High Court hands down judgment in Luton Airport expansion challenge
Cornerstone Climate, Planning and Environment, Public Law and Judicial Review
Today, the High Court has handed down its judgment in the judicial review claim brought by Luton and District Association for the Control of Aircraft Noise (“the Claimant”) challenging the lawfulness of the Government’s decision to grant development consent for the expansion of London Luton Airport. The High Court dismissed the claim.
The judgment has implications for how R (Finch) v Surrey County Council and others [2024] 4 All E.R. 717 might apply with regards to assessing the significance of scope 3 effects of a project.
By Ground 1, the Claimant argued that the Secretary of State had erred in law by excluding from the environmental impact assessment (“EIA”) the greenhouse gas (“GHG”) emissions from inbound flights, contrary to the judgment in Finch. Inbound flight emissions had been quantified in the environmental statement, but their significance had not been assessed because the UK carbon budgets calculate emissions for outbound flights only. The Court found that it was open to the Secretary of State to use national carbon budgets to assess GHG emissions (§§64-66).
This Case in 60 Seconds
- The High Court dismissed a challenge to the Government’s approval of the London Luton Airport expansion.
- The Court held that Finch did not require an assessment of significance in this case because the greenhouse gas emissions from inbound flights were not capable of meaningful assessment.
- Non-CO₂ climate effects were lawfully considered at a high level due to scientific uncertainty.
- The Court endorsed existing authority on the Climate Change Act 2008 operating as a “pollution control regime”.
- The Secretary of State’s reasons on the AONB duty were found adequate.
- The Claimant was represented by Estelle Dehon KC, Ruchi Parekh, and Hannah Taylor, instructed by Ricardo Gama at Leigh Day.
The Court further found that Lord Leggatt’s comments in Finch, in particular at §§77, that “if there is insufficient evidence available to found a reasoned conclusion that a possible environmental effect is “likely”, there is no requirement to identify, describe and try to assess this putative effect”, also governed the assessment of significance (§70), although the Court recognised that the assessment of significance was not a contested issue in Finch. On that basis, it was lawful for the Secretary of State to conclude that inbound flight emissions were not capable of meaningful assessment against UK carbon budgets, and therefore did not need to be assessed (§72).
In any event, the Court found that the Secretary of State concluded that the inbound flight emissions were not significant, and that was a reason why it was not necessary to assess them (§§75-78).
By Ground 2, the Claimant argued that the Secretary of State had unlawfully failed to take account of a material consideration by failing to consider the treatment of inbound flight emissions by the Examining Authority in relation to the expansion of Gatwick Airport. The Court rejected this argument, finding that the Gatwick Examining Authority Report related to a “different examination for a different project at a different airport”, and the reasoning was “internally inconsistent and flawed” (§§94-95).
Ground 3 proceeded on a similar premise to Ground 1, namely that there was an error of law in excluding from the EIA the likely significant impacts of non-CO2 emissions on the climate, contrary to Finch. The Court found that non-CO2 effects had not been excluded from the EIA. Rather they had been “taken into account, but on a qualitative and high-level basis because of significant scientific uncertainty about the scale of their effects, and the lack of any relevant benchmark against which to contextualise their effect” (§125). There was no legal obligation to attempt to quantify non-CO2 emissions. The question of how to assess significance is a “matter of judgment and evaluation for the decision-maker” (§126).
On Ground 4, the Claimant argued that the Secretary of State erred in law by concluding that the Government’s duties under the CCA 2008 comprised a “pollution control regime”. The Claimant invited the Court to follow the analysis of the Court of Appeal in Gladman Developments Limited v SSCLG [2020] PTSR 128 rather than the analysis of the High Court in R (Bristol Airport Action Network Co-ordinating Committee) v SSLUHC [2023] PTSR 853. The Court found that Lane J’s analysis in the Bristol Airport case was correct, and the position had not changed as a result of the judgment in Finch or the revised wording in paragraph 163 of the NPPF (§§143-145).
By Ground 5, the Claimant argued that the Secretary of State had failed to give adequate reasons for finding compliance with section 85(A1) of the Countryside and Rights of Way Act 2000, which requires a relevant authority to “seek to further the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.” The Court found that the reasons given were adequate and intelligible, and met the legal standard.
The Claimant was represented by Estelle Dehon KC, Ruchi Parekh, and Hannah Taylor, instructed by Ricardo Gama at Leigh Day.
