LCC can stop unlimited night flights – new legal advice

IN THE MATTER OF LEEDS BRADFORD AIRPORT AND CONDITION 6, PLANNING PERMISSION P/07/02208/FU  OPINION

I. INTRODUCTION AND SUMMARY

1. We are instructed by the Group for Action on Leeds Bradford Airport (“GALBA”) to  advise in respect of a discrete issue concerning Condition 6 of Planning Permission  P/07/02208/FU (“the Permission”). Specifically, we are asked to consider whether  pursuant to Condition 6(c) of the Permission, Leeds City Council (“LCC”) may  proactively approve planes for night-time movements at Leeds Bradford Airport (“the  Airport”) or whether such approval may only be granted upon an application by Leeds  Bradford Airport Ltd (“LBA”). For the reasons, and with the qualifications set out below,  we consider that the correct legal interpretation of Condition 6(c) is that it envisages a  proactive approach to approvals.

II. BACKGROUND

2. Condition 6 of the Permission prescribes the aircraft movements that are allowed to take  place during the night-time period at the Airport. It provides a closed list of the types  of aircraft movements that are permitted.

“During the night-time period, (2300-0700), no aircraft movements shall take place  other than by:- 

a. Landings by aircraft classified as falling within Quota Count 0.5 and 1 for arrivals  as defined in UK NOTAM S45/1993 issued by the Civil Aviation Authority and  any succeeding regulations or amendments/ additions/deletions.

b. Departures by aircraft classified as falling within Quota Count 0.5 for departures  as defined in UK NOTAM S45/1993 issued by the Civil Aviation Authority and  any succeeding regulations or amendments/ additions/deletions. 

c. Aircraft which are approved by the Local Planning Authority and have, taking  account of maximum take-off weights and stage lengths, an EPNdB value of not  greater than 90 on departure. 

d. Aircraft approved by the Local Planning Authority and which, by the  demonstration of performance data collected at Leeds-Bradford Airport, have,  taking account of maximum take-off weights and stage lengths, a 90dB(A) SEL  noise contour on departure the same or smaller than, the 90dB(A) SEL noise  contour for a Boeing 737- 300/757 as shown on plan 6

e. Exempt aircraft defined by UK NOTAM S45/1993.”

3. In an appeal decision dated 8 August 2025, Inspector J Whitfield made several  observations concerning the planning purpose of the conditions and the interpretation  of Condition 6. He concluded at DL §36:

“[I]t is clear that the planning purpose of the relevant conditions is to ensure undue  impacts on the living conditions of nearby residents with regard to noise are minimised.  It thus seems to me that the purpose of the permission, when read as a whole with its  conditions, was to increase the capacity of the airport whilst ensuring appropriate  protection of the environment. That is consistent with the policy context in which the  permission was granted.”

4. Consistent with that purpose, he held at DL §117 that “[t]he reason for the imposition of  Condition 6, as initially set out in the 1994 permission, was to minimise the potential for  increased noise disturbance to residents in the vicinity of the airport.” He also observed in  relation to 6(c) that “…the only way movements of QC0.25 aircraft in the night-time period  could be permitted by Condition 6 (and indeed the permission as a whole) is if they are approved  by the LPA under Condition 6(c)” [DL §66].

5. We note separately that LBA has made an application for a certificate of lawfulness  under s191 of the Town and Country Planning Act 1990 in relation to Condition 6 and  that LCC is currently considering that application. Regardless of whether LCC grant or refuse that application, we do not consider that decision is likely to have a material  bearing on our views set out below.

III. ANALYSIS 

6. The proper approach to the interpretation of a planning permission and conditions was  clarified by the Supreme Court in Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85 (“Trump”) and LB Lambeth v Secretary of State [2019] 1 WLR  4317 (“Lambeth”). The key principles are well-established. The essential question is  “what a reasonable reader would understand the words to mean when reading the condition in  the context of the other conditions and of the consent as a whole”: Trump, §34, per Lord Hodge.

7. A summary of the relevant principles and factors to consider is found in UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin) (“UBB Waste”), §§52-57.  Permissions must be interpreted with “common sense”, which points to the “planning  purpose” of the permission or the condition. As emphasised in UBB Waste: “If the  interpretation advanced flies in the face of the purpose of the condition, and the policies  underlying it, then common sense may well indicate that that interpretation is not correct” (§53).

8. In light of this legal background, we the note the following in respect of Condition 6(c)  and the Permission.

9. First, there is no express wording or provision within Condition 6(c) or elsewhere in the  Permission concerning how approval is to be obtained. In the absence of this, we  consider that a reasonable reader taking a common sense approach to interpreting  Condition 6(c) would consider that it is open to LCC proactively to approve planes.

10. Second, that is the interpretation which most obviously aligns with the planning  purpose of Condition 6. As the Inspector held, the purpose of Condition 6 is to minimise  the potential for increased noise disturbance to residents in the vicinity of the Airport,  in light of the overall planning purpose of the relevant conditions to minimise undue  noise impacts on the living conditions of nearby residents through protection of the  environment where the permission permitted an increase in the capacity of the Airport.  Conditions 6 and 7 provide key mechanisms through which that protection is secured, in particular by preventing certain noisy planes from flying while bringing others  within the cap on flights.

11. It would be contrary to the overall purpose of the planning permission and to the  planning purpose of Condition 6 to read Condition 6(c) in a way that prevents LCC from  controlling aircraft movements by approving planes with the specified noise profile and  so bringing them within the cap by making approval contingent on the operator  applying. This is especially so in the absence of explicit wording requiring an  application process. The contrary interpretation improperly restricts the ability of LCC to exercise the requisite control where the operator refuses to make an application.

12. Third, Condition 6 as a whole is a negative condition with exceptions. It is plainly not a  condition in the style of a prior approval/pre-commencement/’details to be submitted’  condition. Such conditions tend explicitly to require an application to be made. It is not a condition that has to be ‘discharged.’ We consider it would therefore be wrong to treat  Condition 6(c) in the same manner as such conditions by reading it as implying a  requirement that an application be made by LBA for approval.

13. Fourth, we have considered the Planning Practice Guidance (“PPG”) on Conditions and  cannot identify any provisions within that guidance which implicitly or explicitly  prevents the interpretation of Condition 6(c) set out above.

14. Fifth, we have considered whether there are any particular legislative provisions that  prevent LCC from proactively approving planes. Section 78(1)(b) of the Town and  Country Planning Act 1990 provides that “where a local planning authority refuse an  application for any consent, agreement or approval of that authority required by a condition  imposed on a grant of planning permission or grant it subject to conditions the applicant may by  notice appeal to the Secretary of State.”

15. It might be argued that the existence of this appeal mechanism indicates that the  statutory scheme contemplates applications being made – otherwise why else have  express provision for appeals. However, we consider that the wording of section  78(1)(b) is clear – it applies in circumstances where an application is made to the local  planning authority. It therefore plainly applies where a condition explicitly requires discharge through application for approval. It would arguably also apply were an application made in relation to a condition that is silent on the mechanism for approval.  However, section 78(1)(b) does not supplant the common sense and reasonable reader  interpretation of Condition 6(c) as being open-ended when it comes to approvals being  sought or proactively granted by LCC, nor the correct purposive interpretation of that  condition.

16. Sixth, we have considered whether there may be any statutory or other implied limits  to LCC’s powers proactively to approve planes. We have been unable to identify any.

17. Seventh, and finally, we have considered whether there may be some practical  difficulties faced by LCC in proactively approving planes such that would prevent or  undermine the proposed approach to Condition 6(c). However, we note that LCC has  now considered several CLEUD applications and various other matters relating to the  Permission and has the relevant expertise to assess “the maximum take-off weights and  stage lengths” of planes and whether they have “an EPNdB value of not greater than 90 on  departure”. It follows that we do not envisage any practical difficulty for LCC in  proactively approving planes falling within the scope of Condition 6(c).

IV. CONCLUSION

18. Our views are set out above and summarised at §1. We understand from those  instructing us that LCC has indicated it has received legal advice on this matter and that  this legal advice indicates it is not permitted to take a proactive approach to approvals  under Condition 6(c). We see no good reason why LCC should not disclose that advice  in the interests of transparency, good governance and accountability, even if this is  simply a summarised version of its position. If LCC takes this step, we would be very  happy to consider whether the advice raises any matters that we have not considered  above and assess whether these alter any of our views.

Estelle Dehon KC 

John Fitzsimons 

Cornerstone Barristers 

01.04.2026