‘Pragmatic approaches can be perfectly lawful’: Gatwick’s lawyers on High Court appeal rejection

Gatwick’s legal team has told NCE the decision to reject campaigners’ application to appeal against the airport's expansion plans could have implications for other contested infrastructure developments. Gatwick’s proposal will see the reconstruction of the Northern Runway, which is currently used as a standby and for maintenance, to be used by smaller departing aircraft. Communities Against Gatwick Noise Emissions (Cagne), represented by the law firm Leigh Day, lodged an application to appeal in July after the High Court dismissed its judicial review on 23 June. The group’s challenge related to transport secretary Heidi Alexander’s decision to grant development consent for a northern runway at Gatwick. However, on Tuesday, 4 August, Lord Justice Holgate and Lord Justice Dove refused Cagne permission to appeal, stating: “We conclude that each of the grounds of appeal raised by each appellant is unarguable.” Perfectly lawful In response to the decision, a spokesperson for Herbert Smith Freehills Kramer (HSF Kramer), Gatwick’s legal representative at the hearing, told NCE about what the appeal rejection means for the major infrastructure community. HSF Kramer senior associate Leon Culot said: “[The decision] is certainly an affirmation of the value of good planning law advice in the application stage and examination, to ensure the application is as robust and considered as it can be. “But it is also a valuable confirmation of the proper scope of a planning decision-maker’s discretion and judgment, and that sensible and pragmatic approaches can be perfectly lawful. “In these regards and more, we anticipate that the judgment will be welcomed by the wider legal and aviation sectors.” For Gatwick, the judgment marks the end of a near decade-long process from project conception to consent, which HSF Kramer said would allow the airport to “move forward with confidence into the delivery stage and realise the substantial economic and connectivity benefits of the project”. With this in mind, Culot said it is important other legal representatives take note of the response to common objections raised by campaigners. “Other airports looking to expand should take note of the judgment’s definitive guidance on a number of topics often raised by objectors in response to applications for airport expansion, including the proper approach to assessment and contextualisation of greenhouse gas emissions, the role of extant government aviation emissions policy in a planning decision, the drafting of planning conditions/requirements and the nature of policy support afforded by the Airports National Policy Statement,” Culot said. This also reflects on the objectors, Culot said, whom the law firm believes should think again before bringing a legal claim. “The judgment’s clear conclusions on the lawfulness of certain approaches of the decision-maker here should give objectors pause when considering whether to advance similar lines of attack against future airport expansion proposals,” Culot said. Describing two examples, HSF Kramer discussed how the High Court held that it was lawful for Heidi Alexander to undertake a qualitative rather than quantitative assessment of non-CO2 emissions as part of the greenhouse gas assessment given ongoing uncertainty and disagreement as to an appropriate quantification methodology, as well as the secretary of state being entitled to rely on his or her own policies. This includes the Jet Zero Strategy, the government’s wider aviation emissions reduction strategy. Beyond who should be affected by the decision to prevent the appeal, HSF Kramer believes the government is making the right decision, ironing out how judicial proceedings are conducted. “The judicial review process has long been criticised as being unduly slow and expensive for infrastructure developers, resulting in an independent review being undertaken by Lord Banner KC in 2024 and certain procedural reforms being introduced by the government in the recent Planning and Infrastructure Act 2025,” Culot said. “These have sought to streamline and expedite the progress of nationally significant infrastructure claims through the courts, with some success. Culot continued: “In this claim, there were around 10 months between the grant of development consent and the final determination. “By comparison, the same stages of the legal challenge of the Sizewell C nuclear power station project took around 17 months. The Court of Appeal stage for the Gatwick claim took just five weeks from appeal to judgment, including a one and a half day oral hearing. The equivalent period for the Sizewell C claim was almost six months.” The cost of these proceedings remains a key issue for infrastructure developers. HSF Kramer pointed out how due to an international agreement called the Aarhus Convention, each of the Gatwick objectors will be liable to pay £10,000 towards the government’s legal costs for each of the High Court and Court of Appeal stages of the claim. “They will not have to pay Gatwick anything,” Culot said. “Both the government and Gatwick will have incurred significant costs fighting claims which they could do little to avoid, and which were ultimately dismissed in their entirety. “The government is considering further reform in this area, and their proposals are eagerly awaited.” In a statement released on 4 August, Cagne said: “Residents should be immensely proud of what they have achieved in holding Gatwick Airport’s shareholders to account. “This proposed new runway will come at a significant cost to both the taxpayer and the planet.” Further private investment Following this week’s announcement, the Building Cost Information Service (BCIS) said it believes national schemes such as the Gatwick expansion are important in shaping the UK’s image as an attractive investment destination, and this recent legal win is a move towards that. “This will hopefully encourage further private investment, which is desperately needed to stimulate construction activity, and by extension wider economic growth, and strengthen domestic supply chains,” BCIS chief economist David Crosthwaite said. “The expansion is expected to complete in 2030, although this will likely depend on the construction industry’s capacity to deliver it. “Discussions at recent meetings of the BCIS Civil Engineering Tender Price Index Panel have already shed light on skills shortages in the aviation subsector so labour will need to be managed carefully as the project progresses.” This is a point of caution for Crosthwaite. “There could also be implications for smaller projects in the area surrounding Gatwick Airport,” he said. “If the expansion absorbs a significant share of the available workforce, other projects could face delays and higher costs. “However, this is only likely to become a more significant challenge if construction demand rises substantially, which appears unlikely in the near term.” Like what you've read? 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