Luton airport expansion challenge fails as Court of Appeal refuses extension of time

The Court of Appeal has refused to extend time for a permission to appeal application brought by the Luton and District Association for the Control of Aircraft Noise (LADACAN) against the Secretary of State for Transport, in a decision that underlines the strict procedural regime now governing legal challenges to nationally significant infrastructure projects (NSIPs).

The underlying dispute concerned a Development Consent Order (DCO) made on 3 April 2025, granting London Luton Airport Limited permission to expand Luton Airport to a capacity of 32 million passengers per annum. Lang J had dismissed LADACAN's judicial review challenge on 8 December 2025, and refused permission to appeal on the same day. Writing the lead judgement, Lord Justice Lewison, with whom Lord Justice Holgate and Lord Justice Bean agreed, refused both the extension of time and, consequently, permission to appeal.

The new procedural landscape

The case is the first significant test of Practice Direction 52D, paragraph 17.3, which came into force on 1 October 2025 implementing recommendations made by Lord Banner KC in his review of legal challenges to NSIPs. That review concluded that unmeritorious challenges were causing undue delay to infrastructure delivery, and recommended compressing appellate timescales substantially. The new Practice Direction requires an appellant's notice to be filed within seven days of the decision under appeal, replacing the standard 21-day period.

LADACAN's appellant's notice was not filed until 24 December 2025, nine days after the 15 December deadline, and the formal application for an extension of time was not made until 22 January 2026, nearly six weeks after expiry. Critically, the appellant's notice as filed contained no application for an extension of time at all, as required by PD 52C para 4(1)(b).

The three-stage analysis

Applying the well-established framework from R (Hysaj) v SSHD [2014] EWCA Civ 1633, the court worked through the Denton stages in turn. The seriousness and significance of the breach was not in dispute; the deadline had been more than doubled before the notice was filed. On the second stage, the court was unpersuaded by counsel's suggestion that practitioners could reasonably have been unaware of the reduced time limit. The Practice Direction had been published in July 2025, there was a two-month lead-in before it came into force, and a further two months elapsed before Lang J handed down her judgement. Ignorance of a time limit by a specialist legal team, the court reiterated, is not a good reason for non-compliance.

On the third stage, Lewison LJ rejected each of the four factors advanced by Estelle Dehon KC for the appellant. The submission that the delay had caused no harm to the development's progress was contradicted by evidence from the airport's managing director, who described a reluctance to commit further resources while uncertainty persisted, resulting in a deferred article 44 notice. The court also noted that the delay had itself caused the court to miss the target dates mandated by paragraph 17.3, an outcome described as "irretrievably compromising" the overall progress of the appeal and analogous, in context, to the loss of a trial date.

The argument that the appeal raised matters of wider public interest was addressed squarely: in NSIP challenges such points will almost invariably arise, and that consideration cannot function as an independent reason to grant relief. On the merits, the court heard brief submissions but declined to resolve the competing arguments, finding only that Lang J's judgement was cogently and comprehensively reasoned and that no obvious flaw appeared.

Significance

The judgement constitutes a clear signal that the expedited NSIP appellate regime will be enforced without leniency. As Lewison LJ stated, factor (b) under Denton, the need to enforce compliance with rules and practice directions, carries particular weight in NSIP appeals, and the court must send out a clear message that delays are unacceptable. The structural purpose of the 2008 Act and the 2025 procedural reforms, namely investor confidence and predictable delivery timescales, reinforces that message.

The decision will be essential reading for those advising clients with DCO challenges in progress or in contemplation.