Background
Luton Airport is the only major airport in the UK to be owned by its local planning authority, in this case Luton Borough Council. Originally the Council operated the Airport, but this proved not to be commercially successful and in any case the Airports Act 1986 required Councils to divest themselves of airports.
Luton transferred ownership to a private company – London Luton Airport Ltd (LLAL). It opted not to run the Airport. The Act otherwise requires three full-time qualified Directors to be on the company board, and LLAL’s board consist of Members and Officers of the Council. Instead, LLAL/LBC awarded the operating concession to a separate commercial company, London Luton Airport Operation Ltd (LLAOL).
Recent planning history
In 2011/12 LLAL/LBC pressured LLAOL to submit a planning application to invest in expanding airport capacity, threatening to terminate the operating concession if not. LLAOL obliged, and in 2012 there was pubic consultation on a Master Plan to 15-year project to double the capacity of the Airport from 9 to 18 million passengers over a 15-year period to 2028, in parallel with noise mitigation by way of new less noisy aircraft.
Many local groups, Councils and MPs called on Eric Pickles, then Secretary of State, to call this in due to conflict of interest, but he refused. The LBC Development Control Committee (well, half of them – the other half had already left for Christmas) heard a day’s worth of very well-evidenced objections. They all expressed significant concerns about the environmental impacts, and then voted to grant permission subject to agreed noise-control planning conditions. The Section 106 agreement, signed in 2015, enshrined these.
Financial incentivisation
As early as 2014, directly the planning permission was granted, LBC/LLAL signed a deal with LLAOL to financially incentive more rapid passenger growth at the Airport. The annual concession fee payable by LLAOL to LLAL rises in proportion to numbers of flights, passengers and cargo tonnage. The incentivisation deal partly rebated LLAOL for delivering “growth” and “super growth” airlines. LLAOL then passed these savings on to qualifying airlines by way of reduced operating charges, to attract them to Luton instead of (for example) nearby Stansted.
On the face of it this could breach the provisions of the Airports Act:
(a) since it appears to constitute a subsidy of the Airport operation
(b) since it appears to cross the line towards interference in operating the Airport, by influencing the airline profile
As a direct result, instead of passenger numbers growing in a controlled way over 15 years, in step with introduction of less noisy more carbon-efficient aircraft, numbers grew in an uncontrolled way and reached the 18 million passenger limit by the end of 2019. And in the meantime, because noisier aircraft were still predominantly in use, the noise footprint planning limit was breached in 2017, 2018 and 2019.
Lack of scrutiny
It could be argued that the Council, as party to the incentivisation deal which led to over-rapid out-of-balance growth, acted so as to undermine its own planning conditions. It certainly suggests a lack of scrutiny: the breach was predicted in the Airport’s forecast reporting to the Council, but no action was taken. And during the material period the Council failed to send a representative to the only other scrutiny body – the statutory Airport Consultative Committee.
Under the Section 106 Agreement governing the operation of the Airport, the Council should invoice the Airport Operator £15,000 each year to fund monitoring the terms of that Agreement by its Director of Planning – which includes the Planning Conditions and Noise Control Scheme. Yet the Council had no standing Scrutiny Committee in place during the crucial early years of the new planning agreement, and failed to take any action to stem the rate of growth which – it was warned in 2016 – would lead to breaches of its planning conditions. This suggests no such monitoring took place.
Public harms
The night noise footprint limit was breached in 2017 and 2018; and in 2019 both the day and night noise limits were breached and the Airport reached 18 million passengers in 2019, a full 9 years too soon for the mitigations and promised improvements (less noisy aircraft, airspace redesign, increased altitudes, more passengers using public transport) to be delivered.
The breaches were caused by the Airport releasing too many flight slots too soon, before the fleet of aircraft had become less noisy. As a result, some 50 of the 400-or-so flight per day were flown in breach of planning permission, many of these at night. Night flights at Luton increased from 300 to 5,000 over the period 2013-2019.
Many research studies including those by the WHO, Zurich Airport link aircraft noise at night to harm to public health. Additionally, the more-than permitted flights led to more-than-permitted passenger journeys which added to local air pollution and surface transport congestion. And because the airspace around Luton is overflown by London Heathrow and City at a higher level, departing aircraft are often held low at 4,000-5,000ft for 15-20 miles, creating additional widespread noise disturbance.
Our opinion
These actions leave the Council open to charges of maladministration and service failure, as well as permitting a conflict of interest.
Maladministration is an administrative fault or fault in an action taken by a body acting on behalf of a Council. It might include:
• flaws in policies or decision making (the decision to incentivise)
• poor administrative practice (failure adequately to scrutinise the airport operation in light of the incentivisation)
In this case, the Council’s Airport-holding company LLAL (whose Board is made up of Councillors and Officers of the Council) was actively involved in the incentive scheme and in pushing for faster growth.
Under the Local Government Act 1974, in addition to maladministration, a Council can be guilty of Service Failure which is:
• failure in a service which it was the function of an authority to provide, or
• failure to provide such a service
In this case, the function the authority failed to provide was adequate scrutiny of the Airport under the terms of the Section 106 Agreement. The Council was warned in 2016 that Condition 10 was likely to be breached, yet failed to take any credible action to prevent it. The successive breaches in 2017, 2018 and 2019 are a clear indication of Service Failure.
The fact that two key environmental impact planning limits put in place to govern airport operations until 2028 but reached or breached in 2019 due to incentivised growth and despite the Council’s scrutiny obligation clearly demonstrates the conflict of interest between its responsibility as Local Planning Authority to protect residential amenity; and its commercial desire as owner of the Airport to maximise the revenue it makes from it.
The Secretary of State for Housing, Communities and Local Government should investigate the failure of Luton Borough Council to meet the high standards of probity required under the Localism Act.
The Secretary of State for Transport should review any decision on Luton Airport’s planning application to exceed its noise footprint limit and passenger number limit given the conflicted position of Luton Borough Council, and its failure to scrutinise.
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