High Court Upholds Decision Maker's Broad Discretion In Relation To Impact Of Emissions Of Proposed Airport Expansion

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Environment, Transport, Environmental Law, Aviation, Climate Change
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and Katie-Scarlett Wetherall
• Published date: 07 March 2023

In Bristol Airport Action Network Co-ordinating Committee v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 171 (Admin), the High Court dismissed a challenge brought primarily on climate change grounds by various local environmental groups and residents to the grant of planning permission for the expansion of Bristol Airport.

Key points

• Planning authorities are entitled to consider in a generalised way whether emissions from a proposed development would materially affect the UK's ability to meet its carbon budgets and targets.
• Local decision makers may assume that separate pollution control regimes will operate effectively in respect of the emissions from a proposed development.
• Aviation carbon emissions are primarily to be considered at a national, rather than local, level in accordance with Government policy.

Background

The first interested party, Bristol Airport Ltd ('BAL'), applied to North Somerset Council ('the Council') for planning permission to increase its capacity by about 2 million passengers per year. The application was refused by the Council, but BAL's appeal against that refusal was allowed, following an inquiry by a panel of planning inspectors (the 'Panel').

In relation to climate change issues, the claimant alleged that the Panel erred in:

1. Its interpretation that the Council's development plan policies did not directly address aviation emissions;
2. Its interpretation of the national policy 'Making Best - Use of Existing Runways' ('MBU');
3. Finding that it was required to 'assume' that the Secretary of State ('SoS') would comply with his duty under the Climate Change Act 2008 ('CCA'), as per paragraph 188 of the National Planning Policy Framework ('NPPF');
4. Failing to consider the impact on the local carbon budget for the Council; and
5. Its conclusion that the impact of non-CO2 emissions could be excluded from the Environmental Impact Assessment ('EIA') prepared by BAL and should not weigh in the balance against the proposed expansion.

In the alternative, the claimant submitted that the Panel failed to give adequate reasons.

Judgment

Lane J dismissed each of the grounds raised by the claimant, including the reasons challenge. In large part, the case was about the key question underpinning the inquiry (to which there was no substantial dissent): whether emissions from the proposal would be so significant that they would materially affect the ability of the UK to meet its carbon budgets and the target of net zero by...