How do we obtain approval to expand Heathrow?Introduction

The Planning Act 2008 covers the consenting process for nationally significant infrastructure projects (often referred to as NSIPs). NSIPs are projects considered to be so large and important that permission to build them must, by law, be given at a national level by a Secretary of State. Decisions on these projects are mainly taken based on how they comply with National Policy Statements which, in the case of expansion at Heathrow, are the Airports National Policy Statement and the National Networks National Policy Statement.

The construction or alteration of an airport falls under the Planning Act 2008 regime where the development proposed would lead to an increase in passenger capacity that would be at least 10 million additional passengers per year. Our proposed expansion of Heathrow would exceed this threshold and so is classified as an NSIP. Our proposals to divert and alter junctions on the M25 and the M4 Spur are also classified as an NSIP in their own right, but for practical reasons we will combine these into one application for permission.

Because our expansion proposals are an NSIP, if they are approved the Secretary of State for Transport is required by the Planning Act 2008 to grant a specific type of permission, called a development consent order (often referred to as a DCO). A DCO combines consent to develop a project alongside a range of other consents that would normally have to be obtained separately, such as listed building

consent and some environmental consents. A DCO can also contain powers for the compulsory acquisition and temporary possession of land.

Key terms

NSIPs Nationally significant infrastructure projects

DCO A Development Consent Order – a statutory instrument giving permission for a nationally significant infrastructure project

PINS The Planning Inspectorate – the government agency responsible for operating the planning process for NSIPs and for examining proposed DCOs

EIA Environmental impact assessment – the process of assessing the likely significant environmental effects of an NSIP or any other proposed development

ACP Airspace change proposal and airspace change process

The DCO process

To obtain a DCO, a six-stage process must be followed:

1. pre-application;2. acceptance;3. pre-examination;

4. examination; 5. decision; and6. post decision.

These stages are illustrated in the graphic overleaf.

JUNE 2019

The DCO process

Pre-application The pre-application process is designed to make sure that an application for a DCO has been sufficiently tested through a consultation and engagement process before it is submitted.

Pre-application consultation is therefore a key part of the process. We are formally consulting interested parties including landowners, local communities, local authorities and other statutory consultees such as Natural England, Historic England and the Environment Agency, before submitting our DCO application. This Airport Expansion Consultation is Heathrow’s process to comply with this statutory duty, and builds on the non-statutory public consultations carried out in January to March 2018 and January to March 2019. As well as these consultations, ongoing engagement has been and will continue to be undertaken by Heathrow with landowners, local communities, businesses and statutory bodies.

After we have undertaken pre-application consultation, we are required to compile a report explaining what consultation we have carried out to inform development of the project. The report must also explain how we have taken into account feedback received from our pre-application consultation and engagement and how that feedback has helped shape and develop the project. The Consultation Report is one of the documents that will be submitted to the Planning Inspectorate (the government agency responsible for operating the planning process for NSIPs) (also known as PINS) with our application for a DCO.

Acceptance On receipt of our DCO application, the Planning Inspectorate will review it and decide on behalf of the Secretary of State whether the application meets the standard required for it to be accepted for examination.

This will include an assessment of whether the consultation we have undertaken has been adequate.

Pre-examination Following acceptance of the application for examination, we must formally notify certain persons and bodies, and also publicise acceptance of the application. At this stage, anyone interested in the application will be able to register with the Planning Inspectorate and provide a summary of their views in writing.

The Secretary of State will at the same time appoint an ‘Examining Authority’, which will be a panel of up to five examining inspectors, to examine the DCO application on his behalf.

Examination The Examining Authority has up to six months to carry out the examination once it formally starts. During this period people who have registered to have their say are invited to provide more details on their views in writing.

The Examining Authority will ask written questions to both Heathrow and other parties who have submitted written comments on the DCO application. Open floor hearings, hearings around specific issues and compulsory acquisition hearings will also be held and the Examining Authority will carry out site visits.

Decision Following completion of the examination the Examining Authority will have up to three months to prepare a report on our DCO application to the Secretary of State for Transport. This report will include a recommendation on whether our application for a DCO should be granted or refused.

The Secretary of State for Transport then has up to a further three months to make a decision on whether to grant or refuse the DCO and therefore whether to approve our expansion proposals.

Post decision Once a decision has been issued, there is a six week period in which any application to challenge it in the High Court on legal grounds must be submitted.

This process of legal challenge is known as Judicial Review.

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Relationship of the DCO process with other processes

storage of waste, the abstraction and discharge of water, for amending existing landfills and for creating new landfills.

We will be working closely with the Environment Agency to ensure that we meet the relevant requirements to obtain these permits.

We may also need a number of licences from Natural England to manage the project’s interaction with European protected species. We will be working closely with Natural England to ensure that we meet the relevant requirements to obtain these licences.

Planning permissions

For those activities that do not constitute the NSIP we may submit applications for planning permission to the relevant local authority under the Town and Country Planning Act 1990.

For example, planning applications may be submitted for works which need consent before the DCO application has been determined, to enable our construction programme to be met. An example of this is a planning application for the SSE power line diversion (as explained in our Preferred Masterplan consultation document) west of the proposed new runway, which is proposed to be submitted later this year.

Environmental impact assessment process

The Preliminary Environmental Information Report (PEIR) presented at this Airport Expansion Consultation sets out the latest progress with the environmental impact assessment of our expansion proposals. Following the Airport Expansion Consultation, we will continue with this assessment process, taking account of the consultation responses received, with the outcome to be reported in an Environmental Statement submitted alongside our application for the DCO.

This Environmental Statement will set out a number of environmental measures that will be required to mitigate both the built development and operational impacts of our proposed expansion. The draft of the DCO submitted with our DCO application will set out how we will deliver these measures and will impose conditions (see below) to make sure they are delivered and at the appropriate time.

DCOPlanning permissions Environmental permits and licences ACP

Environmental impact assessment process

Approvals required for expansion1

Airspace change proposals

Any changes to Heathrow’s airspace design (i.e. flight paths) or operating procedures that result in changes to the movement of aircraft over the ground can only be made once we have submitted an airspace change proposal (ACP). The process that needs to be followed before submitting such a proposal is known as the airspace change process (also often abbreviated to ACP). In accordance with government policy, these airspace change proposals will not be included in our DCO but separately applied for and approved by the Civil Aviation Authority (CAA) and, potentially, the Secretary of State for Transport.

Changes to the way that aircraft move around the airfield, and the way in which we use our runways (e.g. how we alternate between the runways) will, however, be included within our DCO application since they are part of our noise management package.

It is anticipated that an airspace change approval will be obtained approximately two years after any DCO for our expansion proposals is granted. It will therefore be necessary for the DCO’s accompanying environmental impact assessment (the process of assessing the likely environmental impacts of proposed development) to provide an assessment of the “likely significant effects” of operating a three runway airport, based on best estimates made at the time of the DCO application of where the future flight paths may be.

It is the later airspace change process that will determine the precise position of final flight paths for the three runway airport, and which will be subject to its own process of consultation and environmental assessment. To ensure that the DCO and airspace change processes each work effectively they will be co-ordinated but kept separate throughout.

Heathrow consulted on the latest progress of airspace change matters as one part of its Airspace and Future Operations Consultation between January and March 2019. A statutory consultation on the proposed airspace design, and the position of all flight paths, will be undertaken in 2022.

Environmental permits and protected species licences

We anticipate that we will also need to apply for a number of environmental permits from the Environment Agency. They will include, for example, permits relating to the

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1. This does not show approvals required that are not directly related to the DCO, such as safety approvals.

Development Consent Order for expansion: content

A DCO can provide consent for those activities that form the NSIP and for development that is ‘associated with’ the NSIP.

We are currently continuing our work to finalise what precise activities form part of the NSIP, but in essence these will constitute the new runway and associated new airport infrastructure such as terminals and the proposed alterations to the M4 Spur and M25.

There are rules as to what development can be considered to be ‘associated with’ a NSIP and therefore included in a DCO. In summary there must be a direct relationship between the associated development and the NSIP: the associated development should not be the primary objective of the consent that is sought, but should be a consequence of the NSIP (e.g. fuel facilities to supply the planes that will use the new airport facilities that are the NSIP). We are continuing to test all aspects of our expansion proposals to consider whether they can and should be included in the DCO application.

For those activities that do not constitute the NSIP or development associated with it, we may submit normal applications for planning permission to the relevant local authority under the Town and Country Planning Act 1990.

As set out above, a Development Consent Order is an all-encompassing consent. As far as possible, a DCO seeks to provide one document which sets out the powers and controls for the construction, maintenance and operation of the DCO project concerned.

For our expansion proposals these powers and controls can be split into three categories:

Works powers, controls and mitigation

PowersThe DCO will provide consent for all of the physical works required to construct and maintain our expansion proposals. These will be undertaken within a defined boundary, referred to as the Order limits.

This will include the works themselves, particularly the new runway, aprons and taxiways, alteration of the M25, the M4 Spur and local roads and river diversions. It will also include mitigation measures such as noise barriers, noise insulation, landscaping and drainage and the ability to undertake the construction activities necessary for these elements to be built, such as construction support sites.

These powers will be either temporary or permanent, with examples including the ability to extinguish and divert public rights of way and highways, divert or remove utility companies’ equipment and change speed limits.

These powers will be set out in the DCO and, where necessary, shown on plans that will accompany the DCO.

ControlsExpansion of Heathrow is a large and complex project that will be delivered over many years. As such, it is not feasible to design all elements of our proposals to the same level of detail at the same time. It will therefore be important to retain flexibility for those elements which are not required for several years, recognising that over the medium to longer term some change in the proposals is inevitable. This is further explained in our Preferred Masterplan consultation document.

For example, it is not possible to anticipate how passenger or airline needs may change or how technology may develop. We therefore expect our DCO to seek consent for some works in detail and for some by reference to parameters.

Where the parameter approach is used, these parameters will set the minimum and maximum extent of development but reserve detail for approval by an independent body (discussed further below) at a later stage. This may be the case for off-airfield development such as hotels and offices where the DCO application may provide parameters for the height and location of them but leave design and other details until later. In defining the parameters, we will ensure that the development permitted within the parameters is clearly described and that the likely significant environmental effects are properly assessed.

While there will be some aspects of the development where at the time of the DCO application the design is defined in greater detail than just with reference to ‘parameters’, there will still need to be scope for the DCO to provide an element of flexibility in the evolution of the detailed design. This would, however, be subject to relevant approvals and controls by an appropriate independent body (also discussed further below).

These are discussed further below.

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1. Works powers, controls and mitigation

Provisions to facilitate and control the construction and maintenance of our proposals

2. Land powers and controls

Provisions to facilitate and control the acquisition and use of land for our proposals

3. Operational powers, controls and mitigation

Provisions to facilitate and control the operation of the expanded Heathrow

MitigationWe recognise that some controls will need to be placed on the works powers granted by the DCO outlined above to ensure that they are used in the way assumed by the assessments set out in the Environmental Statement and so that the Secretary of State and stakeholders can be assured of this.

A DCO often contains what are known as protective provisions, which are measures to protect the interests of statutory and other bodies whose assets and functions could be affected by the construction or operation of the project, for example, Network Rail and National Grid. We intend to include protective provisions in the DCO and will develop them in consultation with the relevant bodies.

It is also common for what are known as ‘section 106’ planning agreements to be negotiated with local planning authorities alongside a DCO application, setting out obligations and other commitments which are not secured by the DCO’s requirements or protective provisions and so need to be secured separately. For example, these often include financial contributions by developers, such as for on-going maintenance of relevant public open space or in relation to jobs and skills funds. We intend to develop section 106 agreements for this purpose.

Land powers and controls

We expect that the DCO will give us powers to:

• acquire land compulsorily;• acquire rights over land compulsorily;• survey and investigate land;• undertake protective works and noise insulation to

buildings and structures; and• occupy and use land temporarily for construction and

then return it to its owners.

The extent of these powers will be set out in our draft of the DCO submitted with the application and on the accompanying plans that will be referred to in it.

In order to obtain compulsory acquisition powers over land we will have to justify for each parcel of land concerned that there is a ‘compelling case in the public interest’ for those powers to be given and for us to interfere with people’s human rights to quiet enjoyment of property. This justification will be set out in a ‘Statement of Reasons’ submitted with our DCO application.

The DCO will include a number of controls on these powers, including a time limit on their use, the need to give notice of the intention to use the powers and the need to pay compensation.

We will also be required to submit a statement, known as a Funding Statement, with our DCO application, explaining that we will have sufficient funds to pay all of the compensation that is required.

We are currently considering the precise nature of the land powers which we will seek within the DCO to allow us to build and operate our expansion proposals, including in relation to the time limits for use of those powers.

Operational powers, controls and mitigation

An airport is a complex operating environment. The existing airport has a number of operational controls which are applied through a variety of regulatory regimes. These controls relate to aircraft movements, terminal operation, passenger safety, vehicle and passenger transport movements and community impacts, and how they are managed.

Our expansion proposals will change this environment and so additional operational powers and controls will be required. The DCO will therefore need to create an overall framework within which operations across the expanded airport will be managed.

This framework will include reference to a number of documents that will be submitted with our DCO application such as our proposed Surface Access Strategy, Community Fund proposals and Environmentally Managed Growth. The DCO will require us to operate the expanded airport in accordance with these documents.

Operational matters which are intended to be covered by the DCO are currently being developed and are anticipated to include:

• air transport movements (ATMs): we are intending that the DCO will contain a provision to remove the current legal limit on ATMs under an existing planning permission, from the date of the DCO having legal effect, to allow us to deliver an increase of at least 260,000 ATMs each year as required by Government policy;

• noise mitigation measures, including a new noise envelope (as explained in our Future Runway Operations and Proposals for Mitigation and Compensation consultation documents);

• surface access (i.e. transport) measures to deal with matters such as road user charging, emissions charging and the management of car parks (dealing with the types of measures that are set out in our Surface Access Proposals consultation document);

• provision for the Community Fund (our proposals for which are set out in our Proposals for Mitigation and Compensation consultation document);

• the air quality, carbon, noise and surface access limits, monitoring and enforcement measures set out in our Environmentally Managed Growth consultation document, which will provide a framework of controls applying to the increase in ATMs both before and after opening of the new runway. The Framework will involve the DCO modifying the normal enforcement regime for projects authorised by DCOs so that enforcement of those limits and their related monitoring is dealt with by the Independent Scrutiny Panel proposed in the Framework rather than by individual local authorities; and

• provisions covering the relationship with the airport’s current planning regime, in terms of existing planning permissions and permitted development rights.

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Requirements

If granted, our DCO will be subject to a series of requirements (similar to conditions in a planning permission).

The purpose of these is to help in the management and control of expansion and to ensure that appropriate mitigation is put in place and continues to be managed and monitored.

An example of such a requirement is that our expansion proposals will have to be constructed in accordance with the Code of Construction Practice submitted with the DCO application. Another example is the need to submit for approval further design details, such as a detailed scheme of landscaping for specific areas.

An important consideration for a project as large and as complex as our expansion proposals is determining who should be responsible for giving these further approvals and for confirming that DCO requirements, such as for the approval of detailed designs, have been and are being complied with. Who is appropriate to do this will differ depending on the requirements involved (e.g. for the M25 works the appropriate body is likely to be the Secretary of State for Transport as the M25 is part of Highways England’s network).

We are currently developing our thinking on this issue but our initial thoughts are that the DCO could establish a special body made up of representatives from each of the relevant local authorities. This body would then be responsible for giving some of these further detailed design and other approvals and for confirming that particular DCO requirements have been and are being complied with.

Further details on the DCO process can be found at the following websites:

The Planning Inspectorate – http://www.planningportal.gov.uk/planning/planninginspectorate

Planning Act 2008 – http://infrastructure.planningportal.gov.uk/legislation-and-advice/legislation/

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