Neutral Citation Number: 2008 EWHC 1292 (Admin)

CO/7398/2006

Neutral Citation Number: [2008] EWHC 1292 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Friday, 23rd May 2008

B E F O R E:

MR JUSTICE SULLIVAN

THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF WANDSWORTH

Claimants

v

SECRETARY OF STATE FOR TRANSPORT

Defendant

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Mr David Smith (instructed by Messrs Richard Buxton) appeared on behalf of the Claimant

Mr John Howell QC, Mr Martin Chamberlain and Ms Sarah Love (instructed by Treasury Solicitor) appeared on behalf of the Defendant

J U D G M E N T

(As approved by the Court)

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MR JUSTICE SULLIVAN:

Introduction

1.In this application for judicial review the claimants challenge the lawfulness of certain decisions announced in a written statement by the defendant and set out in a document entitled "Night Flying Restrictions at Heathrow, Gatwick and Stansted", published by the Department for Transport on 6th June 2006 ("the document"). As indicated in its title, the document sets out the night flying restrictions at London's three busiest airports. The restrictions apply for the period from 29th October 2006 to 30th October 2012. Prior to the publication of the document there were three rounds of consultation. A preliminary consultation on certain issues in 2003 was followed by two further rounds of consultation, stages 1 and 2, each of which was initiated by a consultation paper published in July 2004 and June 2005 respectively. Paragraph 2 of the stage 1 consultation paper explained that the consultation was to be carried out in two stages, and that the matters stage 1 of the consultation would cover would include:

"• Detailed proposals relating to the classification of aircraft, the main focus of this first stage of the consultation; ..."

2.Paragraph 2.2 said:

"The issues relating to the way aircraft are classified for night restrictions purposes need to be resolved in stage one so that the effects of different options for the length of the night quota period, the size of the noise quotas and movement limits and the ratios between them, can each be assessed properly in stage two."

3.The claim form was issued on 6th September 2006. It sought a declaration that the document was unlawful on three grounds: (1) the "misclassified aircraft issue"; (2) the 9 EPNdB reduction issue"; and (3) the "bearing down issue". These three grounds were further explained in an "Amplified Statement of Facts and Grounds" dated 16th October 2006.

Background

4.Although the restrictions have since been reviewed and revised, the principal elements of the night flight restrictions regime that are relevant for present purposes, and in particular the Quota Count ("QC") system, were first introduced in 1993. It is unnecessary to rehearse the somewhat chequered history of the first decade of the regime in any detail in this judgment because it has been comprehensively set out in a series of judicial review challenges to the regime in R v Secretary of State for Transport, ex p Richmond upon Thames LBC [1994] 1 All ER 577, a decision of Laws J (as he then was) ("Richmond No 1"); R v Secretary of State for Transport, ex p London Borough of Richmond upon Thames [1995] Env LR 390, a decision of Latham J (as he then was) ("Richmond No 2"); R v Secretary of State for Transport, ex p London Borough of Richmond upon Thames [1995] Env LR 409, a decision of Sedley J (as he then was) ("Richmond No 3"); R v Secretary of State for Transport, ex p Richmond upon Thames LBC (No 4) [1996] 1 WLR 1005 (Jowitt J) and 1406 (Court of Appeal) ("Richmond No 4"); culminating in a decision by the Grand Chamber of the European Court of Human Rights in Hatton v United Kingdom, Application No 36022/97, dated 8th July 2003.

5.In December 2003 the Department for Transport published "The Future of Air Transport", a White Paper, which set out a strategic framework for the development of airport capacity in the United Kingdom over the next 30 years ("the White Paper"). The White Paper said in paragraph 3.12 that:

"The Government recognises that noise from aircraft operations at night is widely regarded as the least acceptable aspect of aircraft operations. We will bear down on night noise accordingly, but we must strike a fair balance between local disturbance, the limits of social acceptability and the economic benefits of night flights. This should be done on a casebycase basis."

6.Paragraph 3.19 of the Stage 1 Consultation Document, published in July 2004, said that the Hatton judgment:

"... provides much needed clarity and has cleared the way for this thorough review of policy on night flights at Heathrow, Gatwick and Stansted."

7.The Stage 1 Consultation Document was challenged in judicial review proceedings: see R (London Borough of Richmond) v Secretary of State for Transport, Local Government and the Regions [2004] EWHC 3206 (Admin) ("Richmond No 5"). The decision of Forbes J deals only with the issue of costs because the parties had agreed an order which effectively disposed of those proceedings (see below).

8.The Stage 2 Consultation Document was also challenged in a claim for permission to apply for judicial review which was filed on 18th August 2005 ("Richmond No 6"). Those proceedings were withdrawn by the claimants (who included the first and second claimants in the present proceedings) by letter dated 25th November 2005, which explained the reasons why, and the basis upon which, the claim was being withdrawn.

9.I will consider the challenges to the Stage 1 and Stage 2 Consultation Documents in more detail below. It is convenient to deal with ground 3 — "the bearing down issue" — before embarking on a consideration of grounds 1 and 2.

Ground 3: "Bearing Down"

10.The claimants contend that the defendant has failed to comply with the policy set out in paragraph 3.12 of the White Paper — to "bear down on night noise" — because, they say, the overall effect of the decisions announced in the document on 6th June 2006 will be to perpetuate, rather than to reduce, the impact of night noise at Heathrow over the period from 20012012. It is unnecessary to consider whether the claimants' assessment of the overall effect of the defendant's decisions in the document is correct, because to put the matter in its simplest terms: whether the impact of night noise at Heathrow gets "better" or "worse" or remains broadly the same, there will have been no breach of the policy which was set out in paragraph 3.12 of the White Paper. As the first and second claimants themselves pointed out in their Statement of Grounds in Richmond No 6, the Oxford English Dictionary defines "to bear down" as "to approach in a meaningful or purposeful manner." The policy in paragraph 3.12 is, as a matter of first impression, reassuring, but when examined more closely it is fairly described as vacuous, since it commits the Government to doing no more than considering what to do about the problem, while leaving open all possible outcomes. However, it is not unlawful for governments to make such statements in White Papers. Whatever else might be said by the defendant's critics, it is plain that between 2003 and 2006, both he and the Department for Transport approached the issue of night noise in a manner that was both meaningful and purposeful, even if the final outcome was not to the claimants' liking.

11.On 14th February 2006, in answer to a written question as to how the Secretary of State for Transport planned to measure the effectiveness of the proposals to bear down on [night] noise, Ms Buck, replying on behalf of the Secretary of State, said:

"'Bearing down' on night noise from aircraft arriving at or departing from Heathrow, Gatwick and Stansted is expressed by the new proposed environmental and night noise abatement objectives for the airport on which we invited comments as part of the consultation on night flying restrictions."

12.Paragraph 6.1 of the Stage 1 Consultation Document had referred to the "broad aim" set out in paragraph 3.12 of the White Paper. The lack of any meaningful proposals in paragraph 3.12 was remedied by the Stage 2 Consultation Document. Chapter 4 of that document dealt with "Environmental and noiseabatement objectives". Paragraph 4.2 referred to the aim set out in paragraph 3.12 of the White Paper, and paragraph 4.3 continued:

"We now move on, in the light of responses to Stage 1, to set out the proposed

environmental objectives and noiseabatement objectives for each airport." (Emphasis as in original)

13.The proposed environmental objectives and the noise abatement objectives for Heathrow, Gatwick and Stansted were set out in paragraphs 4.64.24, and paragraph 4.25 invited consultees' comments on the proposed objectives.

14.The defendant's "policy in relation to night noise" was summarised in paragraphs 7 and 8 of the document:

"7. The Secretary of State's policy is described at various levels of generality. The contextual framework for the two stage consultation on night flying restrictions (July 2004September 2005) was explained in paragraph 6.1 of the stage one consultation paper). The policy described in The Future of Air Transport White Paper 'to bear down on night noise' was expressed at a level of generality, as were the other broad aims for the night restrictions including 'to strike a fair balance between the protection of local communities from excessive aircraft noise levels at night and the provision of air services at night where they are of benefit of the national, regional or local economy' in paragraph 6.2 of the stage one paper and repeated in paragraph 4.1 of the stage two consultation paper.

8. The Secretary of State has sought to explain in more specific terms how he will implement those new general policies by proposing environmental and noise abatement objectives for each of the airports under consideration. The setting of environmental and noise abatement objectives was required as a matter of law for the first time by Directive 2002/30/EC. Environmental objectives for each airport were formulated in the stage two consultation paper and noise abatement objectives proposed. The environmental objectives are more specific than the general aims, but (as was made clear in paragraph 4.6 of the stage two consultation paper) they are fixed with a view to the longer term evolution of the three airports up to a time horizon of thirty years or so and must accordingly leave some room for flexibility. The noise abatement objectives, on the other hand, are set for the 6year period of the current restrictions and are much more specifically defined (in terms of a particular 6.5 hour 48dBA Leq contour for the winter and summer seasons combined). The Secretary of State's decisions on the particular environmental and noise abatement objectives for each airport, taken after considering the consultation responses, are set out below."

15.The environmental objectives and the specific noise abatement objectives for the three London airports are set out in paragraphs 3537 and 3844 of the document respectively.

16.The noise abatement objectives for Heathrow include an objective "to limit the 6.5 hour 48dBA Leq contour for the winter and summer seasons combined to 55 km2 by 20112012."

17.Noise quotas are set for each year from 20062012, for winter and summer, at each airport to help to achieve the noise abatement objectives (see paragraphs 4547 for the Heathrow noise quotas). Movements limits are also set for each year from 20062012, for winter and summer, at each airport (see paragraphs 6063 for the movements limits at Heathrow). Paragraph 63 of the document says that:

"After consideration, the Secretary of State has decided to retain the current movements limits for

summer and winter at Heathrow as shown below. Taking account of quota reductions it will bear

down on aircraft noise at night in a way which strikes the appropriate balance with economic and

social considerations."

18.The document contains a number of decisions on other related matters. They include a decision to introduce a noise insulation scheme in respect of nighttime noise to be implemented with immediate effect. Paragraphs 84 and 85 of the document explain that:

"84. In the stage 2 consultation paper we outlined possible criteria which may be used for a noise

insulation scheme to mitigate for night noise. The Secretary of State has decided that the

following will apply ...

• The boundary of the scheme will be based on a noise footprint of the noisiest aircraft regularly operating at each airport as follows:

At Heathrow, the arrival footprint of the 95th percentile of the noisiest variant of the Boeing

747400 90dBA SEL footprint. ...

85. The Secretary of State has decided that the 90dBA SEL footprint is an appropriate footprint which represents a good indicator of the vicinity in which the probability of sleep disturbance from aircraft noise events becomes significant. The footprint boundaries were provided in the stage 2 consultation paper."

19.The claimants complain that the night flying restrictions contained in the document incorporate the defects identified in grounds 1 and 2 of this challenge (see above) and submit that the regime announced by the defendant does not therefore "bear down on night noise", in breach of the policy in the White Paper. That complaint is based upon the fallacious premise that to "bear down on" is to be equated with to "reduce the impact of". Whether or not the claimants' grounds 1 and 2 are well founded, the night flying restrictions set out in the document undoubtedly "bear down" on night noise from aircraft as promised in the White Paper. There has therefore been no breach of policy as alleged in ground 3. For the sake of completeness it should be noted that the claimants did not contend that there was any breach of a legitimate expectation on the basis of their "purposive interpretation" of the policy in paragraph 3.12 of the White Paper. The hopes of the claimants, and of many others, may have been raised by the White Paper, but whatever the claimants' understanding may have been when the White Paper was published in 2003, the manner in which the defendant proposed to "bear down" on night noise was clearly set out in the Stage 2 Consultation Paper (see above). Those who considered that the environmental objectives and the noiseabatement objectives therein proposed were an inadequate response to the problem had ample opportunity to make representations to the Department for Transport to that effect.

20.For these reasons I reject ground 1.

Hatton

21.Before considering grounds 1 and 2 it is helpful to refer to the decision of the Grand Chamber of the European Court of Human Rights in the Hatton case. The court said in paragraphs 98 and 99 of its judgment:

"98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see the abovementioned Powell and Rayner judgment, § 41 and the abovementioned López Ostra judgment, § 51).

99. The Court considers that in a case such as the present, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the Government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decisionmaking process to ensure that due weight has been accorded to the interests of the individual."

22.Having said that there were conflicting views as to the margin of appreciation which the State must be allowed on the substantive issue, the court said in paragraph 103 that the conflict could be reconciled only by reference to the context of a particular case. Having said that it was legitimate for the Government to have taken economic considerations into account in shaping the 1993 night flying restrictions (paragraph 121), the court said in paragraphs 122124:

"122. The Court must consider whether the Government can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above) [i.e. a wide margin of appreciation].

123. ... whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.