Result of the Judicial Review of the Airports National Policy Statement – Observations of Neil Spurrier, one of the claimants
Regrettably all the claimants in the Heathrow Judicial review lost their claims in the High Court. Basically, the Court decided that it was not going to consider the merits of the Airports National Policy Statement, but only whether any rules of law were broken. Although some would have different opinions, the Judges were of the view that none of the rules had yet been broken.
Full text of the judgment and the press statement are available at https://www.judiciary.uk/judgments/neil-richard-spurrier-othrs-v-the-secretary-of-state-for-transport-heathrow-judgments/
While the decision is very disappointing, the Judges did emphasise that they were not commenting on the merits of the National Policy Statement. The judgment is long, stretching to over 650 paragraphs and 250 pages. The postscript of the judgment stated that “There was a tendency for the substance of parties’ positions to take more of a centre stage than perhaps it should have done, in a hearing that was concerned only with the legality (and not the merits) of the ANPS”. Similarly the press statement just issued by the Court states that “It must be emphasised that the court was not concerned with the merits of increasing airport capacity or of satisfying any need by way of a third runway at Heathrow“. That is, at least, something that we can push back at Heathrow and the Government, if and when either suggests that Heathrow expansion is going full steam ahead – which it is not, without further and extensive examination in the Development Consent Order process, from which the expansion scheme may yet fail.
All the organisation claimants have decided to appeal and have lodged their applications
The central focus of the Government’s defence was that the National Policy Statement was only required to show that potentially the Heathrow expansion scheme was deliverable and that, in showing this possibility, the Government were only required to show that they had considered the relevant matters set out in the legislation. Due to the considerable publicity and thought that had gone into the National Policy Statement, it was not possible (so said the Government) to say that the decision was so irrational or unreasonable that no reasonable person would have come to it – the so-called Wednesbury rules (named after the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)). Ultimately the Court agreed with this.
There is still much to be argued about at the Development Consent Order stage (the National Policy Statement is just a policy and not a planning consent). Clearly, air quality can only potentially be compliant, and many people think that the likelihood is that it will not be compliant, and consent should not be granted on that ground alone.
The Court declined to get involved in whether noise was unbearable now or would be unbearable in the future. The Court’s view was that to have a decibel level of 54dB LAeq did not fall foul of the Wednesbury rules, even if it was claimed that the level did breach WHO guidance. I spent a lot of time arguing about the difference between the WHO Night-Time Noise Guidelines of 2009 and the SoNA report of the CAA. The Court did not consider that the forum of judicial review of the National Policy Statement was the appropriate place for that discussion.
Similarly, the Court showed reluctance to become involved in air quality, particularly the claimed error in the forecast emissions from aircraft themselves. The Boroughs had argued that there was an 80% chance that the emissions near the airport would be above the permitted amount, as defined in the Appraisal of Sustainability as “High”. The Government countered that by saying that the definitions in the Appraisal of Sustainability meant that they would be within the 10% of the limit. Either way the risk is substantial that expansion will not comply with the Air Quality Regulations.
I had argued extensively that three studies, all specially referred to by the Air Quality Expert Group of DEFRA, show that harmful ultrafine particulates and NOx from aircraft can travel for more than 20 kilometres downwind from the point of emission, rather than the 2 kilometres stated by the Government. The amount of emissions could be 4 to 5 fold the norm under the flight paths up to 10 kilometres and even 20% above the norm at 40 kilometres from the airport. One of the surveys was at Los Angeles Airport, in which the report stated that
“We measured at least a 2-fold increase in PN concentrations over unimpacted baseline PN concentrations during most hours of the day in an area of about 60 km2 that extended to 16 km (10 miles) downwind and a 4- to 5-fold increase to 8−10 km (5−6 miles) downwind. Locations of maximum PN concentrations were aligned to eastern, downwind jet trajectories during prevailing westerly winds and to 8 km downwind concentrations exceeded 75 000 particles/cm3, more than the average freeway PN concentration in Los Angeles.”
Evidence from Queen Mary’s University hospital was produced showing the damage caused by ultrafine particulates going deep into the blood stream and being passed down to the next generation by entering the placenta surrounding an unborn foetus. Unfortunately, the judges were having none of it at this stage. That is not to say that it cannot be raised later, but it does seem that an opportunity has been missed by the court.
Climate Change featured prominently in all the environmental arguments. Perhaps one of the more remarkable features was the defence of the Government to the claim of Plan B Earth that global warming should be kept to 1.5⁰C above pre-industrial levels contained in the Paris Agreement and as set out in the special report of 2018 of the Intergovernmental Panel on Climate Change. The Government argued (successfully) that as the Paris Agreement had not been adopted into domestic law, there could be no complaint that it had not been observed – the law remained as set out in the Climate Change Act 2008 providing for an 80% reduction of CO2 emissions by 2050, and no more. As has been made evident by the recent demonstrations by Extinction Rebellion and the speeches of Greta Thunberg from Sweden, this may well be nothing like enough. Although this defence was successful, it may come back to haunt the Government as showing just how irresponsible it is being over climate change. In addition, the concept of the UK signing an international treaty such as the Paris Agreement, and then dishonouring it because the government has failed to pass the treaty into domestic law, will leave a very sour taste in the mouths of many people. This Government has criticised Donald Trump for walking away from climate change. Perhaps our government should consider the gospel according to St. Matthew chapter 7 verse 4 “How can you say to your brother, ‘Let me take the speck out of your eye,’ while there is still a beam in your own eye?” The Committee on Climate Change is responding to the Government with its advice on what level of greenhouse gas emissions reduction is required to combat climate change. It will be interesting to see how the Government reacts to that.
I had argued that climate change had not been taken into consideration sufficiently because no apportionment between airport expansion across the Country had been considered. If Heathrow expands, how can other airports expand (as they are doing and planning to do) when all the quota of greenhouse gas emissions has been taken up by Heathrow? This cut no ice with the Judges who considered that at the National Policy stage, it was sufficient to show that climate change had been considered and that a possibility of Heathrow expansion within the greenhouse gas emissions limits had been considered (which, of course it had, since the Airports Commission had considered it, however warped one might consider the extent of the consideration). All this does not mean that climate change will not be considered again at the Development Consent Order stage – and it almost certainly will be and the expansion scheme may well fail on that point. Extinction Rebellion may see to that.
At the end of the day the madness of expanding airport capacity in the south-east, which is already so over-crowded may have to be left to the good offices of the various campaign groups and a 16 year old school girl from Sweden.
 Friends of the Earth have stated that they are going to appeal.
 The Boroughs’ solicitors have now served a court application for permission to have extra time beyond the standard 7 days, in order to take instructions and discuss between themselves whether they will appeal