Carbon challenge to Bristol Airport scrambled

Mustafa Latif-Aramesh reports on the failed carbon-based challenge to the Bristol Airport expansion proposals.

We covered the decision to grant Bristol Airport planning permission in this previous post – please do read that to understand the specific approach to carbon assessments which was endorsed by the three planning appeal Inspectors in that case.

The claimant challenged the decision to grant planning permission on six grounds – all failed.

The first ground concerned whether the Appeal Inspectors properly interpreted local policy. The relevant Bristolian policies (Policies CS1 and CS23) related to carbon reduction, as well as specifically requiring development at the airport to satisfactorily resolve environmental issues. The claimants’ case rested on the assumption that the Appeal Inspectors had taken the view that aviation emissions were excluded from the scope of the carbon reduction policies. Except, Mr Justice Lane doesn’t think that’s what the Appeal Inspectors did.

Lane J notes the judgment in Tesco Stores Ltd v Dundee CC [2012] UKSC 13 which properly holds that the interpretation of planning policy is a matter for the courts, but the application of it is a matter for the decision maker. In that case, Lord Reed noted that "planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean". Back to the Bristol Airport case, and Lane J notes:

We are, here, firmly in the territory identified by Lord Reed in the first part of paragraph 19 of Tesco, rather than sitting on Humpty Dumpty’s wall. Although Policy CS1 is capable of including aircraft emissions, the decision-maker is entitled to exercise their judgment in order to determine how such emissions are, in a particular case, to be dealt with under the policy.

Lane J found that it was acceptable for the Appeal Inspectors to apply the policy in the way that they did (ie, aviation emissions are not irrelevant to the policy but instead that that aviation emissions are relevant to the local policies referenced above insofar as they would have a material impact on the ability to meet the 2050 carbon reduction targets). That was a judgment about their application, not their interpretation. (Incidentally, did you know one theory on the origins of Humpty Dumpty is that the rhyme was initially a riddle (‘why would someone be irreparably harmed from falling off a wall’); and the answer to the riddle (‘he’s an egg’) explains why he is depicted so notwithstanding the rhyme doesn’t say so – though, of course, Lord Reed’s reference in the Tesco case is to the Humpty Dumpty (also an egg) in Lewis Caroll’s Through the Looking Glass).

The second ground related to whether the policy of making best use of existing runways (the ‘MBU’ policy) could only be relied upon only once the planning balance in favour of an airport expansion had been established. The Inspector found there was no support for this view, and that it would be illogical. The High Court agreed.

It is in this ground that we also get an endorsement of the Goesa v Eastleigh Borough Council judgment relating to Southampton Airport expansion (covered in this blogpost) wherein Holgate J held that it was acceptable for a decision maker to rely on percentage contributions to a carbon budget and conclude there was no material impact on the government’s ability to meet its carbon reduction targets. This now seems well-trodden ground: this judgment, builds on the approach endorsed in Goesa, as well as the approach of the Eggs-amining Authority, High Court and Court of Appeal in relation to the failed challenges to the Drax power station project (explained here), and the dismissal on the papers of the Manston Airport DCO challenge (covered here).

Ground 3 relates to paragraph 188 of the NPPF. That paragraph says, amongst other things, ’planning decisions should assume that these [pollution control] regimes will operate effectively.’ The claimant attempted to argue that the duty under the Climate Change Act to reach the carbon reduction targets fell outside the scope of paragraph 188. Lane J disagrees: the emissions trading scheme (also introduced via the Climate Change Act) cannot be eggscluded from the scope of the duty, and the reading proposed by the claimant would lead to a duplication of aviation emission control measures. (By the by, how does this compare with the slightly bizarre justification for maximum capacity limits for the Keadby 3 project we noted here).

The final carbon based ground (ground 4) was that it was wrong for the Inspector to disregard local carbon budgets. Lane J again disagrees holding that the Inspector was entitled to place no weight on local budgets give ‘they plainly have no basis in law’. Nor was a local budget considered to be a notorious OMC (’obviously material consideration’) which had to be taken into account.

Ground 5 relates to non-CO2 aviation emissions. As a general point, assessment of such impact is highly uncertain, and the government recommends that carbon dioxide emissions be multiplied by 1.9 as a rough way to take into account the other gases. The ES in this case had not done so. Lane J concludes that this is acceptable because that government recommendation relates to company reporting, not a requirement of the EIA regulations.

Ground 6 is about impacts on horseshoe bats in functionally linked land to the North Somerset and Mendip Bats Special Area of Conservation. The developer proposed an area of replacement land which would minimise that impact. The claimant’s case was that this replacement land was not mitigation for the purposes of the Habitats Regulations, but was instead compensation. If it was the latter, a derogations case under the Habitats Regulations would have been required. Lane J disagrees – the mere fact the replacement land was outside of the SAC does not mean it could not be, and was not, established as effective mitigation on the SAC.

So, Bristol Airport is free to eggspand (subject to any appeal).

Mustafa Latif-Aramesh is a Legal Director at BDB Pitmans. This article first appeared on the firm’s Planning Act 2008 blog.