Peter Barclay & Anor v Secretary of State for Transport & Anor
| Judges | Lord Justice Holgate and Lord Justice Dove |
| Hearing | 27 and 28 July 2026 |
| Judgment | 4 August 2026 |
| Court | Court of Appeal (Civil Division), on appeal from the King's Bench Division, Planning Court |
| Below | Mr Justice Mould, [2026] EWHC 1556 (Admin), 23 June 2026 |
| Jurisdiction | England & Wales |
| Claimants and Appellants | Peter Barclay and Communities against Gatwick Noise Emissions |
| Defendant and First Respondent | Secretary of State for Transport |
| Interested Party and Second Respondent | Gatwick Airport Limited |
| Case references | CA-2026-001695 and CA-2026-001666 |
Summary
On 21 September 2025 the Secretary of State for Transport decided to make a development consent order under the Planning Act 2008 authorising improvement of the northern runway at Gatwick Airport and the lifting of restrictions so that both runways may be operated as dual runways.
Two claimants challenged the order under section 118 of the 2008 Act. Mr Justice Mould dismissed both claims on 23 June 2026 and each applied for permission to appeal. The grounds attacked the reading of the Airports National Policy Statement, the economic case, the assessment of greenhouse gas emissions and a wastewater requirement.
The Court of Appeal refused permission on every ground, holding each unarguable and finding no other compelling reason for either appeal to be heard. The consent stands. The court certified its decision as citable, but decided nothing on a substantive appeal.
Background and facts
Both applications for permission to apply for judicial review came before Mr Justice Mould at a rolled up hearing on 20 to 23 January 2026. He rejected every ground on which he granted permission, and dismissed both claims.
On 9 July 2026 Lord Justice Holgate adjourned both applications for permission to appeal to a joint hearing, heard by him and Lord Justice Dove on 27 and 28 July 2026.
The issue
The first appellant said the Airports National Policy Statement did not support an increase in capacity at Gatwick, or not on this scale, so any increase had to be treated as a departure from that policy. He also said the finding of national economic benefits could not stand while criticisms of the operator's economic assessment were unanswered.
The second appellant said a finding that the carbon effects were a moderate adverse effect under the published guidance could not sit with the conclusion that the scheme would not materially affect the government's ability to meet its net zero targets. It said emissions other than carbon dioxide should have been quantified, and that the wastewater requirement let operations begin before treatment works were operating.
The decision
The court restated the line between interpreting a policy, a question of law, and applying it, which is for the decision-maker.
The task of interpreting policy should not be undertaken as if the policy were a statute or contract.Lord Justice Holgate and Lord Justice Dove, paragraph 14
Read in context, the passages describing a need for more intensive use of airports other than Heathrow and Gatwick recorded that both were at capacity. They did not put Gatwick outside the policy on making best use of existing runways, and there is no cap on the scale of a scheme under it.
On the economic case, the conclusions on need and benefit rested neither on the operator's economic impact assessment nor on any estimate of growth in business passengers. There was no gap in the reasoning, and no principal controversial issue calling for reasons on a document not used.
On carbon, the criteria in the published guidance did not dictate the answer under the policy. A scheme may fall short of fully contributing to the net zero trajectory and still have no material impact on the ability to meet carbon budgets.
There are degrees of compatibility.Lord Justice Holgate and Lord Justice Dove, paragraph 46
The adequacy of an environmental statement, and of the assessment as a whole, is a matter of evaluative judgment reviewable only on Wednesbury grounds. The decision-maker was entitled to keep to a qualitative assessment.
Irrationality is a high hurdle to surmount, particularly on matters concerned with technical or expert opinion.Lord Justice Holgate and Lord Justice Dove, paragraph 65
On wastewater, the order bars dual runway operations until either the new treatment works are complete and a permit application submitted, or the water undertaker confirms its infrastructure can take the flows. The appellant wanted the works operational and in use. The court held those risks farfetched.
The requirement carries a tailpiece: "unless otherwise agreed in writing by Thames Water Utilities Limited". R (Midcounties Co-operative Limited) v Wyre Forest District Council [2009] EWHC 964 holds that a tailpiece with no words limiting its application, which could permit development very different from what was applied for outside the statutory process, is unlawful. That concern was not engaged. Any use of this tailpiece had to serve the purpose of the requirement, and a further requirement bars agreement to a departure with materially new or materially different environmental effects.
We are satisfied that in the particular circumstances of the present case the judge was unarguably right to conclude that the tailpiece in 31(9) was not unlawful.Lord Justice Holgate and Lord Justice Dove, paragraph 97
We conclude that each of the grounds of appeal raised by each appellant is unarguable. Neither appeal has a real prospect of success.Lord Justice Holgate and Lord Justice Dove, paragraph 98
Practical implications
Passages explaining why a policy was written are not the policy. The first ground turned on two sentences describing airports at capacity, and failed because they set the context for the operative paragraphs rather than cutting them down.
A criticism of a document the decision-maker never used rarely produces a reasons challenge. The economic ground collapsed once the court accepted that nothing in the decision rested on the assessment under attack.
The tailpiece holding has the widest reach. An "otherwise agreed" formulation survives where it can only be used to achieve the purpose of the requirement it sits in, and where the order bars agreement to a departure with materially different environmental effects.
Read the level at which this was decided before citing it. The court refused permission to appeal rather than hearing one, though it certified its decision as citable.
Practice points
- Do not argue a national policy statement as though it were a contract. Separate the operative policy from the recitals that explain it, and expect the court to treat weight and application as matters for the decision-maker.
- Before running a reasons challenge, prove that the decision actually rested on the material you are attacking. If the decision-maker relied on other evidence, the technical dispute you want resolved is not a principal controversial issue.
- Where a challenge is to an evaluative judgment on technical evidence, plead irrationality and meet it. Expressions of disappointment by a decision-maker about what an applicant did not do are not a finding that the law required it.
- When you want a condition or requirement to bite on operation rather than completion, draft it that way. A requirement that stops at completion plus a permit application will be read as it stands.
- Check the order or permission as a whole before objecting to a tailpiece. A general constraint on agreeing departures, coupled with a purpose the tailpiece can only serve, will usually answer the objection.