MY NIPA STORY - ENVIRONMENTAL LAW AT THE CUTTING EDGE JAMES MAURICI KC

My practice as a barrister at Landmark Chambers goes beyond Nationally Significant Infrastructure Projects (“NSIPs”) encompassing all aspects of planning and environmental law.

NSIPs, given their sheer scale and complexity, will inevitably raise novel, interesting and difficult legal issues. No client, of course, wants to hear that. But it is true. Such legal issues arise throughout the Development Consent Order (“DCO”) application process and beyond into the Courts through judicial review challenges.

In 2009, and before the Planning Act 2008 (“the 2008 Act”) was fully in force, I wrote an article in the JPL entitled “Judicial review under the Planning Act 2008” J.P.L. 2009, 4, 446-451. The article concluded with my setting out a number of reasons why it seemed to me “that the Planning Act will result in future years in a large number of legal challenges to planning decision-making on major infrastructure projects”. The reasons included that:

1.??????as a result of the removal of the public inquiry process in relation to NSIPs “communities will feel increasingly disenfranchised by the process leading to the grant of a development consent” and that judicial review “may well be seen as the only remaining genuine opportunity to air objections to such proposals” – in other words objectors might feel that they would only get their day in court by bringing judicial review proceedings challenging the grant of a DCO;

2.??????the then growing influence of the Aarhus Convention and the protection that this will provide to claimants against adverse costs awards;

3.??????“the reality is that the Planning Act (deliberately) curtails the ability to question the merits of decisions taken at the NPS stage at the later consent stage. There is express provision of the right to challenge in the High Court adopted NPSs. The importance of NPSs under the Planning Act will mean that those opposed to development the subject of an NPS may feel compelled to challenge the NPS especially where it is site-specific”.

It was (I think) Niels Bohr who memorably said, “Prediction is very difficult, especially if it's about the future!”. But in this regard my prediction was not really that difficult to make.

One of the first DCOs applied for under the new Act was Rookery South, an energy from waste scheme in Bedfordshire. The Rookery South (Resource Recovery Facility) Order 2011 was subject to major delays because of the need to go through Parliamentary procedures and then because it was challenged by way of judicial review. The judicial review proceedings went to the Court of Appeal and were only finally disposed of in February 2015. I acted for FCC – the claimant firm in those proceedings – and so I got to contribute early on to making good my own predictions …

In 2009 I was instructed by the Government in relation to the judicial review being made of the then Government’s policy support for the expansion of Heathrow Airport: see R. (Hillingdon LBC) v Secretary of State for Transport [2010] J.P.L. 976. This was one of the first judgments to look at the 2008 Act. Lord Justice Carnwath came down from the Court of Appeal to hear the case in the High Court. I was part of a Government counsel team that included Jonathan Swift and Karen Steyn, now both themselves High Court Judges.

In 2011 I took over the lead counsel role on airport expansion for the Department of Transport and carried on in that role until 2020. The legal issues raised in the six judicial reviews brought in 2018 of the Airports National Policy Statement: new runway capacity and infrastructure at airports in the south-east of England (“the Airports NPS”) were legion and included: (i) the proper interpretation of 2008 Act and in particular the role of NPSs at the DCO stage; (ii) the proper standard of review in challenges to an NPS; (iii) surface access issues; (iv) air quality; (v) habitats; (vi) strategic environmental assessment; (vii) consultation; (viii) bias; (ix) climate change and (x) human rights: see the judgments in: R (Spurrier) v SST [2000] PTSR 240 (Divisional Court); R (Plan B) v SST [2020] PTSR 1446 (Court of Appeal) and R (Friends of the Earth) v Heathrow Airport?[2021] PTSR 190 (Supreme Court). The Airports NPS was, of course, a site specific and indeed scheme specific NPS – providing policy support for the North West Runway scheme of expansion at Heathrow.

The scale of the litigation was extraordinary. The main Divisional Court judgment is 175 pages long, excluding the Heathrow Hub judgment (which was itself 73 pages long).

The issues were truly fascinating. This was environmental law at the cutting edge.

But this litigation raises some issues. A key role of lawyers is to advise their clients on prospects of success. Clients want to know: will we win? So, if we look at what happened in relation to the climate change grounds of challenge in the judicial review the results were:

1.??????The Divisional Court (Holgate J (the Planning Court liaison judge) and Hickinbottom LJ) held that these grounds were unarguable and thus refused permission for judicial review in respect of those grounds;

2.??????The Court of Appeal (Lindblom LJ, Singh LJ and Haddon-Cave LJ) regarded these grounds not only as arguable but considered that they were made out as good claims to which Secretary of State had, in their view, no defence;

3.??????The Supreme Court (Lord Reed PSC, Lord Hodge DPSC, Lord Sales JSC, Lady Black JSC and Lord Leggatt JSC) unanimously held that the Court of Appeal was “wrong” to overturn Divisional Court. The Supreme Court decision has been described (rightly) as a “comprehensive and resolute reversal” of the Court of Appeal’s decision.

Whether you think the Court of Appeal got it right or the Divisional Court and the Supreme Court got it right, one starts to question how lawyers can be expected to advise clients on the prospects in such a judicial review in the 2008 Act context if different judges can take such very different views. Legal certainty is important here. NSIPs, after all, involve huge investment in time and money.

Of course, one of the main aims of the 2008 Act was to speed up the process by which NSIPs were consented. The Heathrow Terminal 5 inquiry in the 1990s was held up (in the White Paper that preceded the 2008 Act) as the quintessential example of the alleged failings of the Town and Country Planning Act 1990 in relation to such projects. Those criticisms are not entirely fair for reasons I don’t have time to go into but if one looks at the gestation period of the Airports NPS, the legal challenges to it and the fact that no DCO has even yet been applied for it is difficult to see that any future expansion of Heathrow (if it happens at all) will have been delivered any more quickly than it would have been under the 1990 Act.

Ironically, but tellingly, my practice has on several occasions over the last few years involved advising clients on how to avoid their projects being captured by the 2008 Act because that was seen as a slower route to consent than was the 1990 Act. The Government is, of course, now advancing further proposals to speed up the NSIP process. How successful this will be remains to be seen. I would not hold my breath. There is in truth a limit to how much one can speed up the determination process for such complex and large-scale cases. ?

When I was at University in the early 1990s there was no environmental law option on my course. The world has changed. If you are interested in a career in environmental law – and many coming into the law these days are - then a practice that encompasses NSIP work will take you into the very heart of the most fascinating and complex legal issues in that field. It will be intellectually fascinating and a truly worthy challenge for your skills as a lawyer. But it will also be a roller coaster ride. It is not – let me be clear - for the faint hearted.

NIPA plays a really key role in this area. It is a trusted voice on the 2008 Act whenever the Government is proposing reforms (which at the moment seems to be every other day). NIPA also has an important role in education in terms of exploring the many complex legal and other issues in this field.

I am delighted to have been appointed to NIPA Council in 2021 and to be co-convenor of the Communications and Diversity Working Group with Ben Copithorne.

James Maurici K.C. is a barrister practising from Landmark Chambers.?