Court of Appeal refuses extension of time for appeal over airport expansion development consent order ruling

The DCO was issued in April last year by the Secretary of State for Transport in exercise of powers under the Planning Act 2008.

On 8 December 2025 Mrs Justice Lang refused the claimant, Luton and District Association for the Control of Aircraft Noise (LADACAN), permission to appeal.

LADACAN appealed.

James Strachan KC and Victoria Hutton of 39 Essex Chambers, who appeared for the Secretary of State, noted: “The Appellants had issued their application for permission to appeal Lang J’s judgment 16 days after that judgment was handed down. That would have been fine under the old civil procedure rules (“CPR”).

“However, part 52 of the CPR was updated mid-way through last year to reduce the time for an appeal to the Court of Appeal relating to a challenge to a DCO from 21 to 7 days. The appeal was therefore out of time.”

Applying the three-stage test set out in R (Hysaj) v SSHD [2014] EWCA Civ 1633, the Court of Appeal refused to extend time.

Lord Justice Lewison said: “In the present case it is accepted that the failure to comply with the time limit is serious and significant. It is also (at least tacitly) accepted that there is no good reason for the failure.”

Consideration of the first two stages of the three-stage test laid down in Hysaj could not be resolved in the appellant's favour, he added.

Counsel for LADACAN “tried to explain the failure by pointing to the fact that the target dates that Lord Banner [in his review of legal challenges to NSIPs] recommended ran from the filing of an appellant's notice. He did not explicitly recommend a reduction in that time limit”, Lord Justice Lewison noted.

“But as [counsel for the Secretary of State] pointed out, anyone interested in this field would have been keen to learn what the Rules Committee actually did in response to Lord Banner's recommendations, especially since Lord Banner had adverted to the possibility of "knock-on" effects. This is not a case in which the changes were introduced precipitously. There was a two month lead in period before the changes came into force; and a further two months elapsed before the judge gave her judgment.”

Turning to the third stage (“all the circumstances of the case but bearing in mind the weight to be given to the two particular factors identified in Hysaj”), it was accepted on behalf of the appellant that finality is an important consideration, particularly in the context of an appeal, where the arguments that a would-be appellant seeks to advance will usually have been judicially considered and rejected.

It was argued that there was no evidence in this particular case that either the Secretary of State or the interested party had taken any action on the assumption that once the time limit for appeal had passed the judge's judgment was final.

“That, however, overlooks one of the reasons for Lord Banner's recommendations, namely that they would increase stakeholder confidence in the NSIP regime (including from investors) as well as reducing costs and other risks caused by delays to delivery of NSIPs. In other words, they were structural changes.”

Lord Justice Lewison rejected a number of factors advanced by the appellant in favour of extending time, namely that the breach had caused no delay to the development, the delay had not caused serious delay to the overall progression of the appeal, the appeal raised questions of considerable importance to the wider public interest, likely to affect other NSIPs, and that the grounds of appeal were strong.

Lord Justice Lewison said, amongst other things, that a public law challenge to the grant of a DCO for an NSIP will almost always raise a point of public interest.

He added that the merits of the grounds of appeal will have little to do with whether it is appropriate to grant an extension of time “except in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak”.

The same approach applies "even in a case of potential public interest as Hysaj demonstrates at [53]”.

The 'public interest factor' is therefore not an independent compelling reason for extending time, Lord Justice Lewison said.

“Accordingly, the mere fact that an appeal raises questions of public interest (in the abstract) is not a sufficient reason for the grant of an extension of time, particularly where the other relevant factors all point against it.”

However, the judge added that since counsel for LADACAN had argued vehemently that the grounds of appeal were strong, the Court of Appeal heard short submissions on those grounds.

Counsel for the Secretary of State in turn submitted that the grounds were very weak.

Lord Justice Lewison said: “Consistently with Hysaj, it is not appropriate to discuss the competing submissions, save to state my conclusion. Lang J's judgment is cogently and comprehensively reasoned; and there is no obvious flaw in her judgment.

“The grounds of appeal on which the Appellant wishes to rely have been comprehensively answered in writing both by the Secretary of State and the interested party. In my judgment the merits of the grounds of appeal in this case are far from being sufficiently clear for them to be taken into account.”

Lord Justice Bean and Lord Justice Holgate agreed.