A number of people have started court proceedings for Judicial Review of the National Policy Statement for airport expansion in the South East.
Neil Spurrier, a member of TAG, has started his own court proceedings for Judicial Review asking for the National Policy Statement to be quashed. The application to the Court has two detailed parts. Firstly a “Statement of Grounds” and then a “Statement of Facts” upon which Neil intends to rely. The Grounds of the Claim are:
It is alleged that designation of the National Policy Statement and decision to recommend expansion of Heathrow:
1) has not followed the required consultation and sustainability procedure under the Planning Act 2008 and in particular the Secretary of State did not consult as required, did not have regard to the responses to the consultation as required, and did not respond correctly to the Transport Committee of the House of Commons as required. The Secretary of State has failed to observe the requirements on sustainable development contained in section 10 Planning Act 2008
The NPS has not taken into account, it is claimed, any of the representations made. Therefore, we see no comment on the LAeq noise metric averaging out noise events. We see no comment on the Lowest Observed Adverse Levels of noise recommended in the advice given to DEFRA. We see no comment on the failure of the UK Government to observe the guidelines on noise exposure set out by the World Health Organisation. We see no comment on proposals for noise reduction. We see no details of flight paths to ascertain who will receive what amounts of noise. We see no comment on or resolution of whether flight paths should be spread out, sharing the noise amongst more people but reducing the number of people substantially affected by noise, or whether flight paths should be concentrated, increasing the number of people substantially affected by noise but reducing overall the total number of people suffering any noise (indeed the numbers of people affected are calculated on a “minimise total” scenario, which would cause an increase in the number of people substantially affected even if it keeps the total number of people affected down). We see no substantive plans for air quality, particularly in view of the past breaches of court orders and the acknowledged worsening of air quality due to the proposed development, or comments or proposals for observing targets for greenhouse gas emissions notwithstanding the representations made by both the public and the Committee on Climate Change. We see no comment on how regional expansion of aviation will occur in conjunction with the NPS scheme, while keeping greenhouse gas emissions within legally binding greenhouse gas emission targets. No due regard has been taken as required – particularly considering the size of the project and its effects upon people on the ground.
There are various recommendations and observations that the Transport Committee of the House of Commons made, which it is claimed the Secretary of State for Transport has not had regard to. TAG set out the claimed failures in this respect on Facebook and Twitter at the time of the response of the Secretary of State. Neil also refers in his claim to the various annexes to the Transport Committee’s Report, the observations made, and the absence of comment on those observations in the NPS. One of the Annexes deals with the strategic case with the Transport Committee saying “If the NWR scheme goes ahead, figures show that in 2030, there would be 74,195 fewer direct international flights per year to and from airports in the non-London regions; this increases to 161,893 by 2050” and “In terms of the total number of long-haul destinations served, the forecasts show that there is little difference across all the expansion scenarios, with the NWR only offering two more destinations than would occur without expansion”
2) Is biased, unjustifiably favours the Heathrow North West Runway, was presented to Parliament without disclosure of the full facts and does not contain the recommendations of Parliament through its Transport Committee
It is claimed that the decision to develop Heathrow by allowing a third runway as recommended by the Airports’ Commission is biased. The Government have confirmed through their lawyers that Sir Howard Davies at the time of his appointment as chairman of the Airports Commission worked for one of Heathrow’s biggest shareholders before resigning on his appointment as chairman. This was not put into the register of conflicts of interest and it was entirely fortuitous that the association or former association was discovered. This is not to say that there was dishonesty. The Government has previously denied dishonesty. It is claimed however, that there is a legal presumption of bias, which should be rebutted by the Secretary of State.
3) Will interfere with the use of people’s property through extra noise and pollution in breach of Article 1 of the First Protocol European Convention on Human Rights
4) Will interfere with family and private lives through unwarranted noise and pollution in breach of Article 8 of the European Convention on Human Rights
The noise levels already suffered are considerably above World Health Organisation recommended limits. In the claim, Neil states that the number of people affected by extra noise will be substantially more than the 92,700 people newly affected by noise at 54dB LAeq,16h in 2030 disclosed by the Government in the Appraisal of Sustainability annexed to the NPS. Expansion will inflict excess suffering upon a larger number of people. Freedom of Information Act documentation shows that the DfT seem to have chosen a lower figure for the number of people, who would be affected by noise. The Government worksheet shows that 972,957 households will suffer more noise directly as a result of the operation of the third runway. Even the Transport Committee of the House of Commons was so concerned about this, that it tweeted on Twitter on the 8th June 2018:
“Over 300,000 people will be newly impacted by significant noise annoyance with a third runway. Our chair @LilianGreenwood believes it is essential MPs are fully informed of the noise impacts ahead of the vote”
The so called night time flight ban does not comply with what the Transport Committee recommended since it is proposed to be only a 6.5 hour nightly ban on scheduled flights. With overruns, this period could be reduced to just 5 hours or less. The Transport Committee recommended an average of 7 hours respite per night – that is an absolute break from flights for an average of 7 hours per night.
5) Will breach the provisions of EU Regulation 2008/50 by increasing the concentration of NO2 and poisonous particulates
These EU Regulations require a maximum amount of hourly and annual emissions of Nitrous Oxides and Particulates, both of which can be very poisonous. The Government has three court orders against it in the Client Earth cases for infringements in London and the expansion of Heathrow would make matters worse. That is confirmed in the Appraisal of Sustainability. On this basis alone, expansion would be unlawful, it is claimed. Detailed research (Kings College at Heathrow and research at both Los Angeles and Schiphol Amsterdam) shows that particulates travel a considerable distance and then settle so that another runway could have a very significant adverse effect on air quality in London. Furthermore evidence just published by DEFRA states that “Measurements of UFP [ultra fine particles] close to airports suggest that aircraft are an important source of UFP that can result in elevated PN [particulate number] concentrations tens of km from airports. Mobile UFP measurements from non-UK locations also suggest that UFP concentrations can be elevated due to landing aircraft. More comprehensive measurements of UFP concentrations close to airports is required to better understand the distribution and magnitude of UFP concentrations in the vicinity of airports.”
6) Will breach the treaty obligations of the Kyoto Protocol, the provisions of the Climate Change Act 2008, and the obligations of the Paris Agreement by increasing the emission of greenhouse gases so that our treaty obligations will not be met
Aviation already is given very substantial dispensation from climate change targets. Everything apart from international aviation and shipping has to reduce its emission of greenhouse gases to 20% of 1990 emissions by the year 2050. Aviation is given a dispensation to keep its emissions at 100% of 2005 levels by the year 2050. That will equate to 37.5MtCO2e by 2050. Even now (according to the information given by the Department for Business Energy and Industrial Strategy), we are likely to breach that target. The Committee on Climate Change has emphasised that while aviation is exempt from the targets, the Country is not – what aviation does not reduce, other areas of industry have to make up. Aviation will take a bigger and bigger proportion of the carbon budget. Most importantly, the UK does not have an aviation strategy so that there is no plan as to where aviation can expand. If aviation is allowed to expand in the South East, it will not be possible to expand aviation in the Regions. There is a positive duty in the Planning Act 2008 for the Secretary of State to have regard to the mitigation of climate change. This, it is claimed, he has not done
7) Will place an unjustifiable burden upon the public purse by pursuing a scheme that will require public funding when it should not require public funding and where there has been a representation that there will be no public funding
The claim questions whether Heathrow can afford the costs of expansion since it may not have the money to pay for expansion without state support – something that the Government has said on a number of occasions that it is not intending to give. The Group Accounts for FGP Topco and the Heathrow companies for the year ending December 2017 show gross assets of £18,304 million with total liabilities of £17,382 million making a net asset holding of just £922 million. The Heathrow group of companies may find it difficult to find £17.6 billion to fund this project when its biggest customer BA has publicly said that it will not pay any greater landing fees. It also represents a liability to assets ratio of some 90% which is far too high to be safe to fund a major infrastructure project such as building a third runway at Heathrow. Taking the profit of £179m shown in the accounts before adjustments, there is a profit ratio to capital which is attractive but is precarious and would be difficult for a commercial investor to substantiate where the borrowing to asset ratio is currently 90%. If there were further borrowing or bonds issue of say £15bn (giving some allowance for Heathrow’s claimed costs reduction) the borrowing to asset ratio could be over 97% assuming that the value of the assets is the same as the amount borrowed ((£17.382bn + £15bn) ÷ (£18.304 + £15bn) = 0.97). It is claimed that some form of State guarantee would be required to guarantee the value of the asset base, so that should debt mount or asset value plummet, the State would step in. The taxpayer, it is claimed, is going to come in for a liability, contrary to representations made. The value of the assets held may not necessarily be their acquisition value, as for example there will be a commitment to pay 125% of the land value to property owners dispossessed. Heathrow Airport Limited could be technically insolvent and could produce a Carillion type situation with the Government having to bail out Heathrow upon its terms or risk having an uncompleted project. No mention of this is made in the NPS or any of the supporting documents other than the statement that the Secretary of State is satisfied that the project is viable. Considerable concern has been expressed that Heathrow will price itself out of favour, considering it is already the most expensive airport in the World in landing fees, charging in the region of £22 per passenger landing fees as against say Gatwick or other international airports charging in the order of £7 per passenger.