Adequacy of Consultation response
Application by Gatwick Airport Limited for an Order Granting Development Consent for the Gatwick Airport Northern Runway Project (Project Reference TR020005)
Joint Local Authorities’ Adequacy of Consultation Representation
July 2023
1. Introduction
1.1 This Adequacy of Consultation Representation (the ‘Representation’) relates to the application by Gatwick Airport Limited (the ‘Applicant’) for an Order Granting Development Consent for the Gatwick Airport Northern Runway Project (the ‘Project’).
1.2 It follows the requests by the Planning Inspectorate (PINS) on 7 July 2023 inviting host and neighbouring authorities to submit ‘Adequacy of Consultation Representations’, which PINS must have regard to, in deciding whether or not to accept the DCO application.
1.3 This Representation has been prepared jointly by the following local authorities (the ‘Authorities’):
• Host authorities, that is, district or county councils for land to which the application relates:
Crawley Borough Council; West Sussex County Council; Mole Valley District Council; Reigate and Banstead Borough Council; Tandridge District Council; and Surrey County Council.
• Neighbouring authorities, that is, district or county councils whose areas are affected by the Project: Horsham District Council; Mid Sussex District Council; East Sussex County Council; and
Kent County Council.
1.4 The Representation sets out the Authorities’ joint positions in respect of whether the Applicant has complied with its duties under Sections 42, 47 and 48 of the Planning Act 2008 (the ‘Act’) with regard to consultation and publicity.
1.5 Although Section 55 (5) of the Act defines adequacy of consultation representation as “…a representation about whether the applicant complied, in relation to that proposed application, with the applicant’s duties under Sections 42, 47 and 48”, this representation urges the Inspectorate to consider whether the Applicant has complied with its duty under Section 49 of the Act (to take account of responses to consultation and publicity) and the extent to which the Applicant has had regard to guidance issued under Section 50 of the Act.
1.6 The Authorities also urge the Inspectorate to consider the extent to which the Applicant has complied with certain parts of the Gunning or Sedley principles governing a lawful consultation. It will be remembered that the principles for public consultation were coined by Stephen Sedley QC, sitting as a High Court judge, in the case of R v London Borough of Brent ex parte Gunning1. The principles are that: (i) proposals are still at a formative stage (ii) there is sufficient information to give ‘intelligent consideration’ (iii) there is adequate time for consideration and response and (iv) ‘conscientious consideration’ must be given to the consultation responses before a decision is made. The judge held that a consultation is only lawful when each of these principles is complied with. The principles were reinforced by the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan2 (where it was confirmed they apply to all consultations) and by the Supreme Court in R ex parte Moseley v LB Haringey3, which endorsed the principles’ legal standing. The principles are discussed in paragraphs 6.6 and 9.2 of this representation.
1.7 Should the DCO application be accepted, this Representation also comments further on matters for the Examining Authority to consider in relation to the conduct of the pre-examination and examination stages.
1.8 Please note that individual authorities may submit separate Adequacy of Consultation Representations that set out their positions on matters specific to their areas, including where local representations have been made to them.
1.9 This Representation does not set out the Authorities’ views on the merits or otherwise of the application for development consent for the Project. If the application is accepted, those views will form part of any Relevant Representations, Local Impact Reports, and other Written Representations submitted during the pre-examination and examination stages.
2. Executive Summary
2.1 Section 2 summarises the Authorities’ views on compliance, which are detailed in the following sections of this Representation.
2.2 The Authorities are of the view that the Applicant has complied with its duty to consult and publicise the proposals for the Project as required by Sections 42, 47, and 48 of the of the Act. However, the Authorities consider that these sections cannot be used in isolation to determine whether the Applicant’s actions have been adequate.
2.3 Although the Applicant has met the procedural requirements of Sections 42, 47, and 48 of the Act, these are basic procedural requirements. The Authorities consider that the Applicant has not complied with the spirit of the Act, which is about front-loading the DCO process and early engagement with stakeholders and others. Consultation and engagement by the Applicant have been neither meaningful nor effective in many ways (as detailed in this representation and in representations from individual authorities).
2.4 The Authorities are of the view that the Applicant has not complied with its duty under section 49 of the Act with regards to taking account of responses to consultation and publicity. Furthermore, the Authorities are of the view that the Applicant has not had regard to guidance issued under section 50 of the Act.
2.5 Overall, this lack of meaningful and effective engagement may have an impact on the effectiveness and soundness of the pre-examination and examination processes as numerous matters remain outstanding. This may have consequences for the early production of Statements of Common Ground (SoCG) and any Principal Areas of Disagreement Summary Statements (PADSS). Furthermore, if not properly addressed, these issues may not allow the Examining Authority adequate opportunity to undertake its work fully within the six months from the Preliminary Meeting, as required by the Act.
2.6 Accordingly, the Authorities consider that PINS should decline to accept the DCO application to enable the Applicant to undertake more meaningful engagement and consultation. However, should the application be accepted, PINS should ensure that adequate time is allowed to address these matters in the pre-examination period.
2.7 The Authorities have addressed Sections 42, 44, 45 and 47 to 50 of the Act separately for clarity.
3. Duty to consult – Section 42 of the Act
3.1 So far as relevant to their application, an applicant must consult the following:
• certain prescribed persons;
• each Local Authority under Section 43;
• each person within one or more of the categories set out in Section 44; and
• when consulting a person under Section 42, Section 45 requires the Applicant to notify the person of the deadline for the receipt of the person’s response and this deadline must not be earlier than 28 days after the consultation documents are received.
Prescribed persons
3.2 A list of those consulted during each phase of consultation has been provided by the Applicant in Consultation Report Appendix Part B – Volume 19 (B.18) and corresponds with the ‘prescribed persons’ listed in Schedule 1 to the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the ‘Regulations’). Therefore, the Authorities consider that the Applicant has complied with that procedural provision (i.e. Section 42(1)(a) of the Act).
Local Authorities
3.3 The Applicant has provided a list of the Local Authorities consulted on the Project, which includes all the Authorities. The Authorities confirm they were engaged by the Applicant on both consultation phases. Therefore, the Authorities consider that the Applicant has complied with that procedural provision (i.e. Section 42(1)(b) of the Act).
Categorised persons
3.4 An applicant must consult each person who is within one or more categories set out in Section 44. This includes (in Category 1) owners, lessees, tenants or occupiers of land included within the boundary of the order limits and (in Category 2) those with an interest in the land or with a power to sell or convey the land or to release the land. Details of the landowner and statutory undertaker consultation has been provided in the Consultation Report in sections 5.5.15 and 6.5.14 for each consultation. The number for consultees in each category (1,2 and 3) is identified and an example of the letter sent to each consultee category is included. However, without having sight of the Book of Reference (Document Reference 3.3) to establish the full list of persons that would fall within Section 44, the Authorities are not in a position to confirm or otherwise.
3.5 With regards to Section 45, the Authorities confirm that the requirement for at least a 28-day period was met for each round of statutory consultation held.
3.6 Overall, therefore, the Authorities consider that the Applicant has complied with the provisions of Section 42 of the Act, subject to confirmation that all those required to be consulted under section 44 have been.
4. Duty to consult the local community – Section 47 of the Act
4.1 Section 47 requires an applicant to prepare and publish a statement setting out how it proposes to consult local people about the proposed application: the ‘Statement of Community Consultation’ (SoCC). An Applicant must consult with the relevant local authorities before publishing the statement, and the local authorities must reply within 28 days. The consultation must be carried out in the manner set out in the statement.
4.2 The Authorities confirm they were consulted by the Applicant on the draft SoCCs and that the Authorities replied within 28 days. The Authorities confirm that the Applicant carried out the consultation in autumn 2021 and summer 2022, as set out in the respective SoCCs.
4.3 Overall, therefore, the Authorities consider that the Applicant has complied with the procedural provisions of Section 47 of the Act.
4.4 However, despite meeting the procedural requirements of Section 47, the Authorities consider that the Applicant did not respond adequately to the issues and suggestions raised by the Authorities in their responses to the SoCCs, which consequently limited the ability of local people to engage with the process and respond in a meaningful way. More detail is set out in paragraphs 7.32 to 7.35, and by individual authorities’ representations where relevant.
4.5 Furthermore, although the Applicant may have met the procedural requirements of Section 47, the Authorities would expect PINS to carefully consider whether the documentation upon which the Applicant consulted (in particular the Preliminary Environmental Information Report (PEIR) for the consultation in autumn 2021, and the consultation document for the further consultation on highway improvement changes in summer 2022) and the manner of the consultation was sufficient for those consulted to develop a satisfactorily informed view of the likely significant effects of the proposal.
5. Duty to publicise – Section 48 of the Act
5.1 Section 48 provides that an applicant must publicise the proposed application in a prescribed manner. The Regulations specify a deadline of not less than 28 days for responses.
5.2 The Consultation Report (Appendices B.6 Volume 1) provides examples of the Section 48 notices that were published and the sources used in accordance with Section 48.
5.3 The other phases of the consultation were also published in local newspapers. The deadline for responses satisfied the statutory requirements.
5.4 Therefore, the Authorities consider that the Applicant has complied with the procedural provisions of Section 48.
6. Duty to take account of responses to consultation and publicity – Section 49 of the Act
6.1 Section 49 of the Act states that an applicant must, when deciding whether the application should be in the same terms as the proposed application, have regard to any relevant response, which includes those from any person or organisation consulted under Section 42, local people consulted under Section 47, and responses resulting from publicity under Section 48.
6.2 The Authorities submitted substantial responses to the consultation on the PEIR in autumn 2021 and the consultation on the highway changes in summer 2022. They have also engaged with the Applicant through the Topic Working Group meetings (TWG’s) although the Authorities do not consider these have been effective (see paragraphs 7.16 to 7.27 and Appendices B, C and D).
6.3 Accordingly, the Authorities asked the Applicant to prepare and maintain an ‘Issues Tracker’ following the consultation on the PEIR in autumn 2021, which would have been good practice and has been used with other major DCO proposals such as the Luton Airport DCO recently submitted. Section 3.4.49 of the Consultation Report states that ‘the Applicant also committed to preparing an issues tracker for comments submitted during the Autumn/Winter 2022 TWG’s. However, the issues tracker was never presented and there is no evidence of any such tracker being drafted and any further requests were ignored by the Applicant. Whilst the Applicant maintained a record of key issues raised by the Authorities for each topic together with the Applicant’s responses, these notes were not shared for agreement and many issues were not recorded. Therefore, the Authorities have had to maintain their own records of the issues they have raised. This means there is no shared understanding of how matters raised have been responded to post the Section 42 consultation. Furthermore, an issues tracker would have also formed a useful starting point for drafting the SoCGs and PADSS.
6.4 There has been a lack of feedback from the Applicant about how consultation responses from the Authorities and other parties have shaped the development of the Project (for example, a ‘you said, we did’ document). It would have been helpful to all if such a document had been published by the Applicant as part of the project updates announcement in summer 2022. However, as this did not happen, the Authorities and others have unnecessarily been kept in the dark by the Applicant.
6.5 Overall, in the absence of feedback from the Applicant on a substantial number of technical matters, the Authorities have not been able to understand prior to submission whether the Applicant has had regard to the consultation responses and other comments or how, if at all, they have been taken into account by the Applicant in the development of certain aspects of the Project.
6.6 Therefore, the Authorities consider that the Applicant has not complied with the provisions of Section 49. It follows that the Applicant has failed to satisfy the fourth Gunning principle, namely that ‘conscientious consideration’ must be given to the consultation responses before a decision is made. The consulting party should be able to provide evidence that they took consultation responses into account. There is no clear evidence of this and where reference has been made in the Consultation Report, it is difficult to navigate and often simply refers to the DCO documents that the authorities have not been sighted on. This failure by the Applicant compromises the consultation process, meaning it was not a legitimate one. It is a long-established principle that if a consultation is embarked upon it must be carried out properly. That is not, and has not been the case here.
7. Extent to which the Applicant has had regard to guidance issued under Section 50 of the Act
7.1 The Secretary of State must consider the extent to which an applicant has had regard to any guidance issued under Section 50 of the Act, which includes MHCLG ‘Planning Act 2008: Guidance on the pre-application process’ (2015). This section of the representation outlines some key sections of this guidance and considers whether the Applicant has had regard to it. In addition, this representation also explains how the Applicant has failed to comply with PINS Advice Note 13 (Preparation of a draft order granting development consent and explanatory memorandum; February 2019, version 3).
7.2 Appendix A to this representation sets out the Authorities’ commentary on the Applicant’s Consultation Report Appendices Part B Volume 1 (Appendix B.8 – ‘Compliance with Planning Act 2008: Guidance on pre-application process, March 2015) (Application Document Ref 6.2).
7.3 The following sections address whether the Authorities consider that the Applicant has had regard to various matters in the guidance.
Pre-Application Consultation Process
7.4 Paragraph 19 of MHCLG Guidance states:
“The pre-application consultation process is crucial to the effectiveness of the major infrastructure consenting regime. A thorough process can give the Secretary of State confidence that issues that will arise during the six months’ examination period have been identified, considered and, as far as possible, that applicants have sought to reach agreement on those issues”.
7.5 The Authorities consider that the Applicant has underestimated the complexities involved in engaging with them on the Project. Officers and supporting consultants working for the Authorities have experience of working on other Nationally Significant Infrastructure Projects (NSIP) and the operation of the DCO process both locally and nationally. Although the Applicant has stated that its pre-application process is best practice and an exemplar, it has not taken on board suggestions from the Authorities to improve the process to ensure that issues that will arise during the six months’ examination period have been identified, considered and, as far as possible, agreed. The Authorities would contend that the statement made by the Applicant in sections 3.1.2 of the Consultation Report stating that there has been a ‘continuous programme of engagement’, and section 3.4.3 states given the importance of local authority input ‘,…the TWG’s output has been captured through a series of schedules that recorded matters that have been, and continue to be, under discussion between the parties’, does not reflect the Authorities view that the approach undertaken by the Applicant has been inflexible and lacking in any two-way collaboration for resolving issues.
7.6 In summer 2019, the Applicant proposed working arrangements to the Authorities. This included establishing six Topic Working Groups (TWG) involving the Applicant and technical officers from the Authorities. The TWGs would be overseen by a ‘Gatwick Co-ordination Group’ (involving the Applicant and lead officers from the Authorities), which would report to a ‘Gatwick Strategic Planning Forum’ (involving the Applicant, Chief Executives and strategy leads from the Authorities, and the Coast to Capital Local Enterprise Partnership).
7.7 Although the Authorities supported this model in principle, only the TWGs were established by the Applicant in autumn 2019.
7.8 Accordingly, in the absence of the proposed Gatwick Co-ordination Group to act as a steering group (which is best practice), the Authorities have used the pre-existing Gatwick Officers Group (GOG), comprised of planners and other technical officers, as the mechanism to co-ordinate local authority activity on the project (without the involvement of the Applicant). Since April 2021, there have been almost monthly meetings of GOG to co-ordinate activity and to ensure that joint responses are provided to the Applicant where possible. Although the Applicant has provided some limited financial support to the Authorities through a Planning Performance Agreement to fund ‘coordination’, there has been no practical support and contrary to their statement in paragraph 3.4.40 of the Consultation Report the funding made available only partially covers the cost of officer and consultant time of those working on the project across the Authorities.
7.9 It is important to note that it was only in April 2023, a few months before DCO submission, that the Applicant proposed the creation of a Strategic Planning Group (SPG) to “act at a senior level to discuss and unblock issues on behalf of their respective authority”. However, no ‘Terms of Reference’ have been provided by the Applicant to date (despite these being promised by 8 June 2023) and the proposed SPG (and its Terms of Reference) are yet to be arranged by the Applicant, meaning that it has had no role in ensuring that the pre-application process has been effective and that issues continue to remain unblocked.
7.10 In the absence of the proposed Gatwick Strategic Planning Forum (as noted in paragraph 7.6), the Leaders and Chief Executives of the ten Authorities have met on a regular basis during the pre-application period (with no Applicant involvement) to ensure there is a joint understanding at a high-level about the development of the Project and, as necessary, to agree collective action between the Authorities.
7.11 With regard to the TWGs, the Authorities had raised concerns about their operation on several occasions. Appendices B, C and D set out the concerns of the Authorities (including concerns set out by the Applicant following a joint meeting on 17 July 2022) and to date we have received no formal written response to the issues raised.
7.12 The Authorities queried why the TWGs did not involve other statutory consultees (including National Highways, Natural England, and the Environment Agency) as this would have been good practice and it would have helped ensure that the consultees were sighted (as a collective) on issues that were being raised. However, the Applicant stated that it would continue to meet the other statutory consultees separately and that they would not be invited to the TWG meetings involving the Authorities because it was not considered to be normal practice nor practical (despite the meetings taking place virtually via MS Teams). Although the Applicant eventually said the Authorities could invite other statutory consultees to TWG meetings if they wished to do so (which the Authorities did), the Applicant only provided information about contacts at the various agencies/organisations after chasing by the Authorities (which was unhelpful and compounded the Applicant’s failings).
7.13 This lack of willingness by the Applicant to engage with consultees in a collective and collaborative way has resulted in a process that has not been effective; rather it has resulted in one that has felt obstructive. For example, the highway changes that were the subject of the consultation in summer 2022 resulted from the Applicant’s discussions with National Highways. However, the changes were not discussed with either of the affected Local Highway Authorities (West Sussex County Council and Surrey County Council) prior to the consultation. Accordingly, this lack of engagement with all the relevant parties on the highway changes resulted in West Sussex County Council objecting due to a lack of information and concerns about road safety and Surrey County Council criticising the lack of information provided about National Highways’ views on transport modelling and impacts on the network.
7.14 Paragraph 20 of the MHCLG Guidance states:
“Experience suggests that, to be of most value, consultation should be:
• based on accurate information that gives consultees a clear view of what is proposed including any options;
• shared at an early enough stage so that the proposal can still be influenced, while being sufficiently developed to provide some detail on what is being proposed; and
• engaging and accessible in style, encouraging consultees to react and offer their views.”
7.15 Paragraph 25 of the MHCLG Guidance states:
“Consultation should be thorough, effective and proportionate. Some applicants may have their own distinct approaches to consultation, perhaps drawing on their own or relevant sector experience, for example if there are industry protocols that can be adapted. Larger, more complex applications are likely to need to go beyond the statutory minimum timescales laid down in the Planning Act to ensure enough time for consultees to understand project proposals and formulate a response. Many proposals will require detailed technical input, especially regarding impacts, so sufficient time will need to be allowed for this. Consultation should also be sufficiently flexible to respond to the needs and requirements of consultees, for example where a consultee has indicated that they would prefer to be consulted via email only, this should be accommodated as far as possible.”
7.16 The TWG meetings have been based on a ‘question and answer’ approach, which has been useful to an extent in helping shape discussions around some specific topics and areas of focus. However, the Authorities consider that the Applicant’s provision of information and answers to questions raised at a previous TWG meeting (in the form of presentation slides) with just five working days’ notice ahead of the next meeting, significantly impeded the Authorities’ ability to understand and respond effectively to the materials, especially where they were reliant on the need to obtain the advice of specialist consultants to aid their understanding of the information. Many of the responses from the Applicant were simply signposting the Authorities to the DCO submission documents that were not provided or further explained during the sessions.
7.17 On some occasions, no or only partial sets of slides were provided by the Applicant in advance of a TWG meeting, with additional material sometimes being added into the slide decks immediately prior to the meetings. Where information was provided in advance of meetings, in some cases it consisted of over 70 PowerPoint slides for the Authorities to consider within the limited timeframe prior to the meetings taking place.
7.18 In some meetings, given the large number of PowerPoint slides, not all the material was presented/considered in the two hours available with a lack of clarity from the Applicant about how issues that had not been discussed, would be addressed in the future. Furthermore, although the TWGs have involved the sharing of some of the elements of the DCO submission documents through limited extracts on PowerPoint slides, they have often been difficult to understand or interrogate without sight of the reports providing the full content.
7.19 There are other issues with the operation of the TWG’s, including dates and times for meetings being set by the Applicant whether the Authorities could attend or not, no minutes being taken (so there were no records of key concerns or queries), and questions not being answered despite the Authorities sending them to the Applicant within the agreed timeframes after the meetings as agreed in the protocols. With regard to the latter, questions were often sent to the Applicant a number of times but were not responded to or did not help to shape the focus of subsequent TWG sessions. The Authorities were also told that many of the answers would be in the DCO submission documents, rather than providing adequate feedback during these sessions.
7.20 When the timing of the meetings was originally proposed by the Applicant in spring 2022, the Authorities pointed out that they were too close together and that the Applicant had not allowed sufficient time for work to be undertaken between the meetings. Unfortunately, the Applicant did not take the Authorities’ view on board and only revised its approach when it was demonstrated that it did not work for either the Authorities or the Applicant, with the latter struggling to meet its own deadlines.
7.21 The TWG’s have not been used to provide information in a timely manner. For example, meetings that should have informed the summer consultation took place very late or after the consultation response deadline and as a result, the Authorities were unable to take into account information presented at these meetings prior to responding to the formal consultation.
7.22 In addition, other than in relation to a limited number of technical matters, such as with the highways authorities, the Applicant relied on the TWG meetings as the mechanism for information sharing and discussion with the Authorities and it did not seek to engage with them (either individually or collectively) outside of the meetings. This would have been best practice if the Applicant was serious about seeking the views of the Authorities and giving them an opportunity to influence the Project.
7.23 We note that the extensive number of transport modelling meetings that the highway authorities have taken part in with the Applicant have not been captured in the consultation report. Surrey and West Sussex County Councils have a record of attending 15 modelling meetings, over and above TWGs, between November 2019 – November 2022 in order to cooperate with the Applicant on modelling to inform and support scheme development. The flow of information has been very one way, with the highway authorities still unclear how much of their input has been acknowledged and responded to.
7.24 The view is that the Applicant’s general approach often served to provide the Authorities with an incomplete picture of the developing Project, which was not helpful. Furthermore, there was an element of 'cherry picking' by the Applicant, that is, focusing on selected issues but not addressing or responding to all the matters raised by the Authorities in their consultation responses and in subsequent discussions.
7.25 This inadequate approach to information provision and engagement is one of the reasons why the Authorities consider that, despite the extensive number of TWG meetings that have been held, there have been significant missed opportunities to focus on substantive matters. The absence of a two-way collaborative approach has meant an inability to seek and reach agreement on issues as far as possible ahead of the Examination.
7.26 Where the Applicant has sought input from the Authorities, in some cases, the information provided by them has not been incorporated in full, or only in part, and there has been limited feedback. Examples include the preparation of Cumulative Effects Assessment (CEA) lists, where feedback was not incorporated, and detailed feedback and queries relating to transport modelling, where there has been no feedback from the Applicant. Similarly, comments were sought by the Applicant from the Authorities on the approach to agreeing SoCGs and on draft versions of the statements; however, the Applicant did not respond to the comments made via email and in meetings, despite requests by the Authorities for written feedback. The Authorities would also challenge the Applicants statement in the Consultation Report section 3.6.2 ‘Local Authorities provided feedback to the first tranche of information by 26 May 2023 and follow up meetings were arranged in June 2023’ , in that the follow up meetings were not helpful as the Applicant was not prepared to discuss the comments raised by the Authorities.
7.27 These examples serve to reinforce the view of the Authorities that the Applicant’s general approach to engagement with them has been tokenistic.
7.28 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Consultation with Local Authorities
7.29 Paragraph 30 of the MHCLG Guidance recognises the role that “local authorities play as bodies with expert knowledge of the local community, business and other interests as well as their responsibility for development of the local area”.
Consultation with Local Authorities on the Statement of Community Consultation
7.30 Paragraph 38 of the MHCLG Guidance states that:
“The role of the local authority … should be to provide expertise about the make-up of its area, including whether people in the area might have particular needs or requirements, whether the authority has identified any groups as difficult to reach and what techniques might be appropriate to overcome barriers to communication. The local authority should also provide advice on the appropriateness of the applicant’s suggested consultation techniques and methods. The local authority’s aim in such discussions should be to ensure that the people affected by the development can take part in a thorough, accessible and effective consultation exercise about the proposed project.”
7.31 The Authorities were initially consulted by the Applicant on the draft SoCC in February 2020 and a joint response (with individual sections for authority-specific matters) was submitted in March 2020. The Project was then stalled due to the Covid-19 pandemic and a further SoCC with revised consultation arrangements was issued for formal consultation in May 2021, with responses submitted by the Authorities in June 2021. The Section 42 consultation was undertaken in autumn 2021.
7.32 A further ‘Approach to Consultation’ document (June 2022) was published for the further consultation on highway changes carried out in summer 2022. It is noted that while the 2021 SoCC had to have regard to some remaining Covid-19 regulations, most had been removed by the summer of 2022.
7.33 The following key concerns were raised by the Authorities in response to the consultations on the SoCCs.
Consultation on the 2021 SoCC:
• The SoCC was too vague and open to interpretation with numerous gaps in information, including details of the timeframes and location for the Mobile Project Office. This made it unclear as to precisely what engagement the Applicant was committing to and made it difficult to fully assess the adequacy of the proposed consultation.
• Mobile Project Offices were insufficient in assisting those that visited them to ask questions. Only non-technical staff were on hand and simply directed people to telephone surgeries. The Mobile Project Offices added nothing to the process, other than arguably wasting people’s time.
• The importance of engaging with Parish Councils within both inner and outer consultation zones and the Applicant’s failure to provide a full list of who was consulted prevented authorities from knowing whether all relevant Parish Councils were being contacted.
• It was not clear if all parties living adjacent to the scheme received a personal letter advising them of the proposal and how to find out more information rather than just a newsletter, which could have gone straight into the recycling bin.
• Limited steps were taken to enhance/make the virtual approach engaging. For example, there were no webinars or evolving FAQ documents, with limited evidence of learning from other schemes about best practice for online engagement during the pandemic.
• Whether the approach to consultation actually allowed interested parties to shape the Project.
• The SoCC should have provided a clearer description of the development itself and the DCO process, including how this differed from a standard planning application; this would have assisted residents, stakeholders and users in understanding what they were being consulted on and how and when they could feed into the process.
• Insufficient detail on the proposals for specific consultation activity was included in the draft SoCC making it difficult to comment meaningfully as to whether engagement would be sufficient and effective.
• Lack of clarity as to how ‘hard-to-reach’ groups would be targeted – who they are, how they would be made aware of the project, and how they would be helped to provide feedback.
• The use of the Gatwick Diamond area being used as the outer consultation zone was too restrictive given that there were many areas outside that zone which were expected to be more impacted by overflight than areas within the Gatwick Diamond area. In addition, the selection of the Inner Consultation Zone using the 51dB(A) Leq noise contours did not take into account the changes that may take place as a result of the FASI-South Airspace Modernisation programme.
• To aid transparency, it would have been helpful if the Applicant had provided a schedule of how the earlier informal comments on the draft SoCC had been taken into account and where they were not, an explanation as to why.
Approach to Consultation Document – June 2022
• Many of the above concerns, raised formally through SoCC feedback and at TWGs, remained unaddressed in the new SoCC prepared for the summer 2022 consultation. Additional concerns were also raised:
• The statutory consultation was purely regarding the highway proposals. However, the consultation included revised proposals for a new car parking strategy, revised locations for office and hotel provision, new flood alleviation schemes, the chosen location of the CARE facility and biodiversity proposals. All these matters should have been packaged as part of a wider statutory consultation given they all are significant matters with particular impacts and issues involved. This would have promoted much greater stakeholder engagement.
• The highways consultation area was too small. The highways proposals affected roads on the National Strategic Road Network and important local routes between Crawley and Horley, which were of interest to a much wider area in West Sussex and Surrey, as local routes feed into the Longbridge Junction. It was requested that the Applicant extend the consultation area to cover Charlwood, Crawley and Horley, this did not happen.
• The consultation format was only presented and available online, supported by a telephone surgery service. However, as with the initial SoCC, no information was provided on the dates and times of the telephone surgery service and the SoCC simply continued to make reference to telephone surgeries taking place ‘at a variety of times of days of the week’.
• Proposals set out in the SoCC did not demonstrate sufficient engagement with residents with an over-reliance on a limited range of virtual/online methods of consultation when more face-to-face engagement on the proposed highway changes should have been possible in the summer of 2022 given that Covid-19 restrictions had been lifted by that point.
• The additional consultation should not have taken place until the series of TWGs which the authorities were engaged with at the time was completed and matters raised by the Authorities in those discussions had been addressed.
• There was no formal update to the 2021 iteration of the SoCC. Information available with the text under the ‘Statement of Community Consultation’ tab on the summer 2022 webpages advised users to refer to paragraph 5.3.1 of the old autumn 2021 SoCC to read about any additional consultations and how to get involved. The Consultation Document Summer 2022 itself contained very little information on the summer consultation and how to respond (pages 4 to 5). It was not made clear in the consultation material how members of the public could find out about or respond to the second summer consultation. This was unhelpful and misleading.
7.34 Although the Applicant did extend the length of the consultation period in autumn 2021, the applicant essentially ignored most of our comments relying on this guidance and the fact that it was targeted on the highway proposals even though other parts of the project had changed and Covid restrictions no longer existed. The guidance was written in pre-pandemic times and so didn’t take such circumstances into account and so the original SoCC rather than the updated version for pandemic conditions would have been expected. In addition, there were only seven working days between the Authorities submitting their comments to the Applicant and the Applicant issuing a press release confirming the start date of the second focused consultation. No advance notification or feedback was given to the Authorities prior to the general press release.
7.35 Therefore, the Authorities consider that although the Applicant complied with the procedural requirements of the Act, it did not respond adequately to the issues raised by the Authorities. As a result, the consultation with local communities was neither sufficient nor effective and it limited the ability of local people to understand the project and engage with the process and respond in a meaningful way. Overall, the Applicant’s approach has undermined partnership working with the Authorities and reinforced the view that the Applicant’s approach to engagement with them was not meaningful.
7.36 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Local authorities as statutory consultees
7.37 Paragraph 44 of the MHCLG Guidance states:
“Local authorities will be able to provide an informed opinion on a wide number of matters, including how the project relates to Local Plans. Local authorities may also make suggestions for requirements to be included in the draft Development Consent Order. These may include the later approval by the local authority (after the granting of a Development Consent Order) of detailed project designs or schemes to mitigate adverse impacts. It will be important that any concerns local authorities have on the practicality of enforcing a proposed Development Consent Order are raised at the earliest opportunity.”
7.38 PINS Advice Note 13 proposes that, as well as sharing the draft order with the Inspectorate, the draft order should also be made available to other parties who may have useful comments on the operation of the order. For example, the relevant local planning authorities should have sufficiently early sight of the DCO’s proposed draft requirements (paragraph 2.4).
7.39 In autumn 2022, despite requests from the Authorities, the Applicant refused to share the draft DCO or related documentation (including the draft Environmental Statement, the draft S106 Agreement, a draft ‘Route Map’ for mitigations) with the Authorities prior to submission. The reason given was that the documents were still in draft form and would not be ready to be shared until submission. However, the Authorities are aware that the Applicant sought Section 51 advice from PINS and shared a draft DCO and draft Explanatory Memorandum with PINS in December 2022. Therefore, these drafts, appropriately caveated, could also have been shared with the Authorities at that time.
7.40 The Applicant subsequently revised this position in February 2023, advising that the draft DCO, composite SoCG, and S106 documentation would be shared in mid-March 2023 with a request for feedback by the end of March 2023 (which would have been only two/three weeks prior to the then anticipated submission date). However, only the proposed approach to the SoCG was shared with the Authorities at that time.
7.41 The Applicant revised its position again and made the draft Project Description; the draft DCO; and the Proposed Approach to Mitigation (although this did not include a comprehensive list of draft S106 Heads of Terms) available to the Authorities on 28 April 2023 (four months after the draft DCO had been shared with PINS) with a view to submission in late June 2023. However, the Applicant did not specifically request any feedback from the Authorities on the draft documents.
7.42 The draft DCO was not accompanied by a draft Explanatory Memorandum (EM). Initial requests by the Authorities for sight of the draft EM were rebuffed by the Applicant before it was subsequently made available on 5 May 2023.
7.43 Following requests for clarification from the Applicant, it became clear that the draft, and in some areas substantively incomplete, documents had only been provided ‘for information’ and that the Applicant was neither actively seeking any comments or dialogue with the Authorities nor wanting to make any changes to them prior to submission.
7.44 Overall, although some progress has been made on a limited number of topics, there have been missed opportunities by the Applicant to reach agreement with the Authorities on the detail of the Project’s proposals, on the evidence base supporting the application, and on the details of the mechanisms through which mitigation will be secured. It has, therefore, only been possible to agree very limited areas of common ground at this stage due to the lack of information available to the Authorities and lack of meaningful engagement by the Applicant.
7.45 Furthermore, there has been limited engagement by the Applicant with the neighbouring authorities on the potential impacts of the Project on their areas, for example, in relation to highway and socio-economic matters. This ‘downplaying’ of the potential wider impacts of the Project reflects poorly on the approach taken by the Applicant and, more
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importantly, it means that opportunities to address such impacts and required mitigation have been lost.
7.46 Accordingly, the Authorities consider that the Applicant has not had regard to the statutory guidance on this matter. It also has not had regard to PINS Advice Note 13.
Statement of Common Ground
7.47 Paragraph 47 of the MHCLG Guidance states:
“Local authorities are encouraged to discuss and work through issues raised by the proposed development with applicants well before an application is submitted. Agreements reached between an applicant and relevant local authorities can be documented in a statement of common ground. This will contain agreed factual information about the application and can accompany the application. The statement of common ground can also set out matters where agreement has not been reached. This can then be looked at during examination…”
7.48 Although discussions on a range of subjects have continued to take place between the Authorities and the Applicant, there has been no attempt by the Applicant to bring these together as a formed series of SoCG in advance of submission. The Authorities have alerted the Applicant about the issues, many of which are still outstanding, which would need addressing before any SoCGs and PADSSs could be progressed. At present, the draft SoCGs include only very high-level issues, and refer to all items as being ‘under discussion’.
7.49 Discussions at pre-submission focused purely on SoCG structure and whether shared authority SoCGs could be pursued on a topic-by-topic basis and did not allow for discussion of comments raised by the Authorities in previous tranches of the TWGs. The Authorities and the Applicant have committed to commence formal discussions on this matter following submission within the tight timeframes required. At this stage, however, there are limitations to any structure of the SoCG that could be agreed in the absence of the substantive information that would form the basis of them. Furthermore, by only focusing on the structure of the SoCG, the Applicant has created unnecessary pressure to agree their contents during the pre-examination and examination periods. Again, this demonstrates that the Applicant’s approach through the pre-submission period has been tokenistic at best and that there has been a lack of meaningful engagement with the Authorities.
7.50 Given the complexity of the Project, the duration of the construction period, the wide area of impact arising from the decades of operational use of the airport on local communities and designated environmental resources, there will be many issues that the Examining Authority will need to consider within the finite period mandated by the Act. This will not be assisted by the fact that the Authorities, communities, and other stakeholders have not seen all the details of the proposals, their impacts and possible mitigations in advance of the submission, notwithstanding the significant amount of information provided.
7.51 Furthermore, as identified above, there has not been the opportunity before DCO submission to narrow the field of discussion to areas where there are clear differences between the Applicant and others, nor for parties to fully consider whether they support or object to the Project, in whole or in part.
7.52 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Local Communities
7.53 Paragraph 54 of the MHCLG Guidance states:
“In consulting on project proposals, an inclusive approach is needed to ensure that different groups have the opportunity to participate and are not disadvantaged in the process. Applicants should use a range of methods and techniques to ensure that they access all sections of the community in question. Local authorities will be able to provide advice on what works best in terms of consulting their local communities given their experience of carrying out consultations in their area.”
7.54 As outlined in paragraphs 7.30 to 7.36, the Authorities raised a number of concerns about the Applicant's proposed approach to consultation with local people, in particular the reliance on digital formats and a lack of face-to-face meetings with the community, particularly given the complex nature of the proposals and the opportunities for more direct community engagement as Covid-19 pandemic measures lifted. Although the Authorities made a number of positive suggestions to improve the consultation, limited amendments were made by the Applicant to the draft SoCC and no explanation has been provided as to why the Authorities’ suggestions have not been incorporated. The Authorities have had to wait until the submission of the Consultation Report to understand the Applicants position on why some of the Authorities comments have not been taken forward.
7.55 Therefore, the Authorities consider that the consultation with local communities was neither sufficient nor effective and it limited the ability of local people to engage with the process and respond in an informed and meaningful way.
7.56 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
When should consultation take place and how much is enough?
7.57 Paragraph 68 of the MHCLG Guidance states:
“To realise the benefits of consultation on a project, it must take place at a sufficiently early stage to allow consultees a real opportunity to influence the proposals. At the same time, consultees will need sufficient information on a project to be able to recognise and understand the impacts.”
7.58 The Applicant did not provide the Authorities with any consultation material in advance of the consultation on the PEIR in autumn 2021 nor the consultation on highway improvement changes in summer 2022. Furthermore, with regard to the consultation on the PEIR and as referenced in Section 6, the Authorities consider that the required level of detail was not provided, and much outstanding information and evidence was not made available to enable a response to be made to the PEIR. It did not include sufficiently accurate information to give consultees a clear view of what was proposed.
7.59 Paragraph 72 of the MHCLG Guidance states:
“The timing and duration of consultation will be likely to vary from project to project, depending on size and complexity, and the range and scale of the impacts. The Planning Act requires a consultation period of a minimum of 28 days from the day after receipt of the consultation documents. It is expected that this may be sufficient for projects which are straightforward and uncontroversial in nature. But many projects, particularly larger or more controversial ones, may require longer consultation periods than this. Applicants should therefore set consultation deadlines that are realistic and proportionate to the proposed project.”
7.60 With regard to the consultation on the PEIR in autumn 2021, the Applicant originally proposed a period of eight weeks, which was subsequently changed to nine weeks. Given the complexity of the proposals and that internal governance in local authorities to approve consultation responses would take three to four weeks, the Authorities requested more time. The Applicant finally extended the consultation period to 12 weeks, which the Applicant considered to be generous but which the Authorities considered to be an absolute minimum. Accordingly, the Authorities only had eight weeks or so to consider more than ten thousand pages of information, none of which had been shared with them in advance. Therefore, not only should the Applicant have provided the information in draft to the Authorities in advance of the consultation, but it should also have allowed a longer consultation period to take account of the Authorities’ internal governance requirements.
7.61 Furthermore, given the lack of pre-consultation engagement by the Applicant with the Authorities, the complexities of the proposals and the large volume of consultation documents (and, in some cases, the absence of key documents), it was difficult for the Authorities to understand the likely significant effects of the proposals, and then fully evaluate the PEIR within the timescales available.
7.62 Paragraph 77 of the MHCLG Guidance states:
“Consultation should also be fair and reasonable for applicants as well as communities. To ensure that consultation is fair to all parties, applicants should be able to demonstrate that the consultation process is proportionate to the impacts of the project in the area that it affects, takes account of the anticipated level of local interest, and takes account of the views of the relevant local authorities.”
7.63 As set out in paragraph 6.3, the Authorities asked the Applicant to prepare and maintain an ‘Issues Tracker’ following the consultation on the PEIR in autumn 2021, which would have been good practice. However, despite a commitment from the Applicant (section 3.4.49 of the Consultation Report) no evidence of this has been shared with the Authorities. Therefore, the Authorities have had to maintain their own records of the issues and risks that they have raised. Furthermore, in the absence of feedback from the Applicant on some matters, the Authorities have not been able to determine in advance of submission whether and how the Applicant propose to mitigate or manage the issues and risks.
7.64 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Consultation Report and Responding to Consultees
7.65 Paragraph 81 of the MHCLG Guidance states:
“It is good practice that those who have contributed to the consultation are informed of the results of the consultation exercise; how the information received by applicants has been used to shape and influence the project; and how any outstanding issues will be addressed before an application is submitted to the Inspectorate.”
7.66 Paragraph 82 of the MHCLG Guidance states:
“… Consultees with highly technical interests may seek more detailed information on what impacts and risks have been identified, and how they are proposed to be mitigated or managed.”
7.67 As referred to in paragraph 6.4, the Authorities are not aware that there has been any information provided to the wider consultees to show how the results of consultation have been used to shape and influence the Project nor how any outstanding issues are to be addressed.
7.68 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Environmental Impact Assessment
7.69 Paragraph 92 of the MHCLG Guidance states:
“ensuring consultation is meaningful - the pre-application consultation process for major infrastructure projects encourages applicants to give consultees as much information as possible on the characteristics of the proposed project.”
7.70 Since the PEIR was published in autumn 2021, the Authorities have still not received responses to requests for baseline assessments and related evidence base, much of which is fundamental to their ability to understand the characteristics of the Project and to assess the impacts of the proposals across a range of topics.
7.71 Furthermore, the Applicant has refused to provide the Authorities with draft Environmental Statement chapters, except Chapter 5 – project description, in advance of submission or to seek their views on them, which is best practice.
7.72 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Preliminary Environmental Information
7.73 Paragraph 93 of the MHCLG Guidance states:
“For the pre-application consultation process, applicants are advised to include sufficient preliminary environmental information to enable consultees to develop an informed view of the project. The information required may be different for different types and sizes of projects. It may also vary depending on the audience of a particular consultation. The preliminary environmental information is not expected to replicate or be a draft of the environmental statement. However, if the applicant considers this to be appropriate (and more cost-effective), it can be presented in this way. The key issue is that the information presented must provide clarity to all consultees. Applicants should be careful not to assume that non-specialist consultees would not be interested in any technical environmental information. It is therefore advisable to ensure access to such information is provided during all consultations. The applicant’s Statement of Community Consultation must include a statement about how the applicant intends to consult on preliminary environmental information.”
7.74 The Authorities acknowledge that by its nature, a PEIR should not be as detailed or as comprehensive as an Environmental Statement. However, it should provide information with a reasonable level of detail to enable consultees to gain a fully informed view of the likely significant environmental effects of the proposals. Without this, it would not be possible to discern adequately whether the mitigation proposed was sufficient/appropriate and/or whether additional/alternative mitigation was required.
7.75 With specific regard to the PEIR that was published for consultation in autumn 2021, the Authorities consider that the required level of detail was not provided, and much outstanding information and evidence was not made available to enable an adequate response to be made to the PEIR e.g. more information required to validate the need case, including analysis of impact of other airports increasing capacity (particularly Heathrow); more analysis of the socio-economic impacts of the project, including employment creation on housing needs, especially for affordable housing; more information on Carbon and climate change action plans, including a carbon model and assessment of all greenhouse gas emissions; further technical transport modelling work and more detail required for the noise modelling and noise mitigation proposals etc. It was also not based on sufficiently accurate information to give consultees a clear view of what was proposed e.g. Surface Access strategy to support modal shift and linked detailed parking strategy, further evidence detailing the employment needs that would arise as a result of job growth associated with the NRP etc.
7.76 Furthermore, the draft PEIR was not provided in advance to the Authorities, which inhibited their ability to assess the copious amounts of information and comment meaningfully on it during the already constrained consultation time period.
7.77 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
Drafting the Development Consent Order
7.78 Paragraph 97 of the MHCLG Guidance states:
“Applicants are responsible for ensuring they submit a well written draft Development Consent Order (“Order”) as part of their application. Whilst the content of a specific Order will depend on the project, the general considerations should be similar. When drafting an Order, applicants should ensure they consider every phase of the project and seek the views of relevant local authorities and other statutory consultees.”
7.79 As addressed in paragraphs 7.38-7.44 of this Representation, the Applicant has not sought the views of the Authorities on the draft DCO prior to submission. Also, the authorities do not have a clear understanding of the phasing and delivery of this complex project as this has not been provided by the Applicant. Accordingly, the Authorities remain concerned about the distinct lack of time to enter into the necessary detailed and staged discussion and negotiation on very important aspects of the DCO as this did not take place in advance of submission, as recommended in paragraph 19.2 of PINS Advice Note 15 ‘Drafting Development Consent Orders’. This is very disappointing and a further missed opportunity for the Applicant to work collaboratively with the Authorities, particularly given the likely complex technical and governance issues involved.
7.80 Accordingly, the Authorities consider that the Applicant has not had regard to the guidance on this matter.
8. General Observations on the Applicant’s Approach to Pre-Application Engagement with the Authorities
8.1 The spirit of the Act is about front-loading the DCO process and early engagement by applicants with stakeholders and others. MHCLG guidance on the pre-application stage of the DCO process emphasises the benefits that the early involvement of local authorities (and communities and statutory consultees) can bring.
8.2 Unfortunately, the Applicant has not engaged with the Authorities in a positive and proactive manner during the development of the Project over the past four years. Although some general information was shared with officers in late 2019 and early 2020, before work was paused due to the Covid pandemic, the Applicant did not share any background studies and there were no opportunities for the Authorities to inform evidence gathering or to contribute to the development of the Project, once work formally restarted in January 2021. The only area where the Applicant formally engaged with the Authorities prior to consultation on the PEIR in autumn 2021 was in seeking comments in spring 2021 on its draft SoCC.
8.3 Insufficient technical information was provided by the Applicant in advance of publication of the PEIR and the further consultation on highway changes in summer 2022 and there was insufficient time for the Authorities to scrutinise and provide input, and, where necessary, to challenge assumptions and the evidence base.
8.4 Overall, there has been a lack of meaningful engagement by the Applicant and, therefore, the Authorities have not been given the opportunity to provide meaningful feedback to influence the development of the Project.
8.5 The Authorities have raised their concerns with the Applicant on a number of occasions during the pre-application period about its approach to consultation and engagement. This has been formally through letters and emails to the Applicant and informally at meetings between the Applicant and one or more authority. The Applicant has demonstrated very little acceptance of the legitimate concerns of the Authorities and very little willingness to take on board their positive suggestions to improve the process. Concerns have also been raised by the Authorities to PINS, including at a Gatwick Officers Group in January 2023 which PINS attended.
8.6 On 25 March 2022, the Authorities’ Chief Executives wrote to the Applicant setting out their concerns about working arrangements, which included the Applicant seeking to restrict the number of attendees at TWG meetings to officers from Crawley Borough Council and only two or three other authorities. Officers had expressed concern to the Applicant that such an approach would have put the responsibility on these few Authorities to ensure that information shared at the TWG meetings was disseminated, which would have inhibited meaningful engagement in the process. The lack of willingness by the Applicant to be flexible when dealing with ten local authorities, especially when the meetings were taking place virtually via MS Teams, prompted the letter from the joint Chief Executives. In a letter dated 4 April 2022, the Applicant eventually conceded this point and said that it would invite all the local authorities to the meetings.
8.7 On 26 May 2022, the joint Leaders of the Authorities wrote a letter to PINS highlighting their concerns about the adequacy of the Section 42 consultation undertaken by the Applicant in autumn 2021, and the manner in which the Applicant had been engaging with the Authorities. Extracts from some of the consultation responses were provided, which flagged concerns about the complexity of the consultation material and a predominantly virtual approach to public consultation, as well as concerns about the Applicant’s approach to the handling of technical information and the timing of the TWGs and attendance at them by other consultees. The joint Leaders concluded by stating “We are strongly of the view that improvements to [the Applicant’s] engagement and joint working approaches are required as a matter of urgency. We note that ongoing discussions are taking place on all the other detailed technical areas for this DCO, and we remain hopeful that [the Applicant] will take a more pro-active approach to its engagement”. Unfortunately, this hope has not been realised.
8.8 On 13 March 2023, the joint Leaders of the Authorities wrote a letter to the Applicant expressing their view that the pre-application engagement and consultation to date between the Applicant and the Authorities had not been as helpful as they wanted and that the Applicant should amend its timetable and provide further information to help prepare SoCG, Local Impact Reports, and sufficient time to review Heads of Terms of the S106 Agreement. The letter also highlighted a long list of information that was missing, which had been requested previously and which was required to substantiate the Applicant’s proposals and approaches.
8.9 On 29 March 2023, the Applicant replied in a letter that, to all intents and purposes, dismissed the Authorities’ concerns but stated a willingness to delay submission by a month until June 2023 to enable further pre-application engagement. However, during this time, there were no further TWG meetings and pre-application engagement has only been about the format of the SOCGs and the SoCG work, not about the substantive matters of concern raised by the Authorities. The time was therefore not used to enable the Authorities to better understand the proposals, or as stated by the Applicant, to allow additional time for pre-application engagement.
8.10 On 16 May 2023, the GOG Steering Group, which was created by the Authorities, to oversee elements such as the procurement of external legal and technical support to the Authorities, wrote a letter to the Applicant seeking clarity about the status of the limited draft documents (incomplete Draft Project Description, incomplete DCO and EM) that were made available a few months before submission and whether the Applicant was seeking any comments on them prior to submission. The Applicant’s letter of 19 May 2023 explained that the documents were being provided to allow familiarisation and that it was “an opportunity to provide any comments/thoughts you wish to make at this stage” [the Authorities’ emphasis]. Therefore, the Applicant was not proactively seeking feedback at that late stage and if the Authorities made any comments, there was little time for the Applicant to take account of them in the application documents.
8.11 Accordingly, although the Applicant has sought to reach agreement on some matters and small amounts of progress has been made on certain topics, overall, its approach has meant that it has only been possible to reach limited agreements. For example, key elements of the supporting evidence base have not been agreed upon because the baseline reports/datasets have not been shared with the Authorities, and there has been a lack of detail on the proposed mechanisms for securing mitigation, so these have not been finalised.
8.12 As referenced above, the Government’s approach to the DCO process places emphasis on the front-loaded nature of consultation and engagement to ensure transparency and an efficient examination process. However, there are a number of important EIA matters, including baseline data and assessments, that the Authorities have been unsighted on to date and will not see until the application is accepted. The Authorities had repeatedly sought information from the Applicant in order to come to an informed judgement about the impacts of the Project and to work collaboratively with the Applicant on mitigation proposals in advance of the submission of the DCO application.
8.13 The Applicant has made it clear that the majority of the submission documents will not be available for the Authorities to view until after acceptance in case any of the material has to change. This has greatly hindered the Authorities’ understanding of the project and its impacts, and their ability to agree SoCGs and develop even an early scope of the content within a PADSS. Appendix E to this representation lists some of the information and/or documentation that was sought by the Authorities, but which was not provided (despite in some cases promises that they would be provided) to them by the Applicant in advance of the DCO submission.
8.14 There are also a number of key Strategy Documents referred to by the Applicant within the Consultation Report including the Surface Access Strategy (including the Transport Assessment); Employment, Skills and Business Strategy; Carbon Action Plan; Construction Management Plan and others, which are all critical documents to understand the potential impacts of the proposals and the extent of mitigations proposed. The Authorities have not had any sight of any drafts of such documents prior to submission, which has significantly impeded the Authorities’ ability to provide effective and meaningful feedback on the proposals put forward.
8.15 By way of contrast, the applicant for the expansion of Luton Airport shared draft documentation, including the draft DCO, with its local authorities five months prior to submission; this was to allow time for discussion on the contents and to take comments on board. Unfortunately, not only has the Applicant not taken a similar approach, it also considers incorrectly that its approach has been best practice.
8.16 If the application is accepted, the full suite of application documents will be published and the Authorities will be able to review all the supporting data and strategies. However, this will require extensive work to review and comment upon documents that were not shared by the Applicant in advance, involving significant staff resources and consultancy support, and a rapid turnaround for comments within a constrained timescale. Again, the lack of detailed information shared in advance by the Applicant represents a missed opportunity to actively support the Authorities in undertaking their statutory duties and which could undermine the ability of the Authorities to make informed judgements and decisions prior to Examination.
8.17 The Authorities are of the view that their concerns should be fully addressed during the pre-application process and that they should be given the necessary time required for proper and full discussion and negotiation with the Applicant. These concerns are not capable of being dealt with only through the Examination process given the time constraints and the need to dedicate and focus the resources necessary to handle the Examination requirements.
9. Conclusions
9.1 The Authorities consider that the Applicant has met the procedural requirements of Sections 42, 47 and 48 of the Act with regard to the technical process of consultation and publicity. However, this Representation has also considered the wider issues of consultation and engagement with the Authorities, and the Applicant’s regard to guidance and advice on the pre-application process. The Authorities consider that the Applicant has not met the requirements of Sections 49 and 50 of the Act, which raises numerous issues of concern. This is particularly disappointing given the statement by the Applicant in the Consultation Report that the input from the Authorities is an important part of the process.
9.2 Moreover, the Authorities consider the Applicant has not satisfied the fourth Gunning principle, meaning that while the consultation might have satisfied the modest requirements of Sections 42, 47 and 48 of the Act, it has not been a legitimate, and therefore not a lawful, consultation.
9.3 In advance of the DCO submission, the Authorities have not seen the Environmental Statement, nor draft copies of some of the more critical documents including, for example, the Transport Assessment and other important draft strategy documents all of which will require considerable time for proper review and analysis. There has been piecemeal provision of further information on elements of the Project. Although the Applicant has sought to engage with the Authorities on the principles and strategic approaches, more detailed pre-application information would have enabled far more effective engagement with the Authorities. In these circumstances, the Authorities do not agree with the Applicant’s inference of the effectiveness of the TWG approach as set out in section 3.4 of the Consultation Report.
9.4 Only following acceptance of the application will the Authorities be able to review the Project as a whole and make a considered and informed judgement. Unfortunately, the Applicant’s approach has meant that the Authorities have had to remain unsighted on significant issues. The lack of a comprehensive set of documents has also compromised the engagement that has taken place because the complex inter-relationship between all the documents means no single document can ever be understood in isolation. As such, the Authorities have not been able to complete the engagement on the pre-application work with the Applicant as envisaged in the regime set out by the Act.
9.5 Government guidance anticipates applications being well-developed and understood by the public, with important issues articulated and considered as far as possible in advance of submission, allowing for shorter and more efficient examinations. From the responses from other consultees and the wider public, it is clear that other parties have felt that there has not been adequate information available at the consultation stages to allow properly informed responses from stakeholders and the public.
9.6 The Authorities have been keen, at every stage, to progress with all the outstanding elements in a constructive way with all parties but are concerned that, with the substantial and complex work still to be done on the SoCG and PADSS, the S106 Agreement and agreeing mitigation, there may not be adequate opportunity for the Examining Authority to undertake its work fully within the six months from the Preliminary Meeting. The Authorities remain ready to make progress on these matters.
9.7 Accordingly, the Authorities consider that PINS should decline to accept the DCO application to enable more meaningful engagement and consultation. However, should the application be accepted, PINS should ensure that adequate time is allowed to address these matters in the pre-examination period.
9.8 The Authorities consider that the minimum Section 56 period will impact each authority’s ability to respond effectively in their Relevant Representations to fully take account of the detail available in the full Environmental Statement. Therefore, there is a risk of a lack of clarity around some of the issues that may be raised by the Authorities, which will require more detailed examination by the Examining Authority.
9.9 If a minimum period is adopted by the Applicant, this will also undermine progress to be made on outstanding matters that would benefit the Examination; these matters include SoCG and agreement to mitigations through revised requirements or S106 obligations.
9.10 The Authorities further request that, should the application be accepted, in using its discretion in setting a date for the Preliminary Meeting, the Examining Authority maintains dialogue with the Authorities and the Applicant in order to enable progress to be made prior to formal commencement of the Examination. The Authorities consider this would be beneficial to the Applicant, the Authorities, and the Examining Authority.