Thursday, 14 March 2019
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.
LORD JUSTICE HICKINBOTTOM: Yes.
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
I think Mr Wolfe took you through the national
planning structure of what sustainable development might
LORD JUSTICE HICKINBOTTOM: Yes.
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
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
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.”
LORD JUSTICE HICKINBOTTOM: Yes.
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,
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
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
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
“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
“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
“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
LORD JUSTICE HICKINBOTTOM: So, what’s the public law
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
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
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
They went on to study.
Now, that is, I think, the first substantial
indication that ultrafine particles are passed on to the
My Lords, if I could just briefly go back to the
second witness statement of Caroline Low, at page 321,
“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
“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
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,
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,
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
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
LORD JUSTICE HICKINBOTTOM: Yes.
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
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,
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.
LORD JUSTICE HICKINBOTTOM: Yes.
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
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
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: 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
LORD JUSTICE HICKINBOTTOM: Yes.
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.
LORD JUSTICE HICKINBOTTOM: Yes.
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.
LORD JUSTICE HICKINBOTTOM: Yes.
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
LORD JUSTICE HICKINBOTTOM: Yes.
MR SPURRIER: Thank you very much, my Lord. If I may,
I will then move on to noise.
LORD JUSTICE HICKINBOTTOM: Yes.
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
“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
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
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
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
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
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
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.