposal." If an NPS is finally designated and published, the period for legal challenge by way of judicial review will be for six weeks."
So, the cases now tell us about the beginning and the end. We have to wait for designation and publication to learn about the 'middle'.