Judicial Review – Neil Spurrier’s Statement of Facts and Grounds (with deletions agreed with the Speaker’s Counsel)



Before the Hon. Mr Justice Holgate

Claim  Nos:  (1)  CO/2760/2018;  (2)

CO/3071/2018; (3) CO/3089/2018; (4)

CO/3147/2018; (5) CO/3149/2018

(1) R on the application of NEIL RICHARD SPURRIER




Interested Parties



Amended pursuant to order of Holgate J on the 4th October 2018

I am Neil Richard Spurrier the Claimant in CO/2760/2018 and am a resident of Strawberry Hill and a member of a local residents’ association called the Teddington Action Group formed in 2014 to afford local people a voice in connection with the operations of Heathrow and opposing its proposed expansion.

I have had the benefit of seeing the draft revised grounds of the Hillingdon claimants under case CO/3089/2018. I entirely endorse what is said therein and do not seek to duplicate them and will be led by them on the particular grounds. I put the additional matters set out below.

As a resident of Strawberry Hill, I am directly affected by the consequences of expanding Heathrow Airport. The Grounds and Facts in support of my application for judicial review are:

Ground One: The Defendant 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


  1. The Planning Act 2008 requires a consultation to be carried out and regard to be taken of the responses to the consultation. The consultation was not executed in the required way. Whilst the Secretary of State arranged for publicity and meetings, the absence of substantive modifications between the second draft and the final version of the NPS show that no due regard1 has been taken of representations made as required by section 7(6). Thus, we see no substantive comments and observations following the numerous and substantive representations on noise and the noise metrics used by the DfT. We see no comment on the LAeq noise metric averaging out noise 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 of the World Health Organisation. We see no comment on proposals for noise reduction save that aircraft are “getting quieter” (which in many cases they are not, a prime example being the Airbus A380 being as noisy as the Boeing 747 and noisier than the A340 that it is replacing2). 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. The numbers of people affected are being calculated on a “minimise total” scenario, which is deceiving since the Minimise Total scenario may not be the scenario ultimately adopted. Minimising scenarios may reduce the number of people affected but do cause an increase in the number of people substantially affected even if they keep the total number of people affected in some way down – see further particulars below at paras 24 – 27. We see no substantive plans for air quality, particularly in view of the past breaches by the Government of environmental regulations and also court orders and the acknowledged worsening of air quality due to the proposed development3, 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. These matters were referred to by the Transport Committee of the House of Commons (“TC”) in its report.
  1. In March 2018 the TC made 25 Recommendations in its report. The Secretary of State for Transport (“SST”) responded to those recommendations in June 2018 but failed to properly address or respond to the recommendations as he is required to In many cases the SST simply addressed another question. Without properly addressing these recommendations, the SST has not complied with his obligations set out in the Planning Act 2008. The most notable example is the failure to follow the TC recommendation to provide a minimum average of 7 hours respite every night, whilst giving no reason for such failure. The Government states in its response that it

“wants to strike a fair balance between the economic benefits that night flights offer and the cost they impose on communities, recognising that night noise represents the least acceptable aspect of aviation noise for communities affected”


“The Airports NPS sets out the Government’s expectation for every community that may be affected by expansion at Heathrow. This is an expected ban of six and a half hours on scheduled night flights between 23:00 and 07:00, meaning that, as a norm, every community affected by expansion would experience six and a half hours of noise relief.”

The Government provides for only an “expected” six and a half hours ban on scheduled flights, leaving an over-run, not even providing for the minimum provided by the TC. It is unreasonable to compel people, particularly children, to manage on such little sleep even occasionally let alone as a matter of course.

  1. Under current voluntary arrangements departures stop at 10.50pm (last scheduled departure leaving at 22.50) and start at 6.20am. Excluding overruns/late departures, people under departure flight paths currently have just over 7 hours respite per night from scheduled flights. The SST has presented the proposal of a ban of 6.5 hours as an improvement, when, for some, it is a reduction in respite. This was not stated to Parliament or to the Public and as a consequence both Parliament and the Public have been misled by the SST e.g. on the 5th June 2018 (Volume 642 Hansard) the SST said to Parliament;

 “For the first time ever, we expect and intend to deliver a six-and-a-half-hour ban on scheduled night flights. But my ambitions do not stop there. If the House agrees and the NPS is designated and the scheme progresses, I will encourage Heathrow and airlines to work with local communities to propose longer periods of respite

 during a further consultation on night flight restrictions”

Ground 2:        The NPS is biased and unjustifiably favours the Heathrow North West Runway.



  1. The SST is biased in favour of Heathrow The NPS put to Parliament, was based upon the acceptance by the Government of a report of the Airports Commission that itself was biased. It was chaired by someone who at the time of his appointment was in the employ of one of Heathrow’s biggest shareholders (GIC of Singapore who at the time owned 17% of the share capital of Heathrow’s holding company FGP Topco). The employment was not disclosed nor put by the chairman into the public register of conflicts, so most people outside the Government were unaware of it. The Public were unaware that the chairman of the “independent” Airports Commission was employed by a Heathrow shareholder at the time of his appointment. The Public have been deceived into thinking that the Airports Commission was truly independent of association with the candidate airports, when it was not. The ordinary fair minded person would think that Heathrow enjoyed advantages simply because of this association.
  1. The above inevitably brings suspicion upon the extreme closeness between members of the Department for Transport and Heathrow Airport Limited. Lord Deighton was appointed a junior minister in 2012 and had in the register of interests disclosed his non- executive directorship of Heathrow. He subsequently became chairman of Heathrow in 2016. Conversely, a number of former BAA employees / Heathrow employees have taken up posts with the Department for Transport. An example is Simon Baugh who left Heathrow in 2015, where he was Director of Media and Communications and took up his current position of Director of Strategy and Communications in the Department for Transport.
  1. In 2016 the Government entered into a “Statement of Principles” with Heathrow Airport Limited long before the NPS was adopted giving Heathrow Airport Limited preferential treatment. The exact date is not known since the published version is undated, but the Government website stated that:

“The statement of principles records the outcomes of engagement between government and Heathrow Airport Limited in July 2016”.

That was before even the Government published its first draft National Policy Statement or announced its preference for the expansion of Heathrow Airport.

  1. One provision in the “Statement of Principles” was to acknowledge that Heathrow Airport Limited had rights (such as any that may exist) to claim reimbursement of all its costs should the Government prefer an alternative scheme to the expansion of Heathrow or should the Government withdraw its support for the expansion of Heathrow Airport after stating its preference for Heathrow expansion. Considering that the SST announced his intention to support the Airports Commission and back a third runway at Heathrow on the 25th October 2016, it is more than a little strange that this provision should have been entered into before publication of that intention or before the publication of the first draft of the National Policy Statement, with all its supporting documents and analyses. In view of the potential very substantial obligation that this puts upon the State before those publications, it is my submission that the SST did not have any intention of entering into a bona fide consultation on either the first or the subsequent draft National Policy Statement. There was no bona fide consultation as required under the provisions of the Planning Act 2008 because the decision had already been taken
  1. The Statement of Principles has now been replaced with a “Relationship Framework Document”6, which, while expressed to be “not legally binding”, does provide that “Heathrow reserves all of its rights in the event of the withdrawal of the Government’s support for Expansion at Heathrow Airport”.
  1. The SST has given assurances to Parliament that expansion of Heathrow will not call upon the public purse, but the Relationship Framework Document provides that: “As the NPS states, the Government expects the applicant to secure the upgrading or enhancing of road, rail or other transport networks or services which are physically needed to be completed to enable the Northwest Runway to operate. This includes works to the M25, local road diversions and improvements including the diversion of the A4 and A3044, and on-airport station works and safeguarding. The Government recognises that there may be some works which may not be required at the time the additional runway opens but will be needed as the additional capacity becomes fully utilised. Where a transport scheme is not solely required to deliver airport capacity and has a range of other beneficiaries, the Government, along with relevant stakeholders will consider the need for a public funding contribution alongside an appropriate contribution from the airport on a case by case basis”.
  1. The Relationship Document goes on to provide that:

“Heathrow has also assumed privately-funded investment is deliverable with a regulatory determination which ensures that all economically and efficiently incurred costs are included in the regulatory asset base (“RAB”), including, among other things, recovery of costs for planning, noise mitigation, property and community compensation, development costs and costs in meeting any requirements of the NPS by Heathrow; all reasonably incurred expenditure in relation to surface access and environmental matters by Heathrow and any reasonably incurred expenditure for maintaining support for and progressing Expansion by Heathrow. Heathrow’s case assumes that contributions such as those relating to surface access schemes, environmental and/or community measures remain affordable”

  1. In other words, the State is giving an undisclosed guarantee to a private company that it has unhealthily close contacts with, contrary to its assurances to the public that there will no State
  1. The Department for Transport’s own calculations in its Addendum to the Updated Appraisal Report updated on the 5th June 2018 are that the Heathrow third runway offers the least value of all the three proposed schemes, making a possible net loss over 60 years of £3.5bn carbon capped (table 3.2 on page 12 of the Addendum – with the next largest potential loss being the Extended North Runway scheme at £2.7bn). Notwithstanding the possible net loss or the noise from Heathrow, sleep deprivation, or the damaging air quality loss from extra emissions with their consequent effects upon health, or the stated environmental consequences, or the environmental risks set out in the Appraisal of Sustainability, together with such a limited study area to just 2 kilometres from the airport boundary, the SST is still proceeding with the expansion of Heathrow. While the stated possible net present value could be highest with the Heathrow scheme, the maximum possible assessed benefit over the other schemes over 60 years is just £0.1bn (£1.8bn for Gatwick as against £1.9bn for Heathrow North West Runway possible maximum)7 and that is entirely speculative since the greater proportion is showing a On a financial basis, the choice of Heathrow is without logic and the reasonable person would suspect bias.

Ground 3:     The proposed development in the National Policy Statement will interfere with the use of  our property as well as others their property through extra noise and pollution in breach of Article 1 of the First Protocol European Convention on Human Rights

Ground 4:  The proposed development in the National Policy Statement will  interfere with our and  others family and private lives through unwarranted noise and pollution in breach of Article 8 of the European Convention on Human Rights 


  1. The Common Law rights of residents are taken away from them but residents do potentially have rights under the Human Rights Act in respect of noise and sleep deprivation. To expand Heathrow and create more noise than is the case now would not strike a fair balance between the interests of the State and the rights of individuals
  1. Having had the benefit of seeing the draft grounds in the Hillingdon claim 3089, I can add the following matters
  1. Noise is measured in decibels (one tenth of a bell) which are logarithmic. Two bells are ten times the noise intensity or sound power of one bell. Consequently, twenty decibels are ten times the noise intensity of ten decibels. Noise intensity doubles by approximately a three decibel increase and loudness to the human ear doubles by approximately a ten decibel increase
  1. Decibels are expressed using a number of metrics, Lmax (peak 1 second intensity), SEL (Sound Exposure Level being the intensity of the noise together with length of time of exposure in one second units so that two seconds is double one second) and Leq (“equivalent” which averages the noise over a period of time, taking both the peaks and troughs to bring about an overall noise measurement commonly expressed as dBLeq). In addition, there is frequently used an “A Weighting” for aircraft noise, which filters out sound energy in a way that corresponds to the response of the healthy human ear. Thus “Leq” becomes “LAeq”. UK aviation policy has for the last 35 years or so averaged LAeq over a 16 hour period for daytime air noise, this is commonly expressed as LAeq16hr, although the averaging period can be longer or shorter depending on the time period of interest. The UK Government has also traditionally an 8 hour LAeq – “Lnight” for the night time period (This covers the UK “planning night” period from 11pm to 7am). A more recent variation of the LAeq metric for aircraft noise is the 24 hour LAeq or “Lden”. The Lden metric is a European Noise Metric adopted by all EU states. As its name implies this metric uses the full 24 hour period (Day, Evening, Night) to average sound energy. An annual average of daily aircraft events is used to calculate the total 24 hour noise energy “dose”.
  1. With Lden, the evening period has an extra 5 decibel weighting and the night period has an extra 10 decibel weighting to reflect people’s greater sensitivity to noise during these periods10. In the case of the LAeq metric, a doubling of noise energy of 3 decibels amounts to a doubling of the number of planes or noise events11. There has also been introduced the “N” metric with is the number of noise events over a specified period of time – usually one hour. Thus the “N60” level will be the number of noise events in one hour of at or more than 60 decibels Lmax. The figures then can be averaged over further periods of up to one
  1. The LAeq, which is used by the Government in its noise measurements, has been widely criticised for not truly representing the noise environment in relation to aviation and without accounting for the direction of take-off or landing. Averaging in the non-noise events gives an artificially low reading, particularly when long term averages are used (planes have to take off into the wind and directions of take-off at Heathrow are switched depending on wind direction). For example, Teddington, when on “easterlies” (about 30% of the time) suffers 17 hours continuous noise with overflying aircraft on departure under engine power, yet according to the Government noise maps, it suffers no measured aviation noise at all as it is outside the noise contours.
  1. Noise monitors in Teddington on Strawberry Hill House and the National Physical Laboratory, (some 8 miles from the point that the aircraft start their take-off roll and over 5 miles from take-off point) regularly record between 70 to 80 decibels LAmax for individual planes flying up to and beyond 11pm against the World Health Organisation which suggested limits of 60dB LAmax (and 45dB Lnight) in 1999 to avoid sleep disturbance, (WHO have now reduced the Lnight level to 40dB in 2018), meaning planes can be several times louder than guidelines have stated even this far away from the airport. The Noise Monitor at the River Ember, Molesey, which is over 7.5 miles from take-off point, regularly records planes at more than 70 dB LAmax. The noise monitor in Camberwell now records inbound flights at over 60 dB LAmax on the concentrated inbound flight path and that is 24 kilometres (15 miles) from touch-down, with low concentrated flying over the whole of the south east, south, and south west of London. Other communities closer in will be more affected. Without an 8hr ban on flights taking off or landing between 11pm and 7am (and delayed flights grounded until the next day) communities will see significant sleep impact during the night/early morning period. This is particularly the case for children, who will suffer further sleep deprivation with consequent effects upon health and education. No noise contours have been presented in the NPS for noise events above 60dB (N60). This is especially important as the CAA noise modelling has been underestimating noise for many years at these levels by some 50% and so the impact of aircraft noise extends much further than has been assumed by the industry and government (led by incorrect CAA modelling in the ANCON noise model, which under-estimates the noise of mid-size planes).
  1. As is stated by the Hillingdon claimants in 3089, the latest guidance in the “Consultation Response on UK Airspace Policy: A framework for balanced decisions on the design and use of airspace”, October 2017, is that the Lowest Observed Adverse Effect Level is 51dB LAeq for a 16 hour day and 45dB Lnight (para 2.62), rather than the 54dB used. The World Health Organisation is more specific in recommending a lower level of noise.
  1. The World Health Organisation of which the UK is a member and with whom the UK has entered into a “Performance Agreement” in January 2017 has stated in its 2018 Guidelines that aircraft noise above 40dB Lnight is associated with adverse effects upon sleep and “To reduce health effects, the GDG [Guideline Development Group] strongly recommends that policy-makers implement suitable measures to reduce noise exposure from aircraft in the population exposed to levels above the guideline values for average and night noise exposure. For specific interventions the GDG recommends implementing suitable changes in infrastructure”. For a 24 hour equivalent the WHO “strongly recommends reducing noise levels produced by aircraft below 45dB Lden, as aircraft noise above this level is associated with adverse health effects”
  1. The WSP Health Impact Analysis plan (carried out as part of the NPS) of the study area shows that Teddington is outside their study area notwithstanding that when subject to overflying, residents of Teddington are subject to the noise stated above. The earlier Queen Mary’s report of Dr Charlotte Clark produced for the Airports Commission, but published after the publication of the Commission’s Final Report, refers to the considerably increased risk of poorer cardiovascular health, and states that:

“Compared to those exposed to aircraft noise levels below 51dB in the day-time, those exposed to aircraft noise levels over 63dB in the day-time had a 24% higher chance of a hospital admission for stroke; a 21% higher chance of a hospital admission for coronary heart disease; and a 14% higher chance of a hospital admission for cardiovascular disease. These estimates took into account age, sex, ethnicity, deprivation and lung cancer mortality as a proxy for smoking”

  1. The NORAH (Noise-Related Annoyance, cognition and Health) study in Germany found that there was a statistical connection between increased noise and cardiovascular problems, reduced leaning performance in children and health reduction. There are 14 sections to the NORAH study and section 14 provides the overview
  1. This level of noise causes sleep deprivation and very serious mental stress. Currently planes start arriving at 4.30am and do not finish departing until 10.50pm but often depart beyond Frequently “overruns” depart up to midnight or even 2am. A 50% increase in air traffic movements will cause further deterioration to an already highly unsatisfactory situation.
  1. In recent years (from 2014) the flight heights of planes departing from Heathrow have been noticeably reduced leading to an increase in noise for residents
  1. The number of people affected by extra noise due to a third runway 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. It will inflict excess suffering upon a larger number of people. Freedom of Information Act documentation shows that the DfT have chosen a misleading and lower figure for the number of people, who would be affected by noise. On the 14th September 2017 the CAA sent to the DfT an email saying, in response to a request for three flight path scenarios:

“I feared this might come up. No contours have been produced for “minimise newly affected’ and ‘maximise respite’, only ‘minimise total’ scenarios. My understanding is that these were dropped as the number of scenarios was too high to complete by end of August.”

This is misleading since the Government have stated that they have not chosen the flight paths and cannot say how many will be affected by noise and to what extent (see DfT response to TC Recommendation 14).

  1. The Hillingdon claimants in 3089 have made the points about lack of noise metrics and indicative flight I would add that Heathrow and the CAA have begun the flight path change process set down by the CAA in its document CAP1616. Heathrow has submitted to the CAA its Stage 1 principles for air space change of use. The CAA has approved it. The principles include the principle of “minimisation of new people overflown” (notwithstanding that the CAA say that they have not produced any noise contours for this scenario) so, while no new flight paths have been set as yet, one of the principles is an increase in noise for people currently overflown. The predicted increase in Air Traffic Movements is from 480,000 per year to 740,000 per year. That will amount to more sleep deprivation.
  1. This level of increase has not been addressed in the NPS (indeed the NPS expressly does not adopt the night-time period of respite recommended by the TC) and will constitute a breach of Article 8 of the ECHR. Furthermore, by choosing levels of noise that established and accepted advice to the Government states will cause harm to people suffering the noise, the Government has not struck the fair balance that is required between the competing interests of the individual and of the community as a whole
  1. The Appraisal of Sustainability at page 76 states that:

“The numbers of additional people in the local population predicted to be exposed to the 54 dBLAeq, 16hr, as a consequence of the third runway at an expanded Heathrow is 92,700 people by 2030, 52,900 people by 2040 and 36,800 people by 2050.”

For several reasons this is likely to be a considerable understatement, leading to a much greater number of people suffering sleep deprivation from the noise of planes. The first reason is that only one flight path scenario has been presented in the NPS chosen around minimising total numbers impacted. Heathrow have stated that they are now proposing to use a minimise newly affected scenario, which by definition will impact mostly upon the existing people overflown, who will suffer an annual 740,000 Air Traffic Movements rather than the current 480,000. That will increase the number of people significantly affected (simply because the people currently overflown will have 50% more planes flying over them), which is itself contrary to the stated Government Policy. The second reason is that figures used are net figures. There are winners and losers. Even using the minimise total affected scenario the TC found that the NPS would actually mean over 300,000 people would be newly affected by significant noise annoyance (p31 figure 6 TC Report) which was not reported in the NPS (the TC defining such newly affected as “an estimate of the number of people who without a runway scheme experienced noise of less than 54dB but with expansion will experience noise greater than 54dB”). They also found that over 1,150,000 people would fall into the 51dB noise annoyance threshold in 2030 (p32 figure 7), which was not reported in the NPS. Thirdly, disclosure of the worksheets of the Department for Transport, obtained under the Freedom of Information Act, show the number of Households (not people) to be affected by more noise than with the existing two runways would be 972,957 in 2050 even after all the fleet improvements. On the average of 2.3 people per household, used by the Office for National Statistics, that amounts to over 2.2 million people affected by extra noise – very different to the 92,700 extra people exposed to noise greater than 54dB stated in the Appraisal of Sustainability. These reasons show the NPS has hidden the real impact of the additional noise from a 3rd runway. The DfT have argued that they have used an indicative or strategic flight path scenario in the NPS (‘minimise total’). If another likely flight path scenario is used, as is being suggested by Heathrow (‘Minimise newly affected’), this other flight path scenario gives different results in terms of numbers impacted. It therefore cannot be indicative.

  1. The CAA in its airspace change portal progress report of the consultation on the airspace changes required of a third runway indicates, on a map, a “Potentially Affected Area” from “London Heathrow – Airspace, Departures and Arrivals Procedure – Third runway”. This area stretches from Great Missenden, Hemel Hempstead and Cheshunt in the north to Chigwell, Barking and Bromley in the east, to Caterham and Leatherhead in the south and to Fleet and Henley in the west. This indicates an area (some 680 + square miles over the most densely populated part of the UK), far and away greater than anything indicated by the Department for Transport. There is no indication of this scale in either the National Policy Statement or the Appraisal of Sustainability
  1. In her 2017 Annual Report, the chief medical officer stated in Chapter 4 that:

“Noise stands second to poor air quality in terms of the burden of ill health caused by a single pollutant, and is increasingly high on the international agenda. Over 80 percent of people report being exposed to noise pollution in their homes. Links to ill health include, proximally, sleep disturbance and stress, with more distal associations with hypertension, cardiovascular disease and children’s learning development. Research may identify causal relations with the latter measurable health outcomes.”

Ground 4: The proposed development in the National Policy  Statement  will interfere  with our and others family and private lives through unwarranted noise and pollution in breach of Article 8 of the European Convention on Human Rights

Ground 5: The NPS will breach the provisions of EU Regulation 2008/50 by increasing the concentration of NO2 and poisonous particulates




  1. Pollution permitted by the State upon citizens can potentially be a breach of Article 8 of the ECHR. Development causing named pollutants within the EU Regulation 2008/50 and within the Air Quality Standards Regulations 2010 to exceed, or exceed further, the permitted thresholds is unlawful and, in so far as permitted by the Government, is a breach of the duties within the Regulations
  1. There is no Health Impact Analysis save that amended on the 5th June 2018 and produced by WSP of Exeter, together with a prior general report dated May 2015 of Queen Mary’s University entitled “Aircraft Noise effect on Health” on the effects of aircraft noise upon health. The Analysis of 5th June 2018 opines on the effects of the proposed expansion upon people near the airport but offers no prognosis for the rest of London. Its study area is just 2 kilometres around the new extended airport boundary, which ignores most of the effects of the operations at Heathrow (they stretch to at least 20 kilometres from the boundary and more – see below). The WSP analysis offers no prognosis for people affected by the extra NOx and particulates from Heathrow’s extra runway nor the extra noise and the effects of that noise upon the people of London
  1. The confinement of the environmental and air quality studies to just 2 kilometres represents such a deficiency as to negate much of the Appraisal of Sustainability and render it all but useless – at least on the effects on air quality upon the area beyond. Added to that the SST has told Parliament in a letter dated the 23rd February 2018 to the chair of the TC that the study area “captures over 98% of the additional emissions that could occur from expansion”. That quite simply cannot be true from the evidence that has been in the public domain for a number of years. Hillingdon, Hounslow, Richmond and Wandsworth substantially breach the air quality levels for NOx25, PM10 and PM2.5, and are predicted to continue to do so after 2020, and substantial amounts of those emissions are from aviation. Heathrow affects areas way outside its boundary. The Mayor’s Office has extensive data (all in the public domain and been so for a number of years and updated in 2016) on air quality26. This is referred to in the Updated Analysis of Air Pollution Exposure in London report on the London Gov website and was prepared by the Kings College London Environmental Department27. It is believed that the data has been compiled under the Government’s “Local Air Quality Management (LAQM)” program overseen by DEFRA. The program is part of the Government’s duties under Local Air Quality Review and Assessment process prescribed under Part IV of the Environment Act 1995. The data has been in existence for some time prior to the publication of the Appraisal of Sustainability and NPS and even before the publication of the Airports Commission Final Report, yet the NPS makes no reference to this data. The Government and Heathrow have been saying that aviation is not responsible for much of the NOx pollution beyond the boundary of the airport. Heathrow’s Emissions Strategy 201828 states that “The impact of onsite activity at Heathrow on air quality falls sharply with distance from the airport. This is confirmed by the air quality monitoring undertaken in the area”. This directly contradicts what the LAQM of the Mayor’s Office / Greater London Assembly states.
  1. Just as examples, Richmond records a high NOx level. At a point by the A316 at the Old Deer Park, some 9 kilometres from the airport boundary, NOx is recorded at some 55 μg/m3 annual mean and NO2 at between 37 and 55 μg/m3 annual mean depending on how close to the road. The apportionment table shows that aviation accounts for 77.6% of NOx emissions and 24.9% of PM2.5 emissions at that point. Back at Putney station on Putney High  Street (over 15 kms from the airport boundary), a well-known pollution black spot in Wandsworth, aviation accounts for 23% of the NOx emissions and 5.7% of the PM2.5 emissions, with total NOx recorded as between 58 and over 97 μg/m3 annual mean (the highest being in the middle of the road). By 2020, the levels on Putney High Street, according to the map, are predicted to reduce to between 55 to 76 μg/m3 annual mean. All these figures are obtained from inserting the relevant map co-ordinates into the research tool and obtaining the results. The relevant years are 2013 (updated in 2016), 2020, 2025 and 2030. The legal limit since 2015 as well as the WHO recommended maximum annual mean of NO2 is 40 μg/m3. The modelled levels for 2020 show that there will still be a breach of NO2, PM10s and PM2.5s levels. Even back at Clapham Junction, aviation accounts for 8.3% of the NOx touching 76 μg/m3, NO2 of 55 μg/m3 with corresponding figures anticipated in 2020 of aviation accounting for 13.6% of NOx of 58 μg/m3 and NO2 of 43 μg/m3 – all with 2 runways at Heathrow. It is therefore blatantly misleading for the SST to have effectively said that only 2% of emissions from aviation affect people beyond the 2 kilometre radius of the anticipated boundary of the expanded airport.
  1. The study of Kings College London Environmental Research Group upon the eruption of the Icelandic volcano, Eyjafjallajökull, examined the effect on air quality of the closure of The report shows that the airport closure resulted in an unambiguous effect on NOx and NO2 concentrations, even though the ban only lasted six days. Close to the airport, the NOX reduced to near zero during the period of closure.
  1. Heathrow already records breaches of the limit of nitrogen dioxide in the Air Quality Standards Regulations 2010 and is considerably above the 2018 World Health Organisation limits for particulate matter (PM10 guideline limit of 20 μg/m3 annual mean and PM2.5 guideline limit of 10 μg/m3 annual mean), in areas immediately surrounding, as well as in, Heathrow London itself suffers a number of breaches as is evidenced by three court cases brought by ClientEarth (in the ClientEarth No.3 case the GLA Air Quality Plan was not challenged but it was accepted that currently London currently suffers a number of breaches of air quality standards30). The Appraisal of Sustainability, attached to the NPS, forecasts an increase in emissions with a third runway within the 2 kilometre radius. Para 7.4.3 of the Appraisal of Sustainability describes the situation as “In the case of the LHR – NWR scheme, it is estimated that 121,340 people will experience a rise in annual mean NO2 levels”.
  1. Air Quality Expert Group of DEFRA have produced a report entitled Ultrafine Particles (UFP) in the UK31. The report shows the deadly effects of particles smaller than PM2.5s and refers to prior research at a number of airports, including Boston, Los Angeles and Atlanta. In section 4.4, the report states that:

“Hudda et al. measured concentrations of PN downwind of Los Angeles International Airport (LAX) using a mobile monitoring approach and detected at least a 2-fold increase in PN [particle number] concentrations over baseline PN concentrations during most hours of the day, in an area of about 60 km2 that extended to 16 km downwind, and a 4- to 5-fold increase to 8–10 km downwind. Similarly, in Europe, Keuken et al. (2015) made measurements at Adamse Bos, located 7 km from Schiphol, and in 2012 at Cabauw, a regional background site 40 km south of Schiphol. PNC [Particle Number Counts] increased during periods in which the wind direction was from Schiphol: ………” and

“using a mobile monitoring platform Riley et al. (2016) found a 3–5-fold increase in UFP concentrations in transects under the landing approach path to both airports, relative to surrounding urban areas with similar ground traffic characteristics. The measurements therefore suggest that aircraft plumes mix downwards to a sufficient extent to be detected at ground-level at concentrations similar in magnitude to road vehicle sources. The implications of this work are 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 is clear that sections of the UK Government acknowledge the harmful effects of aviation emissions within urban areas (not to mention way outside the 2 kilometre study area) – something that neither the NPS has dealt with nor has the SST for Transport in his revision set out in his letter of the 23rd February 2018 to the TC. .

  1. The Government’s 2017 Update of Air Quality Re-Analysis shows that the SST may know this, when the report says of the Heathrow North West Runway that “Taking into account uncertainties in the PCM [Pollution Climate Mapping] modelling on a link-by-link basis, it should, therefore, be assumed that wherever PCM concentrations in central London exceed the limit value, the option [expansion of Heathrow Airport] is at risk of causing a delay to the compliance of the zone”32. In other words, the construction of the third runway at Heathrow will delay either temporarily or permanently the compliance of the Air Quality Program for London.
  1. Within the last four weeks Queen Mary’s University (the University used by the Airports Commission to report on the effects of noise) have reported their research on mothers post-delivery of their babies with Ultra Fine Particles found in the mothers’ placentas.
  1. The World Health Organisation on its data store shows that the south-east of England breaches their safety guidelines for 5 emissions by having a density of more than 10 micrograms per cubic metre. The WHO director general, Dr. Tedros Adhanom Ghebreyesus, has described air pollution as a “silent health emergency” and “the new tobacco”34. The ClientEarth No.3 case recited that London will not comply with the statutory NO2 limit until after 2021, notwithstanding that the EU Directive 2008/50 required compliance by 2010. The EU Directive 2008/50 requires a scaled reduction of PM2.5 by 2020, which is unlikely to be met. The construction of a third runway at Heathrow will cause those values to rise and put compliance further away. Neither the Appraisal of Sustainability nor the Health Analysis have considered the effects of these further emissions, quite apart from those emissions causing further breaches of the law.
  1. The DEFRA UK Plan for tackling roadside nitrogen dioxide concentrations states that:

“There is increasing evidence that air quality has an important effect on public health, the economy, and the environment. According to Public Health England, poor air quality is the largest environmental risk to public health in the UK. Evidence from the World Health Organization (WHO) shows that older people, children, people with pre-existing lung and heart conditions, and people on lower incomes may be most at risk”.

The supplement to this report dated October 2018 states that:

“All local authorities will continue to review and assess local air quality through the statutory local air quality management (LAQM) process. Where a council identifies areas exceeding statutory limits and there is relevant public exposure it is required to declare an air quality management area (AQMA) and draw up an action plan detailing remedial action to address the problem”.

The Government, by imposing this burden of an extra runway upon London is acting directly contrary to that statement and needlessly inflicting harm upon its citizens.

  1. At the very least, the Government has failed to weigh the adverse impacts against the possible benefits to ascertain whether the NPS would constitute sustainable development under section 10 Planning Act 201037 and is breaking the law by increasing the breaches of emissions levels

Ground 6: The NPS 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 and statutory greenhouse gas targets will not be met


  1. The Committee on Climate Change has produced numerous publications on carbon budgets and what aviation can do while the Country can still maintain its statutory binding emissions targets. These do not support the possibility of airport expansion in the south east together with expansion elsewhere, and maintenance of climate change obligations. If Heathrow were allowed to expand, other regional airports could That is not the reality of what is happening however. Regional airports are expanding, offering more flights to new destinations. Examples are Emirates flying from Stansted, Qatar operating from Cardiff and EasyJet offering new routes from Bristol. Gatwick is reported to be making plans to open its second emergency runway for short-haul flights in order to increase capacity. According to the Committee on Climate Change aviation contributed 5.3% of total greenhouse gas emissions in 2013 doubling its emissions from 1990. The Committee’s stated view is that a 60% increase in flights over 2005 levels by 2050 is feasible with greenhouse gas levels being kept to 2005 levels at 37.5 MtCO2e. If Heathrow (or any other airport in the South East) is allowed to expand the other areas of the Country will not be able to expand their aviation capacity.
  1. In 2009 the Committee on Climate Change produced the report Meeting the UK aviation target – options for reducing emissions to 205038. Page 150 Table 1(b) gives a comparison of the possible usage of airports in the UK on expansion assumptions. At the time Heathrow was proposed to be expanded to 702,000 Air traffic Movements (current proposal is 740,000 ATMs). At the time, there were only 547 further ATMs that could be used to be compatible with the CO2 emissions target. Edinburgh could only operate at 50% capacity and non-listed airports could only operate at 32% capacity. No comment or prognosis for sharing out the airport “utilisation” of greenhouse gases has been put forward in the NPS.
  1. The evidence to the TC of Lord Deben, the chairman of the Committee on Climate Change given on the 18th December 2017 in response to the question of whether the “Climate Change planning assumption is to keep gross aviation emissions at no more than 2005 levels” was:

“.…. You talk about a planning assumption, but we have made it clear that it is not possible to meet the targets, and therefore not acceptable if emissions from aircraft exceed the emissions that we have for the 2005 date. I do not know why there are  the words “planning assumption.” It is not a planning assumption; it is actually clear that that has to happen. When we read the detailed report on the Heathrow expansion, there was clearly—how shall I put it? — a less than certain adherence to that. I wrote a letter to the Secretary of State for BEIS because he was about to produce what turned out to be the clean growth strategy. I said it is important to recognise that there is a statutory requirement to deliver this and you cannot do it in the way the Department for Transport presented its statement on Heathrow. Insofar as there is an argument of any kind, that is the statement. I made that clear and it still stands. We cannot have a situation within the statutory arrangements in  which any Department says, “We don’t think this really applies to us.” If you allow aircraft emissions to rise above what is, frankly, very generous elbow room, you can only do so by cutting what other people are allowed to do; and they are already very toughly constrained. I do not think it is possible to turn to other bits of British  industry and say, “Part of the allowance you’ve got has been taken because it has been pre-empted by decisions that have been made.””

The UK Government has made no realistic attempt to explain in the NPS or supporting documents how airport expansion will take place and the UK abide by its Climate Change obligations. It is as if the scheme is being done on a wing and a prayer with a hope that it might be alright.

  1. The NPS recognises “the Government’s commitment to tackle climate change, and its legal obligations under the Climate Change Act ” But then gives no specific details on how it will manage this, nor does it attempt in any way to answer Lord Deben’s assertions to the TC. The NPS has a section on “Climate Change Adaption” starting at paragraphs 4.41 and at 5.69. The former section really says nothing more than that “The applicant should demonstrate that there are no critical features of infrastructure design which may be seriously affected by more radical changes to the climate beyond those projected in the latest set of UK Climate Projections. Any potential critical features should be assessed.” Apart from not complying with the obligations in the Climate Change Act 2008, which imposes mandatory obligations, it shows no plans for how the emission of greenhouse gases from the Airport will be tackled. This takes away from Parliament the ability to scrutinise the national and international questions of emissions compliance and greenhouse gas emissions. The Committee on Climate Change was sufficiently concerned for Lord Deben and Baroness Brown, the chair and deputy chair respectively, to write to the SST on the 14th June 2018 saying:

“The UK has a legally binding commitment to reduce greenhouse gas emissions under the Climate Change Act. The Government has also committed, through the Paris Agreement, to limit the rise in global temperature to well below 2°C and to pursue efforts to limit it to 1.5°C.

“We were surprised that your statement to the House of Commons on the National Policy Statement on 5 June 2018 made no mention of either of these commitments. It is essential that aviation’s place in the overall strategy for UK emissions reduction is considered and planned fully by your Department”.

  1. The Committee on Climate Change is a statutory body and it is the height of absurdity to produce an NPS, when the scheme may never even be allowed to start because of a breach in the current law on carbon / greenhouse gas Not only that, it fails to comply with section 10 Planning Act 2008, which requires the SST in the NPS to have regard to the desirability of mitigating, and adapting to, climate change
  1. The Committee on Climate Change’s 2018 Assessment of the UK Government’s “Clean Growth Strategy” was that:

“The government should plan to limit UK aviation emissions to the level assumed when the fifth carbon budget was set (i.e. around 2005 levels by 2050), supported by strong international policies. Emissions at this level could be achieved through a combination of fuel and operational efficiency improvement, use of sustainable biofuels, and by limiting demand growth to around 60% above 2005 levels by 2050”.

According to the Committee on Climate Change the 2005 level of aviation greenhouse gas emissions is 37.5 MtCO2. However, in response to a Parliamentary question posed by Zac Goldsmith on the 21st December 2017, Claire Perry on the 8th January 2018 on behalf of the Department for Business Energy and Industrial Strategy stated that:

 “Latest BEIS data shows that carbon dioxide emissions from UK departing flights in 2015 were 34.5 Mt. DfT’s October 2017 aviation forecasts give CO2 emissions from UK departing flights of between 36.6 and 45.7Mt in 2030; between 36.3 and 45.1Mt in 2040; and between 35.0 and 44.3Mt in 2050, depending on demand scenario and airport capacity options. The Government will set out its strategic approach to the aviation sector in a series of consultations leading to the publication of a new Aviation Strategy for the UK. The Strategy will consider what the best approach and combination of policy measures are to ensure we effectively address carbon emissions from aviation.”

The BEIS / DfT figures are for departing flights only, not arriving flights. It is clear that the quantity of emissions is increasing over current levels and it is very far from certain that the targets will be met at all. Yet the NPS makes no reference to this and whether the Airport can lawfully operate at its intended capacity. Alternatively, if it can lawfully operate, the NPS gives no indication what other industries will have to make sacrifices and what the effect of those sacrifices will be, in order for the UK to be compliant with its legal climate change obligations. The UK Government is not taking the advice of its own statutory committee in ensuring aviation emissions are being reduced to 2005 levels by 2050 – indeed it is on a collision course with the Committee on the basis of the Committee’s letter of the 14th June referred to in paragraph 40 above. On the 27th June 2018 the Committee on Climate Change issued its 2018 Progress Report to Parliament on reducing emissions. It has stated categorically that:

“The Government have committed to publish a new Aviation Strategy in 2019. This will need to include a plan to limit UK aviation emissions to the level assumed when the fifth carbon budget was set (i.e. around 2005 levels by 2050, likely to imply around a 60% potential increase in demand), supported by strong international policies.”

  1. The 2005 level of aviation emissions was 37.5MtCO2e to be achieved by 2050 and the report states that emissions are not reducing but are rising,

“Total domestic and international aviation emissions increased by 1.2% in 2016, to 35.5 MtCO2e” (page 157).

Considering that the typical life of a commercial airliner is at least 20 years, it is getting increasingly unlikely that the UK is going to meet the 2050 target if airport capacity is increased in the south east, particularly with no aviation strategy in place before an expansion decision is made. The NPS does not comment on the problem of rising aviation greenhouse gases and consequently breaches the provisions of section 10 Planning Act 2008

Signed                                                  Dated 30th October 2018 (amended on the 5th March 2019)


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