The issues are not whether the technical judgement exercised by the SST is correct. The issues are firstly whether or not the SST has adopted a rational approach and secondly whether he has considered matters which he ought to have considered. In my submission, it is not rational to disregard likely impacts that could have very long and harmful consequences, simply because they have not been assessed
My previous submissions on Air Quality
I have produced to the Court 3 well respected research projects that are referred to by the DEFRA Air Quality Expert Group. Their report was uploaded onto their website on the 27th July 2018 – one month and two days after the ANPS was designated. The contents must have been well known before the designation of the ANPS and the specific reports go back to 2014. Just to remind you, the section in the DEFRA report says:
“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.”
If I may I will clarify one point about the UFPs raised in my last submission. In the website statement of the Queen Mary’s Hospital report of particulates in the placentas of expectant mothers (at Volume 13 tab 8 page 99), it is said that as yet there is no specific evidence of the transfer of particulates from the placenta to the foetus. However, I would draw your lordships’ attention to the statement that there is actual harm done to the foetus directly from the particulates in the placenta. Transfer from one to the other is not necessary for there to be harm. The release said at page 100 in Volume 13 tab 8 states this:
“ “We do not know whether the particles we found could also move across into the foetus, but our evidence suggests that this is indeed possible. We also know that the particles do not need to get into the baby’s body to have an adverse effect, because if they have an effect on the placenta, this will have a direct impact on the foetus.”
Professor Mina Gaga, President of the European Respiratory Society who was not involved in the study, said: “This new research suggests a possible mechanism of how babies are affected by pollution while being theoretically protected in the womb. This should raise awareness amongst clinicians and the public regarding the harmful effects of air pollution in pregnant women.
“We need stricter policies for cleaner air to reduce the impact of pollution on health worldwide because we are already seeing a new population of young adults with health issues.”
The “Precautionary Principle” is to apply. We know that there is respected medical opinion that particulates in the body do pass to the next generation. That respected opinion says that there will (not might) be harm to the foetus. We also have DEFRA saying that particulates emitted from planes in the air are likely to be blown downwind away from the point of emission over the population of London. There are three research studies specifically referred to by DEFRA to back this up. Increasing the harmful particulates to the population and to subsequent generations through development would be contrary to the principle of “sustainability” contained in the Government’s own planning policy as set out in the National Planning Framework taken from Resolution 42/187 of the United Nations General Assembly of 1987. That principle is:
“sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs”
The SST is not having any regard to the precautionary principle – indeed I would submit that he is operating more of a gung ho principle. He has not acknowledged my claim in respect of particulates and NO2 being transmitted downwind from planes in the air. I pleaded it in para 38 of my ASFG. The SST did not address that part of the claim. I raised it in my Skeleton Argument and again it was not addressed. I have addressed you on it and again the SST has not responded to it save saying that my claim is unarguable. There may be very little he can say.
The SST through his counsel says that I cannot raise this because it is simply challenging expert judgments. I would like to make three submissions on that:
- The case of Mott 2016 (Volume 2 Tab 41) that the SST has often referred to, including his defence to my claim. The case states the principle that it is not the function of the Court to form its own view as between the views of different experts in a technical area (para 70 page 4359). However, at para 56 Beaston LJ (page 4355) states that
“The proper time for a public body which is a defendant in judicial review proceedings to explain the reasons and justification for a decision is before the hearing of the application for judicial review. It is the duty of such a body to assist the Court with full and accurate explanations of all the facts relevant to the issue the court must decide”
I am not asking the Court to decide between two technical issues. I am saying that a vital piece of information is missing, that the SST should have assisted, and it is illogical to not to take account of the information. Do particulates and / or NOx from aircraft spread downwind flowing into the lungs of people up to 20 – 40 kilometres downwind or not? If not, why not in the light of the research projects referred to by DEFRA? The SST has breached Mott by offering no assistance or comment on this.
- In the case of Claire Stephenson v Secretary of State for Housing and Communities and Local Government 2019 Volume 2 tab 42B (fracking case) Dove J referred, in paragraph 34 of his judgment to a previous judgement of my lord Lord Justice Hickinbottom in R (Jayes) v Flintshire County Council and Hamilton 2018 concerning the duty of the decision maker to take all reasonable steps to acquaint himself with relevant information, reciting from the earlier judgment that
“Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council 1997 AC 1014) the scope and content of that duty is context specific.
Whether we are going to be infected with UFPs and NOx blown downwind is very relevant in this context, I would submit. I remind your lordships of paragraph 36 of Caroline Lowe’s second witness statement at page 321 of Volume 4 in which she says:
“Unlike NOX and particulate matter (PM), UFP are not currently the basis of air quality legislation and not the subject of the air quality modelling”
Not precautionary – and indeed wrong in law since they are PM2.5s under the 2008 EU Regulations. Effectively Caroline Lowe says: “I don’t know, I will not enquire, and the answer is nil”.
In Ground 1 in Stephenson, the contention was that the Defendant Secretary of State had unlawfully failed to take into account material considerations, in that case certain scientific and technical evidence. That ground was considered to have been made out as, on the evidence of the Secretary of State, relevant material had not been considered
- In the Secretary of State for Education and Science v Tameside Metropolitan Borough Council 1997 AC 1014 Volume 2 tab 42A Lord Diplock said, concerning the Secretary of State for Education’s requirement to introduce comprehensive education, at pages 1064 and 1065 sections H and A and B that
“It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act, he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider………..Or, put it compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly”
In my submission, it is neither rational nor in accord with the dictum of Lord Diplock to disregard these likely very serious health impacts, simply because they have not been assessed. There is an unassessed very substantial risk of harm and the risk of passing that harm onto the next generation. We are at least entitled to be told the truth, I submit. The SST has produced no contradiction of any sort to the evidence of transmission of UFPs and NO2 downwind and the consequential harm. At present the only presumption can be that the evidence referred to by DEFRA is correct and the ANPS is therefore unlawful for the reasons that have been discussed.
Both the duty of candour and the duty to assist the Court (Mott), should have ensured that the evidence of DEFRA was disclosed, addressed and, if rejected, reasons given.
Counsel for the SST said on Friday (page 138 of the Transcript) quoting from para 6.4.11 from the 2017 Plan Update to Air Quality Re-analysis (Volume 8 tab 5 pages 225 – 286) that
“implementation of RDE (Real Driving Emissions legislation) should minimise the risks that the Heathrow option would impact on the compliance of the Greater London zone in any potential opening year”.
That may or may not be the case. But Heathrow may well be responsible for some of the emissions in central London or the towns and villages to the west for the reasons set out.
As no response has been given by the SST, I ask the Court to find that the WHO Night time limits and sleep requirements are appropriate and that the ANPS is quashed for not providing enough sleep time in accordance with the WHO Guidelines and an unreasonably high minimum noise level of either 54dB or 51dB LOAEL or even the 45dB night-time LOAEL referred to in the Air Navigation Guidance 2017, but which will not be implemented because a night-time ban is not proposed for 8 hours or the 10 hours recommended by WHO for enough sleep for 80% of the population. I remind your lordships of the 11 decibel difference between the WHO LOAEL of 40 dB at night with the 51dB of the DfT and SoNA study research providing 360% more flights at night than the WHO Guidance.
I also remind your lordships of the WHO finding that the risk of heart attack from night time noise rises at 50dB – below the level at which the SoNA investigation stopped even recording. I also refer your lordships to the WHO Guidelines and the “Process of Developing the Guidelines” at page 8 of Volume 13 of the Bundle. Your lordships will see the extensive range of consultees including “stakeholders from industry, government and non-government organisations”. Compare this to the small range of consultees by the CAA with the SoNA survey. Again, Mr Lotinga on behalf of the SST has offered scant assistance to the Court on this huge difference. Again, my lords – the Precautionary Principle and rationality on this vast difference between WHO and DfT/SoNA. It is not rational to have such a discrepancy or to run the risks of extra heart disease on such a wide area of the population. I refer your lordships to the WHO Guidelines on pages 12 to 15 Volume 13)
Climate Change – superseded as Government handed up a paper (replaced with what was said as per transcript)
My Lords, you will recall that I mentioned in my submission that there was no apportionment or apportionment table provided in the ANPS to show how the budget, carbon budget or greenhouse gas of budget was going to be shared out amongst the regions and London.
The Secretary of State has emphasised in his response to both Friends of the Earth and Plan B that this is a national policy statement. It therefore needs to have the climate change consequences related to the national allocation of aviation carbon or other greenhouse gases, assuming that other greenhouse gases are accepted to be included.
My Lords, I have been handed, and I feel I have been slightly ambushed by this because I originally raised this point in my statement of claim and it was perfectly open to the Secretary of State to respond to it but he didn’t, but the Secretary of State, in essence, in his note here is saying that he did deal with it. I haven’t got time, my Lords, to go through everything that he has said here. But, for example, if we go over the page to 5.4 the consultation response also deals with possible impacts on regional airports, and then he gives a whole load of paragraph numbers. I will just take one out of the hat, which I have taken, which is 8.52. 8.52, my Lord, which I think is at page 535 of core bundle 8, says:
“The Airports NPS sets out the carbon scenarios used by the commission in their work to address uncertainties over the future policy treatment of international aviation emissions. It also confirms the government’s conclusion that expansion via the northwest runway at Heathrow can be delivered within the UK carbon obligations. The government considers that growth in the sector, including at Gatwick and regional airports, is compatible with the UK’s climate change obligations even a Carbon Cap scenario. The commission showed that passenger numbers would continue to grow at Gatwick and regional airports. In such a scenario the government would take a national view of the best way to meet a cap.”
My Lords, I would say to that, well, yes, that’s all very nice but how is it going to be shared out and is the government seriously going to say that £17.6 billion is going to be spent expanding Heathrow only to have Heathrow then having to restrict its use or not use the expansion because regional airports need to expand? It just doesn’t add up.
And if I may, my Lords, if I could refer you to volume 13 and it is page 133. There the Committee on Climate Change in 2009 did a report. You may recall, my Lord, at that time the then Labour Government was considering Heathrow expansion, it wasn’t quite the same scheme but there was some — the expansion was intended to be some 702 hundred thousands air traffic movements and there is a table there, ES2B. Then the Committee on Climate Change suggested that various airports would have to restrict their growth or their capacity utilisation, as it is called there, should expansion go ahead.
At the top of the chart you will see Heathrow, maximum runway capacity, 702 hundred thousand. Capacity utilisation, 100 per cent. Gatwick has a lower capacity. That was also 100 per cent. Stansted was 66 per cent. London City, 100 per cent. Bristol, 56 per cent. Manchester, 90 per cent. Edinburgh, 50 per cent, and other UK airports, 31 per cent. That was an example then, my Lords, but that sort of division and application of the carbon budget is what I would expect to be shown on an ANPS which is a national policy statement and something that the Secretary of State has stated in his submission that it is national. And it is national. I mean, it is intended to be a hub airport, whether one thinks that’s right or wrong. Without that, my Lords, and without that apportionment I submit that neither section 10 nor section 5(8) have been complied with. We simply don’t know how this is going to work in line with other airports.
I think, my Lords, I have probably come to the end of my allotted time. I thank you very much indeed for listening to me and if there are any questions, my Lords, I would be pleased to answer them.