High Court rejects challenge over decision that development at Stansted Airport was not a nationally significant infrastructure project

A Planning Court judge has dismissed a judicial review challenge over the Secretary of State for Transport’s decision to decline to accept that development proposed in a planning application for Stansted Airport was a nationally significant infrastructure project.

The claimants, acting on behalf of campaign group Stop Stansted Expansion, argued that the development should have been subject to the approval processes required by the Planning Act 2008, including determination at the national level.

With the Secretary of State declining to accept the development as an NSIP, it fell to Uttlesford District Council to consider the planning application.

Uttlesford had resolved to grant planning permission, but a final decision had not been made at the time of the hearing. As Mr Justive Dove’s judgment was in the very final stages of preparation the court was advised that the district council had decided (in January 2020) to refuse planning permission. However, the judge said that since this new turn of events could only impact upon relief it seemed sensible to continue to produce a judgment dealing with the substantive issues.

The planning application made by Stansted Airport Limited with which the proceedings were concerned involved building two new taxiway links, being a rapid entry taxiway and a rapid exit taxiway, and nine additional aircraft stands.

These developments would increase the use of Stansted Airport's single runway and its potential to handle aircraft movements. The planning application also included a request for the planning cap of 35 million passengers per annum ("mppa") to be increased to 43 mppa.

In Ross & Anor (Acting On Behalf of Stop Stansted Expansion) v Secretary of State for Transport [2020] EWHC 226 the claimants challenged the decision of the Transport Secretary of 28 June 2018 not to treat the planning application as development requiring development consent under the 2008 Act on two grounds.

First, it was argued that the proposed developments should have been considered to be an "alteration of an airport" falling within the scope of section 23(4)-(6) of the Planning Act 2008. The effect of these provisions, it was contended, was that it was mandatory for the minister to consider that the proposed developments comprise an NSIP within the meaning of the 2008 Act.

At the hearing argument centred upon the meaning of "capable" in the phrase "the number of passengers for whom the airport is capable of providing air passenger transport services" in section 23 of the Planning Act 2008. The claimants argued that the word "capable" indicated that one must calculate the number of passengers that could be transported through Stansted Airport exploiting the new infrastructure and the aircraft it serves, not limited to what would be likely but examining arithmetically what could be technically possible as a result of the proposed developments.

The Minister and Stansted Airport Limited argued that the number of passengers capable of being transported should be a judgment calculated by reference to what was a realistic and likely usage of the new runway infrastructure, rather than the most that might be hypothetically feasible.

The claimants' Ground 2 was that, even if the proposed developments at Stansted Airport did not satisfy the NSIP criteria set out in section 23 of the Planning Act 2008, the defendant minister should nonetheless have exercised his discretionary power under section 35 of the 2008 Act to treat the developments as nationally significant and therefore subject to the 2008 decision-taking process and a decision at a national level.

Mr Justice Dove rejected the claim. On the first ground he said the claimants’ grounds were arguable but that they could not succeed.

The judge said: “The language of the statute in relation to whether the alteration will ‘increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services’ requires the Defendant to form a judgment in relation to that question.

“In my view that judgment is to be formed by asking what increase in capacity could realistically be achieved, not what might technically or arithmetically be possible. It requires an analysis based on how the infrastructure is likely to perform, not a hypothetical approach assuming speculative figures in relation to each aspect of the calculation of capacity to show what might be possible rather than what is likely to occur in practice.”

On the second ground Mr Justice Dove said it was clear from the statutory language of section 35 of the 2008 Act that the defendant minister was granted a broad discretion as to whether or not to treat an application for development which did not otherwise meet the definitions for an NSIP as a project which required development consent on the basis of national significance.

He added: “Given the nature of the defendant's decision, as one which was exercised using a relatively broad discretion, the task of the claimants to show that the judgment which the defendant reached was unlawful is daunting.”

The judge said he was not satisfied that the material before the minister should have led to him properly concluding that the application he was considering was part of a wider or larger project which, taken together with that which was before him, justified the conclusion that Stansted Airport Limited’s proposal should be considered an NSIP on the basis of applying section 35 of the 2008 Act.

Responding to the ruling, Stop Stansted Expansion said it was yet to decide whether to seek leave to appeal.

It pointed out that should Stansted's owners, the Manchester Airports Group (MAG), appeal against Utttlesford’s refusal to grant permission, the planning application would be examined at a public inquiry, with the Secretary of State making the final decision. “In other words, the application would be decided at national level in any event.”

Chairman Peter Sanders said: "We are currently considering our options because there are different procedures to be followed depending on whether this application ends up being dealt with through the traditional appeal process of a Public Inquiry or is designated as a Nationally Significant Infrastructure Project. The NSIP process would be less expensive and less resource-intensive than a Public Inquiry for both SSE and Uttlesford District Council."

Sanders added: "Regardless of how events unfold in the coming months and beyond, UDC's rejection of these proposals for further major expansion at Stansted Airport has demonstrated the kind of resolve that we hope will be shown everywhere in future when an applicant seeks to ride roughshod over the health of the local community and in disregard of the climate emergency."