News Updates
May 13 2026
GALBA is pleased that Leeds City Council has ruled that Leeds Bradford Airport cannot fly an unlimited number of planes at night, as a result of awarding a Certificate of Lawful Existing Use or Development (CLEUD) to the airport. However, we strongly disagree with the Council's view that LBA is allowed to fly an additional 941 planes at night. We are seeking legal advice about our options to challenge that part of the decision.
Leeds City Council has approved Leeds Bradford Airport’s application for a CLEUD. As a result, LCC has ruled that LBA does not have permission to fly an unlimited number of night flights. That is what LBA wanted and they have failed.
However, the CLEUD does allow the airport to fly an additional 941 planes at night every year. We do not accept that LBA should be allowed to fly the additional 941. GALBA’s lawyers are clear that this is legally incorrect and we will make strong representations to LCC, as well as explore our options for legal action.
In practice, LBA will try to fly those 941 planes during the summer months, meaning there would be 3,741 night flights in the summer season.
Our updated legal advice, which you can read below, is clear (paragraph 22 is the most important section). The council’s decision simply makes the aircraft in the CLEUD de facto lawfully allowed to fly at night. And because they are now flying lawfully, this means they must be counted towards the cap on the number of night flights – 4,000 over 12 months. If the cap is exceeded, LCC can take enforcement action against LBA.
The correct interpretation of the way that planning conditions 6 and 7 work following the CLEUD decision is as follows:
We are seeking further advice from our lawyers, with a view to challenging LCC’s ruling that LBA can fly 941 additional night flights per year.
GALBA's updated legal advice
IN THE MATTER OF LEEDS BRADFORD AIRPORT AND CONDITION 6, PLANNING PERMISSION P/07/02208/FU – UPDATED 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. We provided an opinion to that effect on 1 April 2026.
2. Since then, there have been communications between GALBA and LCC, and we understand that LCC’s position is that it cannot consider the question of proactively approving aircraft under Condition 6(c) until such time as it has reached its determination of LBA’s application for a certificate of lawfulness (“CLEUD”) under s191 of the Town and Country Planning Act 1990 in relation to Condition 6. We therefore update our opinion to address that.
II. BACKGROUND
3. 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.”
4. In an appeal decision dated 8 August 2025 (“the Appeal Decision”), 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.”
5. 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].
6. On 16 February 2026, LBA made an application to LCC for a certificate of lawfulness under s191 of the Town and Country Planning Act 1990. It seeks immunity from enforcement of Conditions 6(a), 6(b) and 6(c) of the Permission in respect of night-time movements of aircraft classed as less than 87 EPNdB and not otherwise already exempt under Condition 6(e), on the basis of ten years of continuous breach. LCC made a call for evidence, to which GALBA responded on 26 March 2026. LCC is currently considering that application.
III. ANALYSIS
Proactive Approval Under Condition 6(c)
7. 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.
8. 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).
9. In light of this legal background, we the note the following in respect of Condition 6(c) and the Permission.
10. 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.
11. Second, that is the interpretation which most obviously aligns with the planning purpose of Condition 6. As the Inspector concluded in the Appeal Decision, 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.
12. 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.
13. 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.
14. 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.
15. 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.”
16. 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.
17. 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.
18. 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).
The CLEUD Application
19. LCC is currently considering LBA’s CLEUD application. GALBA has made clear that:
a. The application takes an approach to establishing immunity from enforcement that is illegitimate and not supported by the Appeal Decision, and fails to align with the plain wording of Condition 6;
b. The application runs contrary to case law establishing the important principle that immunity extends only to what was actually done during the immunity period; and
c. In any event, LBA’s evidence does not establish a continuous breach of Condition 6.
20. GALBA has been raising the question concerning proactive application of Condition 6(c) with the Council since well before the CLEUD application was made (for example, by letters dated 22 August 2025 and 10 February 2026). LCC have failed to act, and it now appears that LCC may consider it is not expedient to take proactive steps under Condition 6(c) whilst the CLEUD application is pending. It is the case that significant resources will be required for LCC conscientiously to assess LBA’s evidence; the evidence provided in response to the call for evidence; and any evidence LCC holds. We note that is an important priority for LCC.
21. However, once LCC has determined the application, we consider that it would be unreasonable not to take immediate steps in relation to Condition 6(c) and Condition 7. Two potential circumstances arise. First, were LCC to refuse the application (which is the outcome supported by GALBA’s evidence), there would be no justification for LCC to await the exhaustion of an appeal or other legal challenges before proactively approving flights under Condition 6(c), so that they count towards the cap in Condition 7. Waiting any more would plainly leave the issue in limbo for far too long a period, given it was raised in mid-2025.
22. Second, were LCC to grant the application, either in the terms sought or in different terms, LCC should act immediately to count towards the cap in Condition 7 the night-time movements within the class covered by the CLEUD. This is because:
a. The certificate does not seek immunity against Condition 7;
b. The Town and Country Planning Act 1990, and the case law relevant to CLEUDs, make clear that grant of the CLEUD would not extinguish Condition 6(c) or the Council’s power to act under it. Accordingly, the relationship between Conditions 6 and 7, as described by the Inspector in the Appeal Decision, remains; and
c. The grant of the CLEUD would effectively bring the certified flights within the specification of Condition 6(c), meaning that they would be aircraft movements to which Condition 7 applied. The Inspector clarified that the cap operates as a ceiling on permitted movements regardless of the circumstances which bring those movements within the Condition 6 regime (DL170). There is no basis in the language of Condition 7 for excluding from the cap movements which are operative by reason of immunity rather than positive approval. As a matter of prudence, were LCC to grant any form of CLEUD (contrary to GALBA’s evidence), it should frame any certificate as expressly preserving the application of Condition 7 to the certificated class.
IV. CONCLUSION
23. 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
23.04.2026
Leeds Bradford Airport is big enough already