Question 1: Who in the context of London Luton Airport passenger capacity expansion is the Applicant who is legally responsible for commissioning and consulting on evidence that justifies London Luton Airport expansion and its environmental impacts. London Luton Airport Group Limited, London Luton Airport Limited, London Luton Airport Holdings 1 Limited or Luton Borough Council who have a 50% shareholding in London Luton Airport Limited?
Answer 1: Anyone wishing to construct a Nationally Significant Infrastructure Project must apply from the appropriate Secretary of State to do so. It is for the Applicant (developer) to confirm who they are and who will be submitting an application for an order granting development consent. It is expected that the person who carries out the required pre-application consultation about a proposed application will be the same person who submits the application. Part 5, Chapter 2 of the Planning Act 2008 (as amended) provides the legislative framework for the pre-application procedure. It states that the Applicant is the person who proposes to make application for an order granting development consent. It also sets out in section 42 the Applicants duty to consult, which includes the duty to consult the relevant local authorities. In the case of the proposed London Luton Airport expansion no application for an order granting development consent has yet been submitted.
You state in your answer above “It is expected that the person who carries out the required pre-application consultation will be the person who submits the application”.
Question 2: Does this statement apply to the person who carries out non-statutory pre-application consultation or the person who carries out statutory pre-application consultation?
Answer 2: Non-Statutory pre-application consultation is generally undertaken to inform statutory pre-application consultation. We would therefore also usually expect non-statutory consultation to be carried out by the same person who carries out statutory consultation, and in turn submits the application.
Question 3: What weight does non-statutory pre-application consultation carry when the Secretary of State for Transport decides whether to approve a draft Development Consent Order?
Answer 3: By way of clarification, the Secretary of State for Transport does not take any decisions in respect of the pre application procedure: which includes pre-application consultation. At the end of the statutory process, he or she will take the final decision about whether or not development consent should be granted in this case. It is the Planning Inspectorate, which decides whether to accept an application for examination. In taking that decision the Inspectorate is required to consider, amongst other things, the adequacy of the pre-application consultation undertaken by the Applicant; having regard to any Adequacy of consultation representations received from relevant local authorities, and the consultation report submitted with the application.
With respect to Question 1: and its corresponding answer. National Infrastructure Planning’s answer is equivocal as it does not state which of the four legally distinct entities mentioned in Question 1: is the Applicant. National Infrastructure Planning merely expresses its expectation that the developer, consulter and Applicant are one and the same. Also legislation assumes the developer and consulter are the Applicant where in this specific instance potentially they are not. Therefore, any campaign group may like to consider whether it is worthwhile applying for a Judicial Review with the object of identifying who, the legal Applicant may be.
With respect to Question 3: and its corresponding answer. Clearly the pre-application non-statutory consultation undertaken during June 2018 carries no weight in the Secretary of State for Transport’s decision taking regarding whether to consent to an application to expand London Luton Airport passenger capacity. Further, publicly available information from Luton Borough Council here at https://www.luton.gov.uk/news/Pages/Consultation-gets-under-way-on-potential-expansion-of-London-Luton-Airport.aspx does not distinguish between non statutory and statutory consultations and their significance. Therefore, any campaign group or member of the public should respond to the next round of consultation that is scheduled to take place during mid year 2019 if they wish their views to have an affect on National Infrastructure Planning’s judgments on the adequacy of public consultation.