R (Ross & Sanders acting on behalf of Stop Stansted Expansion) v. Secretary of State for Transport [2020] EWHC 226 (Admin)

In an important judgment concerning the borderlines between the infrastructure planning regime under the Planning Act 2008 and the conventional planning regime under the Town and Country Planning Act 1990, Dove J. dismissed a judicial review claim by representatives of Stop Stansted Expansion alleging that the Secretary of State for Transport erred in law in deciding that proposals by Stansted Airport Limited (“STAL”) for expansion of London Stansted Airport were not a nationally significant infrastructure project (“NSIP”) requiring a Development Consent Order (“DCO”) under the 2008 Act as opposed to planning permission under the 1990 Act). The expansion proposals comprise two new taxiway links (a rapid entry taxiway and a rapid exist taxiway), nine additional aircraft stands, and the uplifting of the current cap of 35 million passengers per annum (“mppa”) to 43mppa. The Claimants first contended that the proposals were an NSIP by virtue of s.23 of the 2008 Act, which provides that, subject to specified thresholds, the construction, alteration or increase in the permitted use of an airport must be treated as an NSIP.  The threshold at issue here was that set out in s.23(4) taken together with s.23(5)(a), by which an alteration to an airport is to be treated as an NSIP if it is “expected” to “increase by at least 10 million per year the number of passengers for whom the airport is capable of providing air passenger transport services”. The Secretary of State had looked at this question on the basis that it should be determined by reference to the maximum number of passengers the airport was realistically capable of achieving, as opposed to the maximum hypothetical capacity of the airport assuming that all passenger flights would be using the largest aircraft and at full loads, on a 24/7 basis. Dove J. held that this was the correct interpretation of s.23(4)-(5) and rejected the Claimants’ argument that the word “capable” required consideration of the hypothetical maximum passenger throughput. Subsidiary arguments by the Claimants under this ground were also rejected. The Claimants’ secondary argument was that the Secretary of State acted irrationally in failing to exercise his discretion under s.35 of the 2008 Act to treat the project as an NSIP even if it was not automatically one by virtue of s.23. As to this, Dove J. held, amongst other things, that:

1. The Secretary of State’s discretion under s.35 is a broad one;
2. On the evidence, the Secretary of State had been entitled to conclude that the proposal was not (contrary to the Claimants’ contention) part of a wider project or collection of projects which had been salami-sliced to cross the s.23 thresholds in two or more steps;
3. The Claimants’ contention that the additional carbon emissions that would be generated as a result of the proposed development were of national significance requiring consideration at Secretary of State level, and could not be left to the local planning authority for consideration, was in truth a collateral attack on the Government’s June 2018 policy Making Best Use of Existing Runways which the Claimants could have but did not challenge; in any event there was no public law merit in their critique.

Charles Banner QC acted for the Secretary of State for Transport throughout, instructed by the Government Legal Department.