Infrastructure Planning Blog

31: Luton judicial review, grid connection gateways and other infrastructure planning news

This week’s entry covers the Luton Airport judicial review, NESO’s Gate 2 grid connection announcements, the latest on the Planning and Infrastructure Bill, updates on nuclear regulation, and clarifications on co-located energy thresholds.

Leaving on a jet plane

Local objection group LADACAN had challenged the Secretary of State for Transport's 3 April 2025decision to grant a Development Consent Order (DCO) to permit the expansion ofLuton Airport, including the construction of a second terminal. Our team, led by Tom Henderson, advised on obtaining this DCO, and are now advising on itsimplementation so the summary of the case that follows is, of course, factual. See also a more detailed analysis of the judgment.

On Monday 8 December, the judgment of the High Court was published and can be found here. Five of the grounds were dismissed and the sixth is on hold because it is tied to a related challenge to the Jet Zero Strategy, which is being heard by the Court of Appeal today (12 December). The High Court judgment for that one (by enigmatically-named 'Possible'), by Mrs Justice Lang, who also gave the Luton judgment, can be found here.

Ground 1: emissions from inbound flights unlawfully exclude from environmental assessment, contrary to Finch

This failed because the applicant did calculate and report such emissions, it was just how they were dealt with that was at issue, and that was a matter of planning judgment. It was made clear that the claimant's case – namely that Finch meant all direct and indirect effects that were likely to occur had to undergo an assessment of significance – was going too far. The effects had to be capable of *meaningful* assessment, which was not the case for inbound flight emissions, since no significance could be ascribed in the context of UK carbon budgets.

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Ground 2: treatment of the above issue in the Gatwick DCO examination unlawfully not taken into account

The claimant used Lord Justice Holgate's favourite phrase of 'obviously material' for this issue but the judge found that that was also a matter of judgment and the threshold of unreasonableness had not been reached in concluding as the SoS had done. Furthermore, the SoS had rejected the Gatwick examining authority's approach in the decision on that project.

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Ground 3: non-CO2 emissions unlawfully not taken into account in environmental assessment, contrary to Finch

The judge said this was not a Finch issue, no-one denied that aviation included non-CO2 emissions. Such emissions were in fact taken into account in the environmental assessment, albeit in a qualitative rather than quantitative way, which was not an error of law.

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Ground 4: legal error to conclude that the duty under the Climate Change Act 2008 to reach net zero is a pollution control regime

This was a quote from the Airports National Policy Statement (paragraph 4.54) where effectively if something is dealt with by another legal regime it doesn't need also to be considered as part of a DCO application. The judge concluded that this was consistent with the judgment on the unsuccessful challenge to Bristol Airport expansion.

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Ground 5: failure to give adequate reasons for taking duty to conserve and enhance national landscapes into account

This was based on the SoS siding with the applicant on how much to pay the Chilterns Conservation Board for offsite impacts from the project on the Chilterns (£250,000 vs £3.75m proposed by CCB). The judge said that the SoS took the views of the CCB into account but didn't have to follow them and there was no test of having to give' 'cogent reasons' for departing from their advice.

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Ground 6: reliance on the Jet Zero strategy which is under challenge

This is stayed but may fall away if the Possible challenge is unsuccessful, see above.

LADACAN are considering whether to appeal, we will be keeping a close eye given our involvement for the applicant Luton Rising.

Gates of heaven

Also of interest this week is the snappily-named Gate 2 Phase 1 announcement by NESO, the National Energy System Operator. As they have punningly said themselves, there has been a worsening case of 'gridlock' on applications for electricity grid connections for various forms of energy generation and storage. To resolve this, NESO have been carrying out a spring - or rather autumn - clean of projects that are really coming forwards and fit in with 'Clean Power 2030'. Notifications as to which ones made the grade and which ones didn't were sent out this week. This week has been one of good or bad news leading to energy generation DCO applications marching ahead or pausing.

NESO gave a presentation on Monday 8 December and you can see the slides it used here. Slide 16 is probably the key one - the 217GW of projects that were not prioritised, over 70% of which (in gigawatt terms) were battery projects. 35.9GW of solar projects were pruned, slide 11 noting that there is remaining solar capacity in the north and south west of England and south Wales. Onshore wind is undersupplied in all of England and Wales but not Scotland.

To understand your Gate 2 notification NESO has published a helpful handbook, here. Each chapter has a photo of a man standing or walking in the countryside; perhaps he is looking for love, because the last picture has him holding hands as he wheels his bike into the distance. Successful projects will get a formal offer by the end of June 2026 that they have to sign within 90 days.

Lords a-leaping

On 10 December at around 4.30pm, the Planning and Infrastructure Bill finally completed its passage through Parliament, with the House of Lords agreeing to the Commons’ insistence that it drop its final proposed amendment. There will be a fuller report once the Planning and Infrastructure Act 2025 or 2026 receives Royal Assent and is published with sections rather than clauses, but as a quick reminder the more important changes to the Planning Act 2008 regime are:

all but s48 publicity removed from mandatory pre-application consultation
can apply to opt out of the regime as well as opting in
separate post-grant of DCO non-material change process removed

These all come into force at a time of the government’s choosing rather than immediately, so there will be some notice of that.

Up and atom

The Prime Minister and the Secretary of State have now confirmed they are accepting the recommendations of the Nuclear Regulatory Taskforce. The Chancellor had previously said that the "principle" of all the recommendations had been accepted, but the subsequent confirmations refer to acceptance. Perhaps this is not too surprising given the Prime Minister's announcement on the day of publication commitment to the "complete implementation of the report" by December 2027.

The Centre For British Progress has published a tracker so you can follow the implementation. Mustafa Latif-Aramesh, one of my co-authors of this blog and a member of the Taskforce, also appears on this podcast if you want a behind the scenes glance at their work.

The sun always rises

You’ll recall that we previously commented on a potential ambiguity on the thresholds for co-located wind and solar. In particular, the question of whether a co-located development of 50MW wind and 50MW solar meet the threshold of 100MW (i.e., is the threshold cumulative or stand-alone for each energy generation type). Our previous blog post covered how that question has been considered in the context of adjacent 49.9MW solar farms, and how multi-technology sites have been treated as one “generating station” in Scotland.

Well, the Government in the draft of EN-3 has provided a helpful starting presumption in response to this concern. EN-3 (at footnote 9 on page 8) now states that “What amounts to a single generating station for the purposes of the Act will be a matter of fact to be considered on a case-by-case basis, however the starting presumption will be that even where multiple generating station types are co-located, each generation type will be a separate generating station for the purposes of the thresholds”. There you go.

Finally, the Christmas competition in the previous blog post is still running. I've had a few entries – not all correct– so there's still a good chance of winning if you enter!

‍This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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