Judicial Review of National Policy Statement – Transcript of the presentation of Neil Spurrier.

                                                  Thursday, 14 March 2019

              (10.15 am)

              LORD JUSTICE HICKINBOTTOM:  Yes, Mr Spurrier.

              MR SPURRIER:  Thank you very much, my Lords.  Good morning.

                  If I may, I have one hour, my Lords, and what I would

                  like to address you on is a couple of preliminary points

                  that are set out in my skeleton argument, which is at

                  page 97 of volume 10, tab 7 of your bundles.


             MR SPURRIER:  Then I would like to address you on one more

                 point on air quality.  One more point on noise, and in

                 particular night noise.  If I have time, then I’ll

                 briefly address you on one point on climate change and

                 then bias, if that is acceptable, my Lord.

             LORD JUSTICE HICKINBOTTOM:  Yes, thank you very much indeed.

             MR SPURRIER:  First of all, we have had a considerable

                 discussion over whether this should be DCO or ANPS, and

                 the Hillingdon claimants have made substantial

                 submissions on this.  I would just like to record my

                 position is that it is entirely right and proper that

                 due consideration should be given in the ANPS of whether

                 expansion of Heathrow is or is not sustainable.  This is

                 particularly so for air quality, noise and climate


                     In my submission, the Secretary of State and the

                 ANPS must, as set out in section 10(2) of the

                 Planning Act, in exercising those functions, do so with

                 the objective of contributing to the achievement of

                 sustainable development.

                     I think Mr Wolfe took you through the national

                 planning structure of what sustainable development might



             MR SPURRIER:  So, my submission, my Lords, is that if the

                 ANPS can’t fulfil that on its face, then it should fall.

                     I hope that I am going to be able to contribute

                 towards showing that it is in problems on that.

                     I would just mention that the DCO process has

                 already started.  If you look at the national planning

                 inspectorate national infrastructure website, there are

                 already 13 pre-DCO documents on there.

                     The other point I would just make is Article IX, and

                 I am not sure what the Secretary of State’s position is.

                 The Secretary of State had said that he considered that

                 my application was so infected by Article IX that it

                 shouldn’t proceed.

                     I submit, obviously, that it is not and that I have

                 come to an agreement with the speaker’s counsel on what

                 portions — which are not large — should be deleted,

                 and they have been deleted.  Parliamentary privilege is

                 for the benefit of Parliament, so I am hoping that that

                 might be the end of that and I don’t need to say

                 anything more on that.

                     Now, if I may, I won’t take the matters in the order

                 in my skeleton because I think some are more important,

                 and I would like to take the most important first.  If

                 I may deal with what I consider the most important,

                 which is air quality, which is grounds 4 and 5 of my


                     Now, the Hillingdon claimants have dealt with much

                 of this and Mr Jaffey has explained, at length, and

                 submitted at length on the law and on the possible

                 emissions from surface access.  Obviously, I won’t —

                 and I don’t want to and I wouldn’t presume to — go

                 across that again, save to say that I absolutely support

                 what he said, as I know do many of my friends and


                     But I would like to address you, my Lords, on the

                 emissions from the aircraft themselves.

                     It is, as I understand it, my Lords, the Secretary

                 of State’s case that they have little effect and,

                 indeed, Heathrow themselves have stated in meetings with

                 us that they don’t have effect.

                     Now, the government position was set out in the

                 Jacobs report, at paragraph 3.2, and I will just give

                 you the reference, which is volume 7, tab 6, at

                 page 241.

                     That position is also confirmed by Ursula Stevenson,

                 who is in paragraph 3.163 of her first witness

                 statement, at volume 4, tab 3, page 429, and

                 Caroline Low, in her first witness statement, has also

                 confirmed this at paragraph 422.  That is volume 4,

                 tab 1, page 173.  In which she says:

                     “Where the AOS provides estimates of population

                 affected by worse air quality, this is based on the

                 population within the 2-kilometre study area identified

                 by the Airports Commission.”


             MR SPURRIER:  Now, I say that it is fundamentally wrong to

                 confine the study area for Heathrow expansion to

                 encompass just a 2-kilometre radius round the boundary

                 of the intended expanded airport.

                     The Secretary of State appears to make light of this

                 part of my claim.  He says, in his skeleton argument,

                 that “much ink has been spilt” on this.

                     I am sorry, but I come back, my Lords, to say that

                 bad air quality, below the required legal standards,

                 spills a lot more than just ink.  I will hopefully show,

                 from some of the gruesome statistics, which I’ll come to

in the report from the Royal College of Physicians.    If I am correct, that is, that there are substantial

                 emissions from planes — and I will come to three

                 studies that I say show that there are — then it is not

                 just the immediate health consequences, but many other

                 analysis that become infected with this error; thus the

                 WebTAG costings, which include the effects on people of

                 the proposed expansion.  They are likely to be incorrect

                 because of the absence of consideration of the

                 population upon unassessed parts of that population.

                 The appraisal of sustainability is inaccurate because of

                 the absence of consideration of a much greater area than

                 studied, and the health impact analysis is inaccurate

                 because of this; because it has not studied a wide

                 enough area, and the list goes on.

                     I emphasise that the consequences, if found to be

                 likely — if you consider them likely, my Lords — will

                 cause breaches of the current law, and that is the basis

                 of this ground.  I am not asking the court to look at

                 the merits, but I am asking the court to look at whether

                 breaches of the law will or will not occur and what

                 those consequences might be.

                     Learned counsel, Mr Jaffey, has already referred you

                 to the risk of non-compliance being high, defined as

                 over 80 per cent by WSP.  So, it is no small thing this,

                 my Lords.

                     I will come, if I may, to the works DEFRA have

                 referred to, and I will just clarify, the terms that

                 I am using, and I am talking about are — when I say

                 emissions, I am talking about nitrogen dioxide and

                 particulates.  Particulates, I am classifying into three

                 types.  We have PM10s, which are defined in the EU

                 regulations of 2008 50.  I have set these out in my

                 skeleton argument, but basically these are

                 10 micrometres, and a micrometre being 1 millionth of

                 a metre.

                     There is PM2.5s, which are much smaller, which are

                 2.5 micrometres, and there are these things called

                 “ultrafine particles”, which are 0.1 micrometres or 100


                     Now, I have set out in my skeleton, my Lords, the

                 definitions of these, and I will just take PM2.5s.

                 These are particulant matter, which passes through

                 a size selective inlet, as defined in the reference

                 method for sampling and measurement of PM2.5, and then

                 there is a specification number with a 50 per cent cut

                 off rate.

                     I am not a technical person, my Lord, but my

                 understanding of that — and I have no doubt that the

                 Secretary of State or Mr Maurici will correct me in due

                 course if I’m wrong — but basically my understanding is

                 that is a filter, and anything less than 2.5 which

                 succeeds to go through a filter is a PM2.5.  So, by

                 definition, an ultrafine particle is a PM2.5, although

                 it is given its own classification.

                     Now, if I could go to volume 4, tab 2, page 305,

                 Caroline Low.  That is Caroline Low’s witness statement

                 and, at paragraph 14, page 311, Caroline Low says:

                     “As shown above, the concentration of pollutants

                 decreases quickly as you move away from the POE [and

                 that is point of emission, I imagine].  This effect is

                 so pointed that the search presented by DEFRA found that

                 aircraft emissions produced above 100 metres altitude

                 have almost no impact on the ground level concentration.

                     “Two thirds of emissions from the landing and take

                 off cycle occur above 100 metres, and therefore two

                 thirds of the aircraft emissions have a negligible

                 impact on human health.”

                     She then refers to a report of DEFRA produced in

                 2004 called:

                     “Nitrogen dioxide in the UK.”

                     That report, I say, my Lords, is outdated and has

                 been superseded by the later research that I am going to

                 refer to, with the ultrafine particles.

                     Similarly, Ursula Stevenson, in her witness

                  statement says — and that is also at volume 4, tab 3,

                  page 429 — at paragraph 3.165 she says:

                      “The 2-kilometre study area was appropriate to

                  evaluate both the maximum impact of airport expansion on

                  any receptor and to evaluate the change and exposure to

                  air pollution for the purposes of the AOS in the context

                  of human health.  The impacts of both air-side and in

                  air activities, and surface access, decrease with

                  distance from the airports due to the dispersion of

                 emissions and the dispersion of the airport related

                 traffic.  This is illustrated in figures 5.7 and 5.8 in

                 the first appendix of the AC’s Module 6 Air Quality


                     I would say I never succeeded in finding those

                 figures, my Lord, but I don’t think anything turns on

                 that.  Basically, Ursula Stevenson, as I understand it,

                 is saying that most of the harm, if there is going to be

                 any harm, is going to occur within the 2-kilometre


                     The report from DEFRA on the ultrafine particles —

                 which I would like to refer you to, my Lords, if

                 I may — is at volume 13, tab 7, page 75.  I probably

                 included, rather unnecessarily, the Roman numeral

                 introductions.  But, in my excerpts, the main text

                 starts at page 10, which is the executive summary, which

                  is at page 86 of the bundle.

                      That gives a definition of the ultrafine particles,

                  which are defined:

                      “Those are with one dimension less than 100

                  nanometres.  They are therefore the smallest group of

                  particles in the atmosphere and comprise a minor

                  component of PM 2.5 and PM 10.  However, their

                  contribution to particle mass is generally very small.

                  They typically contribute the greatest number of

                 particles per unit and volume relative to the number of

                 particles present.

                     “UFPs are both primary and secondary.”

                     The third paragraph:

                     “UFPs are believed to contribute to the toxicity of

                 the air borne particulate matter, but the magnitude of

                 their contribution is currently unclear.  While it is

                 possible that their small size and large surface area

                 may make them particularly harmful to health, the

                 available evidence is limited and, as yet, no air

                 quality guideline has been set for their concentration.”

                     So, things are a bit uncertain at the moment, but

                 there is a possibility of considerable harm, and I’ll

                 come on to this shortly.

                     Over the page, to page 11, “Abatement”:

                     “Policies and actions to control ambientPM2.5s

                 and PM 10 will not always control UFPs.

                     “There are no emissions standards for UFP other than

                 for diesel and gasoline direct injection engine road

                 vehicles, which must meet a type approval standard …

                 some of the technologies routinely used by industry for

                 abatement of particulate matter emissions are efficient

                 for the removal of UFP.”

                     And then for instance there.

                     Then the recommendations, just beneath that.  The

                 third sentence:

                     “It is insufficient to determine exposure from

                 poorly understood UFP emission sources, such as airports

                 and shipping/ports, and also the way in which existing

                 policies to reduce PM 10 andPM2.5s are affecting UFP


                    Then, if I may, my Lords, go on to 1.5, which is

                 page 18 of the document.

             LORD JUSTICE HICKINBOTTOM:  Could you just help me with one

                 thing, what is the date of this document?

             MR SPURRIER:  The date of this document is 2018 and it comes

                 out just slightly after the national policy statement.

                 But, my Lords, first of all, it is a government

                document, so I would say that the contents must have

                 been known, certainly ought to have been known, prior to

                 the ANPS.  The studies upon which it is based are well

                before the ANPS.  They are — and I’ll come to the

                 Hudda, Keuken and Riley studies and they are from 2014

                 and 2016.

             LORD JUSTICE HICKINBOTTOM:  So, what’s the public law

                 error —

             MR SPURRIER:  What I say.

             LORD JUSTICE HICKINBOTTOM:  — that you say arises out of


             MR SPURRIER:  The public law error, my Lord, is, firstly,

                 Heathrow operates in an area which is in breach of the

                 air quality regulations.  The air quality in the London

                 boroughs — in none of the London boroughs, is my

                 understanding, is scheduled to comply until well after

                 2021.  So, any increase in emissions is going to cause

                 a further breach of the law.  We already have an

                 estimate, or a forecast, that if Heathrow is allowed to

                 expand there is an 80 per cent chance of there being

                 a further breach in 2026.  High.  Mr Jaffey addressed

                 you on that.

                     From what I am saying, my Lords, that 80 per cent

                 may be low because there is a whole area that simply has

                 not been assessed.

             MR JUSTICE HOLGATE:  The ultrafine particulates?

             MR SPURRIER:  The ultrafine particulates, and it should have

                 been assessed.  But the Hudda study, my Lords —

           MR JUSTICE HOLGATE:  Sorry to interrupt, but coming back to

                 my Lord’s question, I can’t remember offhand whether the

                 Air Quality Directive has a limit for ultrafine

                 particulates as opposed to PM 10.

             MR SPURRIER:  No, it is different, my Lord.

             MR JUSTICE HOLGATE:  Does it have a limit at all?

             MR SPURRIER:  It does.

             MR JUSTICE HOLGATE:  We can look at it then.

             MR SPURRIER:  It has 20 at 2020.

             MR JUSTICE HOLGATE:  We can look it up, don’t worry.

             MR SPURRIER:  Yes, there is a target reduction, if I can put

                 it that way, my Lord.

             MR JUSTICE HOLGATE:  So, it is not a limit value then?

             MR SPURRIER:  The limit value is 20 by 2020.

             MR JUSTICE HOLGATE:  For ultrafine?

             MR SPURRIER:  No, forPM2.5.

             MR JUSTICE HOLGATE:  That is why I asked the question.

             MR SPURRIER:  I am sorry, my Lord.  There is nothing

                 specific for ultrafine, but ultrafine — what I am

                 saying, my Lords, is that ultrafine is part ofPM2.5.

             MR JUSTICE HOLGATE:  I have grasped that, yes.

             MR SPURRIER:  Thank you very much, my Lords.

                     Shall I continue, my Lords?

             MR JUSTICE HOLGATE:  Sorry, I didn’t mean to …

             MR SPURRIER:  No.  Have I answered my Lord’s question

                  about —

              MR JUSTICE HOLGATE:  Yes, you have.  Thank you very much.

              MR SPURRIER:  If we go on to page 18 of — that’s the page

                  number of the documents, my Lords.  I am sorry, it is

                  not the page number of the bundle.  Section 1.5, “Health


                      “ultrafine particles penetrate deep into the

                  respiratory system, allowing interactions with lung

                  tissue and potential translocation into the


                    I’ll mention, my Lords, that there is a report now

                 from Queen Mary’s Hospital, which shows that this

                 actually does happen.

                     “This together with the hypothesis that the toxicity

                 of particulate matter is governed by the surface area of

                 the particulates, rather than their mass, has led to

                 suggestions that ultrafine particles may be particularly

                 harmful to health.”

                     HEI, that is the Health Effects Institute 2013.

                     “Recent authoritative reviews have noted that few

                 epidemiological studies investigating concentration

                 effect relationships of UFP are available, because of

                 insufficient measurements of UFP.  The World Health

                 Organisation concluded that epidemiological data are

                 currently too scarce to evaluate or to use as a basis of

                 recommending an air quality guidance specifically for


                     “Nonetheless, in the light of evidence that UFP act

                 (in part) through mechanisms and not shared with larger

                 particles, and can contribute to the health effects

                 of PM, they recommended that efforts to reduce the

                 numbers of UFP in engine emissions should continue.”

                     That is the WHO of 2013.

                     It carries on.

                     If I could take you then over the page, to page 67

                 of the document.  I think that is over the page in

                 selection that I copied.  It’s section 4.4:

                     “UFP from aviation and shipping.”

                     If I can go to the third paragraph, second paragraph

                 reports the study of Hudda, which I am coming to, and

                then Riley.

                     If we look at the penultimate sentence of the third

                 paragraph, it says:

                     “The implications of this work

[that was Riley]


                 potentially important for exposure to UFP

                concentrations.  For example, a location such as

                 Heathrow Airport, where aircraft tend to approach the

                 airport from the east (flying over the London

                 conurbation), there is potential for considerable

                 exposure to UFP from aircraft.  It should be stressed,

                 however, that there are no measurements of UFP upwind of

                 Heathrow to confirm whether elevated UFP concentrations

                  can be detected due to landing aircraft.”

                      Perhaps I could just pause there, my Lords, and say

                  that, typically, the prevailing wind blows from the west

                  to the east, about 65 to 70 per cent of the time.  The

                  other 35 per cent, it blows the other way.  So, the

                  potential for exposure exists more to the east, which is

                  over most of London, but it does also affect the

                 residents to the west, as well.

                    Now, at page 99 of your bundles, if I may, I am

                 coming off the DEFRA report.  There is a report from

                 Queen Mary’s research university and, at the bottom of

                 page 99 — I think it is 99 of your bundles, my Lords —


                    “First evidence that inhaled pollution particles

                 move to the placenta.  Team studied a total of 3,200

                 placental macrophage cells from five placentas and

                 examined them under high powered microscope.  They found

                 60 cells that between them contained 72 small black

                 areas that researchers believed were carbon

                 particles …”

                     They went on to study.

                     Now, that is, I think, the first substantial

                 indication that ultrafine particles are passed on to the

               next generation.

                    My Lords, if I could just briefly go back to the

                  second witness statement of Caroline Low, at page 321,

                  paragraph 35:

                      “Mr Spurrier references research ‘endorsed’ by

                  DEFRA’s air quality expert group that appears to show

                  that dispersion of particulates occurs over a wide area

                  and that therefore the study area drawn from the air

                  quality modelling is too narrow.

                    “While DEFRA’s report does reference these studies,

                 it in no way endorses them.  The research DEFRA

                 highlights is in respect of UFP, a form of particulate

                 matter emitted from aircraft.  Unlike NOx and

                 particulate matter UFP are not currently the basis of

                 air quality legislation and are not the subject of air

                 quality modelling.

                     “As DEFRA’s full report notes, the evidence base for

                 UFPs is not as well defined as other pollutants and

                 Mr Spurrier is incorrect to apply its findings to the

                 dispersal of NO2.  For example, DEFRA’s air quality

                 expert group in their latest report still maintain that

                 aviation emissions above 100 metres have little impact

                 on ground level concentrations.”

                     I have to say, my Lord, I have searched the DEFRA’s

                 air quality expert group report and I have found no

               indication whatsoever of that last statement.  Indeed,

                  the passage I have just read out to you shows that they

                  do have an effect.

                      I think my Lords, it was my friend Mr Crosland,

                  yesterday, who made the point — I think in connection

                  with climate change — that if you don’t know what the

                  answer is, the answer is not nought.

              LORD JUSTICE HICKINBOTTOM:  Do you accept the last part of

                  the sentence in the last part of paragraph 36:

                     “UFP are not currently the basis of air quality

                 legislation and not the subject of air quality


             MR SPURRIER:  As far as there’s not — subject to the air

                 quality modelling, my Lord, I am not equipped to say

                 that, but I assume the answer to that is: yes, I do

                 accept that.

                    As far as the “not the subject of air quality

                 legislation”, no, my Lords, I don’t accept that because

                 they are the subject ofPM2.5.

             MR JUSTICE HOLGATE:  Because they are smaller than 2.5?

             MR SPURRIER:  They are smaller than 2.5 and they travel

                 through the filter of 2.5.  They are therefore included

                 in 2.5 and, with that in mind, the harm they cause,

                 my Lords, is within at least the ambit of the current

                 legislation.  One may say that it would be desirable to

                  have specific rules and regulations on UFPs, but I would

                  say (a) they arePM2.5s —

              MR JUSTICE HOLGATE:  Or anything smaller than 2.5 microns,

                  something even smaller than UFP would be, too.

              MR SPURRIER:  Is a PM 2.5.  Yes, my Lords.  I would say (b),

                  that as far as the assessment of sustainability is

                  concerned, they must be relevant because they are now

                  being — we have evidence that they are being passed on

                  to next generation.

             LORD JUSTICE HICKINBOTTOM:  What’s that evidence?

             MR SPURRIER:  That is the report, my Lords, of Queen Mary’s


             LORD JUSTICE HICKINBOTTOM:  That didn’t say that.

             MR SPURRIER:  Yes, it did.

             LORD JUSTICE HICKINBOTTOM:  Firstly, it is a press release,

                 isn’t it?

                     Secondly, there was no — I think this is right,

                 correct me if I’m wrong — evidence in that press

                 release that the particles pass through the placenta to

                 the foetus.  It may be that nobody knows, but there was

                 no evidence that it did.

            MR SPURRIER:  Well, no, I suppose it doesn’t say that,

                 my Lord.

             LORD JUSTICE HICKINBOTTOM:  No, I am sorry, it does say

                that.  It says positively there is no evidence that it

                 passes through to the foetus.  I mean, I accept that it

                 may be a matter of some scientific concern, but there is

                 no evidence.

             MR SPURRIER:  Yes, but, my Lords, we come back to the point

                 that if you don’t know the answer, the answer is not


             LORD JUSTICE HICKINBOTTOM:  The answer to what?  What’s the


              MR SPURRIER:  The question, in this instance, my Lord, was

                 whether (a) whether these particulates do any harm —

                 and I’ll come to you to show you that they do — and

                 (b), as to whether they are going to be passed on to the

                 next generation.


             MR JUSTICE HOLGATE:  But, in terms of the law —

                 I understand your point that by definition they are

                 smaller than 2.5-microns, but there isn’t a separate

                 legal control for particles as small as this or even

                 smaller than.

             MR SPURRIER:  That is correct, my Lords, yes.  But we still

                 have the sustainability point.

                     Thank you very much, my Lords.

                     Now, if I could come to the research studies.

                 I don’t want to spend too much time on this, my Lords

                 but if I could take you to the abstracts because they do

                show that these plane exhaust particulates spread at

                least 20 kilometres and maybe even 40 kilometres


                      The Hudda report, my Lord, is at volume 13, tab 2,

                  page 21.

              LORD JUSTICE HICKINBOTTOM:  So, what page, Mr Spurrier?

              MR SPURRIER:  It is page 21, my Lords.

              LORD JUSTICE HICKINBOTTOM:  Yes.  Page 21 in the bundle?

              MR SPURRIER:  Correct.  It is headed up:

                     “Environmental science and technology.”

                    This is a report of 2014.  The abstract, which has

                 a little map at the side of it, says:

                     “We measured the spatial pattern of particle number

                 [PM] concentrations downwind from Los Angeles

                 International Airport with an instrumented vehicle that

                 enabled us to cover larger areas than allowed by

                 traditional stationary measurements.”

                     Then the next sentence:

                     “We measured at least a twofold increase in PM

                 concentrations over unimpacted baseline PM

                 concentrations during most hours of the day in an area

                 of about 60 square kilometres that extended to

                 16 kilometres downwind, and a 4 to 5 fold increase to 8

                 to 10 kilometres downwind.”

                     By the side of it, you have a particle number

                 concentration, normal, 1 and a half times normal, 2 to

                  4, 4 to 6 and 6 to 8.

                      If you go over the page, my Lords, to figure 6, it

                  is page 6633 of their numbering.  I don’t have the

                  bundle numbering, my Lords.  It is 26.


              MR SPURRIER:  On the left-hand side, it says, “Other


                      “Over large areas downwind of LAX, concentrations of

                 pollutants other than PM were also elevated, figures

                 5(a) to (c) [and I will come to those in a minute] show

                 nearly indistinguishable spatial patterns of PM BC [that

                 is black carbon] and NO2 concentration measured

                 simultaneously at distances of 9.5 to 12 kilometres from

                 LAX.  This suggests a common source for these

                 pollutants …”

                     The figures 5(a) to (c) are just above that.  So,

                 here we have, my Lords, a study that is primarily on

                 particulates, but also did measure nitrogen dioxide,

                 which is clearly very much within the EU Regulations

                 2008 50.

                     In 2016, there was a study in Amsterdam by Keuken et

                 al.  That is at page 29 of volume 13.

             LORD JUSTICE HICKINBOTTOM:  I have one eye on the clock,

                 Mr Spurrier.

            MR SPURRIER:  Yes, I am conscious.

             LORD JUSTICE HICKINBOTTOM:  If you give us the references,

                  we can look at this, but you say these are references

                  are to research papers which suggest that the spread of

                  UPFs, and you say NO2 as well is —

              MR SPURRIER:  Yes, my Lords, if I could ask my Lords,

                  then — that is very kind of you, my Lords.  If I could

                  ask you to refer to the abstract of Keuken’s report,

                  which is on page 29, and then at page 37 of your bundle,

                 there are maps showing the spread because in that survey

                 they found elevated levels at 40 kilometres away from



             MR SPURRIER:  If I could then also refer you to page 65 of

                 the bundle, same bundle, and the abstract, I have only

                 given you the abstract in this from Riley’s report.

                 They put transacts of between 5 and 10 kilometres.


             MR SPURRIER:  If I could also then, my Lords — I am sorry

                 to gallop through this — refer you to Royal College of

                 Physicians report 2016, which is tab 4, pages 41 to 64.

                 We have the definitions at (xviii).  At page standard

                 Arabic number 18, and pages 81 and 82, they have the


             LORD JUSTICE HICKINBOTTOM:  I am sorry, page?

            MR SPURRIER:  It is 81 of that document, my Lords.

            LORD JUSTICE HICKINBOTTOM:  Internal pagination, which in

                  our bundle is 63.  Thank you.

              MR SPURRIER:  Yes, thank you very much, my Lord.

                      Down at the bottom, there is a table COMEAP which is

                  the specialist medical organisation that reports to the

                  government, and those are the figures that they give.

                  PM2.5 exposure.  There is no distinction.  I can’t tell

                  you, my Lords, what the distinction between ultrafine

                 particles andPM2.5’s responsibility.  But, as you will

                 see, the mortality in the UK of number of attributable

                 deaths is nearly 29,000.  I mean it is really grisly.

                     We have the government, and the DfT, and

                 Caroline Low saying to you in a witness statement that

                 they haven’t measured them, we haven’t any rules for

                 them.  In effect, I am interpreting that to be the

                 answer is nought, which of course is the very point that

                 my friend Mr Crosland was making.


             MR SPURRIER:  I’ll also mention that surely must go against

                 the precautionary principle that we have been taken

                 through at length, both yesterday and the day before



             MR SPURRIER:  Thank you very much, my Lord.  If I may,

                 I will then move on to noise.


              MR SPURRIER:  Mr Pleming took you through, in detail, the

                  noise, the noise levels, of the 51 dB LOAEL and the 54

                  dB LOAEL, and what happens between those two levels.

                  I won’t go over that again, my Lords, because that is —

                  I couldn’t explain that as well, anyway.

                      But I would like to put to you, my Lords, that even

                  51 is hugely greater than the World Health Organisation


                    It has been made plain that the World Health

                 Organisation guidelines are guidelines only, but I would

                 like to put this: according to the government’s own

                 analysis, the number of people newly affected by noise

                 will be 2.2 million.  This is shown by the worksheets,

                 and they are in volume 12, my Lord, page 3, at page 117.

             LORD JUSTICE HICKINBOTTOM:  Volume 12?

             MR SPURRIER:  12, page 117, yes, my Lords.

             LORD JUSTICE HICKINBOTTOM:  Thank you.

             MR SPURRIER:  This is an extract of the DfT’s worksheet.  In

                 the bottom box of figures, which is the third box from

                the bottom:

                    “Households experiencing increased daytime noise in

                 the forecast year: 972,957.”

                     That is households.  So, if you put the average

               household as having 2.3 people, that gets you to over

                  2.2 million.

                      The government’s argument — because they put this

                  in their defence to me — is: yes, but wait a minute,

                  you have households expecting a reduced daytime noise in

                  the forecast year of 673,784, so it is not 2.2 million.

                      But, my Lords, the small print is “forecast year”.

                      Over the page, my Lord, at page 118, the forecast

                  year is 2060.  Heathrow is intended to be fully

                 operational by 2026.  So, between 2026 and 2060 you are

                 going to have either 2.3 million, or 2.3 million

                 reducing by whatever technology produces.

                     The government has never explained, my Lords, how

                 putting an airport the size of Gatwick as a bolt on to

                 Heathrow, you actually reduce noise and get 673,784

                 households suffering less noise.  I can only assume that

                 that is hoped for technology improvements.  But, as

                 I have explained in my skeleton argument, my Lords, that

                 even with the draft documents on the Aviation Strategy

                 Consultation of 2050, that is put into doubt because of

                 the likely future design of jet engines.

                     One of the reports there is that the current design

                 of turbo fan engine is probably coming to the limit of

                 its ability to reduce emissions.  One would have to go

                 to a new design, which they refer to as an “open rotor”.

                  It allows the fuel — I’m not a scientist, my Lord — to

                  burn at a higher temperature to reduce emissions, but it

                  will be noisier.  So, reduced noise is up in the air and

                  we are crystal ball gazing.

                      These figures are also cast in doubt because, at

                  page 120, there is an email exchange between the CAA and

                  the DfT.

              MR JUSTICE HOLGATE:  Those look to be CAA figures, the ones

                  we have just looked at.

             MR SPURRIER:  They probably are, my Lords, yes.  They came

                 under a Freedom of Information Act question posed by one

                 of our members of the Teddington action group.

             MR JUSTICE HOLGATE:  Look at page 120.

             MR SPURRIER:  This is correspondence between the CAA and the

                 DfT, the DfT asking the CAA to produce some figures and,

                 down at the bottom, my Lords, the start of the email at

                 the bottom, 14 September:

                     “I feared this might come up.  No contours have been

                 produced for minimise newly affected and maximise

                 respite, only minimise total.  My understanding is that

                 these were dropped as the number of scenarios was too

                 high to complete by the end of August.”

                     If I could refer you to the Airports Commission map,

                 I will just show you what minimise total is, my Lords,

                 which is at volume 11, page 345.

                 The minimise total is an entirely theoretical

                  principle.  Flights are, in theory, directed over the

                  minimum number of people — and Mr Lotinga refers to

                  this and I’ll come to his witness statement in

                  a minute — but you can see that, for example, coming in                       from the east side, aircraft fly over Richmond Park and

                  then turn left over Hounslow, to come into Heathrow.

                      Coming in from the east on the north side, they come

                  to the north of Westminster, go to the north of

                 Brentford, turn left over Osterley Park, and then come

                 into Heathrow.

                     They don’t in fact, do that.  They come in straight.

                 They need a straight approach.

                     These are, I believe the term is “indicative” flight

                 paths done for a comparative purpose.  But, of course,

                 if you compare this at Heathrow with, say — and I am

                 not advocating expansion at Gatwick, but if you compare

                 it to Gatwick, the differences are enormous.  I mean,

                 Heathrow planes fly over a heavily populated urban area,

                 and Gatwick is much less populated.  So, it is not

                 a fair comparison, but that is what has been done,

                 my Lords, in the figures.

                     Now, if I could just come back to the World Health

                 Organisation.  Mr Lotinga, in his first witness

                 statement, says that the WHO guidelines are to be

                 informative for developing policies.  He appears to seek

                 to reduce the significance of the WHO and where he says

                 that they should be interpreted as “representing

                 potential LOAELs”.  That is lowest observed adverse

                 effect levels.

                     To quote paragraph 444 of his witness statement:

                     “Do not represent legal objectives.”

                     Now, I say that may well be, but if they are not

                 achieved, what are they there for?

                     He refers to the modelling that he’s used to carry

                 out his assessment, which is based on a survey called

                 “SoNA”, which was referred to earlier on by Mr Pleming,

                 my Lords.  The SoNA, Mr Lotinga — in fact he was

                 responding here to Councillor Hilton.  He said:

                     “It is based on evidence from a controlled study of

                 a much larger sample of people in the UK exposed to

                 aviation noise, ie from the SoNA research, than the

                 localised uncontrolled evidence documented in

                 Councillor Hilton’s statement.”

                    That was Councillor Hilton’s statement in support of

                 the Hillingdon claim, my Lords.

                     I strongly suspect, my Lords — it is my opinion —

                 that Councillor Hilton knows very much more about the

                 noise in the community than does Mr Lotinga.

                     The SoNA project is of quite poor quality.  In

                  contrast to the WHO, the SoNA research has no research

                  institute input, has no medical examination, it had just

                  2000 respondents and was solely a questionnaire drawn up

                  with the assistance of Ipsos MORI.  The majority of

                  respondents were around Heathrow and suffered noise

                  above 54 LAeq with 100 per cent above 51.  That is well

                  above the WHO recommended level.

                      I only have five minutes, my Lords.  If I may,

                  I will take you to the WHO light noise guidelines, which

                 is at volume 13, tab 1, page 1.  If I could take you to

                 the abstract of that, which is the internal — it is

                 page 7, I think, of the bundle.  The internal numbering

                 is (vi) at the top, and I think it is page 7.

                    The second paragraph:

                     “Considering the scientific evidence on the

                 thresholds of night noise exposure, indicated by L night

                 outside, as defined in the Environmental Noise

                 Directive … an L night outside of 40-decibels should

                 be the target of the night noise guideline to protect

                 the public, including the most vulnerable groups such as

                 children, the chronically ill and the elderly.  L night

                 outside value of 55 is recommended as an interim target

                 for countries where the night noise guideline cannot be

                 achieved in the short term …”

                     Over the page, on the sleep time.  This is a 2009

               research report, my Lords.  It is well, well before the


                      “Average time of adult people in bed is around

                  7.5 hours, so the real average sleeping time is somewhat

                  shorter.  Due to personal factors like age and genetic

                  make up, there is considerable variation in sleeping

                  time, for these reasons a fixed interval of 8 hours is a

                  minimal choice –“

              MR JUSTICE HOLGATE:  Can I just ask a question?  You are

                 comparing this to the 54 LAeq parameter.

             MR SPURRIER:  Yes.

             MR JUSTICE HOLGATE:  That is a 16-hour parameter, is it not?

             MR SPURRIER:  That is correct, my Lord.

             MR JUSTICE HOLGATE:  It excludes night time, doesn’t it?

             MR SPURRIER:  Yes, because night time, my Lords, starts

                 at 11.00 and finishes at 7.00.

             MR JUSTICE HOLGATE:  These are sleep disturbance criteria

                 for night —

             MR SPURRIER:  Indeed, my Lord, yes.

                     “Though the results …”

                     The next paragraph, still under “Sleep times” at the

                 bottom of this page:

                     “Though results vary from one country to another,

                 data shows that an 8-hour interval protects around

                 50 per cent of the population, and that it would take

               a period of 10 hours to protect 80 per cent.”

                      We are being offered, my Lords, 6.5 hours on

                  scheduled flights, so that is not 6.5 hours curfew.

                      Then, the next page, internal numbering (xi), “Noise

                  sleep and health”:

                      “There is plenty of evidence that sleep is

                  a biological necessity and disturbed sleep is associated

                  with a number of health problems.”

                      There is then a chart, my Lord, in the executive

                 summary at (xiii), which I think is page 11 in the

                 bundle, my Lords, which shows when the quality of sleep

                 is disturbed.

                     If I could just mention, over the page, (xiv),

                 table 2, medical conditions.  Myocardial infarction,

                 that is liability to have heart attacks.  That is at

                 50 decibels.  The night time recommendation in the SoNA

                 and the government report is 51.

                     If I may make a point for just two minutes on two

                 things — one minute.

                     Health impact analysis.  It is part of the

                 government’s defence that a health impact analysis has

                 been carried out.  I would point out, my Lords, that the

                 health impact analysis is not the same as a health

                 impact assessment.  I think this is in — it was

                 a document I handed in, and I am afraid I can’t lay my

               hands on it for the minute.  But it was handed in and

                  I think it is in your bundles, my Lords.

              LORD JUSTICE HICKINBOTTOM:  Volume 12, page 536.1.

              MR SPURRIER:  That’s it, thank you very much, my Lords.

                      It does confirm that a full health impact assessment

                  is going to be required, and the executive summary of

                  that, on internal numbering, page 1:

                      “As the shortlisted scheme plans and baseline

                  information supplied by the Airports Commission were

                 limited in their detail, this assessment has been

                 limited to considering the impacts of each shortlisted

                 scheme.  Collection review of additional baseline

                 identified vulnerable groups of supporting information

                 has been limited to the district level or above.”

                     Then, finally, at 136, on internal page 4:

                     “A project specific health impact assessment should

                 be undertaken.”

                     So, we don’t know yet what the health impacts are

                 going to be, but of course that may be — the analysis

                 may well be wrong if I am right in my effects about

                 ultrafine particles, my Lord.

                     Finally, my Lord, one minute, if I may, climate

                 change, my Lords.  This has been dealt with more than in

                 detail by both Friends of the Earth and Mr Crosland, but

                 I would submit that in order to have due regard to

               climate change, as is required by 5(8) and 10(2) of the

                  Planning Act, the Secretary of State should have regard

                  to the total emissions, greenhouse gas emissions, that

                  any airport expansion of this nature is going to have.

                  After all, how is one going to say whether expansion

                 elsewhere is going to be possible if the entire budget

                  of greenhouse gas emissions is going to be taken up by

                  expanded airports in the South East?

                      The regions are left with nothing, but yet we know

                 the regions are expanding.  They are expanding now.  It

                 is a free-for-all.

                     So, this hasn’t even been addressed in the national

                 policy statement.  It is all very fine for the Secretary

                 of State to say, “We can expand Heathrow and either

                 achieve a 2-degree target, 1.5-degree target reduction,

                 which we should …”

                     It has been explained in detail yesterday why we

                 need to have that.  But even if Heathrow could do that,

                 where is the assessment of where — or where is the

                 consideration, even, of where this leaves regional


                     It is just not there.

                    I have run out of time, my Lords, and thank you very

                 much indeed for listening.

             LORD JUSTICE HICKINBOTTOM:  Yes, thank you, Mr Spurrier.

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