Judge gives permission for High Court challenge to go-ahead for Bristol Airport expansion

A planning statutory review hearing will be held later this year after a High Court judge ruled that Bristol Airport Action Network Coordinating Committee (BAAN) had raised arguable grounds which merit consideration by the court.

BAAN is challenging the Government’s decision to overrule North Somerset Council’s decision in February 2020 to refuse planning permission for the airport expansion. Bristol Airport Limited (BAL) appealed the council's decision to Michael Gove, Secretary of State for Levelling Up, Housing and Communities who ruled in February 2022 that the expansion could go ahead.

BAAN claims that under section 288 of the Town and Country Planning Act 1990 Mr Gove’s inspectors’ decision was unlawful. It says his inspectors made errors of law:

• When they decided that aviation emissions are not included within North Somerset Council’s development plan policies relating to climate change and the environmental impacts of development at the airport
• In interpreting national aviation policy “Beyond the Horizon: The Future of UK Aviation – Making Best Use” which leaves it up to local rather than national government to consider each case for airport expansion on its merits
• In finding it was required to “assume” that the Secretary of State would comply with his legal duty under the Climate Change Act 2008
• In discounting the impact of the airport expansion on local carbon budgets
• Concerning the climate impact of non-CO2 emissions
• In determining that replacement habitat for North Somerset and Mendip bats would lawfully mitigate for the loss of land used by the bats for foraging and roosting.

If judges at the planning statutory review rule in favour of BAAN’s arguments, they could quash planning permission for the airport expansion. That would mean that Mr Gove’s planning inspectors need to reconsider their decision, without the alleged legal errors.

Stephen Clarke, one of the coordinators of BAAN, said:

“The idea that airports can just continue to expand without limit in the middle of a climate and ecological crisis is so obviously wrong. If Bristol Airport plans are allowed, there are more than 20 other regional airports who will use the precedent to also expand; why should aviation be in the privileged position of expanding without limit while every other sector is being constrained? How can this country ever meet its legal obligations under the Climate Change Act?

“We are delighted that the judge agrees that we have arguable grounds that the inspector’s decision has errors in law and we look forward to the full hearing. Many thanks to the thousands of people in the region and beyond who have supported us financially through this three-year battle.”

BAAN is represented by law firm Leigh Day. Planning law specialist Ricardo Gama said:

“The judge’s finding that the claim is arguable shows that there is an important issue to be decided by the court. It would be very surprising for national government to be able to overturn a decision of democratically elected councillors which is based on sound planning reasons, including local planning policies which are specifically meant to address climate issues. It is difficult to see how climate issues are meant to be addressed in the planning system when local authorities try to make the right decisions for a climate-compatible future only to be rebuffed by national government.”

Estelle Dehon QC of Cornerstone Barristers was instructed in the case. She said:

“Misinterpretation of national policy on airports has led to a climate dissonance in airport planning decisions, resulting in permission being granted for unjustified expansion that is demonstrably contrary to local and national climate obligations. This case seeks to clarify the policy position and the correct approach to aviation emissions.”