Leeds Bradford Airport expansion plans – legal arguments about emissions

Background: Leeds Bradford Airport (LBA) wants to expand from 4 million passengers per year to 7 million by 2030. LBA has submitted a planning application to Leeds City Council (LCC) seeking permission to extend daytime flying hours, allow more flights at night and build a new passenger terminal. The Group for Action on LBA (GALBA) is fighting this application, with a particular focus on greenhouse gas (GHG) emissions. We now know that LCC has been given legal advice on what councillors should take into account in respect of GHG emissions, which has presented us with a worrying problem. The following sets out the advice given to LCC and GALBA’s response.

LCC’s advice: when LBA’s planning application was discussed at a recent meeting, planning officers gave legal advice (paid for by the Planning Dept) to councillors on the committee. This advice accepted that the climate impact of LBA development is material to the decision but said that councillors should not take into account the climate impact of GHG emissions from domestic and international flights – only GHG emissions from LBA’s ground operations.

Planning officers said that domestic flight GHG emissions are covered by the UK carbon budgets, and international flight GHG emissions are covered by the UN’s CORSIA offsetting scheme, therefore they should not be taken into account in local planning decisions. At the meeting, LCC’s legal officer said that because of this, if councillors were to take GHG emissions from flights into account in their decision, they would effectively be ‘double counting’ them. Policy SP12 of the Leeds Development Plan (called the Core Strategy) supports development at LBA subject to any adverse environmental effects being properly mitigated. Planning officers said that their legal advice means that policy SP12 can only cover the environmental impacts over which LBA has direct control – ie ground based GHG emissions only.

GALBA’s response: GALBA’s barrister is Estelle Dehon, of Cornerstone Barristers. She has sent open advice directly to all councillors on the planning committee (called Plans Panel). Below is a summary of her ‘plain language’ open advice – a full copy of this, and her more detailed legal advice, are available here: https://www.galba.uk/open-legal-advice-to-lcc-plan-panel.

“When considering Leeds Bradford Airport’s planning application, the Plans Panel is under two legal obligations relating to the climate change impact of the proposal:

(1) The Panel cannot grant or refuse planning permission unless it:

(a) understands whether the proposal will have a likely significant impact on the environment by contributing to climate change and

(b) takes that impact into account in making its decision on planning permission.

This is the obligation in regulations 3, 4 and 26 of the Environmental Impact Assessment Regulations 2017 (“EIA Regulations”).

(2) The Panel is obliged to consider climate change impacts when it decides whether the proposal fails to comply with the Core Strategy policy SP12 because of its adverse environmental effects; and whether it fails to comply with paragraph 148 of the National Planning Policy Framework (“NPPF”), which requires planning decisions to “shape places in ways that contribute to a radical reduction in greenhouse gas emissions”.

It would be unlawful for the Plans Panel to ignore the climate change impact of the proposal, or to assume that the impact can be accommodated (for example, by assuming that national carbon budgets can absorb any extra emissions; or by assuming any international carbon reduction schemes will reduce or neutralise extra emissions). If the Panel made these assumptions, it would be doing the opposite of what the EIA Regulations require. Ignoring the climate change impact would also fail to understand policy SP12 and paragraph 148 of the NPPF.”

The open advice goes on to outline in more detail the obligations imposed on the planning committee by the EIA Regulations. It explains that ‘climate change impact’ means the impact of any additional emissions which contribute to global heating, both GHG emissions and non-CO2 radiative forcing. It points out that the EIA Regulations require all climate impacts to be taken into account: direct (from building a new passenger terminal); indirect (from the additional flights allowed by changing current restrictions), cumulative (over the years) and in-combination (occurring alongside similar developments).

The open advice then stresses: “The existence of … national [carbon] budgets does not mean the Panel can avoid determining the likely significant climate change impacts of the proposal, nor can the Panel just assume that the national government can absorb the extra emissions from the proposal into the budgets.” It also explains: “…carbon budgets are only one of the [UK’s] environmental protection obligations. There is also the more stringent obligation under the Paris Agreement.”

The open advice continues: “it would also be unlawful for the Panel to assume that any extra emissions would be absorbed by CORSIA” pointing out that: “CORSIA has not in fact begun to operate as a carbon offset regime. It begins with a pilot phase in 2021 and a voluntary phase in 2024, and the details of the scheme are yet to be determined… even if it operates with the best anticipated efficiency, [it will] only cover 6% of projected CO2 emissions from all international aviation between 2015 and 2050.” The open advice also refers to the CCC’s Net-Zero Report (May 2019) which states: “It is essential that these internationally focused efforts are additional to putting in place robust and effective policies to achieve net-zero GHG emissions domestically in the UK and are not an alternative for doing so.”

On the requirements of local and national planning policies, the open advice reminds councillors that local policy SP12 only supports development at LBA subject to the proper mitigation of adverse environmental impacts, saying: “the Panel cannot simply assume that the existence of the UK carbon budgets and CORSIA will mitigate the GHG emissions or the warming impact of contrails…” Finally, it reminds the Panel that paragraph 148 of the NPPF requires planning decisions to “shape places in ways that contribute to a radical reduction in greenhouse gas emissions”.

Conclusion: in summary, the open advice states: “the legal obligations in regulations 3, 4 and 26 of the Environmental Impact Assessment Regulations 2017, the statutory duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 and the obligation in national policy to secure a radical reduction in GHG emissions mean that it would be unlawful for the Plans Panel to ignore the climate change impact of the proposal, or to assume that the impact can be accommodated.”

No date has been set for the Plans Panel to make a decision, though we believe it will be late November or December 2020. Whatever happens, it is unlikely the story will end there. If GALBA wins, LBA can appeal; if LBA wins, GALBA will raise funds to seek a Judicial Review.