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Far-reaching impact of the Heathrow judgment but ‘pre-determination’ issue left unaddressed

Whilst everyone focuses on the headline-grabbing news that the Government’s Climate Change laws appear to have triumphed over airport expansion plans, a less satisfactory outcome for those with an interest in consultation is that it leaves a problematic High Court judgment on the issue unaffected.

Last May’s judgment covered a claim that the Government’s Airports National Policy Statement (NPS) had been (or at least appeared to have been) pre-determined. There was much evidence that Ministers had effectively taken a decision. Surprisingly, and as noted by the Institute on 11th May last year, the Court relied upon age-old cases to conclude that decision-makers had an open mind. One of these was a New Zealand case from 1981; another – about Stevenage new Town went back to 1947. Neither, in our view, made much sense in 2019.

It would have been great had the Court of Appeal had the opportunity to think again, but this issue was not pursued. It leaves us with an awkward ‘outlier’ that sits uncomfortably alongside modern interpretations of predetermination. We will continue to advise consultors that they should do everything possible to avoid being seen to have made up their minds before asking consultees for their views.

The true impact of the Heathrow decision may be far away from the world of aviation and airports David Wolfe QC, (see the above Video) who represented Friends of the Earth, in this case, believes that any and every proposal that is brought to the public will, henceforth need to be shown to be compatible with Climate Change policies. In planning, there is a long tradition of various issue being ‘material’ to a proposal. But on other matters, there could now be a significant change of practice.

Supposing a Hospital is to change its public transport arrangements; possibly open a new car park or make changes to a bus service. Might it, from now on, be required to demonstrate adherence to climate change considerations when taking its decision? And if so, would that have needed to be reflected in the consultation that precedes the decision? Will not hundreds of routine decisions and consultations be caught by the same requirement., similar to the over-arching requirement to show conformance with the Public Sector Equality Duty?

Experience suggests caution in the interpretation of cases like this. Remember that environmental campaigners lost their case on the grounds of habitats, air quality and noise. Heathrow Ltd says it will appeal to the Supreme Court on this one issue and are confident that we will be successful’

This was not a ruling on the third runway itself, but just the legality of the process of decision-making, where consultation had been a major part of the process. We will all need to study the detailed implications, but if David Wolfe is correct in forecasting a ‘profound’ change to the way in which public bodies consult, 27 February 2020 may indeed become known as a landmark date in the law of consultation.

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

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