Infrastructure Planning Blog

Today's entry looks at the end of the runway for the challenges to the Luton Airport and Gatwick Airport Development Consent Orders (DCOs), and at reforms to judicial review relating to indemnities.

Nothing beats a Jet2 holiday

The Supreme Court has refused permission to appeal the legal challenge to the Luton Airport DCO. This follows the judgment of the Court of Appeal holding that the claimants had simply missed the deadline (see Blog 31 and this summary).

This is a huge victory for our client Luton Rising and brings to an end a 15-month saga since the DCO was made by the Secretary of State. Hurrah!

Meanwhile, permission to appeal has also been refused in relation to the legal challenge to the Gatwick Airport DCO. Blog 56 covered the substantive judgment of the High Court, which was the subject of this appeal. The claimants fared no better here, with the Court concluding that "each of the grounds of appeal raised by each appellant is unarguable. Neither appeal has a real prospect of success."  The judgment is quite bruising. "Far-fetched" is just one of the many adjectives used.

Rather than cover the judgment in full, here are some of the highlights and differences between the High Court and Court of Appeal decisions.

On the alleged misinterpretation of whether the Airports National Policy Statement (ANPS) supported expansion at Gatwick, the two judgments are largely aligned. This was always a rather fanciful argument, given the plain wording of paragraphs 1.29 and 1.42 of the ANPS. However, the Court of Appeal was particularly robust in concluding that "there is no cap on the scale of proposals that can be brought forward under the ANPS and MBU policy and in particular proposals which would lead to an increase of in excess of 10 mppa are expressly contemplated". That is a useful finding for other airports seeking expansion.

In relation to the assessment of greenhouse gas (GHG) emissions, one ground of appeal concerned an alleged inconsistency with an earlier judgment in Boswell. In that case, the court held that "the Secretary of State was entitled to find that the proposal accords with NPS EN-1 and is compatible with the trajectory to ‘net zero’ and, in relation to section 6.3 of the IEMA guidance, the Secretary of State should have assessed the GHG emissions as having a less than significant adverse effect".

The claimants' argument in Gatwick appears to have been that, because the Secretary of State had found significant effects and had not concluded that the proposal was compatible with the trajectory to net zero, there should necessarily have been a finding of a material impact on the UK's net zero targets, consistent with Boswell. In what is perhaps about as blunt as judges get, the Court of Appeal held that the claimants had "not read that [Boswell] paragraph properly".

While you recover from that judicial chokeslam, perhaps with Fix Up, Look Sharp by Dizzee Rascal playing in the background, the reason was straightforward. The Court explained that "a proposed development may not be fully compatible with the UK's net zero trajectory, as the SST found to be the case here, but still not materially impact upon the UK's ability to meet its net zero target and carbon budgets".

There is also a useful reaffirmation of the principle that quantitative information is not always required for the purposes of Environmental Impact Assessment (EIA). The attempt to argue that the precautionary principle required further quantitative analysis "adds nothing", according to the Court. See paragraph 68 for further confirmation.

Paper planes

Speaking of judicial review, we have made no secret on these pages of our support for the Government's attempts to curtail the misuse of judicial review. The Government is progressing further reforms in this area. One of those announced in May 2026 was that "in response to the Fingleton [Nuclear Taskforce] Review, the Government has committed to...developing a government-backed indemnification scheme to give developers greater financial certainty when facing legal challenge".

While recommended by the Nuclear Taskforce, this reform is not entirely new. Variations of the concept have been circulating in think-tank circles for several years, and a version of it was even introduced for certain CCUS projects.

Perhaps I am biased, but there is a compelling and neat logic behind the proposal: the delay caused by judicial review proceedings can itself create significant value for those seeking to obstruct development. By reducing the financial consequences of such delays and covering costs associated with commencing works, the proposed indemnification scheme would remove much of that incentive. In particular, it may help deter the more speculative or fanciful challenges that are brought primarily to delay.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2026.  For more information see our terms & conditions.