Luton and District Association for the Control of Aircraft Noise, R (on the application of) v Secretary of State for Transport [2025] EWHC 3206 (Admin)

“14. — Environmental statements (1) An application for an order granting development consent for EIA development must be accompanied by an environmental statement. (2) An environmental statement is a statement which includes at least— (a) a description of the proposed development comprising information on the site, design, size and other relevant features of the development; (b) a description of the likely significant effects of the proposed development on the environment; (c) a description of any features of the proposed development, or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; (d) a description of the reasonable alternatives studied by the applicant, which are relevant to the proposed development and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the development on the environment; (e) a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and (f) any additional information specified in Schedule 4 relevant to the specific characteristics of the particular development or type of development and to the environmental features likely to be significantly affected. (3) The environmental statement referred to in paragraph (1) must— … (b) include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment; … (4) In order to ensure the completeness and quality of the environmental statement— (a) the applicant must ensure that the environmental statement is prepared by competent experts; and (b) the environmental statement must be accompanied by a statement from the applicant outlining the relevant expertise or qualifications of such experts.” (a) a description of the proposed development comprising information on the site, design, size and other relevant features of the development; (b) a description of the likely significant effects of the proposed development on the environment; (c) a description of any features of the proposed development, or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; (d) a description of the reasonable alternatives studied by the applicant, which are relevant to the proposed development and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the development on the environment; (e) a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and (f) any additional information specified in Schedule 4 relevant to the specific characteristics of the particular development or type of development and to the environmental features likely to be significantly affected. … (b) include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment; … (a) the applicant must ensure that the environmental statement is prepared by competent experts; and (b) the environmental statement must be accompanied by a statement from the applicant outlining the relevant expertise or qualifications of such experts.”

““environmental information” means the environmental statement .... including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development ...”

“Assessing the GHG impacts of the Proposed Development within the national context 12.2.5 It is important to set out clearly the context within which the assessment of the Proposed Development’s GHG impacts, and their significance is undertaken. 12.2.6 The first key consideration in respect of GHG assessment for airport projects is the ANPS (Ref. 12.41), which makes clear in paragraph 5.82 that: “Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.” 12.2.7 To assess the impacts of the project it is therefore critical to understand both the scale of any increase in GHG emissions and the materiality of their impact on the government’s ability to meet its obligations. As is explained below, because the government’s targets and budgets are expressed at a national level, this is therefore the scale at which the assessment of materiality must be considered. 12.2.8 In setting out the scale of any increase associated with the Proposed Development, as with any similar assessment, the GHG assessment has been developed on the basis of known plans and robustly foreseeable trends across the scope of assessment as described in Section 12.3. A description of these can be found in Section 12.6 on Assumptions and Limitations, including both the level of aviation demand and the carbon intensity of flights; further detail is provided in Section 2.3.6 of Appendix 12.2 of this ES …... 12.2.9 A second key consideration is the Jet Zero Strategy, published in 2022, setting out government strategy on how net zero will be achieved in the aviation sector, aligning with the UK’s wider net zero target. Following consultation in 2021, government has committed to achieving the ‘High Ambition Scenario’ presented in the Jet Zero Strategy. On the High Ambition Scenario the Jet Zero Strategy concludes that there will be 19.3 MtCO 2e of residual emissions in 2050 to be offset or removed …... 12.2.10 Fundamental to the UK aviation sector meeting the High Ambition Emissions Scenario in the Jet Zero Strategy, and in turn the UK achieving its net zero target by 2050, is the UK Emissions Trading Scheme (ETS) ….. and the Carbon Reduction Offsetting Scheme for International Aviation (CORSIA) …. A large majority of aviation GHG emissions from the airport will fall under the UK ETS, while the remainder will be managed under CORSIA. CORSIA requires aircraft operators in participating member states to offset any emissions above a specified baseline. 12.2.11 On these matters Paragraph 3.46 in the Jet Zero Strategy states: “The UK Emissions Trading Scheme (UK ETS) covers all domestic flights in the UK as well as flights from the UK to the EEA, and to and from Gibraltar. This Strategy draws on UK ETS Authority proposals in the Developing the UK ETS consultation to increase the ambition of the scheme by aligning the cap with a clear net zero trajectory, and new carbon price assumptions which illustrate the potential costs faced by airline operators in future. This Strategy also reflects the need to expand the reach and impact of carbon markets by facilitating interaction between UK ETS and other international schemes such as CORSIA.” 12.2.12 As such the UK ETS sets an overall cap on the amount of carbon which may be emitted by participating airlines. Participants receive free carbon emissions allowances and/or buy emission allowances (at auction or on the secondary market) which they can trade with other participants as needed to cover the carbon emissions associated with operating their business, or to derive a commercial benefit from their own lower carbon emissions. The available allowances place a cap on the total amount of GHG emissions that can be emitted by sectors, including aviation, covered by the UK ETS. This cap will be reduced over time stimulating innovation by participants to increase the carbon efficiency of their operation, or indeed to take steps which would reduce the overall scale of their operations. This effectively puts a binding cap on the amount of GHG emissions the aviation sector can emit. …… 12.2.15 The Government’s control of aviation’s GHG emissions, and the assessment against the policy text in para 5.82 of the ANPS, must also be seen within the context of the Secretary of State’s legal duty under section 1 of the Climate Change Act 2008, to achieve a UK net carbon account at least 100% below 1990 levels (i.e. net zero GHG emissions) by 2050 and its legal duty under section 4 to meet the five-yearly carbon budgets (including the Sixth Carbon Budget). The UK ETS and CORSIA, adopted by Government, mean that the Secretary of State will have both the controls and the legal obligation to ensure that the 2050 ‘net zero’ target and future carbon budgets are met. 12.2.16 The UK ETS operates to cap aircraft emissions within its scope regardless of the total airport capacity in the UK, or indeed the capacity of the country’s individual airports, since it bears directly on the operators of aircraft from wherever they fly in the UK. Like the UK’s carbon targets themselves, the UK ETS operates at the national level and targets the activity responsible for emitting GHGs rather than the ground-based infrastructure from which they take off and land. This also avoids the risk of simply moving the source of carbon emissions (within the total UK ETS cap) from one airport to another which would be the likely outcome if emissions were capped on an airport-by-airport basis either through capacity constraint or direct emissions controls.” “Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.” “The UK Emissions Trading Scheme (UK ETS) covers all domestic flights in the UK as well as flights from the UK to the EEA, and to and from Gibraltar. This Strategy draws on UK ETS Authority proposals in the Developing the UK ETS consultation to increase the ambition of the scheme by aligning the cap with a clear net zero trajectory, and new carbon price assumptions which illustrate the potential costs faced by airline operators in future. This Strategy also reflects the need to expand the reach and impact of carbon markets by facilitating interaction between UK ETS and other international schemes such as CORSIA.”

“12.5.7 Baseline GHG emissions for aviation are based on data provided which detail aircraft movements by destination, distance travelled and aircraft type for forecast aircraft movements from 2019 through to 2043 assuming airport capacity remains at 18 mppa. Baseline emissions were further modelled through to 2050 assuming passenger numbers remain constant at 18 mppa and the fleet mix remains the same as projected for 2043. This is an inherently conservative assumption, as it is very likely that increased numbers of zero emissions aircraft will replace conventionally-fuelled aircraft during the period between 2043 and 2050. GHG emissions from aircraft movements are calculated separately for the LTO and cruise phases of flight. 12.5.8 LTO [Landing and Take-off]is defined as aircraft movements below an altitude of 3000 feet i.e. during the approach, taxiing, take-off and climb. The EMEP/EEA Aviation Emissions Calculator (Ref. 12.46) was used to estimate the fuel consumption and carbon dioxide (CO 2) emissions for each model of aircraft and world region distance during the landing take-off cycle. Emissions were then converted to CO 2e using the appropriate ratio for aviation fuel taken from the Department for Business, Energy and Industrial Strategy (BEIS) conversion factors (Ref. 12.47). 12.5.9 CCD [Climb-Cruise-Descend] emissions are defined as all activities that take place at altitudes above 3000 feet. CCD includes climb to cruise altitude, cruise, and descent from cruise altitudes to 3000ft at the destination. CCD emissions are only calculated for flights departing from the airport to avoid double counting with other airport inventories. This is in line with approach defined in the UNFCCC [United Nations Framework Convention on Climate Change]. GHG emissions from the CCD phase have been calculated using the EMEP/EEA Air Pollutant Emissions Inventory guidebook aviation calculator (Ref. 12.48) based on aircraft type and distance travelled (in nautical miles) for aircraft departures from the airport.”

“12.11.25 It can be seen that Aviation emissions from the Proposed Development are: a. Aligned with existing and emerging best practice, as described in the UK Government’s Jet Zero Strategy; b. Controlled via a combination of the UK ETS and CORSIA, meaning that they cannot exceed the limits set by these market-based mechanisms; c. Account for only a very small proportion of emissions within the Jet Zero Strategy High Ambition scenario; and d. Fall at the same rate as Jet Zero Strategy High Ambition scenario between the baseline year of 2019 and 2050.”

“12.11.26 The combination of these factors allows the significance of Aviation emissions to be evaluated as Minor Adverse and Not Significant.”

“3.12.5. Under the CCA2008 the SoS must ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline (‘net zero’). A net ‘carbon budget’ is set by the SoS for each 5-year period from 2008 to 2012. The associated UK Emissions Trading Scheme (UK ETS) sets a cap on the amount of carbon that can be emitted, including by airlines, within the EEA and Gibraltar. This cap will be reduced over time to stimulate innovation to increase carbon efficiency and to reduce emissions. The allowances under the UK ETS will be aligned with the UK carbon budgets to achieve net zero by 2050. 3.12.6. National policies and strategies relating to GHG emissions from aviation are in the JZS and Decarbonising Transport: a better, greener Britain (2021). The former sets out the Government’s commitment to decarbonise airport operations by 2040 and aviation by 2050. The latter sets out policy on decarbonising transport in line with the UK’s target of net zero by 2050. The JZS identifies a ‘High Ambition’ scenario, which sees aviation carbon dioxide (CO 2) emissions peak in 2019 and then follow a reducing trajectory to achieve ‘jet zero’ by 2050. 3.12.7. The ANPS (paragraph 5.76) states that the Applicant must provide evidence of the carbon impact of the project so that it can be assessed against the Government’s carbon obligations, including, but not limited to, the carbon budgets. Paragraph 5.82 states that “any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets”. 3.12.8. The ANPS (paragraph 5.83) requires evidence of appropriate mitigation measures to demonstrate that the carbon footprint is not “unnecessarily high”

“Aviation 3.12.17. Baseline emissions from aviation were based on aircraft movements by regional destination, aircraft type and the assumption of 18mppa to 2043 …. The Core Planning case built on this using air traffic forecasts from the Need Case …. GHG emissions were calculated separately for the landing take-off (LTO) (below 3000 feet), and the cruise, climb and descent (above 3000 feet) phases of flight in one direction to avoid double counting with other airports…. 3.12.18. The UK ETS and the global Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) were incorporated into both the baseline and Core Planning cases through application of carbon pricing to the demand forecasts …. 3.12.19. The Applicant applied the proposed actions from the JZS High Ambition scenario to both the Future Baseline and Core Planning cases These included uptake of SAFs from 2030, improvements in aircraft fuel efficiency at 2% per year and the introduction of Zero Emission Aircraft (ZEA) from 2040 ….. ….. 3.12.23. To assess the significance of emissions from aviation, the Applicant compared them with the trajectory provided for in the JZS High Ambition scenario, the ‘planning assumption’ for aviation and the national carbon budgets. The Applicant concluded that the aviation emissions would account for a very small proportion of national emissions and would follow the JZS’s High Ambition trajectory. Emissions would represent less than 3% of the planning assumption for aviation over budget periods 4 (2025 to 2027) and 5 (2028 to 2035) and would represent less than 1% of the national carbon budget for period 6 (2033 to 2037) ….. For these reasons, the Applicant concluded that the effects from aviation would not be significant …..”

“Calculation of aviation emissions 3.12.63. At the end of the Examination, HCC …., NHDC …., DBC …. and CBC ….. had not agreed to the calculation of emissions from aviation because only departing flights had been included. They did not consider that this approach was consistent with the IEMA guidance, including section 5.2, which states “the assessment should seek to quantify the difference in GHG emissions between the proposed project and the baseline scenario. Assessment results should reflect the difference in whole life net GHG emissions”

“…..it is not merely likely, but inevitable, that the oil extracted will be sent to refineries and that the refined oil will eventually undergo combustion, which will produce GHG emissions. It is not disputed that these emissions, which can easily be quantified, will have a significant impact on climate. The only issue is whether the combustion emissions are effects of the project at all. It seems to me plain that they are.”

“2 AVIATION EMISSIONS FROM INBOUND FLIGHTS 2.1.1 As noted above, the Finch judgment held that there was a need to assess all likely direct and indirect significant effects of a project, save that “only effects which evidence shows are likely to occur and which are capable of meaningful assessment must be assessed” (Finch at [167]) and that “in principle, all likely significant effects of the project must be assessed, irrespective of where (or when) those effects will be generated or felt” (Finch at [93]). 2.1.2 In the Environmental Statement, Chapter 12 Greenhouse Gases …. the Applicant assessed greenhouse gas emissions from aircraft for flights between London Luton Airport and a destination airport. The following elements of such an air traffic movement are considered: a. Landing take-off cycle (LTO): the LTO cycle considers emissions from aircraft during descent to, and ascent from London Luton Airport below 3000ft as well as during taxiing activities at London Luton Airport; b. Cruise, climb and descend (CCD): CCD considers only greenhouse gas emissions from aircraft departing London Luton Airport above 3000ft to within 3000ft of the destination airport. Emissions from the inbound descent LTO phase into the airport are used as a proxy for emissions from the descent phase into the destination airport. This approach therefore accounts for equivalent emissions from a full journey between the airport and the destination airport. On this basis the term ‘outbound’ flights are used to represent all aviation emissions reported in the ES. 2.1.3 In essence, the objective is to include the emissions of air traffic movement from its airport of origin to its airport of destination. The return (inbound) movement is not included in the calculation as this is counted as emissions of the airport / nation from which it is departing. This avoids either double counting (i.e. both airports / nations counting both legs of a return movement) or zero counting (i.e. each airport / nation counting both legs of a return flight against the other airport / nation). 2.1.4 This practice is consistent with the calculation of emissions in the UK carbon budgets and the trajectories in the Jet Zero Strategy. By convention, the Applicant has included the landing emissions at London Luton Airport as a proxy for those at the destination airport and, to avoid double counting, has not then included the landing emissions at the destination airport. 2.1.5 When assessing aviation emissions at a national and international level it is accepted practice to model emissions based on volumes of aviation bunker fuel consumed. If every nation accounts for the use of its own bunkered fuel used on outbound flights then this avoids the double counting of aviation emissions between different countries and provides a more accurate account of global aviation emissions. The UK has aligned with this approach when estimating aviation emissions and, as stated above, only includes emissions from departing flights in both the UK carbon budgets and in the scenarios presented for UK aviation in the Jet Zero Strategy. 2.1.6 The approach taken by the Applicant, including reporting emissions from inbound aircraft in the descent phase of LTO into London Luton Airport, is also consistent with other recent airport projects approved by the Secretary of State. 2.1.7 To understand the significance of greenhouse gas emissions from a project on the climate, IEMA guidance Assessing Greenhouse Gas Emissions and Evaluating their Significance, 2nd Edition, IEMA, February 2022. on assessing the significance of greenhouse gas impact, states emissions from a project should be contextualised against a relevant carbon budget. The UK carbon budgets reflect the aviation emissions from departing international aircraft and this is also the basis upon which aviation emissions were calculated for the Jet Zero Strategy. Thus, not only is excluding inbound flights considered current practice for calculating aviation emissions, but excluding inbound flights from the GHG assessment also allows for the magnitude and future trajectory of aviation emissions from the Proposed Development to be contextualised against UK carbon budgets and the scenarios presented in the Jet Zero Strategy. This is the approach taken in the Environmental Statement, Chapter 12 Greenhouse Gases. This approach is also consistent with the recent decision by the Secretary of State for Housing, Communities and Local Government and by the Secretary of State for Transport on the appeal relating to London City Airport, where the Secretaries of State noted that this is a widely adopted approach which has been used in a number of airport expansion proposals and endorsed by the High Court Town and Country Planning Act 1990 – Section 78 Appeal made by London City Airport Limited, Application reference: 22/03045/VARhttps://assets.publishing.service.gov.uk/media/66c33ed4057d859c0e8fa728/24-08-19_-_LONDON_CITY_AIRPORT__HARTMANN_ROAD__SILVERTOWN__LONDON_E16_2PX_-_App_No_3326646.pdf . 2.1.8 Furthermore, the assessment of greenhouse gas emissions presented in the Environmental Statement has applied the greenhouse gas impact significance test set out in the Airport’s National Policy Statement (ANPS). The ANPS test states (Paragraph 5.82) that “Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.” 2.1.9 For the reasons set out above, therefore, it would not have been appropriate to include inbound emissions when applying the ANPS test because the test is directly linked to the impact on carbon budgets, and the methodology in relation to flights which is embedded within them. 2.1.10 To contextualise the impact of both inbound and outbound emissions against a carbon budget represents a challenge as there is no single budget available against which to undertake a meaningful assessment. 2.1.11 The Applicant does acknowledge however that while it may be inappropriate to include the emissions of inbound flights and, indeed, difficult to contextualise emissions from both inbound and outbound flights, it is possible to calculate and report these emissions. To do so the Applicant has considered it a reasonable approach simply to double the emissions reported in the Applicant’s Environmental Statement, which (as above) accounts for outbound flights. For information, therefore, Table 12.18 from the Greenhouse Gases Chapter ….. has been recreated in Table 1 below to include greenhouse gas emissions for both outbound and inbound flights. …..”

“2. Stand-alone tests As a key further general point, Lord Leggatt makes clear each project assessment should be performed as a stand-alone test without being concerned about double counting, which is a different approach to that required for the Jet Zero Strategy (“JZS”) or the carbon budget. In particular this applies to the need to assess the extent of emissions from inbound flights, contrary to what the Applicant argues (though at the same time providing the assessment). The point turns on a crucial difference between reporting of emissions, and project-specific assessment of emissions. The latter, as clarified in Finch, focuses properly on informing the decision-maker and the public of the actual predicted impact on the climate from the extent of GHG emissions that the project would cause, rather than on avoiding double-counting. From a decision-taking perspective, Lord Leggatt expressly finds at §125 that “there is no rule that the same effect on the environment cannot result from more than one activity or that, if particular effects have been or will be assessed in the context of one project, this dispenses with the need to assess them as part of an EIA required for another project.””

“4. Emissions from inbound flights For the reasons indicated in Section 2 above, we disagree with the Applicant’s view that its proposed increases in GHG emissions from inbound flights should be ignored The assessment in Appendix A appears reasonable in terms of the phases of flight, although we note that the use of the LLA bunker fuel measure omits any assessment of “tankering” (where an aircraft carries sufficient fuel for more than one sector when departing, and does not refuel at the first destination). Appendix A Table 1 shows the revised net increases in aviation emissions attributable to the Proposed Development were it to go ahead as follows: 2050 Future baseline (without Development): 587,978 tCO 2e 2050 Core planning case (with Development): 1,149,852 tCO 2e 2050 Net impact Core case (with Development): 561,874 tCO 2e The 1.15MT CO 2e is some 5% of the 23MT allowed by the CCC for the UK aviation sector by 2050, therefore representing a significant proportion. Note however that the Applicant has only performed this assessment for its Core planning case, whereas the Applicant has based its Noise Limits on its Faster Growth case. Therefore, the emissions impact is still being understated.”

“Calculation of Aviation Emissions 241. The Secretary of State notes that, at the close of Examination, a number of parties had not agreed to the calculation of emissions from aviation because only departing flights had been included and they did not consider this to be consistent with the IEMA guidance ….. The Applicant stated that this was a widely established practice internationally to avoid double-counting emissions which is adopted by DfT policy on aviation and climate change and is the accepted advice of the CCC…... Like the ExA, the Secretary of State sees no reason to come to a different conclusion in this case ….. 242. In her consultation letter of 29 August 2024, the Secretary of State requested further information on the potential implications of the judgement by the Supreme Court in Finch in relation to the Proposed Development including any implications for the GCG Framework. In its letter of 6 September 2024, the Applicant considered at paragraph 1.2.1 Appendix A, the potential implications of the Finch judgment. The Applicant’s position is that the decision of the Supreme Court in Finch does not require assessment of indirect GHG emissions in circumstances where either (a) there is insufficient information on which to make a reasonable assessment or (b) where it is possible to make a judgment, the effects are not significant (see 1.1 of Appendix A to the 6 September 2024 letter). The Applicant then made further submissions in the context of the following points: a. The inclusion of GHG emissions from inbound flights as a result of the Proposed Development. b. The inclusion of GHG emissions from ‘well-to-tank' (“WTT”) activities as a result of the Proposed Development. c. The impact of indirect surface access emissions. d. The impact of GHG emissions from increased employment because of economic growth deriving indirectly from growth at the Airport. e. The impact on the Applicant’s GCG Framework, including on the Limits and Thresholds proposed within GCG. 243. On point a., the Applicant restated their position on why it was only necessary to count emissions from outbound flights and that contextualising emissions from inbound flights is challenging because there is no single carbon budget to compare them to. However, it acknowledged that it was possible to calculate emissions from inbound flights and the Applicant considered it a reasonable approach simply to double the emissions set out in its ES. Whilst the calculation of emissions for both outbound and inbound flights was set out in Table 1 (see 2.1.11 of Appendix A to the 6 September 2024 letter) for operational years, no assessment was provided on the impact of the calculated emissions against the relevant carbon budgets.”

“255. The Secretary of State considers that additional assessment of the matters identified at (a) to (e) is not necessary or capable of meaningful assessment in light of the approach identified in Finch for the reasons given by the Applicant. As to emissions from inbound flights, the Secretary of State is satisfied that including inbound flights is likely to amount to double counting of emissions and that it is appropriate to follow the approach adopted by the industry and national policy identified by the Applicant. As to the other indirect effects, the Secretary of State considers that there is insufficient evidence of a causal link between the Proposed Development and the emissions identified by the Applicant in its letter of 6 September 2024 for the reasons given by the Applicant. Although the Applicant has set out figures which could be attributed to these indirect effects, the Applicant has made it clear that these figures are likely to be conservative and/or it is not clear whether any net increases in emissions will be caused by the Proposed Development. The question of whether these indirect effects can be attributed to the Proposed Development is therefore difficult to meaningfully assess (see Finch at 167). 256. However, notwithstanding the points made above, the Secretary of State considers that the additional effects identified by the Applicant are not significant on their own and this is another reason why it is not necessary to assess them or account for them in the Secretary of State’s assessment of the weighting of this matter in the planning balance.”

“The Secretary of State’s Conclusions on Greenhouse Gases 273. The ExA considered that the assessment of GHG emissions had incorporated the trajectories and assumptions in the Jet Zero Strategy and Decarbonising Transport (2021) and that, ultimately, emissions would be controlled through the carbon budgets set in the Climate Change Act 2008. The Secretary of State agrees … 274. The Secretary of State has had regard to the evidence of mitigation measures the Applicant has provided to ensure that the carbon footprint is not unnecessarily high from construction and operations, and agrees with the ExA that it has been demonstrated that the carbon emissions of the Proposed Development would be reduced through good design largely secured by the Design Principles to meet the requirements of local policies ….. 275. As set out above, the Secretary of State agrees with the ExA that a monitoring requirement is necessary to ensure emissions set out for the core planning case are not higher than the Limits during Phase 1 or offset only years later ….. 276. The Secretary of State notes that the ExA was satisfied that the carbon emissions from the Proposed Development would align with the Jet Zero Strategy’s High Ambition trajectory and that the Applicant had provided evidence that the predicted emissions would not materially impact the Government's ability to meet its climate targets. The Secretary of State agrees but like the ExA, considers that the emissions from the Proposed Development would be significantly greater than the ‘without proposal’ scenario. The Secretary of State is aware that all emissions contribute to climate change. Whilst the Proposed Development will result in an increase in carbon emissions, she considers that the Proposed Development needs to be considered in the context of existing and emerging policy and legal requirements to achieve the UK’s trajectory towards net zero and is satisfied that there would be no breach of such national or international obligations. As mentioned above, the Secretary of State does not consider the Finch judgement alters this position. 277. While noting that the Applicant has provided an assessment of potential indirect impacts from the Proposed Development on carbon as a result of the Finch ruling and that this increases the impact of the Proposed Development, for the reasons set out above, the Secretary of State does not consider that this or any other assessment to the approach taken in the Applicant’s ES is necessary. The Secretary of State is satisfied that the increase in carbon emissions resulting from the Proposed Development would not impact Government’s ability to meet its legally binding carbon targets. Notwithstanding this position if the ruling in Finch were to require further consideration of the indirect impacts on carbon, the Secretary of State is satisfied with the approach taken by the Applicant and that this would still not impact Government’s ability to meet its obligations legally binding carbon reduction targets or change the conclusion on this matter. 278. The Secretary of State agrees with the ExA’s conclusion that the Proposed Development’s effect on climate change through an increase in GHG emissions would be adverse and this carries moderate negative weight against the making of the Order …...”

“In our view the evaluation of the significance of an estimated amount of GHG emissions and its acceptability is a matter of fact and judgment for the decision-maker. He or she may decide to choose benchmarks to help in arriving at that judgment. But that choice too is a matter of judgment for them. Any conclusion drawn on the acceptability of the GHG emissions in comparison with a benchmark is also a matter of judgment for the decision-maker. The 2017 Regulations do not determine how these matters should or may be approached ….”

“74. Whatever the precise meaning of the term, to determine that a potential effect is “likely” requires evidence on which to base such a determination. If evidence is lacking so that a possible future occurrence is a matter of speculation or conjecture, then a rational person would not feel able to judge that it is “likely”

“[a] reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of [its] examination;” 76. The initial, information gathering stages of the process, including the preparation of the environmental statement, are thus directed towards the ability to reach a reasoned conclusion on the significant effects of the project on the environment. This is confirmed in article 5(1), which provides that the environmental statement shall “include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment.”

“In particular, only effects which evidence shows are likely to occur and which are capable of meaningful assessment must be assessed.”

“138. Given the agreed fact that all the oil produced would be refined, I see no reason why environmental impacts resulting from the process of refining the oil should not in principle fall within the scope of the EIA for the project of extracting the oil. There are, however, potential reasons why the view might reasonably be taken that it was not necessary to include an assessment of such impacts in the EIA. One would be that there was insufficient information available on which to make a reasonable assessment of the relevant impacts. Another potential reason would be that, so far as it was possible to judge, such impacts were not themselves likely to be significant…..”

“58……Deciding whether an effect of a project on the environment is “significant” clearly requires a value judgment and carries the potential for cases to arise in which different decision-makers may legitimately reach different conclusions without it being possible to say that any of them has made an error in interpreting or applying the term.”

“Similarly, the result of Finch and its reasoning do not disturb the basic and long- established principle, recently reaffirmed by the Supreme Court itself, that where a public authority has the function of deciding whether to grant planning permission for a project calling for EIA under the relevant legislation, it is for that authority to decide whether the “environmental information” available is sufficient to meet the requirements of the legislation, and its decision is subject to review on normal Wednesbury principles (see the judgment of Lord Hodge and Lord Sales in Friends of the Earth [2020] at [141]-[147]).”

“8.4.106. Throughout the Examination the Applicant has revised its findings about the contribution which the Proposed Development makes to UK carbon budgets. The contribution has increased with the addition of domestic inbound flight emissions, WTT emissions and emissions from waste incineration. The Applicant’s revised assessment indicates a contribution of 3.459% to the Sixth Carbon Budget. This does not include inbound international flights (which as the Applicant has acknowledged would double emissions from 0.512MtCO 2e to 1.022MtCO 2e (excluding WTT emissions)), fuel produced outside of the UK or non-CO 2 emissions as these elements cannot be contextualised against UK carbon budgets… 8.4.107. The Applicant’s evidence also shows that direct aviation emissions are doubled to 44.689MtCO 2e when inbound flights and WTT are included and that the inclusion of WTT emissions increases the total emissions by over 20% between 2018 and 2050 which is a substantial change. 8.4.108. Contextualising international inbound aviation emissions against an ICAO sector based scenario indicated a contribution of 0.13% (with WTT) which for a single project does not appear to be insignificant but doubts about using ICAO are not unreasonable. 8.4.109. No definitive evidence has been provided by IPs to demonstrate that the indicative threshold of 5% has been reached (and they are not required to do so). Nevertheless, IPs have raised considerable doubts about the Applicant’s assessment that the Project would result in a 3.459% contribution in the Sixth Carbon Budget. Our judgment is that when other elements which cannot be contextualised against UK carbon budgets are considered, the 5% threshold is likely to be reached for the Project as a whole and a rise beyond 2037 could push the Proposed Development to being a significant adverse effect in EIA terms. …… 8.5.12. The Applicant has adopted the methodology of the IEMA Guidance and contextualised emissions accordingly while acknowledging the difficulties about contextualisation. Paragraphs 5.82 of the ANPS and 5.18 of the NNNPS note that any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets including carbon budgets. We have no clear evidence that the indicative 5% threshold of a carbon budget has been met, while the Applicant’s own assessment indicates an effect of over 3.4% but we note that the effects of non-CO 2 emissions, international inbound flights and fuel produced outside the UK were not included. Additionally, this figure relates to the entire airport and covers the period to 2037, not 2050. Nevertheless, our judgment is that were these other factors included the threshold is likely to be reached and a significant adverse effect in EIA terms should be recorded.”

“197. The Applicant, at paragraph 7.6 of its 24 April 2025 (Annex 4) response to the Secretary of State’s minded to letter, highlighted that the 3.459% figure represents the airport as a whole, and does not relate to the increase in emissions attributable to the Proposed Development and is contrary to IEMA Guidance. The Applicant highlighted its Revised Table 16.9.13 ….., which states that the highest contribution the Proposed Development would make to 6CB is 0.657%, but noting at paragraph 7.3 that this was the figure that relates to 'the increase in carbon emissions resulting from the project' for the purposes of paragraph 5.82 of the ANPS. The Applicant therefore concluded that there is no reason to believe that, even factoring in the other emissions that the ExA considered not to have been quantified and contextualised against UK carbon budgets, the IEMA threshold of 5% of the UK carbon budget would be exceeded (paragraph 7.6). At paragraph 7.12, the Applicant considered that the correct approach is to conclude that the increase in carbon emissions resulting from the project is clearly not so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets. At paragraph 7.13 the Applicant submitted that the ExA’s conclusion of moderate adverse weight in relation to GHG emissions was unsound. …… 201. Taking into account the views provided by the Applicant, the ExA and Interested Parties during the Examination and throughout the decision stage, the Secretary of State considers that it is appropriate to assess significance on the basis of the Proposed Development’s contribution to CB6, which would be 0.657%. She agrees with the Applicant’s statement at Annex 4, paragraph 7.3, of its representation of 24 April 2025, that the figure addresses “the increase in carbon emissions resulting from the Project (Proposed Development)”, for the purposes of paragraph 5.82 of the ANPS. The Secretary of State notes this is also consistent with paragraph 5.2 of the IEMA guidance, which states “the assessment should seek to quantify the difference in GHG emissions between the proposed project and the baseline scenario (the alternative project/solution in place of the proposed project).”

“Non-CO 2 emissions 3.12.101. The Applicant stated that there remains significant scientific uncertainty around the overall warming effect of non-CO 2 impacts, as recognised by the CCC …... Furthermore, non-CO 2 impacts are not included within the Nationally Determined Contributions declared pursuant to the 2015 Paris Agreement, the carbon budgets set pursuant to the UK CCA2008 and the Aviation emissions trajectory for the JZS High Ambition scenario that the assessment uses as a comparator for Aviation emissions. For all these reasons, the GHG assessment did not seek to quantify non-CO 2 impacts, consistent with current Government advice …. paragraph 9.8.9]. 3.12.102. NEF highlighted that the aviation chapter of the DfT’s WebTAG was published after D5 and included new detail on the approach to non-CO 2 emissions ….. The WebTAG guidance stated that qualitative assessment of non-CO 2 impacts using factors provided by the Department for Energy Security and Net Zero (DESNZ) was an appropriate sensitivity test. NEF rejected the Applicant’s interpretation of a High Court ruling as having ‘rejected’ the multiplier, but rather the absence of use of this was not grounds for the court to intervene. NEF drew attention to the fact that WebTAG was being used as part of the Gatwick Airport DCO application. 3.12.103. In response, the Applicant stated that the guidance was also clear that, given uncertainties, a qualitative approach to non-CO 2 emissions was acceptable, even within the context of a full WebTAG appraisal ….. The Applicant remained of the view that the context for the partial WebTAG appraisal presented by (sic) as part of Gatwick Airports DCO application was different because the case being made was principally based on the assumption that a third runway was not provided at Heathrow and so sought to present the case in terms of overall UK wide benefits as an alternative to Heathrow Airport. 3.12.104. Further explanation on the lack of inclusion of these emissions was provided in ….. in response to an action from ISH8 …... In this, the Applicant acknowledged that it was possible to calculate non-CO 2 effects but maintained that it was not appropriate to do this because of the uncertainty involved, the exclusion of these from the Jet Zero trajectory and ‘legal precedent’ excluding them from other aviation planning applications. This was reiterated at the end of the Examination in ….. 3.12.105. Regarding the uncertainty in using a multiplier, the Applicant quoted ….. the CCC in its Sixth Carbon Budget Pathway Report, which stated that “It remains extremely challenging to accurately aggregate the effects of these non-CO 2 impacts into a CO 2-equivalence ‘multiplier’ for use within climate policy mechanisms. 3.12.106. The Applicant acknowledged .…. that the Government’s own documents refer to uplift factors for non-CO 2 effects ranging between a multiplier of 1.7 and around 3, but caveated this because there was ‘clearly no consensus’ round which uplift factor would be most appropriate. It noted that addressing non-CO 2 effects is described as a core Government policy measure in the JZS, and that it is therefore to be dealt with at a national level. 3.12.107. The Applicant argued that it would not be possible to do a meaningful contextualisation of aviation effects against the JZS trajectory if non-CO 2 effects were included as part of this application because it would not be comparing like with like …... If an uplift factor was to be applied to the aviation emissions from the Proposed Development, then the same factor would need to be applied to the aviation emissions trajectory within the JZS. The overall contribution of the Proposed Development to UK aviation emissions would remain unchanged …... 3.12.108. The Applicant has interpreted legal precedent as saying that it would be anomalous for non-CO 2 emissions to be considered as part of an application and that these effects cannot form a proper basis for refusing consent ….. 3.12.109. The ExA concludes that a range of multipliers could have been applied to provide an indication of the potential effects from non-CO 2 emissions through the costing of these. However, the ExA accepts that a WebTAG appraisal of non-CO 2 emissions is not currently a requirement for development. The ExA also acknowledges that the current test in policy is to compare GHG emissions against current emission trajectories and that these do not include non-CO 2 emissions. It is also accepted that future controls on non-CO 2 emissions will be introduced at a national level and it would therefore be disadvantageous to require a single development to incorporate this in their assessment. 3.12.110. The ExA concludes that non-CO 2 emissions are a neutral matter and neither weigh for nor against the making of the Order.”

“Non-CO 2 Emissions 270. The Secretary of State notes that the Applicant did not seek to quantify non-CO 2 Impacts for the reasons set out in ER 3.12.101. Discussions took place around a new aviation chapter of DfT’s WebTAG published during the Examination that included new detail on the approach to non-CO 2 emissions [ER 3.12.102]. The Applicant acknowledged that it was possible to calculate non-CO 2 emission effects but maintained that it was not appropriate to do so because of the uncertainty involved, the exclusion of these from the Jet Zero trajectory and ‘legal precedent’ excluding them from other aviation planning applications …... 271. The Secretary of State notes that the ExA concluded that a range of multipliers could have been applied to provide an indication of the potential effects from non-CO 2 emissions through the costing of these. The ExA accepted that a WebTAG appraisal of non-CO 2 emissions is not currently a requirement for development and that the current test in policy is to compare GHG emissions against current emission trajectories and that these do not include non-CO 2 emissions. It also accepted that future controls on non-CO 2 emissions will be introduced at a national level and it would therefore be disadvantageous to require a single development to incorporate this in their assessment ….. As such, the ExA considered that the non-CO 2 emissions weighed neither for nor against the making of the Order …… The Secretary of State agrees.”

“It remains extremely challenging to accurately aggregate the effects of these non-CO 2 impacts into a CO 2-equivalence ‘multiplier’ for use within climate policy mechanisms. These effects still have significant uncertainties associated with them and their size can depend on the conditions under which the activity occurs, unlike for well-mixed greenhouse gases which affect the climate similarly independently of where they occur.”

“12.12.4 Furthermore, there is no recognised benchmark against which to compare the emissions of non-CO 2 impacts. They are not within the Nationally Determined Contributions declared pursuant to the 2015 Paris Agreement or the carbon budgets set pursuant to the UK Climate Change Act, and are not included in the Aviation emissions trajectory for the Jet Zero Strategy High Ambition scenario that this assessment uses as a comparator for Aviation emissions.”

“12.12.5 For all these reasons, while it is important to acknowledge the presence and warming effect of these non-CO 2 impacts, this assessment has not sought to quantify non-CO 2 impacts, consistent with current Government and Committee on Climate Change advice. Ongoing GHG reporting by the Airport will follow all government policy as it evolves on this issue.”

“10. .…. The underlying issue in Friends of the Earth was whether the Secretary of State had acted irrationally in not addressing the effects of non-CO 2 emissions in the ANPS. The Supreme Court said that the precautionary principle added nothing to the argument as to whether it was rational to exclude those effects. As the Judge explains at para 228 and following, the precautionary principle likewise added nothing in the present context, where the issue was very similar – whether the decision-maker had rationally concluded that the issue of the impact of non-CO 2 emissions should be left over for future consideration.”

“4.54 In deciding an application, the Secretary of State should focus on whether the development is an acceptable use of the land, and on the impacts of that use, rather than the control of processes, emissions or discharges themselves. The Secretary of State should assess the potential impacts of processes, emissions or discharges to inform decision making, but should work on the assumption that, in terms of the control and enforcement, the relevant pollution control regime will be properly applied and enforced. Decisions under the Planning Act 2008 should complement but not duplicate those taken under the relevant pollution control regime.”

“ExA’s conclusions on the reliance on delivery of the Jet Zero Strategy 3.12.48. Ultimately UK GHG emissions, including those from the aviation sector, are controlled by the carbon budgets and requirement to meet net zero by 2050 in the CCA 2008. The UK ETS is an important control mechanism to help deliver the legislative requirements and the Government has the ability to introduce other mechanisms as needed. The ANPS (paragraph 4.54) is clear that decisions under the PA 2008 should complement but not duplicate those taken under the relevant pollution control regime. The ExA concludes that the CAA is such a regime and must work on the assumption that it will be properly applied and enforced. 3.12.49. It is made clear in the JZS that multiple pathways and solutions are likely to be available to achieve the Government’s trajectory for a reduction in aviation emissions. The Government has committed to monitoring progress against the trajectory annually from 2025 in addition to reviewing the overall trajectory every five years. Given this, the ExA considers it is reasonable that the Applicant has based its assessment on the current preferred High Ambition scenario and underlying assumptions, noting that regardless of which pathway is ultimately taken, the outcomes must necessarily be the same or similar to meet the legislative targets. For this reason, the ExA does not consider that it is necessary for the Applicant to assess a scenario assuming that little progress against the JZS is made or to review alternative pathways. 3.12.50. The CCC provides recommendations for Government, but these do not alter the policies, strategies and legislation that are before the ExA. The ExA has noted the CCC’s conclusion that JZS faces delivery risk but must rely on the assumption that ultimately the CCA 2008 must be adhered to and that the Government would introduce additional policy to deliver its legislative duties, if required. 3.12.51. The ExA has noted the recent High Court judgment ‘R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2024] EWHC 995 (Admin) that, among other things, concluded that the Government had breached its duty under the CCA to adopt policies which would enable the carbon reduction targets to be met. However, the ExA must work on the assumption that the Government will act accordingly and ensure that its legislative duties are complied with, including working to ensure that appropriate policies are in place to manage the emissions from the aviation industry.”

“3.12.119. The assessment of GHG emissions has incorporated the trajectories and assumptions in the JZS, including the high ambition scenario, and Decarbonising Transport (2021). Emissions would ultimately be controlled through the budgets set in the CCA2008 and the Government has a duty to ensure that these are met. There would be numerous pathways and levers available to achieve these targets, including capping carbon costs. The Government has laid out its preferred pathway in the JZS and the ExA does not consider it unreasonable that the Applicant relies on this for the purposes of the ES, accepting that if the pathway changed in the future, the same outcomes would still be required……”

“Conclusion on reliance on delivery of the Jet Zero Strategy 235. The ExA concluded that the UK Greenhouse Gas emissions, including those from the aviation sector, are controlled by the carbon budgets and the requirement to meet net zero by 2050 in the Climate Change Act 2008, and that the Government has the ability to introduce control mechanisms, such as the UK Emissions Trading Scheme (“UK ETS”) as needed, to help deliver the legislative requirements. Paragraph 4.54 of the ANPS is clear that decisions under the 2008 Act should complement but not duplicate decisions taken under the relevant pollution control regime, and the ExA considered that the Climate Change Act 2008 is such a regime and must work on the assumption that it will be properly applied and enforced ….. The Secretary of State agrees. 236. The Secretary of State is satisfied that the Jet Zero Strategy includes multiple pathways and solutions that are likely to be available to achieve the Government’s trajectory for a reduction in aviation emissions and that there is a commitment to monitoring progress against the trajectory annually from 2025 in addition to reviewing the overall trajectory every five years. Given this, the Secretary of State agrees with the ExA that it is reasonable for the Applicant to have based its assessment on the current preferred High Ambition scenario in the Jet Zero Strategy and underlying assumptions and that the outcomes must necessarily be the same or similar to meet the legislative targets. The Secretary of State notes that it was for this reason the ExA considered that it was not necessary for the Applicant to assess a scenario assuming that little progress against the Jet Zero Strategy is made or to review alternative pathways as requested by some parties ….. The Secretary of State agrees. While she is aware that the lawfulness of the Jet Zero Strategy is being challenged, she is content that the strategy is and will remain Government policy and in any case agrees with the ExA that Government will ensure that its legislative duties are complied with, including working to ensure that appropriate policies are in place to manage the emissions from the aviation industry…... ”

“Regulation outside the planning system: the “Gateshead principle” 48. …. Without referring to every case, I am satisfied that there is an established line of authority to the effect that: (1) planning decision-makers are entitled to have regard to regulation outside of the planning system, (2) that there is no requirement to duplicate such controls which are often the responsibility of expert bodies/regulators, and (3) the decision-maker should generally assume these regulatory processes will operate effectively. One can draw these principles from Gateshead MBC v Secretary of State for the Environment [1995] Env. L.R. 37, per Glidewell LJ at pp.49-50; Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government [2012] Env LR 34, per Carnwath LJ at [30], [34] and [38]; R (Frack Free Balcombe Residents Association) v West Sussex CC [2014] EWHC 4108 (Admin) per Gilbart J at [95], [100]-[104]); and more recently Gladman Developments v SSCLG [220] PTSR 129, per Lindblom LJ at [43]. 49. The nature of the principle was also addressed by Sullivan LJ in R (An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change [2014] EWCA Civ 1111 (“An Taisce”) at [46]-[51]….. …… 59. ….. The Claimants originally argued that use of the principle is confined to cases of pollution control regimes (by reference to Gladman). That point was rightly not pursued by Mr Elvin KC in oral submissions. It is inconsistent with the case law. 60. The case law, which considers regulators in disparate fields, with a range of degrees of control and oversight over operational activity, demonstrates that the question is whether the decision-maker was “justified” in finding that the regulator’s “controls… are adequate to deal with” the environmental concerns (Gateshead, p.49). The decision-maker is “entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority”, despite the fact that “mistakes may occur in any system of detailed controls” (Milne, at [128]). The decision-maker is entitled to “have regard to, and rely upon, the existence of a stringently operated regulatory regime for future control” (An Taisce, at [46]). The decision-maker “will have to form a judgment as to whether those gaps and uncertainties [in the current environmental information] mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime” (An Taisce at [48], citing R (Jones) v Mansfield District Council [2004] 2 P & CR 14). 61. Whether a regulatory regime can be relied within the Gateshead principle to control an environmental effect is plainly a matter for the decision-maker’s judgment……”

“(A1) In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty in England, a relevant authority other than a devolved Welsh authority must seek to further the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.”

“Where a planning application proposes development of land in a National Park which is found at least to leave the Park's natural beauty, wildlife and cultural heritage unharmed, that provides a proper basis for the decision maker to conclude that the development will further the section 5(1)(a) purpose of conserving and enhancing those characteristic features of the Park. That conclusion suffices as a proper discharge of the decision maker's duty under section 11A(1A) of the 1949 Act in determining that planning application.”

“208. The Secretary of State thanks the Applicant and the Chilterns Conservation Board for their engagement on this matter, and notes their respective interpretations of the purpose of section 85 of the CRoW Act and that ultimately, an agreement could not be reached. The Secretary of State notes the debate between the Applicant and Interested Parties as to the requirements of section 85 of the CRoW Act and has considered this further below. The Secretary of State is aware that since the above responses were provided, on 16 December 2024, DEFRA published guidance for relevant authorities seeking to further the purposes of Protected Landscapes and has had regard to this when making her decision. The Secretary of State considers that in this case a financial contribution of £250,000 for projects which further the purposes of conserving or enhancing the Chilterns National Landscape is sufficient and necessary to meet section 85 of the CRoW Act in this case (on either the Applicant or Chiltern Conservation Board and Natural England's interpretation of its requirements). 209. Accordingly, the Secretary of State has included a new article 54 in the Order in the terms proposed by the Applicant in its response dated 8 November 2024. With the inclusion of this article, the Secretary of State is satisfied that the section 85 CRoW Act has been met. The Secretary of State, having considered the effects of the Proposed Development, considers that a fund of £250,000 represents a reasonable and proportionate contribution to further the purposes of enhancement and conservation in relation to the Chilterns National Landscape.”

“219. Given that landscapes such as the Chilterns National Landscape have the highest status of protection in relation to landscape and scenic beauty, the Secretary of State has given great weight to the need to conserve this landscape and its special qualities. Noting that there will be some negative but not significant impacts, she has considered whether there are exceptional circumstances for granting consent. The Secretary of State is satisfied that the need for the Proposed Development and the expected benefits carry great positive weight. She is also satisfied that the Applicant has adequately assessed alternative options to increase the capacity of the airport and that the Proposed Development represents the best option. The Secretary of State also accepts that it is not possible for the Applicant to further mitigate the residual harm beyond the existing measures included in the Order, or inbuilt into the Application. She is therefore satisfied that the exceptional circumstances test has been met.”