1. Head of Infrastructure Planning and Government Affairs
Policy and planning processes for delivering the Commission's recommendations: Scene-setting & process
Robbie Owen
Head of Infrastructure Planning and Government Affairs
Pinsent Masons LLP

2. Introduction
What is the recommended wider package – “key supporting policies”?
What needs to be done to deliver it?
For the development consenting aspects, the part to be played by:
a Hybrid Bill; or
a Development Consent Order
Key differences between those two consenting routes
Deciding factors?

3. Recommended wider package (1)
Congestion or access charge?
Tie-in to progress on EU air quality targets
UK aviation ‘noise levy’
Independent aviation noise authority
Ban on night flights
Legal commitment - No 4th Runway
Legally binding ‘noise envelope’

4. Recommended wider package (2)
Wider community package
Joint Oversight Board
Dedicated delivery body
Surface access improvements
Airspace change
Community Engagement Board
Public service obligations on an airport-to-airport basis

5. Delivering a wider package…..
HMG and HAL discussions and negotiations
Role of other bodies (local authorities, GLA, TfL, CAA, airlines, Highways England, Network Rail, environmental regulators)
Initial House of Commons vote/motion?
Green, White and Command Papers
DfT consultation before any decision?
Paving Bill?
Civil Aviation Bill (‘Programme Bill’)?
Non-hybrid (i.e. public) aspects in a Hybrid Bill?

6. Two consenting options (1)
Development Consent Order (DCO)
Hybrid Bill
Order made under Planning Act 2008
Primary legislation
Most major infrastructure projects, e.g. TTT, Hinkley Point C, Swansea Tidal Lagoon
Used less often: HS2, Crossrail 1, HS1 – suited to big projects
Promoter in control
Government in control
PINS examines; Secretary of State decides
Select Committees review; Parliament decides but capacity issues?
Heavily proscribed and very onerous statutory process (e.g. consultation and examination)
More flexible and less onerous; more of a one stop shop
Definitive, shorter timeline
No programme certainty
Easier for public to engage?
Easier for public to obtain changes?
Less politicised
Immunity from legal challenge

7. Two consenting options (2)
Both options need the Government to take action:
DCO ideally supported by an Airports National Policy Statement (NPS) - to be prepared, consulted on and ‘designated’
A Hybrid Bill needs:
to be promoted by the Government
Parliamentary time and support

8. Consent is a statutory instrument called an ‘Order’
Consenting for major infrastructure identified in Planning Act 2008 (including airports)
Consent is a statutory instrument called an ‘Order’
Can authorise more than one piece of major infrastructure in a single DCO
Streamlined consenting process (planning, land acquisition, licences, permits in one place)
Guaranteed timelines after submission = Decision by SoS months from submission of application
Promoter prepares application  Detailed public review by Planning Inspectorate (PINS)
DCO

9. DCO process Front loaded Extensive consultation & notice requirements
Examination:
Extremely intensive 6 months!
Written process, supplemented by hearings
Decision-making period is 3 months + 3 months max
Pre-submission
c.9 months – 3 years
Post-Submission:
-acceptance
-initial assessment
c. 4-5 months
Examination
6 months
PINS Reporting
and
SoS Decision
6 months
Preliminary Meeting

10. DCO timelines
Source: Planning Inspectorate, July 2015

11. Possible R3 DCO timeline
Source: Heathrow Airport Limited, July 2015

12. DCOs – key considerations
Promoter leads –in control but can be ‘lonely’
Less political – PINS are independent body, focussed on planning merits (but NPS still cornerstone)
Extensive consultation and pre-application steps are statutory obligations
Process has limited flexibility:
after application made; and
once consent has been given.
Certainty of delivery timelines the key advantage

13. Mix of ‘Public’ and ‘Private’ Bill characteristics and process
Details reviewed by Select Committee
Those specially and directly affected can ‘petition’ against and be heard
Promoted by Government Department
Principle debated and then approved
Flexible process (changes via Additional Provisions) and flexible consent
No minimum or maximum timelines
Output = Primary legislation cannot be challenged (except on EU grounds)
Contains everything needed to deliver project (and more? e.g. regeneration power in HS2 Bill)
Hybrid Bills

14. Hybrid Bill process
Bill deposit (Bill, Plans & Sections, Environmental Statement, etc.)
1st reading (i.e. publication) in the House of Commons
Public consultation on environmental impact assessment
2nd reading (i.e. debate on general principle)
“Petitioning” period between 2nd Reading and Select Committee
Petitions heard by Select Committee
Public Bill Committee (line by line review)
Report stage (i.e. report of Committee stage to whole House)
3rd Reading (i.e. final debate on final version of Bill)
House of Lords – petitioning and Select Committee
Any further amendments approved by the Commons
Royal Assent

15. Example Timeline – HS2 Bill so far
29 November 2013
Consultation on ES
Independent Assessor’s Report 9 April 2014
28 & 29 April 2014
Second Reading
Petitioning Deadline
23 May 2015
Committee sat first 6 May 2014
26 March 2015
Interim Report

16. Hybrid Bills – current and recent statistics
Crossrail Act 2008
HS2 Bill (to 23 June 2015)
10 MPs on Select Committee
5 MPs (previously 6)
457 petitions deposited in Commons
1,918 petitions deposited
84 public sessions
80 public sessions
205 petitioners heard in Commons
More than 400 petitioners heard
7 site visits from Commons Committee
9 site visits from Commons Committee
4 series of amendments to the Bill were recommended and accepted
2 APs so far – more to come
40 months in total
19 months and counting…
Anticipated Royal Assent Q1 2017

17. Hybrid Bills – key considerations
Political support – need Government backing and wider parliamentary support
Different policy basis – no NPS required
Flexibility – in process and final consent, more suited to an outline or hybrid design
Limited scope for legal challenge – as Act is primary legislation
Ability to incorporate supporting & wide ranging measures
Timelines are uncertain – Crossrail took 40 months, HS2 is 19 months and counting…
Parliamentary capacity

18. Deciding factors? Cost Certainty & Speed Flexibility of Consent
Political Support
Risk of legal challenge
Consultation Obligations
Flexibility of Consent
Certainty & Speed
Promoter Control vs. Government Support
Transparency & Public Engagement
Multi-Agency Coordination
Cost

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