From Heathrow to Newport – Legal Complexity in Consenting Major Schemes

Tue, 18 Jun 2019

The Westminster government’s plans for a new runway at Heathrow have received a green light from the Planning Court.  The Welsh Government’s plans for major improvements to the M4 have been given a red light from, well,… the Welsh Government.  We attach a summary of the main issues in each case and here seek to identify:

  • Some learning points for planning professionals, whether interested in infrastructure schemes or not;
  • The practical consequences of the legal issues which arose.

Bats and other European Protected Species (“EPS”) are a frequent feature of scheme assessment.  The upshot is that a non-specialist decision maker is faced with technical assessment, a statutory consultee’s response and both a legal and a policy framework to apply.  Despite the occasions on which the courts have had a go at straightening out and explaining the legal steps, we still see difficulty.  So, in the M4 Inquiry, the Wildlife Trusts submitted that the Inspectors had to be sure of no effect on bats before they could recommend that the orders be made.  But the Inspectors disagreed.  They understood that they were dealing with an EPS and the overall balancing exercise and in particular whether or not NRW would be likely to grant any licence which was necessary.  Even then, the parties managed to make the test more complicated than it needed to be with a double negative – whether “it is not unlikely to issue a licence”.

European habitats questions become more complex when alternatives are in play.  In the Heathrow case it was said that the Gatwick alternative ‘hub’ was wrongly rejected.  It was rejected, in part, because of effects on a SAC, but there was no evidence of that.  So, here the objector was arguing about a different airport, a SAC and lack of evidence to show effect there.  This point may have made some headway if it were not for the court finding that it did not matter whether there was such evidence or not – the Government was entitled to adopt a policy objective of maintaining the UK’s EU Aviation “hub status” and the Gatwick alternative did not meet it, so the habitats question did not arise.

Parts of the legal framework establish clear requirements to be met, which are ‘hard-edged’ while others are aspirational or directing the decision maker to consider or have regard to particular issue.  Provided that regard is had to those matters and a reasonable judgment is made and explained, the decision is fairly safe.  So, in these cases very important issues were brought into play by the Environment (Wales) Act 2016 (seeking to maintain and enhance biodiversity), the Wellbeing of Future Generations (Wales) Act 2015 (well-being goals and achieving sustainable development), the Air Quality Directive (precautionary principle) and the Climate Change Act 2008 (Paris Agreement on carbon reductions and whether it was a policy within the meaning of the Planning Act 2008).

Those promoting these arguments before the Inspectors in Wales and in the Heathrow case were uniformly met with the response that these were issues to be integrated into the balancing of considerations and coming to a decision.

However, the startling feature of the M4 decision is the outcome: the promoter of the scheme rejected the recommendation to make the order which the promoter sought.  One feature of the evidence was a series of fairly trenchant observations by the Future Generations Commissioner, established under the 2015 Act (IR 2.57; IR 6.847-6.888).  The difficulty caused to the Inspectors was expressed in this way (IR8.358):

“At the Inquiry, objectors placed a great deal of reliance on the fact that the Commissioner objected to the scheme, although none added any substance to substantiate or enhance her submissions. The Inquiry was therefore left to consider two contrasting points of view, basically about the interpretation, overall and in detail, of how the WBFG Act 2015 should, legally be applied to this particular scheme, including to its preparation. In that regard and for other reasons, it was unfortunate that the Commissioner did not attend the Inquiry, take the opportunity to explain her complex points and tender herself for cross-examination. In contrast WG's witness was subjected to examination and was able to give thorough explanations on several occasions setting out why he considered that the Commissioner was wrong on a series of points and provide a detailed and persuasive evidence to show that the scheme, including its preparation, fully accorded with the Act.”

The Inspectors were convinced that the scheme did comply with the 2015 Act.  The Commissioner’s (untested) evidence was comprehensively undone and discredited.

However, having regard to the Welsh Government’s decision to ditch the scheme one is left to consider whether this episode in the Inquiry was an important element in the ultimate outcome.

Like many consenting decisions, the political dimension is ever present and unpredictable.

To read the Case Summary please CLICK HERE

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