Bristol Airport Action Network Co-Ordinating Committee (Acting through Stephen Clarke) v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 31 January 2023 |
| Neutral Citation | [2023] EWHC 171 (Admin) |
| Docket Number | Case No: CO/928/2022 |
| Court | King's Bench Division (Administrative Court) |
In the Matter of an Application for Statutory Review Under Section 228 of the Town and Country Planning Act 1990
[2023] EWHC 171 (Admin)
Mr Justice Lane
Case No: CO/928/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Bristol Civil Justice Centre
2 Redcliff Street
Bristol BS1 6GR
Ms Estelle Dehon KC (instructed by Leigh Day Solicitors) for the Claimant
Mr Mark Westmoreland Smith and Mr Charles Streeten (instructed by The Government Legal Department) for the Defendant
Mr Michael Humphries KC and Ms Daisy Noble (instructed by Womble Bond Dickinson (UK) LLP), for the First Interested Party
The Second Interested Party was not represented.
Hearing dates: 8 & 9 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Climate change, with its consequences for human and other life on this planet, is generally regarded as a matter of very great importance. In the same month in which this appeal was heard in Bristol, world leaders and other policy makers gathered in Sharm El-Sheik, Egypt for COP27, in order to discuss this matter. There is an international consensus on the need to achieve substantial reductions in CO2 emissions. The Intergovernmental Panel on Climate Change 2021 was widely reported as being a “Code Red for Humanity”, such is the present level of concern.
A. BACKGROUND
This appeal is about the proposed expansion of Bristol Airport. The first interested party, Bristol Airport Ltd (“BAL”), applied to North Somerset Council (“NSC”) for outline planning permission and the amendment of four existing planning conditions, which together would enable the capacity of Bristol Airport to rise by 2 million passengers per year, an increase of about 20 per cent on current numbers.
NSC refused the application in February 2020 and BAL appealed against that refusal to the defendant under section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”). The appeal was heard by a panel of three inspectors (“the Panel”), over a period of some nine weeks, between July and October 2021. On 2 February 2022, the Panel allowed BAL's appeal.
The claimant is a network of groups comprised of members of various environmental organisations in the south-west region of England, as well as residents from local communities affected by the proposed expansion of Bristol Airport.
The claimant appeared at the inquiry. The broad thrust of the claimant's case was that BAL's appeal should be dismissed because the expansion of Bristol Airport would have a serious and unacceptable effect on climate change. The claimant led evidence from Professor Kevin Anderson, who holds a joint Professorship in energy and climate change in the School of Engineering at the University of Manchester, as well as other appointments; Mr Finlay Asher, an aerospace engineer formerly employed by Rolls-Royce, with expertise on new aircraft technology and sustainable aviation fuels; and Mr Sam Hunter-Jones, a solicitor practising as an in-house lawyer at ClientEarth.
On 9 May 2022, Lang J granted the claimant permission to apply for planning statutory review on each of six grounds. The first five of those grounds can be grouped under the broad heading of challenges to the Panel's decision in respect of emissions of greenhouse gases from aircraft (predominantly, but not exclusively, in the form of CO2). The sixth ground concerns the effect of the Airport's expansion upon a special area of conservation in which horseshoe bats roost and breed.
So far as climate change is concerned, the general question underlying Grounds 1 to 5 is whether and to what extent aviation emissions should play a role in deciding whether permission should be granted under the 1990 Act.
B. AN OVERVIEW OF THE PANEL'S DECISION LETTER
The following is an overview of the relevant parts of the Panel's decision letter (“DL”). It will be necessary to examine passages of the DL in more detail, when dealing with the claimant's grounds of challenge.
At DL33, the Panel referenced section 38(6) of the Planning and Compulsory Purchase Act 2004. This requires planning applications to be determined in accordance with the development plan unless material considerations indicate otherwise. The development plan in the present case includes the North Somerset Core Strategy, adopted in January 2017 (“CS”). At DL37, the Panel noted that, inter alia, CS1 was concerned with addressing climate change and reducing greenhouse gas (“GHG”) emissions. CS1 was described as stating, amongst other matters, that NSC is committed to reducing carbon emissions and tackling climate change, mitigating further impacts and supporting adaptation. One of the principles guiding development is that it should demonstrate a commitment to reducing carbon emissions.
Beginning at DL45, the Panel addressed the National Planning Policy Framework (“NPPF”). For present purposes, we are concerned with paragraph 188 of the NPPF. At DL62, the Panel described paragraph 188 as requiring the focus of a decision to be on whether a proposed development is an acceptable land use, rather than focusing on the control of emissions, which are the subject of separate pollution control regimes. Paragraph 188 states that it should be assumed that such other regimes will operate effectively.
Beginning at DL65, the Panel addressed National Aviation Policy, beginning with the Aviation Policy Framework (March 2013) (“APF”), which sets out the government's high-level objectives and policy for aviation. A key priority of the APF is to make better use of existing runway capacity at all UK airports. The APF recognises, however, that development of airports can have negative as well as positive local impacts “including on noise levels”. As a result, proposals for expansion should be judged on their individual merits.
At DL68, the Panel referred to a document entitled “Beyond the Horizon — the Future of UK Aviation: Making Best — Use of Existing Runways” (June 2018) (“MBU”). The Panel described the MBU as recognising “the importance of aviation growth while acknowledging the need to tackle environmental impacts” and as providing “that increased carbon emissions be dealt with at the national level” (DL70).
DL 78 to 82 are headed “Climate change policy”. Here, the Panel made reference to the Paris Agreement, which is an unincorporated treaty on climate change within the United Nations Framework Convention on Climate Change. The Paris Agreement set a long-term temperature goal of limiting global warming to well below 2 degrees above pre-industrial levels. It remains the foundation for much subsequent legislation and guidance. It is worth mentioning here that the legal nature of the Paris Agreement has been examined by the Supreme Court in R (Friends of the Earth Limited) v Heathrow Airport Limited [2020] UKSC 52 (“ Friends of the Earth”) and, very recently, by the Court of Appeal in R (Friends of the Earth Limited) v Secretary of State for International Trade/Export Finance and another [2023] EWCA Civ 14.
At DL80, the Panel noted that the Paris Agreement was reflected in the United Kingdom by the Climate Change Act 2008 (“CCA”). At DL81, the Panel referenced two government documents published in July 2021. These were “Decarbonizing Transport: A Better, Greener Britain” and the “Jet Zero Consultation”. The latter was a consultation document “but the main messages are not dissimilar, and they both emphasise the need for very significant action to be taken”. At DL 82, the Panel noted that COP26 was held in Glasgow in the autumn 2021, following which the “Glasgow Climate Pact” was adopted (November 2021).
At DL103, the first of the “main issues” debated in the inquiry was described by the Panel as follows:-
“The impact of the proposed development on GHG emissions and the ability of the UK to meet its climate change obligations”.
The section of the DL entitled “Climate Change” runs from DL143 to 216. It will be necessary to address a good many of these paragraphs in more detail, in dealing with grounds 1 – 5. The Panel observed that there was no dispute between the parties about the importance of climate change – “at the local, national and international levels”. There was also agreement that there would be an increase in GHG, especially CO2, if the appeal scheme went ahead, compared with the position if it did not. Under those circumstances “the climate change position would be worse” (DL146).
At DL147, the Panel was categoric that “the contribution of the appeal scheme to climate change related to CO2 admissions is an important material consideration”.
At DL149, the Panel recorded there being “no substantial dissent” from the formulation of the key question, which was 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 GHG emissions by 2050. The Panel considered that the “mathematics of the increase” was almost entirely agreed.
At DL150, the Panel said it was “common ground that an international response is necessary”, with individual nations determining their own contributions. At DL151, the Panel considered that the main difference between BAL and NSC (and other parties) was about “the way in which the issue of the emissions from this proposal should be addressed”. BAL relied on...
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High Court Upholds Decision Maker's Broad Discretion In Relation To Impact Of Emissions Of Proposed Airport Expansion
...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 plannin......