1 Monday, 11 March 2019 2 (10.15 am) 3 Housekeeping 4 MR PLEMING: May it please you, my Lord, we supplied to you 5 a list of all the counsel, which I hope was helpful, but 6 as there are members of the public here and there is an 7 overflow court, would your Lordships mind if I just read 8 out those who have speaking parts rather than the whole 9 list? 10 LORD JUSTICE HICKINBOTTOM: A good idea, Mr Pleming. 11 MR PLEMING: My Lord, I am Nigel Pleming, representing the 12 first of six claimants in the Hillingdon claim. That is 13 the local authorities and Greenpeace. My learned friend 14 Mr Jaffey, who sits to my left, represents the seventh 15 claimant, that is the Mayor of London, and we are 16 covering the issues, topics and will be, together, 17 addressing the court on behalf of all the claimants. 18 We will be followed by David Wolfe Queen's Counsel 19 for Friends of the Earth. Beyond Mr Wolfe there is 20 Tim Crossland for Plan B Earth, and behind Mr Crossland, 21 behind David Wolfe, is Mr Neal Spurrier, who is 22 a claimant in person and speaks for himself. 23 To my right would be leading counsel for Heathrow 24 Hub Limited, but they are reserving their position until 25 next week. That is Mr Kingston and Mr O'Donoghue. They 1 1 may not be speaking this week. 2 For the Secretary of State, James Maurici, to my 3 right, will be leading the case for the government. For 4 the interested parties, beyond Mr Maurici, is 5 Michael Humphries Queen's Counsel for Heathrow Airport 6 Limited, and after the ceremony, Mr Charles Banner will 7 be here, also representing an interested party Arora 8 Holdings Limited, when he will be Charles Banner 9 Queen's Counsel. 10 My Lord, there are many bundles; comments have been 11 made about the number of bundles. Four bundles have 12 been added to the court core bundles. SB10, or 10, is 13 the annotated bundle of skeleton arguments, to which 14 this morning we now add a further version of the 15 Secretary of State's skeleton argument with case bundle 16 references. 17 I hope you received that this morning. 18 The documents covering the period 2012 to 2017, 19 so to July 2017, are in bundle 11, supplemental 20 bundle 11. Those are documents that are not in the core 21 bundles, such as the ANPS, et cetera, but documents 22 referred to by witnesses for which the oral arguments 23 will be directed. 24 The next bundle is SB12, and that is the same idea, 25 but moving on from July 17 until up to date, 2019 and 2 1 finally, SB13 contains technical documents and documents 2 that mainly relate to the climate change challenge. 3 My Lords, you also will have bundles of authorities. 4 They, I hope, helpfully have been divided into topics, 5 rather than chronology. The end result is that some are 6 heavier than others, but we have tried to keep to the 7 overall limit of not making them beyond 450 pages, 8 double-sided. 9 My Lord, could I start by expressing gratitude to 10 my Lords and the court staff for the assistance over the 11 last few days, and the weeks and the months, in 12 facilitating the presentation of these factually and 13 legally complex challenges, and for accommodating such 14 a large number of representatives and observers here 15 and, I understand, in court 75, next door. 16 LORD JUSTICE HICKINBOTTOM: Before we go on, Mr Pleming, 17 could we deal with one or two administrative points? 18 MR PLEMING: Yes, I was going to turn to them now. 19 LORD JUSTICE HICKINBOTTOM: Mainly to make sure there aren't 20 any issues, I hope. 21 Firstly, as you know, we have this court and the 22 next door court. We have a view of next door's court. 23 There seems to be slightly more room in next door's 24 court if anybody wants to decamp. 25 MR PLEMING: Shall I move there? 3 1 LORD JUSTICE HICKINBOTTOM: No, I don't think we'll let you 2 move there, Mr Pleming, but same may, particularly as 3 the temperature in this court may rise. The air 4 conditioning will do what it can. 5 But there is the court next door and we have a view 6 of that. 7 But, as far as you know, Mr Pleming, no issues as to 8 seating, all of the legal representatives and press are 9 here. 10 MR PLEMING: Yes, and room for more press, I see. We are 11 very grateful for making the arrangements and the extra 12 row. 13 LORD JUSTICE HICKINBOTTOM: The administration have done 14 that, and thanks to them. 15 Secondly, I think formally we have to give 16 permission to live tweet, which we do, if anybody wants 17 to tweet that is fine. 18 Thirdly, LiveNote is being used. You, Mr Pleming, 19 obviously know that, but the transcript of LiveNote, as 20 I understand it, will be available on the judiciary 21 website at about 9.00 pm each day. That is the plan. 22 The fact that we have transcribers means that we will 23 have to have a break in the morning and afternoon for 24 them, and that will need to be a break of about 10 to 25 15 minutes. We leave it to counsel, really, to break at 4 1 an appropriate time each morning and each afternoon. If 2 you forget, we'll remind you. 3 MR PLEMING: My Lord, I was going to suggest around 11.30 4 for this morning and 3.15 for the afternoon. 5 LORD JUSTICE HICKINBOTTOM: Certainly, yes. 6 The other thing that is a consequence of that is 7 that we propose to start at 10.15 each day, so that we 8 still have the right amount of time with those breaks 9 and we'll finish about 4.30 each day generally, although 10 4.15 today because it is Silks day and I know others, 11 including my Lord and myself, have to be elsewhere by 12 4.30, so we are going to break at 4.15 today. 13 You have mentioned the documents. We have read, we 14 believe, all of the relevant documents. Obviously, 15 notably the agreed statements and the skeleton 16 arguments, and the documents, or most of the documents 17 and authorities referred to in the skeleton arguments. 18 The evidence that has been lodged amounts to 19 thousands and thousands of pages, much of which is not 20 referred to in the skeleton arguments, and we have read, 21 frankly, a great deal of it; not certainly all of the 22 evidence that has been lodged, but a great deal of it. 23 Much of the evidence goes to the merits of the 24 decisions in the ANPS; the conclusions that further 25 airport capacity in London and the South East is needed. 5 1 The conclusion that to satisfy that capacity, a further 2 runway is required and, obviously, the conclusion that 3 that runway should be the Heathrow northwest runway. 4 We appreciate that many of the parties and members 5 of the public have sincere and deep concerns about 6 important issues such as climate change and air quality; 7 legitimate national and global concerns. But, as you 8 are aware, Mr Pleming, we aren't concerned with the 9 merits of the strands of decisions within the ANPS, 10 which are matters of policy. They are matters of high 11 level policy involving many social and economic factors 12 in respect of which a great deal of scientific evidence 13 exists and continues to emerge. 14 We are concerned with, and only concerned with, the 15 legality of the NPS. We consider, Mr Pleming, that it 16 is important we remain focused on that, rather than the 17 merits; not only because the merits are irrelevant to 18 the issues before the court, but also because it is 19 imperative that the parties maintain the timetable for 20 the hearing that the parties have agreed, which we 21 believe gives all of the parties an appropriate 22 opportunity to make their case on the issues, and we're 23 certainly very grateful to all of the legal 24 representatives for agreeing the list of issues, which 25 we found extremely helpful. Those issues, we think, 6 1 have properly focused most of the skeleton arguments on 2 the areas which we think are going to be important for 3 the resolution of the claims. 4 In respect of the mass of evidence that we do have, 5 we certainly will find it helpful if each of the 6 advocates identifies the passages of the evidence upon 7 which they particularly rely. We say that because some 8 of the skeleton arguments refer to a statement upon 9 which reliance is made in respect of a proposition, but 10 when you look at the statement, it turns out to be 11 several hundred paragraphs long. So, some focusing on 12 precisely the evidence which is relied upon in respect 13 of any proposition by the parties would be very helpful. 14 Documents continue to come in. We have had a number 15 over the weekend. Can we say this: it will be helpful, 16 and indeed imperative, that as documents come in that, 17 firstly, we know why they are required and, secondly, 18 they are numbered and hole punched, so that we can put 19 them into the bundles. Otherwise, the documentation may 20 be less helpful than it otherwise would be. 21 We hope those sort of administrative points are 22 helpful. They are designed to be. 23 MR PLEMING: My Lord, extremely helpful, and they continue 24 an exchange I had between myself and my Lord, back 25 in October of last year. What we have tried to do is do 7 1 that process of focusing. Some of the core documents, 2 for example, it is difficult to put in part of the 3 appendices to the ANPS and that's filled up, for 4 example, the whole of volume 9. When it comes to the 5 supplemental bundles, because they have covered such 6 diverse topics such as climate change and others, there 7 are many pages. I will focus, if I am allowed to the 8 get to the SEA points, on particular passages in 9 particular documents and I will be as precise as 10 I possibly can. 11 LORD JUSTICE HICKINBOTTOM: The observations I have made 12 don't detract from the fact that we are enormously 13 grateful to all of the legal representatives, all of the 14 parties for doing the work that they have done, in terms 15 of, particularly, as I have said, the list of issues, 16 but also in focusing on the matters that we will have to 17 determine now. We appreciate that has taken an enormous 18 amount of time, effort and, indeed, cooperation. We are 19 very grateful. 20 MR PLEMING: My Lord, I will be dealing, soon, with standard 21 of review and I hope that will also -- if you accept my 22 submissions -- make it a bit easier to see where we are 23 going. 24 My Lord, could I deal with a bit of housekeeping? 25 LORD JUSTICE HICKINBOTTOM: Yes. 8 1 MR PLEMING: It shouldn't be me now, we should be talking 2 about the more exciting discussion about the reach of 3 Article IX of the Bill of Rights, but sadly we are not. 4 But there is an agreement; did that document get to your 5 Lordship? 6 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 7 MR PLEMING: That means that there is now an available hour, 8 less the 15 minutes this afternoon. There has been some 9 discussion as to who owns the hour between those who 10 represent the claimants. Could I leave it on the basis 11 that we, the claimants, who I represent and Mr Jaffey 12 represents, would like what's left of that hour, but 13 Mr Wolfe may feel that he's entitled to a bit of it, as 14 may Mr Crossland and Mr Spurrier, so we'll see how we 15 get on in the day tomorrow. 16 MR JUSTICE HOLGATE: In any event, it won't be an 17 application of Parkinson's law. 18 MR PLEMING: No, if we can save that hour and preserve it 19 for social time, that would be a great success. 20 LORD JUSTICE HICKINBOTTOM: But we'll see. 21 MR PLEMING: We'll see. 22 My Lord, as I said, as I was introducing the 23 speakers, both myself and Mr Jaffey represent the 24 claimants, and we have divided up the issues. I will 25 tackle most of the standard of review part of the case, 9 1 that is issue 1 in the list of issues. It will be more 2 appropriate for Mr Jaffey to deal with some aspects, or 3 one aspect of that, because he will be dealing with 4 habitats, surface access and air quality. So, the 5 standard of review applicable to the rationality aspect 6 of those grounds, perhaps more suited to the submissions 7 of Mr Jaffey when he has explained the grounds in more 8 detail. 9 That leaves me, my Lord, to address three other 10 issues. One is the SEA issues, which, as you know, 11 covers quite a few separate issues. The first one is 12 a particularly important issue of general application, 13 as is the standard of review to which I will soon turn, 14 because it determines what level of judicial 15 investigation there can be when there is an SEA. Your 16 Lordship will have seen the way it is now put by 17 Heathrow and the Secretary of State, and that might take 18 a little time to deal with. 19 My Lord, I also have to deal with what has now 20 become a fairly short point on the consultation failings 21 issue: was the Secretary of State open throughout the 22 process or did he have a closed mind? Then, finally, 23 the issue, I think now we get to 22, which is relief. 24 I was assuming that you would be assisted by some 25 submissions on relief before we all sit down, but not 10 1 complete submissions because we have to wait to see 2 where we get to. 3 LORD JUSTICE HICKINBOTTOM: Yes, I think that's right. 4 MR PLEMING: So, I was going to deal with that tomorrow. 5 LORD JUSTICE HICKINBOTTOM: Yes. 6 Opening submissions by MR PLEMING 7 MR PLEMING: My Lord, at this point, because of the 8 attendance of so many members of the public and the 9 general interest in the case, I was going to introduce 10 the facts. But, on reflection, I doubt that anyone in 11 this room or in court 75 has any lack of relevant 12 knowledge about the subject matter of the challenge and 13 the reasons we are here, but could I just mention two 14 lines of figures, and then move on? 15 The ANPS expects a further 260,000 air traffic 16 movements, ATMs, at Heathrow per annum, which is an 17 increase of approximately 54 per cent from the capped 18 present number of 480,000. 19 It also expects, as we see from the documentation, 20 that there will be an increase to 132 million passengers 21 per annum, which is an increase of 60 per cent from the 22 2017 figures, when 78 million passengers passed through 23 Heathrow. 24 The annual Gatwick figures show that it handles 25 approximately 280,000 ATMs per annum. So, putting those 11 1 simple figures together, the new development, if it goes 2 ahead, will add, in effect, a new airport with the 3 capacity of Gatwick to the north of Heathrow. The 4 adverse consequences for affected residents in London 5 and the South East are bound to be severe. So, that is 6 our base point. 7 We will be exploring some of those consequences as 8 we go through the issues, but that is all I wanted to 9 say by way of very brief introduction. 10 LORD JUSTICE HICKINBOTTOM: Yes. 11 MR PLEMING: My Lord, could I turn then to the issue of 12 standard of review. Your Lordship has already mentioned 13 the merits and we submit that it is necessary to roll up 14 the sleeves a bit and get to know some of the facts, but 15 we accept that a merits challenge is not what judicial 16 review is about. 17 My Lord, the submissions we make are in our opening 18 paragraphs. I assume you have our skeleton argument 19 somewhere to hand, my Lord. 20 LORD JUSTICE HICKINBOTTOM: Yes. 21 MR PLEMING: It is in paragraphs 3 to 6, and also in 8 to 22 13. The Secretary of State addresses this issue in more 23 detail in paragraph 6 to 22 of his skeleton argument. 24 For those with bundle references, that is supplemental 25 bundle 10, tab 5. 12 1 This has been almost a running battle, my Lord. 2 I won't go back to the pleadings, but when we had the 3 pre-action protocol letter, it was met with very similar 4 submissions that we have now. That produced a lengthy 5 response in our original statement of facts and grounds, 6 and a very brief mention in the amended cut down 7 versions. 8 But, my Lord, our submissions are divided into three 9 broad topics. First of all, rationality. The obvious 10 starting point. Secondly, divided itself into three 11 sub-topics, the importance of the role of Parliament. 12 Secondly, political judgment and, thirdly, showstoppers. 13 My Lord, all of those three sub-topics are important and 14 of general application. 15 The third one is particular to this process, and 16 that's the difference between the NPS stage and the DCO 17 stage. Your Lordship now has an agreed supplement. 18 Addition, that I need to add a few words because there 19 are caveats. It should be at CB6.3, page 62, and it is 20 the approach of the Secretary of State at the DCO stage. 21 So, it is a supplement to paragraph 167 of the agreed 22 statement of common ground under 4.1.2. 23 It is CB6.3/62. I will coming to that as my third 24 and last stage. 25 If at any time I am going too fast or jumping around 13 1 the documents, please stop me. Could I then start to 2 deal with rationality? Our first general heading. 3 Again, we make observations divided into three. 4 The first observation we make on rationality, before 5 we get to the detailed submissions, is that the 6 Secretary of State's submissions on the standard of 7 review are only, or at least primarily, relevant to 8 rationality challenges, so when we look at the standard 9 of review authorities. 10 Our grounds do contain three rationality challenges. 11 If I could highlight them without taking you to them, 12 my Lords. 13 First of all, there is a challenge to one aspect of 14 surface access, and that's issue 3.3 on your list of 15 agreed issues. It is the adoption of mode share 16 targets, which the claimants say are neither adequate or 17 achievable, and that is addressed in our skeleton 18 argument at paragraphs 25 to 27. Mr Jaffey will address 19 you on it. 20 Can I just give one reference to where our skeleton 21 is for those who don't have it to hand. It is now in 22 CB10, tab 1 and the numbers follow the pages of the 23 skeleton. 24 The second rationality challenge is on air quality, 25 and that is issue 4.3, and it is summarised whether it 14 1 was rational for the Secretary of State to select the 2 northwest runway knowing there would be a high risk that 3 the air quality directive would be breached. So, that's 4 our skeleton at paragraphs 53 to 57. 5 The third issue, also on air quality, is issue 4.5, 6 where there is a rationality element; that's addressed 7 at paragraphs 51 and 52 of the agreed statement of facts 8 and grounds. 9 My Lord, those are three areas that I said are being 10 addressed in detail by Mr Jaffey. 11 The second point, my Lord, and conscious of what 12 your Lordship said as we began the day, the claimants do 13 not challenge the merits of the northwest runway or the 14 political wisdom of the ANPS. That is for another 15 place, not this court. The claimants' challenge is to 16 legal errors made in the steps made in that judgment, 17 which we say vitiate the decision to designate. 18 We have made that point repeatedly -- for example, 19 see paragraph 6 of our skeleton argument -- and that's 20 what we will try and focus on. 21 We are conscious, as your Lordship has already said, 22 that there comes a point when you have drifted from 23 legal argument to merits arguments, and we will try and 24 avoid doing that. 25 The third of these three introductory points is that 15 1 the rationality challenges -- those are the ones I have 2 just identified -- are far removed from the high level 3 policy decision, the kind of decision that involves 4 questions of political and economic judgment. That's 5 the Wandsworth case. The reference -- I will come back 6 to Wandsworth later -- that is authorities bundles 7 volume 2, tab 36, at paragraphs 59 and 60, which cites 8 the well known case of Bushell v the Secretary of State 9 for the Environment. 10 It follows that the general submissions on the 11 standard of review applicable to macro-economic 12 political decisions, to which the Secretary of State 13 devotes much of his submissions, are not relevant to the 14 rationality issues before the court. They are of 15 a different nature. 16 Could I repeat again, as we turn to the Secretary of 17 State's submissions, by repeating the point that we 18 make: we accept, of course, that judicial review does 19 not provide an opportunity to contest the planning 20 merits of a planning authority's decision. Tesco 21 Stores, Prideaux, Newsmith, cases we are all familiar 22 with. 23 The Secretary of State, at paragraph 17 of his 24 skeleton argument, refers to Newsmith, or the reference 25 for Newsmith, if we need to get to it -- I want to show 16 1 you one paragraph -- is at AB2, tab 42. That is 2 authorities bundle volume 2, tab 42. 3 Fortunately, all of the cases I am referring to, 4 because they are topic based, are in volume 2, so 5 that's, I hope, the only volume we need look at. 6 But it is said that we continue to dispute the 7 relevance of Newsmith. We accept -- see paragraph 8 of 8 our skeleton -- we made it clear in our reply, at 9 paragraph 13, that a merits challenge is not open to the 10 claimants, save on the basis of rationality. 11 Newsmith is not needed for that uncontroversial 12 statement. 13 Our reservation on Newsmith was the specific 14 reliance by the Secretary of State on paragraph 7 of the 15 judgment in Newsmith. Dealing with the particular 16 advantages of the planning inspector. We say that does 17 not apply to the three rationality challenges advanced 18 in this case. 19 Could I just take you to that paragraph? It is 20 volume 2 of the authorities, tab 42. That should be the 21 last tab in your Lordship's bundle. This is Newsmith 22 Stainless Limited, Secretary of State 2017 report, for 23 the 2001 decision. It is paragraph 7, on page 1128 of 24 this report. 25 We have the general statement, which you will see in 17 1 5, that planning merits are within the scope of the 2 challenge. So, they are not off limits, but the court 3 must be astute to ensure that such challenges are not 4 used as a cloak for what is in truth a re-run of the 5 arguments on the planning merits. 6 So, they can be addressed, but with that caveat. 7 Then you get to 7: 8 "Moreover, the inspector's conclusion [this is the 9 inspector who is being described in paragraph 6] will 10 invariably be based not merely upon the evidence heard 11 at an inquiry or an informal hearing or contained in 12 written representations, but ... and this will often be 13 of crucial importance upon the impressions received on 14 the site inspection. Against this background an 15 applicant alleging an inspector has reached a Wednesbury 16 unreasonable conclusion on matters of planning judgment 17 faces a particularly daunting task." 18 So, a particularly daunting task are the three words 19 that my learned friends would seek to emphasise, but the 20 context, as with everything in judicial review, is 21 important: 22 "It might be thought that the basic principles set 23 out above are so well-known that they do not need 24 restating." 25 We agree: 18 1 "But the claimant's challenge in the present case, 2 although couched in terms of Wednesbury unreasonable, is 3 in truth a frontal assault upon the inspector's 4 conclusions on the planning merits." 5 That is particularly because the planning inspector 6 has had all of those advantages. 7 So, my Lord, that is the -- 8 MR JUSTICE HOLGATE: Just before leaving that case, you talk 9 about the context. We can see that from paragraph 6 of 10 the judgment also paragraph 8 and also paragraph 10. 11 There was an attempt to entice Mr Justice Sullivan into 12 looking at maps and photographs and landscaping issues. 13 MR PLEMING: Yes. 14 MR JUSTICE HOLGATE: But put that point to one side, the 15 only an issue perhaps for us to consider in this case is 16 whether the approach is markedly different when you are 17 looking at expert evidence and predictive matters. 18 MR PLEMING: My Lord, it is important to get there, to get 19 to that point eventually. 20 MR JUSTICE HOLGATE: That is where perhaps "Mott" comes in. 21 MR PLEMING: Yes. We will be showing you maps -- I will, if 22 I am allowed -- to show you what the Secretary of State 23 could have done, but didn't do. So, it is not maps 24 relied on by the Secretary of State, it is maps 25 available to the Secretary of State. So, if I am 19 1 allowed to get there when I am dealing with noise. 2 My Lord, that's why we wanted to show you Newsmith 3 and that paragraph. 4 Could I then turn to another judgment, but it 5 appears in a core bundle rather than in the authorities 6 bundle. The Secretary of State repeatedly relies in his 7 skeleton argument, paragraphs 11, 12 and footnote 14, on 8 the decision of Lord Justice Lewison, who refused 9 permission to appeal another challenge to this ANPS by 10 a Mr Clarke. The short decision is in supplemental 11 bundle 12. Can we just have a look at the judgment? It 12 is unusual for reliance to be placed on this type of 13 decision, but it is, so I must show it to you. It is at 14 supplemental bundle 12, tab 28. 15 The facts of the case may be more familiar to 16 Mr Justice Holgate. This is the order made by 17 Mr Justice Lewison refusing permission to appeal, and 18 for permission to apply for judicial review. Does your 19 Lordship have the single page? 20 What the attention is drawn to, and emphasis is 21 placed on the reasons. They are very brief: 22 "Taking into account both the grounds of challenge 23 and the appellant's rebuttal ..." 24 My Lord, we are not going to trouble you with the 25 rebuttal, but I do want to show you two or three 20 1 paragraphs of the grounds of challenge, which the 2 Secretary of State had not added behind this decision: 3 "... the assertions made in both amount to no more 4 than a disagreement with the designation of the ANPS 5 under section 5. 6 "The proposal to build a third runway at Heathrow is 7 a controversial one, and there is plainly room for 8 argument, whether the benefits of the project outweigh 9 disbenefits. It is a debate that has been going on for 10 decades, but that kind of economic and political debate 11 is not a proper subject for judicial review. 12 "The position of the Secretary of State is founded 13 on the examination of the options by an expert panel. 14 It cannot be said that his decision to accept the 15 recommendations is irrational, even if the appellant's 16 opinion it was wrong. The grounds of challenge have no 17 real prospect of success." 18 Can we just see what was being considered by 19 Lord Justice Lewison. So, we have added pages 6661 to 20 6610, which are the statements of facts and grounds by 21 Mr Robin Clarke. When you read through those 22 statements, one may consider that Lord Justice Lewison 23 is being somewhat kind to the applicant in person. But 24 could I ask you just to flick through, and I'll only 25 emphasise two or three paragraphs, but they are here for 21 1 your Lordships to read. 2 It starts on page 2 with this sentence: 3 "Unconventionally for a judicial review statement of 4 facts and grounds, this present claim is based partly on 5 personal testimony of the claimant, and for that reason 6 is insubstantial part here presented in the first 7 person, ie my, et cetera. However, the underlying key 8 facts of the broader social and economic changes 9 involved are common knowledge among millions of people 10 who have, like the claimant himself, lived long enough 11 to be able to notice them. 12 "The claimant here points out solid historical 13 facts, which millions could likewise have confirmed if 14 they had only looked to see them." 15 Then you have: 16 "Alleged economic benefits." 17 So, here is the balancing exercise. I won't go 18 through them, but just casting an eye you can see where 19 the challenge is going. 20 So, those are the alleged benefits. 21 MR JUSTICE HOLGATE: Did I not certify this as totally 22 without merit? 23 MR PLEMING: You did. 24 MR JUSTICE HOLGATE: I don't think this is going to help us 25 very much. 22 1 MR PLEMING: The fact the judgment is relied on my Lord is 2 why I am mentioning it. I agree, but so long as it is 3 relied on by the Secretary of State ... 4 My Lord, without getting into the details, if you 5 read through this, you will find what Mr Clarke was 6 doing for very good motives is talking of his experience 7 over the last 50 years, making remarks, which I thought 8 was unacceptable about the Beatles, but that is by the 9 by. But he was saying, basically, this was a "bonkers" 10 decision. That is the word he uses. 11 In the context of that attack, then the remarks made 12 by Lord Justice Lewison, as I said, are perhaps kind to 13 the applicant, but they are not the kind of decision 14 that should be relied on, with great respect to my 15 learned friend, three times in the Secretary of State's 16 skeleton. 17 LORD JUSTICE HICKINBOTTOM: So, you simply say this is of no 18 help? 19 MR PLEMING: No help. 20 MR JUSTICE HOLGATE: We wouldn't have been in a rolled up 21 hearing if I had thought that about your claim. 22 MR PLEMING: But it is there, and unless I answer it, it 23 will be brought up later. I look forward to the 24 reliance placed on it as we move on. 25 So, that was a full frontal assault on the merits. 23 1 This is not our case. 2 As I have said, the Secretary of State relies on 3 Smith, Bushell, Wandsworth. We also find comfort and 4 support in those cases. They are brought together in 5 Wandsworth; a familiar case as well, that is another 6 airports case. 7 What you get out of Wandsworth, and eventually when 8 we get to two other cases, is the importance of context. 9 So, it isn't just because it is planning policy. Some 10 planning decisions have consequences which are different 11 from others. This is not just about the destruction of 12 houses, the taking of land, but much wider, adverse 13 consequences. 14 So, what you find from Wandsworth -- which is in the 15 same bundle of authorities, but at tab 36. So, 16 volume 2, tab 36 -- was a challenge to the 2003 white 17 paper. My Lord, that white paper comes up later when we 18 look at showstoppers. 19 The decision of Mr Justice Sullivan in 2005. The 20 paragraphs relied on by the Secretary of State are at 58 21 to 60. So, could I invite your Lordships just to look 22 at that? In the photocopy, it should be page 17. Then 23 I'll emphasise just a couple of words. It is 58 to 60. 24 The long quotation from Bushell, so you don't need to go 25 to Lord Diplock in Bushell. 24 1 (Pause) 2 LORD JUSTICE HICKINBOTTOM: Yes. 3 MR PLEMING: My Lord, what you get from that case is the 4 emphasis on the spectrum of decisions, reference to 5 Javid that they made, there was a heavy evidential onus 6 to establish that the decision is irrational. 7 Then, in paragraph 59, bearing in mind that the 8 challenge is to a white paper, so it is to that overall 9 policy statement. You will see that the spectrum is 10 then expanded in the extract from Bushell. 11 What we say is we agree that there is a spectrum of 12 challenge, a spectrum of decisions, even a spectrum of 13 findings, conclusions within the eventual policy 14 decision. So, we are not that far apart from the 15 Secretary of State. 16 What we say, and this is a pretty straightforward 17 comment, that the nature of judicial review in every 18 case depends on context. So, to say that we can't 19 challenge some of the detail of this case because it's 20 a planning decision, and because the Secretary of State 21 has relied on the Airports Commission or has been 22 assisted by employed experts, we say doesn't make it off 23 limits. 24 This was emphasised -- has been emphasised 25 repeatedly, but also more and more, so judicial review 25 1 is a fairly flexible area of challenge and could we -- 2 MR JUSTICE HOLGATE: Just before we leave that page, 3 helpfully you started at paragraph 57, which refers to 4 the Medway case. But that, as I understand it, was the 5 case where Mr Justice Maurice Kay quashed another 6 government decision on the basis of a failure to include 7 Gatwick as an alternative. 8 MR PLEMING: It is, yes. 9 MR JUSTICE HOLGATE: Which may be a fact to bear in mind 10 when we look at the Habitats Regs argument. Just to 11 chase that one down, in fact Medway is dealt with by the 12 judge at paragraph 37, on page 11. It was a little bit 13 of the history I was looking for, and there seems to be 14 the answer. 15 MR PLEMING: My Lord, indeed. I was trying not to take you 16 off the central paragraphs, but I am very happy to. 17 MR JUSTICE HOLGATE: It may be relevant when we come to look 18 at the Habitats Regs and alternative sites. 19 MR PLEMING: These areas of rationality -- as I said, I am 20 not going to deal with Mott, for example, I am leaving 21 that with Mr Jaffey because he will be dealing with 22 those scientific areas or those detailed areas. 23 What I wanted to show you was really a run up to 24 these three areas where the Secretary of State is 25 attempting to lift the bar so high that our claim is 26 1 stopped before we get into the detail, and we say that's 2 wrong. 3 LORD JUSTICE HICKINBOTTOM: As I understand it, you agree as 4 a general proposition -- paragraph 58, the penultimate 5 sentence, you agree that as a general proposition. 6 MR PLEMING: Yes. 7 LORD JUSTICE HICKINBOTTOM: "That where a decision is based 8 upon the evaluation of political or economical 9 considerations, there will be a heavy evidential onus 10 upon a claimant for judicial review to establish that 11 such a decision is irrational." 12 MR PLEMING: Yes. 13 LORD JUSTICE HICKINBOTTOM: As a proposition, that is 14 uncontroversial. 15 MR PLEMING: That is uncontroversial, yes. 16 LORD JUSTICE HICKINBOTTOM: All you say is that you can't 17 assume that every planning decision falls within that 18 proposition. 19 MR PLEMING: Not only that, my Lord, but our challenges are, 20 we hope, scalpel rather than blunderbuss. We are 21 looking at steps along the line. Because I know, 22 perhaps, more about noise than surface access, I can 23 give you an example for what's coming down the road. 24 Part of our argument is that when exploring the 25 likely impact of a third runway at Heathrow, the 27 1 Secretary of State effectively ignored the wider 2 consequences by using indicative flight paths. So, it 3 was a very narrow corridor. We knew then and we know 4 now that was to misrepresent, seriously misrepresent the 5 true impact. 6 Now, according to the Secretary of State, we can't 7 go there. We can't get to that argument because it 8 involves a decision on planning merits, whether it was 9 appropriate or not to use indicative flight paths, and 10 overall it is a political judgment. We say that's 11 wrong, fundamentally wrong, when we get to examining 12 a case like this and the consequences of a decision like 13 this. 14 My Lord, I am sorry if I refer to noise, it is just 15 that I know, as I say, a bit more about the facts of 16 noise. 17 What I gave you, my Lord, was the nature of 18 a judicial review, and every case depends on the 19 context. 20 The authority for that -- if we need authority, it 21 has been around for so long -- is Lord Mance in Kennedy 22 v the Information Commissioner. But rather than going 23 to Lord Mance, could I take you to Pham v The 24 Home Secretary, hoping I have pronounced it correctly. 25 This is in the same volume, volume 2, tab 40. The 28 1 decision of the Supreme Court in 2015, and the paragraph 2 I wanted your Lordships to look at is paragraph 16, 3 where the quotation from Kennedy appears. This is now 4 Lord Carnwath repeating what Lord Mance says. This is 5 paragraph 60: 6 "A majority of the court in Kennedy endorsed 7 a flexible approach to principles of judicial review, 8 particularly where important rights are at stake. The 9 common law no longer insists on the uniform application 10 of the rigid test of irrationality once thought 11 applicable under the so-called Wednesbury principle. 12 The nature of judicial review in every case depends on 13 the context. The judgment also endorsed what 14 Professor Craig said in The Nature of Reasonableness: 15 'Both reasonableness review and proportionality involve 16 considerations of weight and balance with the intensity 17 of the scrutiny and the weight to be given to any 18 primary decision maker's view depending on the 19 context'." 20 Lord Mance, whose judgment appears, you can see, 21 below on the same page, picks up his own comments at 22 paragraph 94, and it is 94 to 96. Effectively, he says 23 the same thing at 94. Picking up a longer quotation in 24 Professor Craig's book and endorsing it. Then, in 96, 25 there is a move into proportionality and I don't need to 29 1 rely on that. It is there for completeness of the three 2 paragraphs. 3 So, my Lord, the appropriate standard of review must 4 be considered, we say, by the court in relation to each 5 of the grounds of challenge and the rationality grounds, 6 which this is concerned with, as I said, are addressed 7 by Mr Jaffey. But the general context, if I could 8 mention it, is that, for all the claims, the immense 9 harm and disturbance and misery caused to many thousands 10 of people who live in the area of London and the South 11 East affected by the operations of Heathrow. 12 The populations, the people, the claimants, who sit 13 behind me, the people who live in Hillingdon, 14 Hammersmith, Fulham, Windsor, their context is the 15 impact and affect on their children, on their lives, on 16 their health and wellbeing, attributable to this 17 decision. There are some planning decisions which are 18 different from other planning decisions and I want to 19 emphasise that our submission is that this planning 20 decision needs very careful examination, subject to my 21 learned friend's overarching point that all of the 22 complaints we make can be resolved at the DCO stage, 23 which is the other mantra. 24 So, what we want to say is not only is this a bad 25 decision, which is the overall merits case, but it is 30 1 a decision which -- because, we say, of the errors that 2 we identify -- has preferred Heathrow and disregarded or 3 removed as an alternative Gatwick, and that's why we are 4 here at this stage. 5 Could I then turn to rather more exciting legal 6 areas -- exciting for those who are interested in public 7 law -- and that is these three topics which raised the 8 bar even higher for my learned friends. Because 9 Parliament voted on this, and voted with a large 10 majority, then your Lordships should back off even more, 11 and we will not be going to any of the reasons for that 12 number. I am told by my juniors that I mustn't mention 13 the word "Brexit" at all, and I won't. But could I look 14 at the three topics, role of Parliament, political 15 judgment and showstoppers. 16 We invite the court to take a different view and 17 reject the submissions by the Secretary of State on 18 those three areas. 19 This is how it is put by the Secretary of State: 20 because Parliament had a role to play, there is "a very 21 high threshold indeed". Skeleton argument, 22 paragraph 15. Heathrow Airports Limited skeleton 23 argument, paragraph 84. So, that is the Parliament 24 point. 25 The second point is because there is an element of 31 1 political judgment in the overall policy decision, 2 a rationality challenge requires -- and then I quote 3 "bad faith, improper motive or manifest absurdity". 4 That is the Secretary of State, paragraph 16, so could 5 I call that "political judgment". 6 Then thirdly, until Heathrow Airports Limited is 7 given final approval to construct and use the third 8 runway, the claimants need to establish that there is 9 one or more showstoppers. That is the skeleton argument 10 of the Secretary of State at paragraphs 18 to 22, and 11 Heathrow Airport Limited at paragraphs 8A, 20 and 21. 12 Could I turn, first of all, to the role of 13 Parliament. As I have said repeatedly, the errors we 14 point to are in the steps leading up to the decision to 15 designate the ANPS. To the extent that they are 16 defects, they of course are not evidenced on the ANPS or 17 on the supporting AOS. So, the points we make were not 18 put before Parliament. That is for later. 19 Can we just look at the authorities relied on and 20 see how they marry up with the challenge we make -- 21 LORD JUSTICE HICKINBOTTOM: We are dealing, at the moment, 22 with rationality. 23 MR PLEMING: I have moved from rationality to the general 24 challenge. 25 All of these arguments, my Lord, I am told, go to 32 1 every ground we are raising, unless I misunderstood it. 2 My opening submissions, my Lord, were on rationality. 3 LORD JUSTICE HICKINBOTTOM: I understand that. I see that, 4 but you say that these issues go to all of the grounds. 5 MR PLEMING: That's how we understand it. 6 LORD JUSTICE HICKINBOTTOM: Speaking for myself, it seems to 7 me that if Parliament has approved a course of action it 8 might be that the hill might be even steeper for the 9 claimant to climb on rationality than would otherwise be 10 the case. But if, for example, there has been a defect 11 in procedure, let's say, entirely hypothetically, the 12 consultation was not performed properly, then the fact 13 that Parliament has approved the conclusion may not make 14 the hill much steeper. 15 MR PLEMING: My Lord, we have to accept the fact of the 16 approval of Parliament and your Lordships may or may not 17 give weight to that fact, but this is a statute that 18 anticipates two things. One is that there is a required 19 approval from Parliament, in part because the bill that 20 became the Planning Act 2008 did away with public 21 inquiries. 22 LORD JUSTICE HICKINBOTTOM: Quite. 23 MR PLEMING: So, the public's involvement was taken away. 24 In its place goes two things. One is the scheme has to 25 be put before Parliament. That becomes important when 33 1 I go to our minds made up, that the words used by the 2 Secretary of State focused on Parliament. 3 Secondly, the same statute gives access to the 4 courts. It would be a very odd conclusion to say that 5 Parliament enacted the protection of a vote from 6 Parliament and then moderated the judicial review ground 7 so that you had to rely on the fact that there had been 8 a vote from Parliament. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR JUSTICE HOLGATE: Could you give us the reference to the 11 Secretary of State's skeleton again, where you derive 12 these points? 13 MR PLEMING: Paragraph 16, and it is in the -- 14 MR JUSTICE HOLGATE: I thought you said 18. 15 MR PLEMING: It is detailed grounds of defence, at 16 paragraph 62. 17 I wanted to look at the three authorities and, 18 again, because, as I keep emphasising, although I am 19 here to represent the Boroughs and Greenpeace and the 20 Mayor on this issue, just in relation to this challenge, 21 if we -- it is of wider importance. These are pretty 22 fundamental public law questions. 23 The first case relied on, there are three, 24 M v Home Office, a familiar case, O'Connor and then SG. 25 M v Home Office is volume 2, tab 33. 34 1 This is a case your Lordship may or may not be 2 familiar with. It was an attempt to injunct the Home 3 Secretary, Kenneth Baker at that time, in a personal 4 capacity. 5 What had happened is that an asylum seeker had been 6 removed in the course of his challenge to the lawfulness 7 of the removal, and between, coincidentally, London 8 Heathrow and Zaire, his flight should have been stopped 9 in Paris, brought back to England, so his plane could go 10 forward. He was allowed to go on to Zaire, and I am not 11 sure the full story, but I don't think he was seen of 12 again. 13 So, there were then proceedings against the Home 14 Secretary. 15 The passage relied on in this lengthy judgment is 16 short, and I will take you to it. It is on page 413 of 17 the decision, [1994] Appeal Cases, page 413. The 18 Secretary of State and Heathrow Airport Limited rely on 19 the speech of Lord Woolf at paragraphs (d) to (g). 20 Before reading what is in there or inviting your 21 Lordships to look at it, there is a reference to 22 Merricks v Heathcote Amory. This was an attempt, back 23 in 1955, to proceed against the minister responsible for 24 agriculture by issuing a writ against him, so it was 25 private law proceedings. It was a writ action seeking 35 1 an injunction restraining that minister from introducing 2 a statutory instrument, which had been laid before 3 Parliament, and further requiring its withdrawal. 4 Of course, since then many challenges to statutory 5 instruments have taken place, since 1955, under the 6 umbrella of judicial review. Many examples, the Public 7 Law Project, for example, has been involved over the 8 Legal Aid regulations. 9 But with that background, could your Lordships just 10 read (d) to (g) to save me reading it out loud, unless 11 because there is such a wide audience, it may be better 12 if I do read it out. 13 (Pause) 14 If you get to the passage: 15 "Even today on an application for judicial review 16 [because the rest is all about private law writ actions] 17 it could be difficult to persuade a court to intervene 18 on similar facts to those on the merits case." 19 Perhaps not surprising if you look at the decision 20 of the facts in 1955, Chancery Division, page 567. I am 21 showing the passage because that is the one referred to. 22 Having read it more than once, it may be that the 23 Secretary of State has the wrong passage. That is the 24 first case. 25 The second case is O'Connor v the Chief Adjudication 36 1 Officer. This is the same bundle, tab 35, a rationality 2 case. This is the 1999 education challenge. 3 You can see Lord Justice Auld begins his judgment at 4 page 1201, at H, and you can see that it is dealing with 5 income support. At the foot of the page is the policy. 6 Its policy is: 7 "In the main, full-time students should not be 8 entitled to Social Security support even when 9 temporarily not attending their course and involuntarily 10 unemployed, but that part-time students who are 11 involuntary unemployed should be so entitled." 12 So, you can almost see where the judgment is going 13 to go. 14 The decision is at page 1214, and you can see that 15 it is set out at 1214 (c) to (g). My Lord, you can see 16 why it fails in irrationality terms. It is unnecessary 17 for us to go into that in great detail. 18 Save for this passage, which is important to read, 19 at 1215: 20 "As Mr McManus submitted, it was for the Secretary 21 of State under the scrutiny of Parliament to decide who 22 should qualify for Income Support and who should not. 23 Simply because his policy may have operated partially in 24 individual circumstances did not make it irrational." 25 Then a distinction between the two classes is set 37 1 out. The challenge was rejected. 2 The passage relied on by my learned friends is at 3 page 1210. Under a heading "vires". Again, you will 4 see that Mr Drabble was arguing for irrationality. The 5 regulations are set out, and you will see between (e) 6 and (f): 7 "The Secretary of State's regulation-making power 8 was subject to parliamentary scrutiny. The courts could 9 only find invalidity by reason of irrationality. If the 10 Secretary of State had misled or deceived Parliament or 11 had otherwise acted in bad faith. It is common ground 12 that was too narrow a view. Irrationality is a separate 13 ground for challenging subsidiary legislation and is not 14 characterised or confined to a minister's deceit of 15 Parliament or having otherwise acted in bad faith. That 16 means irrationality in the Wednesbury sense. Counsel 17 have referred to the difficult notion of extreme 18 irrationality. Sometimes suggested as necessary before 19 a court can strike down subsidiary legislation, subject 20 to parliamentary scrutiny." 21 We get to Nottingham and Hammersmith, to which I'll 22 be turning, and the reference to "manifest absurdity": 23 "It is wrong to deduce from those dicta a notion of 24 extreme irrationality. Good old Wednesbury rationality 25 is about as an extreme a form of rationality as there 38 1 is. Perhaps the thinking prompting the notion is that, 2 in cases where the minister has acted after reference to 3 Parliament, usually by way of affirmative of negative 4 resolution procedure, there is a heavy evidential burden 5 on the claimant to establish the rationality of 6 a decision which owes much to political, social and 7 economic considerations ..." 8 If your Lordship could read to the end, you will see 9 there is -- end of that passage, rather than me reading 10 it. There is then a reference to the well-known case of 11 ex parte Smith, back in 1996, in which the court 12 declined to quash decisions of discharge of homosexuals 13 from the Armed Forces. 14 The notion of the more exacting test of Wednesbury 15 irrationality is referred to: 16 "The greater the policy content of a decision and 17 the more remote the subject matter a decision from 18 ordinary judicial experience, the more hesitant the 19 court must necessarily be in holding the decision to be 20 irrational." 21 My Lord, as I keep saying, we have these three 22 irrational subgrounds and there is Mott, et cetera, to 23 be dealt with, but these, as I understand it, are 24 decisions deployed across the whole challenge we are 25 making, and that is why I draw your attention to them. 39 1 LORD JUSTICE HICKINBOTTOM: What I get from this authority 2 is that the hurdle for irrationality is static. The 3 hurdle doesn't change, but the context may mean that it 4 is more difficult to overcome that hurdle than in other 5 cases. 6 MR PLEMING: But, my Lord, that goes both ways. The context 7 also doesn't lower the hurdle, but might make it easier 8 to get over it. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR PLEMING: I am using the example of hurdles being raised. 11 Barriers, these are being put up to make our life more 12 difficult. And your life easier, in a way, in not 13 having to go into the detail. 14 Can I stop there on O'Connor and turn very briefly 15 to the third case, just to deal with all three of them. 16 So far, we are only dealing, as I said, with 17 irrationality challenges. The kind of challenge that 18 Mr Clarke was making to the overall policy about there 19 being -- he wouldn't accept, even, if there was a need 20 for increased aviation capacity in the South East. 21 The third case is SG. It has a different heading as 22 it reaches higher reports, but it is in tab 39 of the 23 same bundle. The particular passages to look at are 24 Lord Reid -- this is a 2015 decision -- Lord Reid, at 25 paragraphs 92 onwards. The Secretary of State relies 40 1 on, I think, all of these paragraphs. It is under 2 a heading: 3 "The intensity of review." 4 These are, we say, important and, indeed, helpful 5 paragraphs for us, not for the Secretary of State. 6 My Lord, if you read through, perhaps to yourselves, 92, 7 and then could I pick up at 93. 8 (Pause) 9 This, you will see ... 10 (Pause) 11 LORD JUSTICE HICKINBOTTOM: Yes. 12 MR PLEMING: My Lord, at 93, that consideration, that's some 13 matters are by their nature more suitable for 14 determination by government or Parliament than by the 15 courts: 16 "That consideration is relevant to these appeals 17 since the question of proportionality involves 18 controversial issues of social and economic policy with 19 major implications for public expenditure." 20 It is a small point, but could I just, at this 21 point, remind the Secretary of State of his pledge. 22 His pledge, there were five parts of his pledge which 23 were made before Parliament considered the proposal. 24 One is, and I quote: 25 "No cost to taxpayers". 41 1 You can find that at core bundle 3, divider 1, 2 page 45, in the witness statement of the leader of 3 Hillingdon Council: 4 "The determination of those issues is pre-eminently 5 the function of democratically elected institutions. It 6 is therefore necessary for the court to give due weight 7 to the considered assessment made by those institutions. 8 Unless manifestly without reasonable foundation, their 9 assessment should be respected. As I have explained, 10 the regulations were considered and approved by 11 affirmative resolution." 12 Then there is reference to Lord Sumption and his 13 judgment in Bank Mellat: 14 "When a statutory instrument has been received by 15 Parliament, respect for Parliament's constitutional 16 function cause for considerable caution before the court 17 will hold it unlawful on some grounds, such as 18 irrationality, which is within the ambit of Parliament's 19 review. This applies with equal special force to 20 legislative instruments founded on considerations of 21 general policy." 22 I have assumed the reason this is referred to, 23 my Lord, is because of the words "such as irrationality" 24 in the extract from Lord Sumption's judgment in 25 Bank Mellat. 42 1 Then 95: 2 "Many of the issues discussed in this appeal were 3 considered by Parliament prior to its approving the 4 regulations." 5 So, not a proposal and a vote, but detailed 6 considerations. 7 Then, missing out the cases: 8 "Furthermore, that consideration followed detail 9 consideration of clause 93 of the bill, which became 10 section 96 of the Act. It is true that the details of 11 the cap scheme were not contained in the bill which 12 Parliament was debating, but the government's proposals 13 had made clear that they were challenged by means of 14 proposed amendments to the bill, and they were the 15 subject of full and intense democratic debate. That is 16 an important consideration, as Lord Bingham observed in 17 the Countryside Alliance case: 18 "The democratic process is liable to be subverted 19 if, on a question of moral and political judgment, 20 opponents of the Act achieve through the courts what 21 they could not achieve in Parliament. The same is true 22 of questions of economic and political judgment." 23 That's relied on, my Lord, I assume to challenge all 24 of our grounds. We say the democratic process is not, 25 we submit, liable to be subverted if the claimants, the 43 1 Boroughs, the Mayor and Greenpeace bring before the 2 court the discrete grounds we identify for 3 consideration. If anything, the democratic process is 4 upheld. 5 As I say, we don't challenge matters of moral or 6 political, or even economic judgment. Could I look at 7 the Planning Act for a moment, to see where this all 8 fits? I touched on this in answer to a question from 9 the court earlier. 10 The relevant sections are set out in full, save for 11 section 6 in the agreed statement of common ground, but 12 if you prefer to see the section as in the reports, it 13 is in cases volume 1, tab 8. There is just one slight 14 curiosity about the drafting of section 13 I wanted to 15 draw to your attention. Really just to flag this up for 16 my learned friends. 17 If you go to tab 8 and get to section 13, this is 18 the ability to challenge by judicial review, you will 19 see that it says this: 20 "A court may entertain proceedings for questioning 21 [it is the word 'questioning'] firstly [and I add in 22 (1)] a national policy statement or, (2), anything done 23 or omitted to be done by the Secretary of State in the 24 course of preparing such a statement." 25 The reason I mention those words is your Lordships 44 1 may or may not know from the history that we tried to 2 challenge the preference decision in October 2016, and 3 that case was dismissed in 2017 by Mr Justice Cranston 4 on the basis that we were precluded from bringing such 5 a challenge until the NPS had been designated. So, the 6 Secretary of State used the language of section 13 to 7 blow that particular challenge out of the water. 8 It does raise a slightly different point, now, of 9 some interest. Is the Secretary of State saying that 10 the case law he relies on only applies to the national 11 policy statement because that's approved by Parliament, 12 or does it apply to anything done or omitted to be done 13 by the Secretary of State in the course of preparing 14 such a statement, such as the SEA, the strategic 15 environmental assessment, such as the consultation in 16 far as required by the strategic environmental 17 assessment directive? Are those subject to a different 18 kind of challenge and a different level of scrutiny by 19 the court? It is an oddity that I have just raised. 20 MR JUSTICE HOLGATE: Is the submission you are making that 21 the case law relied upon by the Secretary of State could 22 only at most apply to matters which are subject of 23 Parliamentary scrutiny? 24 MR PLEMING: Yes, or -- and this is why I am lifting it up 25 for my learned friends to respond to -- whether these 45 1 cases that are relied on apply to any challenge as 2 permitted within section 13, or is there a line? 3 It is just difficult to see how the Secretary of 4 State's heightened standards of judicial review can 5 essentially be applied to each and every aspect of 6 section -- 7 MR JUSTICE HOLGATE: And the example you give is SEA? 8 MR PLEMING: Yes. 9 MR JUSTICE HOLGATE: Another aspect, perhaps, to bear in 10 mind when we are looking at this provision is that there 11 was parliamentary scrutiny here in two forms, also 12 the Select Committee. 13 MR PLEMING: Yes, and a select committee we can't rely on, 14 which is an irony. But, yes, you are quite right. So, 15 we have an area we can't look at, so that's 16 a disadvantage. That is a disadvantage, as we know that 17 Article IX challenges. Because Parliament voted with 18 a large majority, even with a majority of one, that is 19 said to make it more difficult. 20 Could I just then remind you of one point? The 21 white paper itself, that led to this process, said that 22 there would be, and I quote: 23 "Clear and defined opportunities for legal 24 challenges." 25 That doesn't tell us about the breadth of the 46 1 challenge, but it links up with this analysis that 2 because there had been a removal of public inquiries 3 that the democratic process, including the judicial arm, 4 would have an opportunity to consider such decisions. 5 That reference, my Lord, I haven't the white paper 6 here, but it is to be found in paragraph 34 of the 7 decision of Mr Justice Cranston and the reference is 8 authorities bundle 5, tab 116. So, we don't need to go 9 there, but that's where that quote is. 10 My Lord, there is nothing in the 2008 Act to suggest 11 that the clear and defined opportunity for legal 12 challenge in section 13 was subject to a heavy 13 evidential burden, or any other heightened standard of 14 review, and we invite the court to reject the 15 submissions. 16 My Lord, could I turn now to the political -- 17 LORD JUSTICE HICKINBOTTOM: On any judicial review you have 18 to look at the context, don't you? 19 MR PLEMING: Of course, every time. 20 LORD JUSTICE HICKINBOTTOM: Quite. The whole of the 21 context. 22 MR PLEMING: Yes. 23 LORD JUSTICE HICKINBOTTOM: Unfortunately, in some ways it's 24 not as simple as saying, "Well, Parliament approved this 25 and therefore that's the end of it" or "We're in 47 1 a socio-economic area, so that's the end of it, but 2 those are factors which bear upon the nature of any 3 judicial review. 4 MR PLEMING: They are, my Lord. Your Lordships have 5 mentioned the evidence -- and it is not the time or the 6 moment to deal with it, but when you look at the 7 evidence produced by the Secretary of State, trying to 8 extract expert evidence from legal analysis is difficult 9 enough, but I am going to focus on -- when it gets to my 10 areas -- as narrow an area as I possibly can because, 11 otherwise, we go off into areas which are so detailed 12 that I accept there comes a point when the judicial 13 hands are thrown up and saying: we are not experts. 14 MR JUSTICE HOLGATE: That was a question I was going to 15 raise because how far does the argument that you put 16 forward take you? Namely, that Parliament has removed 17 the public inquiry phase. That is true, but that 18 doesn't change the nature of the arguments which are 19 being put before the court, and whether the court is 20 equipped to deal with them, which is really, I think, 21 a point you have just touched on. 22 MR PLEMING: Yes, my Lord. As I accept, the merits barrier 23 is still there, but close examination is needed if the 24 consequences are dire, for example. 25 LORD JUSTICE HICKINBOTTOM: One of the problems in judicial 48 1 review, particularly if you have a conflict of evidence, 2 a fortiori, if you are dealing with expert evidence, is 3 how on earth does a court resolve those conflicts, 4 particularly in the absence of cross-examination? 5 MR PLEMING: My Lord, that is why when -- I am confining my 6 remarks to local planning, the local plan and noise, 7 there is no need to. They can be resolved on the 8 documents I show you. If they can't, then we lose that 9 ground. They are fairly tight areas. 10 There's lots of -- this is all too difficult. The 11 points that we are making, based on annex 1 to the 12 directive are straightforward and simple, I say. 13 I was about to turn to the second of the three 14 topics, which is political judgment. Can I leave that 15 after the break? What I then have is political 16 judgment, showstoppers and DCO, which is perhaps another 17 half an hour or so. 18 LORD JUSTICE HICKINBOTTOM: Yes, thank you. We'll come back 19 at quarter to. Thank you. 20 (11.31 am) 21 (A short break) 22 (11.45 am) 23 MR PLEMING: I was about to turn to that second limb of 24 these points, and that is political judgment. My 25 apologies to those who are in court 75. I hadn't 49 1 realised that the authorities I am referring to come up 2 on screen, so I'll be a bit more precise in the 3 references. 4 LORD JUSTICE HICKINBOTTOM: Yes. 5 MR PLEMING: But, my Lord, the test is lifted another notch 6 in paragraph 16 of the Secretary of State's argument. 7 It is said that because -- as will always be the case in 8 relation to national policy statement decisions -- there 9 is an element of political judgment. 10 Then this is what we must show: 11 "The extremes of bad faith, improper motive or 12 manifest absurdity." 13 That's paragraph 16. 14 My Lord, that relies on two cases I have touched on 15 already. One is the Nottinghamshire case, which I don't 16 need to refer to because the relevant quotations are in 17 the Hammersmith case, which is authorities bundle 18 volume 2, tab 32. 19 So, could I take you to, again, familiar areas of 20 public law? A challenge to the Community Charge. 21 This was a decision in 1990, House of Lords. You 22 will see from the headnote, as I said, this is 23 a challenge to the Community Charge and it was the 24 amount of revenue support grant for particular boroughs, 25 one of the Boroughs, Hammersmith and Fulham, one of the 50 1 claimants, coincidentally, in this case. 2 The relevant pages are at 596 in the speech of 3 Lord Bridge, beginning at the top of the page, which is 4 the Nottinghamshire case. The Secretary of State relies 5 on 596. 595, I am starting. The Secretary of State 6 relies on 596, next page, through to 597, foot of the 7 page. 8 But if we could start on 595, the quotation from 9 Nottinghamshire County Council. My Lord, you will see 10 Lord Scarman beginning his passage, which is as follows: 11 "The submission raises an important question as to 12 the limits of judicial review. We are in the field of 13 public financial administration and we are being asked 14 to review the exercise by the Secretary of State of an 15 administrative discretion, which inevitably requires 16 a political judgment on his part, and which cannot lead 17 to action by him against a local authority, unless that 18 action is first approved by the House of Commons ..." 19 Then there is reference to unreasonableness: 20 "I cannot accept that it is constitutionally 21 appropriate, save in very exceptional circumstances, for 22 the court to intervene on the ground of 23 unreasonableness". 24 So, we are still back in the area of rationality. 25 Towards the end of that passage, if I could invite 51 1 your Lordship to scan down: 2 "Such an examination by a court would be justified 3 only if a prima facie case were to be shown for holding 4 that the Secretary of State had acted in bad faith or 5 from an improper motive, or that the consequences of his 6 guidance were so absurd that he must have taken leave of 7 his senses." 8 Then he continues. 9 Later, this is Lord Scarman, he added: 10 "To sum it up, the levels of public expenditure and 11 the incidence and distribution of taxation are matters 12 for Parliament and within Parliament especially for the 13 House of Commons." 14 Then we go on to the same reference to deceiving the 15 house, bad faith, misconduct. 16 My Lord, if I could invite you to read to the end of 17 the extract from Lord Scarman. 18 (Pause) 19 Then the passage relied on by my learned friends 20 begins in Lord Bridge's speech at (f), on page 596: 21 "I regard the opinions expressed in the passages 22 quoted as an accurate formulation of an important 23 restriction on the scope of judicial review, which is 24 precisely in point at the instance case. There is here 25 no suggestion that the Secretary of State acted in bad 52 1 faith or for an improper motive, or that his decisions 2 to designate the appellant authorities or the maximum 3 amounts to which he decided to limit their budgets were 4 so absurd that he must have taken leave of his senses. 5 Short of such an extreme challenge, and provided always 6 that the Secretary of State has acted within the four 7 corners of the Act, I do not believe there is any room 8 for an attack on the rationality of the Secretary of 9 State's exercise of his powers under part VII. 10 So, again, we are at the macro level of the kind of 11 decision, which involves the distribution of public 12 funds and also the level of public taxation. 13 My Lord, the passage, the main passage probably, is 14 on the next page at 597, (e) to (h). Again, if you 15 could read through that, my Lord, you will see there is 16 reference to the formulation and implementation of 17 national economic policy. Then this sentence, just 18 below (g): 19 "The decisions which shape them are for 20 politicians." 21 I should start above that: 22 "The formulation and the implementation of national 23 economic policy are matters depending essentially on 24 political judgment. The decisions which shape them are 25 for politicians to take, and it is in the political 53 1 forum of the House of Commons that they are properly to 2 be debated and approved or disapproved on their merits. 3 If the decisions have been taken in good faith within 4 the four corners of the Act, the merits of the policy 5 underlying the decisions are not susceptible to review 6 by the courts, and the courts would be exceeding their 7 proper function if they presumed to condemn the policy 8 as unreasonable." 9 My Lord, that is the challenge by Mr Clarke. The 10 weighing up the merits and demerits of the overall 11 policy is not for this court. 12 That is again why we don't challenge the decision 13 that there should be an increase in air traffic in the 14 South East, save for the climate change aspect. 15 That's the Nottinghamshire and Hammersmith case. 16 Those cases, and cases to like effect, were dealing 17 with the level of revenue support, matters of taxation. 18 They were not concerned with the decisions such as this, 19 with grave environmental and health consequences for 20 people affected. 21 LORD JUSTICE HICKINBOTTOM: It might be said that since the 22 early 1990s judicial review has moved on a bit, and the 23 nature of judicial review is now more sophisticated, in 24 that it's acknowledged by all the courts that there is 25 a spectrum of investigation. 54 1 MR PLEMING: Yes. 2 LORD JUSTICE HICKINBOTTOM: These cases, it seems to me, do 3 no more, but no less, than make that clear, but every 4 case is going to be circumstance specific. 5 MR PLEMING: My Lord, as you know, as I have said, we don't 6 disagree with that proposal, that proposition, but what 7 we do disagree with is a suggestion that our 8 challenge -- maybe it isn't directed at these claimants 9 because the Secretary of State's challenge -- response 10 here is with all claimants. But, insofar as it is 11 directed at those who I represent and Mr Jaffey 12 represents, it would be wrong, in principle, to limit 13 the challenge to these questions: is the exercise of 14 power by the Secretary of State outside the four corners 15 of the statute or bad faith? That's really -- 16 LORD JUSTICE HICKINBOTTOM: Yes, that may be right. But it 17 is not right, is it, to focus simply on one side of the 18 balance, which you and possibly other parties have 19 tended to do in the course of this claim? You have 20 identified the disbenefit, the disadvantages of this 21 proposal. 22 MR PLEMING: Yes. 23 LORD JUSTICE HICKINBOTTOM: Both in terms of the number of 24 people involved, and also, you say, the severe 25 disadvantages that they will suffer as a result of this 55 1 proposal if it goes forward, but that's only looking at 2 one side of the balance. 3 The other side of the balance is that there are 4 potentially huge economic benefits and it is a political 5 decision. This isn't to undermine your grounds, but it 6 is an essentially political decision to balance the one 7 and the other and everything else because there is 8 a mass of relevant considerations in relation to this 9 particular decision. 10 MR PLEMING: My Lord, of course we accept that, but we are 11 showing you the case law as relied on by the Secretary 12 of State to explore the areas where we can raise our 13 grounds and how your Lordships should treat those 14 grounds. 15 LORD JUSTICE HICKINBOTTOM: I understand that because 16 I understand you are only responding to authorities 17 relied upon by the Secretary of State, but it is 18 important, in terms of the approach, not to go too far 19 either way in terms of submissions because here there is 20 an enormous political decision to be made. You may say 21 that was Mr Clarke's challenge and we are not 22 approaching it in that way, but there was an enormous 23 political decision to make here. 24 MR PLEMING: My Lord, that is really our point. There was 25 a decision to be made. We say it is a finely balanced 56 1 decision, and when looking at the information relied on 2 by the Secretary of State to promote his preferred 3 option to the public, and eventually to Parliament, what 4 he proposed and what he omitted becomes areas where this 5 court should at least examine those alleged decisions -- 6 LORD JUSTICE HICKINBOTTOM: I see that. 7 MR PLEMING: -- to see if they had consequences. 8 LORD JUSTICE HICKINBOTTOM: I see that, because the 9 challenges are rapier challenges, not a sledge hammer. 10 MR PLEMING: Yes, that is the idea; that they still kill, 11 but not with too much mess. 12 LORD JUSTICE HICKINBOTTOM: Yes, one can always take an 13 analogy too far, Mr Pleming, yes. 14 MR PLEMING: I am sorry, it is Monday morning. 15 Could I leave the political element and turn to -- 16 another important point is showstoppers because this 17 links in with the structure of the Planning Act 2008. 18 This is clearly an important point. It is raised 19 many times, or several times by the Secretary of State, 20 and also raised by Heathrow at paragraphs 8.1 of their 21 skeleton argument, and paragraphs 20 to 21. 22 The showstoppers, part of the word itself is from 23 the earlier challenge by the same claimants, similar 24 claimants in Hillingdon 2010. 25 My Lord, I am responsible for suggesting that 57 1 a different copy should go into your Lordship's bundle. 2 I hope you now don't have too many versions of this. It 3 is in authorities bundle 2, tab 37. The first version 4 was a note by Martin Edwards, but then we thought we 5 should see the full report. 6 LORD JUSTICE HICKINBOTTOM: Is the report we should be 7 working from the transcript? 8 MR PLEMING: I think the transcript's easiest but the JPL is 9 there if you need it. I am working from the transcript. 10 Again, my apologies if I have added yet more. 11 What is said is that we are too early again. It is 12 said -- I will look at the submissions in a moment. 13 Our overall submission is that the showstoppers part 14 of the judgment has no application at all to this 15 judicial review challenge made in accordance with the 16 statutory doorway created under section 13. At the end 17 of dealing with showstoppers, I will address the DCO 18 stage, already developed in our reply and skeleton 19 argument, but could I go straight to the case? 20 It was an unusual case, or took an unusual turn. 21 You will see it is a decision of Lord Justice Carnwath, 22 as he then was, in March of 2010. The context not 23 relevant to the analysis is that this was, as he says in 24 paragraph 1, a matter of acute political controversy. 25 That is the wording that my Lord has just used, and it 58 1 did become controversial, because a few days -- this is 2 March, but by 10 May 2010, the coalition government had 3 cancelled the third runway at Heathrow. The then 4 Prime Minister said, "No ifs, no buts, there will be no 5 runway', which led in turn to another argument, which is 6 no longer pursued. 7 If you can start with paragraph 2, you can see that 8 it is similar to the Wandsworth case. It is dealing 9 with the announcement, in 2003, of the government 10 support in principle. That is the aviation white paper. 11 The challenge was to the decision in January 2009, 12 which was a statement by the then Secretary of State for 13 Transport to the House. By then, just to fit the 14 chronology in, my Lord, the Planning Act 2008 had been 15 passed into law, the Royal assent was on 16 28 November 2008, but the NPS provisions of the statute 17 didn't come into force until 6 April 2009. 18 As we can see from the judgment, if I could jump 19 ahead to pick up a couple of dates and the subject 20 matter of the challenge, you will see at paragraph 20, 21 that it was on 20 January 2009, before the NPS 22 procedures were brought into force, the Secretary of 23 State made a statement to the House of Commons 24 announcing his conclusions following the consultation, 25 which came after the white paper. 59 1 There was support for a third runway with additional 2 passenger facilities, but subject to an aggregate limit 3 of 605,000 movements. 4 The grounds of challenge, as you will see on page 9 5 of the transcript, paragraph 29, were familiar public 6 law challenges. Consultation, material considerations 7 and reasons, and amongst them was perhaps the killer 8 blow, in one sense, is 31(ii), the Piccadilly Line. The 9 conclusion: 10 "There is adequate capacity on the Piccadilly Line 11 contradicts the views of the Mayor and TfL. The expert 12 statutory body responsible for this line." 13 The consultation, if your Lordship could bear in 14 mind that is one of the challenges. 15 At paragraph 27, my Lord, you will see the summary 16 within the policy debate, the same point that I was 17 making that your Lordship has picked up on. 18 Considerable evidence about the hardship caused. 19 Particular significance to the village of Sipson, which 20 would in effect have to be destroyed, difficulties in 21 preparing local plans, to which I will turn: 22 "Such factors are of course unfortunate by-products 23 of many major planning proposals. It is not suggested 24 that in themselves they amount to legal reasons for 25 intervention, but they highlight the practical 60 1 importance of the issues before me and the desirability 2 of speedy resolution." 3 My Lord, we do now highlight the issues which come 4 out of the SEA process, which weren't raised in 2010. 5 So, I am sorry to jump around, but it may make sense 6 because the position of the Secretary of State, back in 7 2010, is as set out at paragraph 49. I'll go back and 8 come forward. 9 Paragraph 49, the Secretary of State's initial 10 position was that the decision in principle to support 11 the runway proposal had been made in 2003 and that the 12 2007 consultation and the 2009 decisions "had the 13 relatively limited purpose of completing business left 14 over from them." 15 That was the position as stated by Mr Swift, as he 16 then was. 17 So, we were said to be not premature on that 18 occasion. We were too late, but the Secretary of State 19 put his argument that way. You will see at 51, across 20 the page, if you have two-sided pages: 21 "By the end of the hearing, Mr Swift had modified 22 his position to some extent and accepted that at least 23 some aspects of the policy, including the economic case 24 supported by the impact assessment, could be revisited 25 at a later stage." 61 1 So, it wasn't the end in 2003. 2 "I recorded a note and that note accorded with my 3 recollection. In any event, the earlier position was in 4 my mind untenable in law and common sense." 5 So this is the kind of background -- again, I am 6 sorry for jumping back, could you go back to 7 paragraph 33. We see what happened. So you will see at 8 the top of the page the reference to "climate change, 9 economic justification, surface access". 10 "By the time of Mr Pleming's final submissions for 11 the claimants the headline issues had been overtaken by 12 a more fundamental question. That is the precise status 13 and effect of the 2009 decisions. As he implicitly 14 recognised, his grounds of challenge depended to a large 15 extent on the expectation that the decisions would be 16 treated by the Secretary of State as, in effect, closing 17 the door on further principled opposition to the runway 18 project. If that is not the correct interpretation of 19 the decisions, the case for the court's intervention at 20 this stage is materially weakened. In my view, it is 21 impossible to answer that question without considering 22 the statutory procedures which following the 2009 23 decision the third runway proposal need to undergo to be 24 capable of implementation on the ground." 25 Then, my Lord, you will see the Planning Act 2008 62 1 being set out, section 5. 2 Over the page there is reference to section 12 which 3 becomes important later. Then section 106 is referred 4 to at paragraph 39. Then an important paragraph is 5 paragraph 40, my Lord, on page 13. 6 "The 2008 act contains specific provisions allowing 7 for legal challenge in the courts. By section 13, 8 proceedings for questioning 'a national policy" 9 statement or anything done or omitted to be done by the 10 Secretary of State in the course of preparing such 11 a statement' may be entertained only if they are begun 12 within six weeks of the statement being designated as 13 a NPS. Or if later the date of publication. Similarly 14 [importantly separately] by section 118 proceedings for 15 challenging the grant of development consent must be 16 brought within six weeks of the publication of the order 17 of the reasons for granting consent." 18 So two doorways. 19 Then in paragraph 41 and 42 -- could I read these 20 two out, my Lord. 21 "The new statutory framework on its face offers 22 a comprehensive framework laid down by Parliament, 23 within which all the wider policy aspects of a major 24 proposal such as the third runway are to be publicised 25 and debated and confirmed by Parliament as the 63 1 background to consideration of the more site specific 2 issues of the detailed planning stage." 3 So his Lordship was anticipating perhaps not the 4 detail that eventually came into this NPS. 5 "As applied to the present proposal it would mean 6 that subject to section 12, even those issues which have 7 been subject to policy decisions in 2003 or 2009, are 8 still open to debate inside and outside Parliament 9 before a final decision can be taken. Within that 10 context it might have been thought that legal arguments 11 at this stage about deficiencies in the process [such as 12 consultation] leading to the 2009 decision are 13 premature, since they may be made good as part of the 14 statutory process, and if not, that will be the time to 15 seek the aid of the court." 16 The seeking of the aid of the court is section 13: 17 "Even if section 12 is relied on ..." 18 And that allows the Secretary of State, if you go 19 back to paragraph 37, to rely on pre-commencement 20 statements of policy, consultation. Just from the 21 heading and section 12(1). So the secretary of state 22 could avoid going through the consultation process by 23 saying, we did this in 2003 and 2007. 24 So going back to paragraph 42: 25 "Even if section 12 is relied on it does not 64 1 preclude further debate on the issues contained in the 2 previous policy. Before a pre-commencement policy 3 statement can be imported into the NPS procedure, the 4 Secretary of State must first consider whether there has 5 been a significant and unanticipated change ..." 6 Going to the last two sentences: 7 "Thus even if section 12 is relied on, it does not 8 rule out further debate within and outside Parliament as 9 to whether the previous policy commitment should be 10 reconsidered. Further, unless and until a NPS has been 11 concluded, the power to exclude representations directed 12 to the merits of government policy (section 106) does 13 not come into play." 14 That sentence is vital to understanding what 15 follows. 16 Then we get to the expected procedure, and: 17 "Mr Swift was invited to and did hand up a note 18 outlining the procedures which the third runway proposal 19 would be expected to undergo ..." 20 You will see further consultation, preparation of 21 NPS. Then in (iii) reference to "strategic impact 22 assessment" et cetera. 23 "The adoption of the NPS can be subject to judicial 24 review, see (iv)." 25 Does your Lordship see that? I still, I don't know 65 1 why, have kept the paper handed up by Mr Swift to Karen 2 Steyn and James Maurici, just for old times sake. 3 I have it if you want to see it. 4 So we now look to the status and effect of the 2009 5 decision. 6 "Against that background I return to the questions 7 raised in Mr Pleming's final submissions. I do so under 8 four headings: what power is being exercised, the 9 Secretary of State's position and the court's position." 10 My Lord, if you could perhaps skip through the 11 relevant power is first dealt with. I think I showed 12 you earlier paragraphs 47 and 48. Foot of 48: 13 "In the present case following the 2003 white paper 14 and the 2009 decision we are still a long way from any 15 substantive event." 16 That is the important word we need to look for: 17 "In the sense of a formal statutory authorisation 18 for the construction of the third runway following the 19 procedure as now set out in the 2008 Act. Any grounds 20 of challenge need to be seen in the context of 21 a continuing process towards that eventual goal." 22 Then we see the Secretary of State's position was 23 modified. At 53 -- I showed you a bit of 51, my Lord -- 24 53: 25 "The matter has been put beyond doubt following the 66 1 coming into force of the relevant provisions of the 2008 2 Act. The proposition that policy was predetermined in 3 2003 is negated by the Government's affirmed intention 4 to prepare an airport's NPS as a preliminary to the 5 planning procedures and its disavowal of any present 6 intention to rely on section 12 ... 7 "The 2008 Act provides a comprehensive framework for 8 consideration of all the relevant issues, including 9 those on which the present claimants now rely. Until 10 the NPS is concluded, there is nothing in law entitling 11 the Secretary of State to limit that debate." 12 Another vital sentence. 13 "The claimants' position ..." 14 And we've set it out is set out in 54 and following. 15 You can see we deal with section 12. We deal with the 16 position taken by the Secretary of State and now we get 17 to the court's view and it is in this passage that we 18 find the word "showstoppers". I hope this has been 19 a useful walk through the judgment to explain what was 20 being said. 21 "The court's view: 22 "For the above reasons I find myself unable wholly 23 to support the position taken by either party. The 24 statements of present government policy and particular 25 issues of particular points in time, the 2003 Airport 67 1 Traffic Transport White Paper and 2009 decisions, carry 2 weight but they are not immutable nor can they limit the 3 scope of the permissible debate in relation to a future 4 airports NPS. 5 "That conclusion has implications for the scope of 6 judicial review at this stage. Although the 2009 7 decision took the form of a statement it has not been 8 argued that it is for that reason immune from challenge. 9 I accept also that it is established, at least in this 10 court, that such high level ministerial statements of 11 airports policy are susceptible in principle to judicial 12 review, even if they have no direct substantive effects. 13 Wandsworth, Medway et cetera. 14 "In considering the scope I have found most 15 assistance in another judgment, Mr Justice Sullivan in 16 Greenpeace ..." 17 That is the nuclear power case. And you will notice 18 the words "the fullest public consultation". The 19 complaint in Greenpeace was that the public had not been 20 accorded the fullest public consultation: 21 "Citing his earlier airports decision, the judge 22 accepted that in the absence of any statutory procedure, 23 it might be very difficult to establish procedural 24 impropriety; and that given the judgmental nature of 25 high level strategic decisions it will be well-nigh 68 1 impossible to mount a Wednesbury irrationality challenge 2 absent bad faith or manifest absurdity." 3 That is just to the overall policy. 4 "He accepted that the promise of full consultation 5 founded a legitimate expectation enforceable in public 6 law." 7 Your Lordships will see in paragraph 68 the test 8 that was being applied in relation to the consultation 9 exercise. 10 "In reality a conclusion that a consultation 11 exercise was unlawful on the ground of unfairness will 12 be based upon a finding by the court, not merely that 13 something went wrong, but that something went clearly 14 and radically wrong." 15 So all of that is the prelude to 69: 16 "I gratefully adopt that analysis, and the 17 conclusion, as directly relevant to the present case, 18 subject to one qualification. It is not simply the high 19 level character of some of the policy judgments which 20 limits the scope for review. I would also emphasise the 21 preliminary nature of the decision. As I have said, any 22 grounds of challenge at this stage need to be seen in 23 the context, not of an individual decision or act, but 24 of a continuing process towards the eventual goal of 25 statutory authorisation. A flaw in the consultation 69 1 process [that is the 2007 consultation] should not be 2 fatal if it can be put right at a later stage. There 3 must be something not just clearly and radically wrong 4 but also such as to require the intervention of the 5 court at this stage. Similarly, failure to take account 6 of material considerations is unlikely to justify 7 intervention by the court if it can be remedied at 8 a later stage. It would be different if the failure 9 related to what I described in argument as 10 a showstopper, that is a policy or factual consideration 11 which makes the proposal so obviously unacceptable that 12 the only rational course would be to abort it altogether 13 without further ado." 14 All of that, my Lord, is in the context of 15 a challenge to a process which is before the NPS. 16 Could I just show you the final paragraphs that make 17 this clear. My Lord, there is a heading over the page 18 of climate change, a failure to reopen the consultation, 19 and that's dealt with over the next two pages or so. 20 That's not said to be a showstopper because there's the 21 airports NPS process to come. 22 Then economic justification. The same. At the foot 23 of 84 where this passage stops: 24 "Even if that concession had not been made I would 25 regard these points as obviously relevant consideration 70 1 and consultation as part of the preparation of the NPS." 2 The same with surface access. You then get to the 3 foot of 27 which is page 92: 4 "In my view the claimants' criticisms of the 5 reasoning of this part of the 2009 decisions are 6 unjustified. I find it impossible to determine 7 precisely what the Secretary of State ultimately 8 understood to be the scope of the third condition, 9 [which is set out above] or what, if anything, he has 10 decided about it. It is equally impossible to ascertain 11 what, if anything, he has made of the points raised by 12 Transport for London. It is difficult to see how 13 a concluded view of any significance could be arrived at 14 without directly addressing their concerns." 15 Again, that is all left now to be brought into the 16 NPS. 17 Conclusion, 94: 18 "The critical issue [the third line] as it has 19 emerged has been the precise status and effect of those 20 2009 decisions. The department's initial position was 21 that the policy was finally determined in 2003. That 22 was untenable." 23 Then you get to the key final paragraphs, 96 to 98: 24 "In the event, the effect of the 2009 decisions, at 25 the time they were made, has been overtaken as an issue 71 1 by two important developments. 2 "(1) The bringing into operation of the relevant 3 provisions of the 2008 Act, taken with the Secretary of 4 State's commitment to the preparation of an airports' 5 national policy statement under the Act, and his 6 disavowal of any present intention to rely on section 12 7 to import pre-commencement policy." 8 Then, the CCC's December report on the 2050 cap. 9 And then this: 10 "The first point provides the effective answer to 11 the second. The preparation of the airports' NPS will 12 necessarily involve a review of all the relevant policy 13 issues, including the impact of climate change policy. 14 It also provides the answer to the defects which I have 15 identified in the Secretary of State's reasoning on the 16 third condition relating to surface access." 17 Then, in 98, you get the reference again to 18 section 12: 19 "The relevant provisions of which were not then 20 enforced ..." 21 And then this: 22 "I am doubtful whether a quashing order is 23 appropriate in relation to a statement of policy which 24 had no substantive legal effect at the time, and which, 25 assuming an undertaking in the form I have proposed, 72 1 will have none under the 2008 Act. On the basis of the 2 intentions of the Secretary of State and BAA [the then 3 owner at Heathrow before HAL took over], as presently 4 understood, the 2008 Act provides a complete legal 5 framework for consideration of all the issues on which 6 the claimants rely." 7 My Lord, just reading through that, and I am sorry 8 it has taken some time, we do now have a decision with 9 substantive legal effect. That is the designation of 10 the NPS. We have the ability to challenge, specifically 11 enshrined in section 13, subject to getting within the 12 six weeks, and there is no reason to apply the 13 showstopper argument at this stage. 14 LORD JUSTICE HICKINBOTTOM: Isn't a key part of the 15 reasoning to go back to paragraph 53 of 16 Lord Justice Carnwath's judgment, and the sentence at 17 the end, which you emphasised, as being important: 18 "Until the NPS conclude there is nothing in law 19 entitling the Secretary of State to limit that debate." 20 MR PLEMING: Exactly. 21 LORD JUSTICE HICKINBOTTOM: What entitles the Secretary of 22 State to limit the debate is section 106. 23 MR PLEMING: And 104, to which I am coming. 24 MR JUSTICE HOLGATE: Which the judge referred to at 25 paragraph 39. This then becomes a document, as regards 73 1 which the merits of policy cannot subsequently be 2 challenged. That wasn't true of the 2009 white paper. 3 MR PLEMING: Correct. 4 LORD JUSTICE HICKINBOTTOM: That was the importance of the 5 undertaking given by the Secretary of State in that 6 case, not to rely on section 12 -- which has 7 subsequently been repealed, but that doesn't matter -- 8 because if section 12 had been relied upon, the document 9 that was before the High Court could have achieved the 10 status. 11 MR PLEMING: Exactly. 12 LORD JUSTICE HICKINBOTTOM: Of section 106. 13 MR PLEMING: And at the time -- 14 MR JUSTICE HOLGATE: That is the short point. That is why 15 he applied showstoppers. 16 MR PLEMING: My Lord, yes, but because it is not only relied 17 on repeatedly, but relied on by -- 18 MR JUSTICE HOLGATE: It may be, but the repeated reliance 19 upon a point doesn't make it a good one. 20 MR PLEMING: It doesn't, my Lord. I want to kill it dead, 21 and that was what I was trying to do. 22 MR JUSTICE HOLGATE: On the other hand, you have to face, 23 perhaps, paragraph 77, back to Mott: 24 "Judicial review proceedings are not a suitable 25 forum to resolve this technical debate." 74 1 MR PLEMING: Yes. 2 MR JUSTICE HOLGATE: That might be nearer to the mark. 3 MR PLEMING: My Lord, yes. Looking at the grounds, remember 4 we had consultation, we had climate change, climate 5 change was postponed, consultation was unnecessary. 6 When it came to surface access, which is one of the 7 points we are making now, the judge was impressed by 8 that argument. I have forgotten the final order. 9 MR JUSTICE HOLGATE: The one that seemed to impress him on 10 surface access, is at paragraph 93, a point raised by 11 Mr Chamberlain about a misconception in relation to 12 future improvements to the Piccadilly Line. 13 MR PLEMING: The simple point is the Secretary of State had 14 relied on the Piccadilly Line as moving the new increase 15 of passengers from Heathrow to Central London, but had 16 failed to spot there might be local citizens getting on 17 that train between Heathrow and Central London. I think 18 the statistic came out from Transport for London that, 19 by the time they came to Acton Town or whatever it was, 20 there would be enough room for eight or 12 inches for 21 each passenger. It was good stuff, and I think led to 22 an order of costs if not all in our favour, certainly 23 partly in our favour. 24 The passage about whether or not this is suitable 25 for examination has to bear in mind that if there hadn't 75 1 been an exercise of the section 12 power, we should have 2 won that case on the surface access grounds. But, in 3 the end we didn't need to and, as his Lordship 4 anticipated, because of political debate at the time, 5 the third runway was about to go down. 6 The important point, however, that we still haven't 7 looked at is -- and my learned friend emphasises this 8 throughout his case -- that our concerns can be remedied 9 at the DCO stage. That's why he relies on this: I need 10 a showstopper because, come the DCO stage, we can run 11 all these arguments again and the Secretary of State, 12 the same Secretary of State, will then have a judgment 13 to make and we get into the text of 104 and 106. 14 May I turn to that as my last topic? 15 LORD JUSTICE HICKINBOTTOM: Yes. 16 MR PLEMING: The argument is, or the question, the forensic 17 question is: can the claimants' concerns be remedied at 18 the DCO stage? 19 This is in paragraphs 4 to 5 of the Secretary of 20 State's skeleton argument. We respond to it at 21 paragraphs 9 to 12 of ours. Core bundle volume 10, 22 tab 1, pages 4 to 5. 23 Could I invite you to look at an agreed document 24 encouraged by your Lordships, corrected by your 25 Lordships, we have expanded paragraph 167 of the agreed 76 1 statement of common ground to deal with this issue. 2 It should be in core bundle 6, behind tab 3, new 3 pages 66A through to 66A. This was an addendum to the 4 agreed statement of common ground and a numbered list of 5 issues for resolution by the court. 6 You will see that, before I go through it, these 7 principles are agreed between the claimants in Crown 8 office numbers 3147, 3089, which I represent, 2760 and 9 the Secretary of State, the claimant in 3149, Heathrow 10 Hub, is neutral. Heathrow and Arora are waiting for 11 instructions. 12 MR JUSTICE HOLGATE: Yes, I wasn't sure the statement aligns 13 with some of the submissions in the HAL skeleton. 14 MR PLEMING: It doesn't, my Lord, that is why I am going to 15 go to those later. 16 The approach is set out in some detail, but there is 17 an issue not agreed and it is that one that we need to 18 just have a look at. It is at page 66F. The issues 19 requiring resolution by the court: 20 "To what extent is consideration of matters such as 21 surface access, air quality, noise, carbon emissions, 22 biodiversity, community and ecological conversation 23 closed off or precluded at the DCO stage?" 24 Then there is a second question and a third question 25 dealing with the words "in accordance with" which we 77 1 invite your Lordships not to engage with, but the first 2 one is clearly important and perhaps relevant to this 3 argument that we need showstoppers. 4 The submission I want to deal with now is to what 5 extent consideration of those matters closed off, 6 because if they are closed off, then they are not 7 remedied at the DCO stage. 8 LORD JUSTICE HICKINBOTTOM: The NPS must close off some 9 issues. 10 MR PLEMING: Yes, need is one. 11 LORD JUSTICE HICKINBOTTOM: It would help me if you were to 12 identify the issues that you say are closed off by the 13 NPS. 14 MR PLEMING: Could I, when I get to, because there is one of 15 importance, the rest I haven't really thought about. 16 The big one is alternatives and that is the comparative 17 exercise. 18 LORD JUSTICE HICKINBOTTOM: So in terms of the, I was going 19 to say "the three", but three conclusions in the NPS, 20 firstly, that there is a need for additional capacity. 21 MR PLEMING: Yes. 22 LORD JUSTICE HICKINBOTTOM: Secondly, that that can only be 23 accommodated by an additional runway somewhere. 24 MR PLEMING: Yes. 25 LORD JUSTICE HICKINBOTTOM: And thirdly, that additional 78 1 runway should be Heathrow NWR. 2 MR PLEMING: The third one is a decision we can still 3 undermine and challenge and that's what we are seeking 4 to do. Because at the DCO stage -- sorry, my Lord, I am 5 perhaps misunderstanding the question. The first two 6 can't be challenged. The third one, if it can't be 7 challenged, then that's why we need to challenge it now, 8 so perhaps it is the -- 9 MR JUSTICE HOLGATE: Yes, but the ambiguity, potentially, on 10 the third one, is whether alternatives elsewhere are 11 irrelevant to it, and that is the point flagged up by 12 the HAL skeleton. 13 MR PLEMING: That is what I want to focus on because it 14 makes a huge difference, for example, to our noise 15 argument. I am sorry if I am focusing on that area. 16 Can I get to it when I go through the -- 17 MR JUSTICE HOLGATE: Forgive me, implicit in my Lord's 18 question is, I think, and we had noted that part of the 19 reasoning, which I think you seek to challenge when you 20 come to the Habitats Regs ground is the rejection of 21 Gatwick on the basis that it does not perform a hub 22 function. 23 MR PLEMING: Yes. 24 MR JUSTICE HOLGATE: So, there may be a need to understand 25 to what extent is that an issue closed off. 79 1 MR PLEMING: My Lord, yes. Habitats has reference to 2 alternatives. They all have reference to alternatives, 3 in the sense of what's the harm caused by the proposal 4 for Heathrow compared with the harm caused by Gatwick? 5 Leaving to one side the economic benefits. 6 It becomes stark, starker, when looking at Habitat 7 Regulations, but also looking at noise. Could I explain 8 why in a moment? I'll pick up, as I must, the reliance 9 on Thames Blue Green, which is the authority that HAL, 10 Heathrow Airports Limited, brings before the court. 11 Could I just run through this and come to the end of 12 these submissions? 13 LORD JUSTICE HICKINBOTTOM: Yes. 14 MR PLEMING: My Lord, we set out our argument on 66C, where 15 we set out our position on closing off. You will see 16 that we are very close to the question asked by the 17 court. 18 But to expand and explore that paragraph, could 19 I make three points and then leave anything else to 20 a reply, because it will be a reply not only to the 21 Secretary of State, but to Heathrow Airport's 22 submissions because they have raised a particular point 23 that I am going to deal with now, but not in greatest 24 detail. 25 My Lord, three points. The nature of the decision 80 1 at the NPS stage, and the decision to grant the DCO if 2 it gets that far, are, we say, fundamentally different 3 because, in designating the ANPS, the Secretary of State 4 has taken a strategic decision to prefer one scheme over 5 another. This, of course, is the argument advanced by 6 Hub that I am dealing with Gatwick. 7 So, taking the example that I just mentioned, the 8 Secretary of State has decided that the vast difference 9 in harm caused by noise at the two places does not 10 persuade him to prefer development at Gatwick rather 11 than Heathrow. 12 At the DCO stage, the case law suggests, as far as 13 we need to put it at the moment, the case law suggests 14 that the conclusion that the NWR is the best solution 15 and the strategic level alternatives are to be rejected 16 means that balance can't be revisited. The authority is 17 Thames Blue Green Economy, authorities volume 1, tab 28, 18 and it is the decision of Mr Justice Ouseley, at 19 paragraph 39. 20 MR JUSTICE HOLGATE: Just before we look at it, that is 21 a point pursued by HAL. 22 MR PLEMING: Yes. 23 MR JUSTICE HOLGATE: I am not sure whether it is pursued by 24 the Secretary of State. 25 MR PLEMING: It is unclear because of the statement you have 81 1 seen. 2 MR JUSTICE HOLGATE: Yes, quite. 3 MR PLEMING: Because, in fact, if you go to paragraph 2 -- 4 I read you paragraph 3 -- the Secretary of State's 5 position is that, and I emphasise these words: 6 "In no way does the ANPS close off or preclude any 7 objection to and/or consideration by the examining 8 authority or the Secretary of State at the DCO stage of 9 matters, such as noise." 10 I just picked that one out as the example. 11 So, could I take you to the decision? It is at 12 tab 28, in volume 1. The decision of Mr Justice Ouseley 13 in 2015. Just to explain what was going on, for those 14 who are listening. This was a plan to deal with sewage 15 and waste materials, and the plan that was being 16 contemplated was known as the Thames Tideway Tunnel, or 17 sometimes referred to as the Thames Tunnel, so that was 18 the proposal. That was the equivalent to the northwest 19 runway. 20 The alternative was -- and it has various 21 descriptions, but best described as "a non-tunnel". So, 22 a different way of dealing with the same problem. 23 You can see the reference to the project in 24 paragraph 3, and you can see the plan was the Thames 25 Tideway Tunnel. 82 1 Over at 8, you can see the alternatives, which are 2 collectively described as "non-intervention strategies", 3 so those are the alternatives. 4 Could I invite you to pick up the judgment at 5 paragraph 36. The key paragraph is probably 39, but 36, 6 Mr Harwood, who was representing the Secretary of State, 7 and Mr Humphries submit: 8 "The submission plainly misunderstands the purpose 9 of section 104(7) and, on analysis, the position is 10 plain beyond argument." 11 107 is the balancing exercise with which we are 12 concerned. You can see this in various places, but in 13 this decision, my Lord, it is on page 6 of the 14 transcript, as part of paragraph 17: 15 "This subsection applies if the Secretary of State 16 is satisfied that the adverse impact of the proposed 17 development will outweigh its benefits." 18 So, that is what is being discussed: 19 "I am quite satisfied with the benefit of the 20 argument that I have had that it is clear beyond the 21 reasonable argument, that Mr Harwood and Mr Humphries 22 are correct. Section 104 deals with the decision of a 23 particular project for which a development consent order 24 has been applied for." 25 Then section 104(3) requires the decision to be made 83 1 in accordance with the NPS. No decision for 2 a non-tunnel scheme, no decision rejecting the scheme on 3 the grounds that a non-tunnel scheme might be better 4 could possibly come within the scope of section 103. It 5 is a forbidden decision. It is a forbidden decision 6 unless it comes within an exception, and section 104(7) 7 is the only provision. However, it needs to be clear 8 that the ability to reach a decision that is not in 9 accordance with any relevant NPS only applies once the 10 secretary of state 'is satisfied that the adverse impact 11 of the proposed development would outweigh its 12 benefits'. It is not a provision which enables the 13 Secretary of State to consider alternatives in order to 14 reach a decision that the adverse impact of the proposed 15 development would outweigh its benefits. 16 "The natural meaning of the language of 17 section 104(7) is that the adverse impact of the 18 development proposed in the development consent order 19 must first be shown to outweigh the benefits of the 20 project applied for in the development consent. It 21 neither adds to the adverse impact, nor detracts from 22 it. Nor does it add to or detract from its benefits 23 that some different scheme might be thought to have 24 greater benefits or lesser impact." 25 Then we get into paragraph 39, which is: 84 1 "The question of strategic alternatives that are not 2 in accordance with the NPS is decided, first, through 3 the process of developing and then designating an NPS. 4 That process involves strategic environmental assessment 5 of the project, of its nature, parliamentary 6 consideration and public participation through those 7 processes. It involves the conclusion, through that, 8 that the tunnel is the correct solution and that no 9 strategic alternative is better. That issue is not to 10 be revisited." 11 Rather than read through to the end, would your 12 Lordships just read through 40 to 43. 13 (Pause) 14 My Lord, paragraph 49 has a reference to the 15 European directive. That is really the heart of the 16 case. 17 The refusal of permission went to 18 Lord Justice Sales, who refused permission, behind 19 tab 29, and it is really paragraphs 6 onwards. If I can 20 pick it up at paragraph 11, to take it shortly: 21 "On the application for permission to appeal 22 Lord Justice Sullivan refused the application." 23 Then if I can pick it up on the third line: 24 "Two-stage process was introduced by the 2008 Act in 25 order to avoid precisely the outcome which this appeal 85 1 seeks to achieve; the reopening of the second 2 examination by the panel stage or the process of 3 alternatives to the option, in this case the tunnel, 4 which has been adopted by the government in the first 5 NPS stage of the process." 6 Then Lord Justice Sales agrees with the reasoning of 7 the judge and the reasons of Mr Justice Sullivan. Then 8 in paragraph 14 you have this: 9 "In my view, in a genuine case where new 10 circumstances arise, it would be open to a person to 11 approach the Secretary of State to invite him to revisit 12 the national policy statement. That would be the proper 13 way forward." 14 Then going down to 16: 15 "Section 104(7) allows the Secretary of State to 16 bring into consideration the statement of national need. 17 It appears from a national policy statement as against 18 particular detriments, which may be identified in the 19 process of examining et cetera. It allows for the 20 possibility that the local and particular detriments may 21 be so great as to outweigh, in the particular 22 circumstances of a specific application, the national 23 need reflected in the NPS." 24 So, my Lord, that is the decision of the court of 25 Lord Justice Sales. 86 1 What we don't have are clear lines as to when the 2 reference to comparables can be repeated, but there is 3 a very clear steer that it is going to be difficult for 4 my clients to raise the noise argument at the DCO stage. 5 MR JUSTICE HOLGATE: Do we have to be careful about how we 6 read these judgments? 7 MR PLEMING: Yes, of course. 8 MR JUSTICE HOLGATE: First of all, they are decisions on 9 applications for permission. They are not authorities 10 in the usual sense. More pertinently, the discussion is 11 about the interplay, as I read it, between 12 section 104(3) and the prohibition on debating the 13 merits of policy. First of all, in the examination -- 14 that is section 87 I think -- and then the Secretary of 15 State is given the power to disregard challenges to the 16 policy when he comes to make his final DCO decision. 17 There is a tension between that as opposed to the 18 attempt, in that case, to get around that difficulty by 19 relying upon section -- what is it? 104(7). 20 MR PLEMING: Yes. 21 MR JUSTICE HOLGATE: Which is a balancing exercise between 22 the pluses and the minuses of a particular project. 23 You could have an NPS which is not site specific, 24 but which is criteria based for infrastructure 25 development throughout the whole country. Of course, in 87 1 that situation alternatives won't have been considered 2 at the stage of formulating the policy. 3 The question as to whether 104(7) precludes 4 consideration of alternatives is not a black and white 5 letter, question of construction of that provision. It 6 depends, perhaps, on what merits have been debated and 7 dealt with when the NPS was formulated in the first 8 place. 9 MR PLEMING: My Lord, we agree entirely with all that your 10 Lordship has said. Also, that these were permission 11 decisions, even though they are detailed. 12 MR JUSTICE HOLGATE: That is another point. 13 MR PLEMING: But dealing with your second point, Heathrow 14 Airport Limited will say the issue of noise has been 15 considered, and the issue of noise harm caused for the 16 eastern extension runway or for the north-western runway 17 has been compared with Gatwick. What we want to know is 18 whether or not we are prevented from developing those 19 arguments because it matters before your Lordships, 20 because if this is our only bite at that cherry, that is 21 a factor. If we can run the whole argument, first of 22 all, we need to show that something has gone wrong now, 23 in any event. 24 Could I just invite your Lordships to look at the 25 way the Secretary of State puts it, and then give you my 88 1 example? 2 It is in the skeleton argument at paragraph 4, where 3 it is the content and effect of the NPS. It begins on 4 page 124 of bundle 10, the core bundle. This is where 5 you have the language that is picked up in the skeleton 6 argument. At 4.1 -- and all of these paragraphs, apart 7 from three, are the same as in the D10 grounds of 8 defence: 9 "The ANPS neither closes it off nor precludes any 10 objections to and/or consideration by the examining 11 authority or the defendants of ..." 12 We have seen that before. 13 Then, when you get to 5, you have the sentence which 14 you have seen in the skeleton argument repeated: 15 "The ANPS in no way whatsoever closed off the 16 possibility of considering these various impacts." 17 But it is also said that the full assessment of the 18 impact of noise cannot be undertaken until you get to 19 the DCO stage. You see the potential dilemma. 20 Heathrow wants to say: if we lose this case, that's 21 the end of the debate on noise. 22 The Secretary of State wants to say: no, you can 23 have your debate on noise, but it doesn't tell us 24 whether we can then say to the decision maker, to the 25 Secretary of State, look at the impact here compared 89 1 with Heathrow. 2 Part of our noise complaint is that the area 3 affected by noise hasn't been considered. Assume that 4 we are right in that, and at the DCO stage they get the 5 area right. We also say that they haven't the right 6 policy decibel limit, which is 51 rather than 54. Let's 7 assume they get that right at the DCO stage. That could 8 produce these stark statistics, and they are random 9 figures. Let's assume that a wider impact shows that 10 a million people will be adversely affected or at risk 11 of being affected by noise. Let's assume, because we 12 know a bit about Gatwick, that the figure for Gatwick 13 would be tens of thousands. Do we have to show the 14 million without reference to the alternative? That is 15 the dilemma we could be placed in. 16 We say, if that's what Thames Blue Green says, it 17 may be wrong. But, in any event, we need to examine 18 whether we are right on area and on decibels. 19 But it needs to be explored as to who is right, 20 Secretary of State or Heathrow Airports Limited. 21 MR JUSTICE HOLGATE: Doesn't it come back to the wording of 22 the legislation, ultimately, in the 2008 Act? 23 I mean, we have in the bundle at tab 8, section 106. 24 Could I ask that we have section 87 added as well? 25 MR PLEMING: Yes, my Lord. 90 1 MR JUSTICE HOLGATE: Because this question goes to the scope 2 of what can be debated at the examination. 3 MR PLEMING: Yes. 4 MR JUSTICE HOLGATE: 106 deals with what the Secretary of 5 State does at the end of the decision-making process, 6 which to some extent may be affected by what's been 7 discussed beforehand. 8 MR PLEMING: My Lord, we are engaging with that. 9 MR JUSTICE HOLGATE: But when you go to section 106, unlike 10 the suggestion that's made, perhaps, on the facts of 11 that particular case in Blue Green, section 106 is 12 a power to disregard. It is not an obligation to 13 disregard. 14 MR PLEMING: My Lord, what we are left with in light of the 15 submissions is the scope of the power to balance in 16 104(7) -- which is what I was looking at -- is: does 17 that scope enable, as a matter of law, allow the 18 Secretary of State to take account of the comparables? 19 MR JUSTICE HOLGATE: My recollection is, when you read Blue 20 Green, the NPS expressly excluded the alternatives. 21 I may be wrong, but we may need to look at that again. 22 Apart from that, if we are trying to grapple with 23 the meaning of section 106(1)(b): 24 "Relate to the merits of policies set out." 25 First of all, you have to identify the policy, and 91 1 then the power to disregard relates to the merits of 2 that policy. 3 It could be said that begs the question: what merits 4 were looked at, at the time, when the policy was 5 adopted? So, your example, I think, that you have given 6 us in your skeleton, is you may have a change of 7 circumstance. 8 MR PLEMING: Yes. 9 LORD JUSTICE HICKINBOTTOM: A radical change of circumstance 10 post-dating the policy. 11 MR PLEMING: Then you have the interesting debate as to 12 whether or not new information can come in at the DCO 13 stage. If it does, does it exclude all of the earlier 14 information, and it has to be just that -- 15 LORD JUSTICE HICKINBOTTOM: It may not exclude it, but it 16 depends what the information is. In the climate change 17 part of the argument, I think the Secretary of State has 18 been saying that if further material on climate change, 19 following on from the Paris Agreement, becomes 20 government policy, that is a matter that would fall to 21 be taken into account. 22 MR PLEMING: Or, looking at paragraph 14 of 23 Lord Justice Sales' judgment, that there should be 24 a review. 25 MR JUSTICE HOLGATE: Yes, but he suggests that is the only 92 1 mechanism for dealing with the change of circumstance. 2 MR PLEMING: Yes. 3 MR JUSTICE HOLGATE: That may not be an attractive way of 4 looking at the statute. 5 MR PLEMING: No. I was -- 6 MR JUSTICE HOLGATE: Because it does then rather ... 7 Okay, but it depends what the merits of policy means 8 in (b). If the merits of a particular aspect haven't 9 been examined at an earlier stage, why would section 106 10 be engaged in relation to them? 11 MR PLEMING: Taking our examples, the climate change to one 12 side for a moment, I am just focusing on noise because 13 it is of particular concern to the residents. Is the 14 Secretary of State's position that we cannot -- assume 15 we are unsuccessful in this judicial review -- I am sure 16 that's wrong, but let's just that assume that -- is the 17 argument that's the end of your comparison of the harm 18 caused? 19 Because even if we are right on the deficiencies of 20 the examination, two answers from the Secretary of 21 State. One is: I don't care if a million people have 22 noise. The economic benefits are huge and we need to be 23 open for business. 24 He won't tell us that now, but is that his position, 25 that noise doesn't matter? Unlikely. 93 1 Or is it: you can't raise those questions to me at 2 the DCO stage because that topic was raised during the 3 course of the examination of alternatives, at the 4 Airports Commission stage and at the NPS stage. That is 5 the area I am floating and trying to address somewhat 6 inelegantly. 7 MR JUSTICE HOLGATE: You illustrate that by saying so far 8 indicative flight paths have been looked at and it has 9 been said we can't expect to go into any more detail at 10 this stage, but there will be more detail subsequently. 11 So, you are saying: why can't the noise implications of 12 more detailed flight plans be looked at later on? 13 MR PLEMING: We say, you don't even need to do that. Why 14 not look at areas. Not actual plans, that is down the 15 road, but look at potential areas and we'll make that 16 good tomorrow. 17 MR JUSTICE HOLGATE: On the other hand, as I was trying to 18 put to you earlier on, a question implicit in my Lord's 19 question to you earlier is: to what extent has the NPS 20 said that Gatwick is rejected because it does not 21 provide a hub function? 22 MR PLEMING: Yes, my Lord. 23 MR JUSTICE HOLGATE: That is something you have to deal with 24 at some stage. 25 MR PLEMING: Of course. My Lord, and that goes to in part 94 1 to our minds made up because that decision was made -- 2 MR JUSTICE HOLGATE: That could go to government making 3 policy. 4 MR PLEMING: Yes, I realise that, as well. 5 LORD JUSTICE HICKINBOTTOM: Because if being a hub is an 6 objective of the NPS, and if the government decide, 7 properly, that Gatwick does not satisfy that objective, 8 Gatwick ceases to be an alternative. 9 MR PLEMING: Yes, whatever the noise -- 10 LORD JUSTICE HICKINBOTTOM: It doesn't matter because it 11 doesn't do the job. 12 MR PLEMING: My Lord, we are very conscious of that, and we 13 have put in, our minds made up, that if that was the 14 decision made, as reflected in Ms Low's evidence back in 15 2016, it has been a sham. The whole thing has been 16 a waste of time because Heathrow is a hub, Gatwick 17 isn't, and it was never going to be Gatwick. 18 LORD JUSTICE HICKINBOTTOM: Sorry, this isn't pejorative: 19 are you dealing with that issue now? We need that issue 20 to be dealt with at some point. 21 MR PLEMING: Not now. 22 LORD JUSTICE HICKINBOTTOM: I understand the broad tenor of 23 your submissions. 24 MR PLEMING: No, I am not dealing with that now because it 25 is, of course, a complex decision and might even be 95 1 relevant to relief, even if we are right on all of our 2 points. 3 My Lord, I have maybe ten minutes, I hope to have 4 finished at 12.30, but it had its own life as the 5 submissions went on, so could I invite your Lordships to 6 rise now and we'll meet again? 7 LORD JUSTICE HICKINBOTTOM: This is quite a difficult 8 question: how are you doing? Only in terms of the 9 timetable. 10 MR PLEMING: I will just speak to those who sit behind me. 11 If anything, it is five minutes. Mr Jaffey will be as 12 brief as he can, but we are on time. 13 LORD JUSTICE HICKINBOTTOM: Yes, good. 2 o'clock. 14 Thank you very much. 15 (1.00 pm) 16 (Luncheon Adjournment) 17 (2.00 pm) 18 LORD JUSTICE HICKINBOTTOM: Yes, Mr Pleming. 19 MR PLEMING: My Lords, on your desks should be -- if they 20 aren't there -- section 87 of the Planning Act 2008. 21 My Lords, could you put it into volume 1, tab 8. It 22 would go in, conveniently, after section 60 if your 23 Lordships strike through the opposite page. After 60, 24 on page 2 of that copy, there are two footnotes, which 25 can be, perhaps, deleted. 96 1 My Lord, the importance of the subsection is -- if 2 I could just have -- if it is new at all. This is the 3 examining authority as to control the examination of the 4 application. 5 In 87.2, the examining authority is making 6 a decision about "how the application to be examined 7 must comply with." 8 Then in 3: 9 "The examination authority may, in examining the 10 application, disregard representations [which means 11 evidence] if the examining authority considers that the 12 representations, (b), relate to the merits of policy set 13 out in the NPS." 14 So, it is a discretion to disregard, not an 15 obligation. 16 That's where we are up to. 17 LORD JUSTICE HICKINBOTTOM: Yes. 18 MR PLEMING: My Lord, just before we broke, I said I had 19 points to make, to advance -- sorry, to expand 20 paragraph 3, that we made in our submissions on the DCO. 21 In light of the time, could I just make one submission 22 and then sit down, and leave the other points to reply? 23 The reason for leaving them to reply is it is still 24 not clear from the Secretary of State, and from HAL's 25 skeleton argument, what areas they say are precluded or 97 1 included. 2 I have one overall submission to make, my Lord. 3 The Secretary of State's submissions on what can be 4 considered at the DCO stage are general and abstract, 5 and leave, perhaps deliberately, real uncertainty about 6 the extent to which flaws in the decision-making process 7 at this stage can be raised at a later stage. 8 To what extent new updating information about 9 surface access, air quality, and the other environmental 10 impacts justify revisiting policy decisions contained in 11 the ANPS. 12 For those reasons, because of the uncertainty and 13 what I have said already, we invite the court not to 14 refuse to consider the substantive merits of our 15 challenges because this is a decision of a fundamentally 16 different nature to that which can be made at the DCO 17 stage. If the court is minded to accept any argument 18 that an issue can be considered, at the DCO stage, to 19 try and clarify those areas of uncertainty, we invite 20 the courts to make declarations insofar as you consider 21 it appropriate, to make it clear what can and what 22 can't. 23 (Pause) 24 LORD JUSTICE HICKINBOTTOM: Is there anything else, 25 Mr Pleming? 98 1 MR PLEMING: No, my Lord, save to mention that which I am 2 not dealing with in any detail, and those are the words 3 "in accordance with" in section 104(3). Those are my 4 submissions. 5 Mr Jaffey will deal with other issues, and I hope 6 might also pick up the reference to Hub. 7 LORD JUSTICE HICKINBOTTOM: In relation to the relationship 8 between the NPS and the DCO, we understand the 9 submission that you are not certain as to what the 10 Secretary of State's position is in relation to 11 precisely what is left over to the DCO and what is cut 12 out, but you must have a positive case on those matters 13 which you say should be left over to the DCO? 14 MR PLEMING: My Lord, our positive case is that the areas 15 that were not fully considered by the Secretary of 16 State, as we set out, remain open, even though they go 17 to the balancing exercise that has already been 18 undertaken. 19 LORD JUSTICE HICKINBOTTOM: What, all of the matters? 20 MR PLEMING: All of the matters we raise should be able to 21 be -- 22 MR JUSTICE HOLGATE: I find that formulation difficult: 23 "The areas that were not fully considered." 24 Which means, by implication, they were to some 25 extent. I think we need something more precise than 99 1 that to assist the court, maybe in writing. 2 MR PLEMING: Yes, it would perhaps be better if I do it in 3 writing rather than try to answer the question right 4 here. 5 LORD JUSTICE HICKINBOTTOM: What, by tomorrow morning? We 6 need to have it as soon as we can. 7 MR PLEMING: Yes. 8 MR JUSTICE HOLGATE: Because otherwise there is an awful lot 9 left to reply. 10 MR PLEMING: Yes, in a very short time. 11 MR JUSTICE HOLGATE: Not just a question of timing. 12 A question of fairness as well. 13 MR PLEMING: Yes, my Lord, the reason I have not dealt with 14 104 is for the reasons I have given, but that question 15 certainly I can answer. 16 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much, 17 Mr Pleming. 18 Opening submissions by MR JAFFEY 19 LORD JUSTICE HICKINBOTTOM: Yes, Mr Jaffey. 20 MR JAFFEY: My Lord, I am going to deal, if I may, with the 21 Habitats Directive, with surface access and with air 22 quality. 23 If I may, I am going to deal with the Habitats 24 Directive first, not least because it requires me to 25 take you to a number of the key documents throughout the 100 1 decision-making process. So, it introduces some other 2 aspects of the case as well, and it is also a very 3 discrete and self-contained point. 4 I'll then move on to surface access and air quality, 5 where again there is a lot of overlap between those 6 points, so it is quite convenient to take them together 7 as well. 8 Dealing first, if I may, with the Habitats 9 Directive. It is common ground, first of all, that 10 a third runway at Heathrow may well have an effect on 11 European protected sites and, as a result, it was 12 necessary under the Habitat Directive to consider 13 whether there were any alternatives; that is also, as 14 I understand it, common ground. 15 What happened, as my Lords know, is that the 16 Secretary of State decided that a second runway at 17 Gatwick was not an alternative for the purposes of the 18 Habitats Directive and the implementing domestic 19 regulations. 20 There are now two reasons for that. 21 MR JUSTICE HOLGATE: Sorry, you said second runway? 22 MR JAFFEY: In the secondary regulations, which implement 23 the directive. 24 MR JUSTICE HOLGATE: Sorry, maybe I misheard. 25 MR JAFFEY: I do apologise. 101 1 MR JUSTICE HOLGATE: The second Gatwick runway is not an 2 alternative. Yes, I did mishear. My fault. 3 MR JAFFEY: The second Gatwick runway is not an alternative. 4 There are two reasons which I think the Secretary of 5 State now puts forward for that. First of all, that 6 a Gatwick Airport with two runways would not offer, for 7 the South East, the same Hub airport benefits as 8 a Heathrow with three runways. That is an argument 9 which appeared at a rather late stage in some 10 interesting circumstances, as I will show the court 11 shortly. 12 The second argument is that another runway at 13 Gatwick would create the possibility of harm to priority 14 species, namely some orchids that might be present in 15 a small part of a special area of conservation near the 16 M25. Well away from Gatwick, but where there may be 17 more airport related traffic if another runway was built 18 at Gatwick. 19 Those two reasons, on the facts, it turns out, are 20 quite closely linked because the first reason, the hub 21 argument, was adopted only when ministers or officials 22 were advised by their officials that the second ground, 23 without the Mole Gap special area of conservation, was 24 a bad one on the evidence and was going to be very 25 difficult to sustain in light of evidence that had been 102 1 produced by Gatwick, which the Secretary of State put to 2 his consultants and which his consultants accepted 3 looked like it was sound. 4 That point is when the hub argument was introduced 5 for the first time. 6 The idea, that building another runway at Gatwick 7 was not a potential solution would come as perhaps 8 something of a surprise to anyone who has followed even 9 the last 15 years of debates about runway capacity in 10 the South East. 11 As my Lord, Mr Justice Holgate pointed out, there 12 was a straight rationality challenge. Forget the 13 Habitats Directive, it was a rationality challenge at 14 that point to the exclusion of Gatwick in 2001, and that 15 was a challenge which ultimately succeeded. 16 For the last five years, first the Airports 17 Commission and then the Secretary of State has given 18 exhaustive consideration to the possibility of a second 19 runway at Gatwick, and whether or not that was a better 20 option, including the most detailed economic and 21 strategic analysis. 22 Everything the government said it had been doing for 23 many years was about a fair competition between 24 seriously arguable strategic options, but then right at 25 the end of the process, as I'll seek to show the court, 103 1 Gatwick is suddenly not an alternative for Habitats 2 Directive purposes at all. 3 Now, one immediately sees what the consequences of 4 this are for the Secretary of State's position because 5 the effect of the Secretary of State's position, if it 6 is correct in law, is that neither the Secretary of 7 State, nor, I would add, Parliament, considered the 8 comparative effect of another runway at Heathrow versus 9 another runway at Gatwick on European protected sites. 10 That is potentially rather important because a third 11 runway at Heathrow appears quite likely to have 12 a serious adverse effect on a great number of European 13 protected sites. The effect, of course, on European 14 sites is a common reason why large scale development may 15 not be appropriate. 16 It also means, of course, at the DCO stage, a veil 17 would be drawn over the question of whether there are 18 alternatives to Heathrow that would cause less harm to 19 European protected sites. 20 MR JUSTICE HOLGATE: Only if effect can't be given to the 21 Habitat Regs at that stage. 22 MR JAFFEY: Yes. 23 MR JUSTICE HOLGATE: Which does beg the question about the 24 interaction between the two statutory regimes. 25 MR JAFFEY: It is an important point my Lord puts to me. 104 1 The answer in relation to the Habitats Directive 2 issue -- and I will come to this -- is an appropriate 3 assessment must be carried out at both stages. 4 Now, the content of the assessment may be different, 5 given that at one stage you are looking at a plan and at 6 the subsequent stage you are looking at a much more 7 detailed project. So, the extent and the scope of the 8 analysis may be different, but there is a duty still -- 9 and this is a submission I will seek to make good at 10 both stages -- to consider whether there are 11 alternatives. 12 MR JUSTICE HOLGATE: Would I be right in thinking that in 13 the only statutory constraint on doing that is the power 14 to exclude a reconsideration of merits of policy? 15 MR JAFFEY: I think that is right, but nonetheless at 16 this -- 17 MR JUSTICE HOLGATE: That is not a point against you. 18 MR JAFFEY: No, I am just thinking it through before I agree 19 with something that Mr Maurici then knocks, effectively, 20 holes in. 21 I do think that is right, but all I need to persuade 22 my Lords of, for the purposes of this argument, is that 23 there is a duty under the directive to consider 24 alternatives at this stage. It may well be that the 25 effect of the Secretary of State's argument, if the 105 1 Secretary of State's right, is also to exclude the 2 argument at a later development consent order stage. 3 I take my Lords point on that, but here, of course, we 4 are focused on the decision made in the national policy 5 statement. 6 LORD JUSTICE HICKINBOTTOM: But if the Secretary of State's 7 submission is correct, there is no alternative in 8 Gatwick. That's, as it were, the end of that. 9 MR JAFFEY: Yes. 10 LORD JUSTICE HICKINBOTTOM: For all purposes. 11 MR JAFFEY: Certainly for the purposes of the Habitats 12 Directive and the requirement for consideration of 13 alternatives. 14 LORD JUSTICE HICKINBOTTOM: Yes. 15 MR JAFFEY: That's why, of course, it is an attractive 16 argument for the Secretary of State because it means 17 that the possibility of environmental harm caused by 18 Gatwick need not be considered and compared at all. 19 LORD JUSTICE HICKINBOTTOM: No, that's right. 20 MR JAFFEY: Equally, that's the concern behind it. 21 What I propose to do -- I know the court is familiar 22 with the legislative scheme, but can I start briefly 23 with the law? Then I need to look at the facts of how 24 these two reasons were decided side by side, and what 25 the Secretary of State was told. Then I can make some 106 1 quite brief submissions, I hope, on the facts and deal 2 with what they are. 3 Could I go back, first of all, then, to the 4 directive itself. It is in authorities volume 1, at 5 tab 18. I'll take the directive itself, if I may, at 6 some speed because I know my Lords are both very 7 familiar with it. 8 In the definition section, in Article 1, sub-article 9 H, there is a definition of priority species. It is not 10 in dispute that the Mole Gap special area of 11 conservation near the M25 was designated because it may 12 contain priority species, in particular some orchids. 13 There is also a definition of a special area of 14 conservation in Article 1L. Article 2 then sets out the 15 balance that is inherent in the directive, namely to 16 maintain or restore favourable conversation status, 17 species of community interest and natural habitat. 18 But then, at Article 2.3, the measures taken will 19 take account of economic, social and cultural 20 requirements. 21 That leads, in Article 3, to the establishment of 22 the Natura 2000 network and special areas of 23 conservation. The key provision for the purpose of this 24 case is Article 6, which provides for the protection 25 under European law of special areas of conservation and 107 1 of procedure which needs to be followed for assessing 2 the possible effects on those areas of development. 3 Now, Article 6.3 opens with a reference to "a plan 4 or project". It is not in dispute that that is engaged 5 by the national policy statement. 6 It is not directly connected with or necessary to 7 the management of a site, so it is about airport 8 development, not management of existing special areas of 9 conservation. But if it is likely to have a significant 10 effect on a European site, there must be an appropriate 11 assessment of its implications for the site in view of 12 the site's conservation objectives. 13 What that means -- and this is common ground -- is 14 the national policy statement must be accompanied by an 15 appropriate assessment of the effect on special areas of 16 conservation of building another runway at Heathrow. 17 Then article 6(4) -- 18 MR JUSTICE HOLGATE: Presumably an assessment of the other 19 alternatives that were under consideration, or not? 20 MR JAFFEY: Indeed, yes. 21 MR JUSTICE HOLGATE: Sorry? 22 MR JAFFEY: Yes. That's dealt with in Article 6(4), the 23 alternatives: 24 "If in spite of a negative assessment of the 25 implications for the site ..." 108 1 So, the site here we are talking about is Heathrow, 2 given the national policy statement, and then: 3 "In the absence of alternative solutions." 4 So, are there any alternative solutions to Heathrow? 5 That's what is considered under 6(4): 6 "A plan or project must nevertheless be carried out 7 for imperative reasons of overriding public interest, 8 including those of a social or economic nature. Member 9 states shall take all to maintain the coherence of the 10 Natura 2000 network and inform the commission." 11 What that is telling us is what happens if there is 12 a negative assessment for European sites in relation to 13 the proposal for a third runway at Heathrow. 14 First of all, is there an absence of alternative 15 solutions? 16 If there is an absence of alternative solutions, are 17 there imperative reasons of overriding public interest, 18 including reasons of a social and economic nature for 19 proceeding? 20 MR JUSTICE HOLGATE: So far as the Mole Gap SAC is concerned 21 is the second paragraph of Article 6(4) also relevant? 22 MR JAFFEY: Yes. 23 MR JUSTICE HOLGATE: Because that cuts down the range of 24 considerations that can be taken into account and poses 25 a different test. 109 1 MR JAFFEY: That is the point taken by the Secretary of 2 State, and that is the rider, the second paragraph: 3 "If a European site hosts a priority habitat type or 4 a priority species, the only considerations that may 5 initially be considered as an imperative reason of 6 overriding public interest are human health, public 7 safety or beneficial consequences of primary importance 8 to the environment." 9 Then: 10 "Or further to an opinion from the commission, 11 another imperative reason of overriding public 12 interest." 13 As we'll see from the case law in a moment, the 14 opinion from the commission which allows the full range 15 of imperative reasons to be considered is a procedural 16 step only. The commission does not have to give 17 a positive opinion in favour of the proposed development 18 or potential alternative. 19 So, the commission doesn't have a veto. The purpose 20 of the opinion of the commission is an independent 21 review of the strength and the cogency of the argument 22 that there are imperative reasons of overriding public 23 interest and a gauge, or an independent gauge of the 24 extent of the effect on priority species or a priority 25 habitat. 110 1 The fact that the commission's opinion is not 2 binding and it is a procedural step is an important part 3 of my answer to the Secretary of State's point that we 4 didn't have an opinion from the commission. My response 5 is: it is a procedural step. You are the national 6 competent authority, so if we needed one, you should 7 have gone to ask for one. 8 I'll come back to that. 9 So, that's the directive. 10 If I can then turn to the domestic regulations, 11 which are in tab 13 of the same bundle. That is the 12 conservation and habitat species regulations. They are 13 actually drafted rather more clearly than Article 6 14 itself, and they make clear some of the points that 15 I have just sought to make. 16 Picking it up at regulation 7, regulation 7 makes 17 any minister of the Crown one of the competent 18 authorities for the purposes of exercising functions 19 under regulations. So, here, the Secretary of State for 20 transport. 21 Then regulation 63 and 64 are the domestic 22 implementation of Article 6 of the Habitats Directive. 23 It is a faithful implementation. So, Article 63.1 24 requires the competent authority to carry out an 25 appropriate assessment. 111 1 Article 63.3 requires consultation with the 2 appropriate nature conservation body, that is 3 Natural England. 4 Then 63.5: 5 "In light of the conclusions of the assessment and 6 subject to regulation 64, the competent authority may 7 agree to the plan or project only after having 8 ascertained it will not adversely affect the integrity 9 of the European site." 10 Then there are a series of exceptions in 63.7, none 11 of which apply in this case. 12 Regulation 64, over the page, deals with imperative 13 reasons of overriding public interest. 14 64.1 reflects the first paragraph of Article 64. 15 Then 64.2 reflects the second paragraph of 16 Article 6(4). 17 It is clear from 64.2B, which refers to: 18 "Any other reasons which the competent authority 19 having due regard to the opinion of the European 20 Commission considers to be imperative reasons of 21 overriding public interest." 22 So, the obligation there -- and it is an accurate 23 implementation -- is to have due regard to the 24 commission's opinion, but the commission's opinion does 25 not reflect a veto, it's not binding on the competent 112 1 authority. It is a procedural step. 2 The procedure for asking an opinion is at 64.4. 3 There is a procedure in 64.5 for where the competent 4 authority is not the Secretary of State or the Welsh 5 ministers proposes to agree a plan or project, 6 notwithstanding a negative assessment -- that is 7 a negative assessment by the commission in their 8 opinion -- they have to notify the appropriate authority 9 and give them 21 days' notice that they are about to do 10 so. 11 So, again, that reflects the fact that the 12 commission's opinion is not binding. It just means that 13 if another authority is going to agree to a project 14 despite the commission's views, the Secretary of State 15 gets told and gets a chance to consider the position, 16 and under 64.6 has the power to put a stop to that. Not 17 least because the Secretary of State would then have to 18 potentially defend an argument there's been a breach of 19 European law. 20 So, that's the legislative scheme. Before I turn to 21 any authorities, and also to the guidance that has been 22 produced by DEFRA, could I just identify what I say are 23 the principles of law. 24 MR JUSTICE HOLGATE: I am sorry to be slow, but on 5: 25 "Where a competent authority other than the 113 1 Secretary of State ..." 2 That wouldn't apply in this case, would it? 3 MR JAFFEY: No, it doesn't apply in this case. I was just 4 using that to illustrate the point that the commission's 5 opinion is not binding. Not because it applies in this 6 case, it's just to -- 7 MR JUSTICE HOLGATE: Is it more a general point? 8 MR JAFFEY: Yes, it is a general point from the text, just 9 to make the earlier submission good. My Lord is quite 10 right to put that to me. It is not relevant to the 11 facts of this case. 12 Before I take you to any authority, can I just 13 identify what I say the court will ultimately be able to 14 take from the authority in terms of the principles? 15 The first principle of law -- and, again, this is 16 not going to be controversial -- is that the 17 precautionary test applies. It is a general principle 18 of EU environmental law. It is contained in Article 191 19 of the TFEU, and it applies with particular strictness 20 to effects on European protected sites. 21 The second principle is that it is for the competent 22 authority to take steps to identify the relevant 23 alternatives and to ensure that they are appropriately 24 assessed. It is not for the Secretary of State in this 25 case to sit back and wait for other people to identify 114 1 alternatives. It is the duty of the Secretary of State. 2 The third principle is that when considering whether 3 something is an alternative for the purposes of 4 Article 6(4), the competent authority must consider that 5 question objectively and broadly, and alternatives may 6 include alternatives at a different location, at 7 a different scale, with a different size, with different 8 methods or timing. Those are all words which are from 9 the DEFRA guidance on Article 6, which I'll take the 10 court to in a moment. 11 The fourth point that I'll seek to make good from 12 the authorities is that alternatives need not be 13 identical. Every potential project will have a number 14 of objectives of varying importance and any alternative 15 is likely to only be similar and not the same. In 16 particular, you cannot define your objective so narrowly 17 as to unreasonably eliminate the potential alternatives. 18 The Court of Justice has been particularly astute to 19 strictly review attempts to define the potential 20 alternatives so narrowly as to exclude them from proper 21 consideration for the purposes of Article 6(4), because 22 that frustrates the objective of the Habitats Directive 23 itself. 24 Of course, it is not unknown in the case law for 25 states to do exactly that; to define the potential 115 1 alternatives very narrowly so as to avoid the effect of 2 Article 6(4) and for that to ultimately have to be 3 corrected by the Court of Justice, which has not been 4 tolerant in such attempts. 5 The fifth point on the law is that if there is an 6 alternative which causes no harm to European protected 7 sites, it is that alternative which Article 6(4) 8 requires to be pursued, not the original proposed plan 9 or project. Indeed -- 10 MR JUSTICE HOLGATE: That may impact on your previous 11 proposition because, if that is the consequence, it may 12 affect the way the court looks at whether the purpose of 13 the project has been too narrowly defined. 14 MR JAFFEY: That is to -- 15 MR JUSTICE HOLGATE: There must be an interaction between 16 those two propositions. 17 MR JAFFEY: That is my final point, but just a degree of 18 caution in terms of which end of the telescope the court 19 looks at that through. 20 The way in which the Habitats Directive would 21 consider it is that the policy aim of the directive is 22 to provide a very high level of protection for 23 a relatively small number of defined European protected 24 sites. What Article 6 does, is it introduces 25 a derogation from that system of strict protection. It 116 1 is the derogation which requires justification, and so 2 it is important, in my submission, not to start from the 3 wrong end of the telescope and to say, "This might 4 prevent us from doing what we want to do, and therefore 5 should we construe the derogation very broadly?" Should 6 we say alternatives can be very narrowly defined as to 7 be something very similar because that is the error 8 which some states have made, which we'll see in the 9 authorities in my submission. 10 The final point is that if harm to European sites 11 would also be caused by potential alternatives, then the 12 proper responsibility of the State is to consider which 13 alternative would have less overall impact on European 14 protected sites. That involves a comparative assessment 15 of the effects on European sites and a proportionate 16 balancing of the options, because it may well be that 17 there is a project which has some alternatives, but 18 there is no perfect alternative; every alternative will 19 also involve some harm to European protected sites. 20 That's what should be done in that situation. 21 So, those are the submissions which I'll seek to 22 make by reference to the authorities. 23 Initially, I think, I only need -- 24 MR JUSTICE HOLGATE: Is that last submission complete? 25 Sorry to put it that way. That is a comparative 117 1 exercise in harm. Are you also entitled to carry out 2 a comparative exercise in benefit? 3 MR JAFFEY: It is quite interesting. In a decision I am 4 about to show you, in Commission v Portugal, there is 5 some suggestion that the extent to which an alternative 6 is a complete alternative may be a relevant factor. 7 MR JUSTICE HOLGATE: That goes back to the earlier question 8 we were asking. 9 MR JAFFEY: It does. 10 MR JUSTICE HOLGATE: Okay. 11 MR JAFFEY: But, of course, in this case, the Secretary of 12 State says we don't even get there. It is not an 13 alternative. Gatwick is not an alternative at all, the 14 Secretary of State says. My submission on the point, 15 which my Lord was putting to me, is I submit less 16 extreme, and even that wasn't considered by the 17 Secretary of State. 18 The Secretary of State has taken the absolutist 19 approach: this is not an alternative, and therefore I do 20 not need to consider it at all. 21 Could I turn now, if I may, to the decision of the 22 Court of Justice in Commission v Portugal that I just 23 mentioned? That is in volume 4 of the authorities, at 24 tab 86. 25 I am showing the court this decision not because it 118 1 is a particularly well-known authority or hugely 2 exciting, but because it cites all of the key previous 3 decisions and it contains a detailed analysis of the 4 relevant principles in the Advocate General's opinion, 5 which is also helpful, rather than go back to all the 6 original authorities establishing these points which are 7 cited. 8 It is a pretty straightforward case on the facts. 9 There was a motorway project in Portugal which crossed 10 a special protected area for birds, site. The 11 Commission said there had been a breach of Article 6(4) 12 because there were negative effects on the European 13 protected sites and there were alternative solutions. 14 That's summarised in paragraph 1 of the judgment. 15 Turning on to paragraph 14 of the judgment, there is 16 an explanation of the commission's case that there were 17 possible alternative routes which ran outside the 18 protected area. Then the court starts to recite its 19 previous case law at paragraph 19 of the judgment. 20 So, paragraph 20, having cited the Waddenzee case, 21 sets out the test. Authorisation only on the condition 22 that the national authorities are certain that it will 23 not have had adverse effects on the integrity of the 24 site concerned. That is where no reasonable scientific 25 doubt remains as to the absence of such effects. 119 1 So, that's the first step, the assessment of whether 2 there may be negative impacts on a site; a high degree 3 of certainty; no reasonable scientific doubt. That's 4 Article 191 of the TFEU in operation. That is the 5 precautionary principle. 6 MR JUSTICE HOLGATE: Sorry, it is not a test of certainty; 7 it is no reasonable scientific doubt? 8 MR JAFFEY: Yes. 9 MR JUSTICE HOLGATE: Right. 10 MR JAFFEY: As to the absence of such effects. 11 MR JUSTICE HOLGATE: Sorry, yes. 12 MR JAFFEY: The Portuguese authorities concluded that test 13 was met and the court's view is at paragraph 23 of the 14 judgment, which is that they did not accept that. 15 So, we move then to Article 6(4), and that is dealt 16 with in paragraph 26 of the judgment onwards. You 17 consider the alternatives, and then if there are no 18 alternatives, imperative reasons of overriding public 19 interest. That is the reference to Article 6(4). 20 Then paragraphs 27 to 29, the court deals with the 21 question of alternatives, and then, in particular, at 22 28, it explains the Commission's view that the 23 authorities didn't take into account various alternative 24 routes. 25 The response of the Portuguese Republic is 120 1 summarised at paragraph 32, which is that the 2 implementation of the route that the Commission proposed 3 would cause serious social, economic and environmental 4 harm because it would affect the populations of some 5 neighbouring towns, as well as a reservoir. 6 Then the upshot, and it is a brief judgment, is at 7 paragraph 38. 8 MR JUSTICE HOLGATE: Can I ask a question: was this a case 9 where the state argued that the alternatives wouldn't 10 serve the purpose of the motorway? 11 MR JAFFEY: No. I am only showing you this because I am 12 seeking to make good some principles, not because it is 13 a directly analogous circumstance to this case. I am 14 going to show you the Advocate General's opinion that 15 does range wider on some of the questions that my Lord 16 is putting to me. 17 MR JUSTICE HOLGATE: I am just making sure I keep up. 18 MR JAFFEY: So, paragraph 38 is the conclusion. Reading 19 from halfway through: 20 "It cannot be ruled out immediately that such 21 solutions were capable of amounting to alternative 22 solutions within the meaning of Article 6(4), even if 23 they were, as asserted by the Portuguese Republic, 24 liable to present certain difficulties. 25 What I have taken from that is that an alternative 121 1 does not have to be a complete or indeed a fully 2 satisfactory alternative. It may not achieve some of 3 the objectives of the original project. 4 As I have said, that is a pretty laconic judgment, 5 as they always are. The Advocate General's opinion is 6 quite helpful on the question of alternatives because 7 she deals with that issue in a bit more detail. 8 The Advocate General's opinion follows the judgment. 9 If I can pick it up at paragraph 39 of the opinion, 10 there is a heading: 11 "Absence of alternatives." 12 The law is summarised at paragraph 39, and then, at 13 paragraph 40, the Advocate General notes that: 14 "In this case, the parties do not disagree either 15 about whether the construction of the motorway was 16 necessary for imperative reasons or about the measures 17 necessary to satisfy are coherent." 18 The issue was one of alternatives. 19 Then, at paragraph 41, the Advocate General 20 considers the extent to which an alternative has to be 21 demonstrated or proven. 22 Then the final part of paragraph 41, the Advocate 23 General sets out her view: 24 "Contrary to the view of the Portuguese government, 25 the Commission is not required to demonstrate an 122 1 alternative route, but only to raise reasonable doubts 2 as to whether Portugal has complied with the 3 requirements of Article 6(4)." 4 So, again, a high standard is being imposed on the 5 state there in relation to alternatives. 6 Then, paragraph 42 contains an explanation of the 7 purpose of Article 6(4) of the Habitats Directive. 8 MR JUSTICE HOLGATE: The footnote, number 27, says it comes 9 from Waddenzee, so it is a very general principle. 10 MR JAFFEY: It is. And it's -- 11 MR JUSTICE HOLGATE: Not related to a specific issue which 12 they had to decide there? 13 MR JAFFEY: No, it is not. 14 MR JUSTICE HOLGATE: So, you could say that was gratuitous. 15 MR JAFFEY: Gratuitous or correct. I simply say -- 16 MR JUSTICE HOLGATE: The two can coincide. 17 MR JAFFEY: I would simply it is a correct summary of the 18 principles, that derive from the general principles of 19 EU law to the Habitats Directive, and the protection 20 which is required. 21 One can have different policy views about whether 22 the Habitat Directive is a good thing or a bad thing. 23 It would be perfectly proper for the European legislator 24 to take the view that, despite the requirements for 25 strict protection of habitats in the treaties, the 123 1 Habitats Directive, overall, goes too far and strikes 2 the balance in the wrong place in relation to the 3 protection of a limited number of European sites. That 4 would be a perfectly proper policy view to hold, but 5 that is not the view the European legislator has taken, 6 and the Habitats Directive has been in force for some 7 decades now. It requires a very high and strict level 8 of protection for European sites. Indeed, it's a very 9 common reason why even developments that are covered by 10 a national policy statement are ultimately rejected on 11 inspection. One thinks of, for example, many onshore 12 wind cases, where precisely that has happened because of 13 the effect on bird sites. 14 So, one can have different views about whether this 15 level of environmental protection is a good thing or a 16 bad thing, but I am seeking necessarily to make my case 17 on what the level of protection provided by the law is. 18 In paragraph 42, the last five or six lines, the 19 Advocate General explains the alternative solutions 20 point: 21 "In the absence of alternative solutions, 22 corresponds in that respect to a stage in the test of 23 proportionality. According to which, when there is 24 a choice between several appropriate measures, recourse 25 must be had to the least onerous." 124 1 Again, in my submission, that must be right. 2 Then she considers, at 43, how to decide whether 3 something is an alternative: 4 "Well, the absence of alternatives cannot be 5 ascertained where only a few alternatives have been 6 examined, but only after the all the alternatives have 7 been ruled out. The requirements applicable to the 8 exclusion of alternatives increase the more suitable 9 those alternatives are for achieving the aims of the 10 project without giving rise beyond reasonable doubt to 11 manifest in disproportionate adverse effects." 12 So, how do we determine whether something is 13 alternative? 14 One looks at the extent to which it is suitable for 15 achieving the aims of the project without having 16 disproportionate or adverse effects. 17 Of course, that is a general test, but it does 18 provide the court with a degree of guidance to the 19 identification of alternatives. 20 LORD JUSTICE HICKINBOTTOM: Just give me a moment. 21 (Pause) 22 Isn't that slightly circular? 23 MR JAFFEY: Well -- 24 LORD JUSTICE HICKINBOTTOM: We are concerned with what is an 25 alternative because, if it is an alternative, then we 125 1 have to go through the Habitats Regulations process, as 2 you have demonstrated. 3 But to determine whether it is an alternative, this 4 says you have to have regard to the adverse effects and 5 whether they are disproportionate. 6 MR JAFFEY: But, also, the requirements to the exclusion of 7 the alternatives increase the more suitable the 8 alternatives are, but achieving the aims of the project 9 without giving rise to various bad things, manifest and 10 disproportionate adverse effects. 11 So, what the Advocate General is suggesting is that 12 when identifying the alternatives one has to look at the 13 suitability of the alternatives for achieving the aims 14 of the project. 15 MR JUSTICE HOLGATE: Yes, I hadn't read that passage because 16 this wasn't in issue in this particular case. I hadn't 17 read that passage as providing any assistance on how you 18 determine suitability of alternatives. 19 What it is saying is, if you have alternatives, then 20 the requirements applicable to excluding them increase 21 the more suitable, et cetera, et cetera. It is giving 22 advice once you have come to that stage. 23 MR JAFFEY: Well -- 24 MR JUSTICE HOLGATE: It assumes there are alternatives 25 without saying whether the decision maker has acted 126 1 unlawfully in deciding to what extent are there 2 alternatives which are suitable for the purpose of the 3 project. 4 MR JAFFEY: I am not sure I accept it is a case in which it 5 is being said there were no alternatives, because what 6 Portugal was arguing is there were no alternatives, and 7 what the Advocate General's view was, and ultimately the 8 court's view, is that there were alternatives that did 9 need to be considered and should not have been ruled 10 out. 11 MR JUSTICE HOLGATE: It is a bit sort of hypothetical 12 because these things don't appear to have been in issue 13 in this case. Paragraph 40, though, suggests that 14 alternatives to a motorway wouldn't have been 15 alternatives. 16 MR JAFFEY: Yes. 17 LORD JUSTICE HICKINBOTTOM: So, it was accepted that ... 18 MR JAFFEY: That was common ground between the parties, as 19 to where the motorway should be built. 20 LORD JUSTICE HICKINBOTTOM: It was common ground, but there 21 had to be a motorway going from A to B. The alternative 22 was as to route, but there had to be a motorway. 23 MR JAFFEY: Yes. 24 LORD JUSTICE HICKINBOTTOM: It wasn't an alternative that 25 they could have caught the train. I don't know the 127 1 facts well enough. 2 MR JAFFEY: The equivalent of that here would be it would be 3 a bad idea to increase runway capacity in the South East 4 of England, and we shouldn't do that. Instead what 5 happened was people should take the train or they should 6 not travel at all, so that argument is similar to 7 whether we should build a motorway or not. 8 LORD JUSTICE HICKINBOTTOM: You are coming on to the facts. 9 I don't want to pre-empt that, but what triggered 10 this -- my understanding of what triggered all of this 11 when the Commission was set up, the Airports Commission 12 was set up, was the need for a hub. That was what 13 triggered this, not additional capacity. We'll come on 14 to that when we deal with the facts. 15 MR JAFFEY: Yes. 16 MR JUSTICE HOLGATE: Forgive me, you said a moment ago that 17 the Portuguese government in that case submitted that 18 there were not any alternatives, but you took us 19 previously to paragraph 32 of -- I think it is the 20 judgment, which talks about the harmful effects of the 21 alternatives. But, in fact, the relevant passage is 22 paragraph 31, isn't it? 23 Because -- 24 MR JAFFEY: Of the court's judgment, or of the -- 25 MR JUSTICE HOLGATE: I think so. You took us to 32 128 1 previously, but we need to read 32 in the context of 31 2 of the court's judgment, because in the second sentence 3 of 31: 4 "In the view of the government of Portugal, that 5 notion does not simply refer to an alternative solution 6 whose theoretical feasibility is defensible, but also 7 implies that the adverse effect of such a solution ..." 8 In other words, they were seeing the two as 9 interrelated. It was rather putting the cart before the 10 horse. 11 MR JAFFEY: That is the Portuguese government's submission. 12 MR JUSTICE HOLGATE: I know, but that is what the court was 13 having to react to. 14 MR JAFFEY: The court's reaction -- 15 MR JUSTICE HOLGATE: Was understandable. 16 MR JAFFEY: Was also in broad terms. 17 What actually happened in that case -- and just to 18 finish on the Advocate General's opinion at 47 -- is 19 that the Portuguese authorities did consider some 20 alternative to the east and a little bit to the west, 21 and then, at the end of that: 22 "The Commission does not object to the choice made 23 from amongst those alternatives, but to the failure to 24 examine further alternatives to the west of the SPA." 25 And: 129 1 "The Commission's action is therefore [at 48] 2 well-founded if those alternatives to the west should 3 have been examined and it is conceivable that one of 4 those alternatives was preferable ..." 5 Then the conclusion of the Advocate General, which 6 was ultimately accepted by the court, is that those 7 alternatives had not been properly considered. 8 MR JUSTICE HOLGATE: In effect, the stance being taken by 9 the Portuguese State in that case gave rise to the 10 circularity point, which my Lord was asking about. Is 11 this the high watermark of European jurisprudence on 12 what is a suitable alternative? 13 MR JAFFEY: There are not very many cases. They all turn on 14 their facts. I could show you lots of them, but that is 15 an example. 16 MR JUSTICE HOLGATE: I think you understand we are looking 17 at principle. 18 MR JAFFEY: Exactly, and that's why I am not going to show 19 you lots of cases involving applications like that. 20 But, in terms of what you get in terms of principle, 21 it is necessary to consider the suitability of the 22 alternative to meet the aims of the project. You cannot 23 ultimately take it much further. 24 MR JUSTICE HOLGATE: I am sorry to press you on this, but it 25 is an important point. The reason I asked the question 130 1 is, earlier on, you were seeking to impose limitations 2 on what a state can do when deciding whether something 3 qualifies as an alternative, so that's why we ask, 4 "Where is the European jurisprudence?", which really 5 bears on that issue. 6 LORD JUSTICE HICKINBOTTOM: Because this case doesn't bear 7 on the discrete issue of aims, as it were. Legitimate 8 aims. 9 MR JUSTICE HOLGATE: Yes. 10 LORD JUSTICE HICKINBOTTOM: Because that wasn't an issue in 11 this case. 12 MR JAFFEY: Can I deal with that by reference to DEFRA's 13 guidance? My Lord was right to ask me about that 14 because it is an important question as to how one 15 identifies what an alternative is, and this is an 16 example, Commission v Portugal, of alternatives not 17 being properly considered. It is an example, which as 18 my Lord has rightly put to me, turns on its facts. 19 MR JUSTICE HOLGATE: It's more than that. It was obvious 20 that there were alternatives which couldn't be thrown 21 out by reference to purpose. No one attempted to do 22 that. 23 Anyway ... 24 MR JAFFEY: Can we look at the DEFRA guidance next? The 25 DEFRA guidance isn't in the authorities bundles, it is 131 1 in the hearings bundles at volume 11, tab 2. 2 On the question of alternative solutions, this 3 guidance covers that topic at page 9 of the large 4 numbers on the bottom of the page, under heading: 5 "Test 1 alternative solutions." 6 So: 7 "The purpose of the alternative solutions test is to 8 determine whether there are any other feasible ways to 9 deliver the overall objective of the plan or project 10 that could be less damaging to the integrity of the 11 European site." 12 It is an objective test. For the test to be passed 13 the competent authority must be able to demonstrate 14 objectively the absence of feasible alternatives and the 15 applicant is primarily responsible for identifying 16 alternatives." 17 Then, paragraph 11: 18 "The first step is to identify the objective. 19 Alternative solutions are limited to those which would 20 deliver the overall objective as the original proposal." 21 Then there are some explanations and examples of 22 that which come on and follow. 23 Some thoughts on the limits of that principle from 24 DEFRA can be found at paragraph 13. So, for example, 25 the second bullet point, you wouldn't replace one form 132 1 of capacity for energy generation with another form of 2 capacity. So, if the proposal is for wind power, you 3 wouldn't necessarily consider as an alternative a new 4 nuclear plant in a different location. Or if you are 5 proposing to build a motorway, you wouldn't necessarily 6 consider a rail link to be an alternative. 7 But, paragraph 16: 8 "The alternatives must be considered objectively and 9 broadly, could include options delivered by someone 10 other than the applicant, a different location, 11 different route size, methods, means or timing, 12 different ways of operating a development or facility." 13 Then an example is given at the top of page 11: 14 "Dibden Bay, deep water berths in Southampton." 15 The second paragraph: 16 "The derogation was rejected by the Secretary of 17 State as the assessment of alternatives had not included 18 the assessment of alternative facilities at other ports 19 on the south and east coasts that would have provided 20 increased shipping capacity for southern England. 21 The Isle of Grain was not accepted as credible 22 because there were no proposals to develop container 23 handling capacity there. 24 So, an alternative may not need have identical 25 advantages and disadvantages. One can see, for example, 133 1 that the developer at Southampton might have said, "We 2 have a unique facility here. It is extremely large and 3 it has numerous deep water berths and that carries with 4 it something equivalent to, for example, hub benefits." 5 LORD JUSTICE HICKINBOTTOM: In the Dibden Bay example, this 6 guidance makes it clear that the first step is to 7 identify the overall objective. The overall objective 8 in the Dibden Bay case was not to increase capacity 9 shipping capacity at Southampton. It was to increase 10 shipping capacity. So, the applicant didn't sort of 11 have the right overall objective. 12 MR JAFFEY: Just trying to apply it to this case, here, that 13 would only apply if the overall objective was to build 14 another runway at Heathrow. That is ultimately not the 15 options which were being considered in the Airports 16 National Policy Statement. That was the decision, but 17 the aims were different. 18 The aim was to increase airport capacity in the 19 South East of England. One of the factors the 20 government took into account when deciding which option 21 to select was the fact that the government viewed 22 Heathrow as having a strategic advantage. Namely, that 23 another runway there would help to maintain Heathrow's 24 existing hub status, as a hub airport. If there was not 25 another runway built at Heathrow, Heathrow would still, 134 1 of course, remain a hub airport. Exceptionally high 2 capacity worldwide. People would still use Heathrow as 3 a hub, but it would be competed against more strongly by 4 other hub airports. It was strategic advantage or 5 disadvantage. I'll show you part of the airports policy 6 statement. 7 It is not, in my submission, a reason for saying 8 that Gatwick was not an alternative at all. That is why 9 Gatwick has been in consideration for 15 years. That is 10 why Gatwick was considered by the Airports Commission as 11 a very serious alternative. It was only at the last 12 stage of the consultation, in 2017, for the purposes of 13 the Habitats Directive only, not for the purpose of the 14 economic analysis, not for the purpose of the reasoning 15 in the policy statement, but solely for the purpose of 16 the Habitats Directive, because it causes the government 17 problems with the strict level of protection provided by 18 the directive, that it is excluded as an alternative. 19 In my submission, that is an unconvincing position which 20 doesn't pass muster as a part of European law. 21 MR JUSTICE HOLGATE: Sticking with the Dibden Bay example, 22 this explanation by DEFRA is not entirely helpful, 23 because it doesn't -- for two points, perhaps. (1) It 24 doesn't explain why the developer sought to exclude 25 consideration of alternatives, so it doesn't really give 135 1 a clue as to why they lost on the point in the eyes of 2 the Secretary of State. But looking at the example they 3 give, the project sought to include a number of deep 4 water berths. You can imagine that could arguably 5 affect the selection of alternatives because the deep 6 water goes to capacity of the ships, so it wouldn't be 7 any use just looking at any old port facility on the 8 south or east coast. You have to look for -- as 9 I understand it, it is quite limited, where you can get 10 deep water shipping in. 11 MR JAFFEY: That is quite similar to the point made at the 12 end of that box about the Isle of Grain. It had to be a 13 facility -- 14 MR JUSTICE HOLGATE: It is the difference between long haul 15 and point to point. 16 MR JAFFEY: For example, if you could only build a runway 17 that was only 2 kilometres long at Gatwick, but you 18 could build one that was 3.5 kilometres long and could 19 take long haul aircraft at Heathrow, then it may be that 20 Gatwick would not be an alternative because it couldn't 21 meet the requirement that it had long haul capability. 22 That is not the issue here, in my submission. 23 I am not trying to rely on this as anything other 24 than a working example of the principles. The point 25 my Lord was putting to me are perfectly proper about the 136 1 Dibden Bay example, but the point that I seek to make 2 from it is that an alternative at a different location, 3 that may well have a different suite of strategic 4 advantages and disadvantages, which may mean that it is 5 not favoured enormously, either by the developer or by 6 the government, as a strategic option may nonetheless be 7 an alternative for the purposes of the Habitats 8 Directive. 9 LORD JUSTICE HICKINBOTTOM: In terms of the overall 10 objective, I understand your submission. I know you are 11 going to come on to it when you deal with the facts. 12 I understand your submission that this wasn't considered 13 as an issue until very, very late on in the day. 14 The identification of the overall objective by the 15 government, in this case, that must be the subject of 16 a very broad band of assessment. It must be a very 17 difficult -- just leave this case aside for the moment 18 because you are going to deal with it on the facts, but 19 the identification of the overall objective for the 20 policy must -- the government must have a wide band of 21 discretion or assessment in relation to that. 22 MR JAFFEY: My hesitation about that is because this is not 23 a Wednesbury case. It is a question of EU law, where 24 what has to be proved by the government is the 25 application of a derogation on the strict protection to 137 1 the circumstances of the case. So, I think that perhaps 2 the better way of looking at it -- indeed I submit the 3 correct way of looking at it -- is: has the government 4 demonstrated, given that it seeks to engage a derogation 5 for a system of protection, that something is not an 6 alternative? 7 EU law will give a certain degree of respect to 8 a decision relating to a strategic question of policy, 9 but in relation to cases involving environmental 10 protection -- and I will show you some of the air 11 quality cases tomorrow -- the court has actually been 12 quite strict about the extent to which they are prepared 13 to intervene. It is very different from the domestic 14 approach, and so I say the question is whether or not 15 the derogation has been established, on the evidence. 16 The court may well say: a question of purely strategic 17 national policy is not necessarily something which we 18 would engage with. 19 But the court will be astute to the risk, which 20 Article 6(4) seeks to protect against, which is of 21 a State or a developer seeking to avoid the 22 consideration of alternatives by defining their 23 objective -- their legitimate aim, if you want to put it 24 in discrimination terms -- in such a way as to admit 25 there is no possible alternative solution. 138 1 LORD JUSTICE HICKINBOTTOM: I see that, yes. 2 MR JAFFEY: Because it would be very easy for me, as 3 a lawyer, to define the legitimate aim -- indeed, 4 I submit that's what happened -- in a way which admitted 5 there is no alternative for the purposes of the Habitats 6 Directive and therefore made the position of the 7 Secretary of State much easier. 8 You can do that by saying: my aim is to build 9 a runway which is 3.5 kilometres long at an existing hub 10 airport. Therefore I don't need to consider any other 11 alternative for the purposes of the Habitats Directive. 12 That is not the approach the government has taken 13 for many years. It has a different approach. 14 Could I turn then and deal with the facts because 15 I think you have heard, probably, quite enough about the 16 law. 17 The starting point is, I think, the national policy 18 statement itself on hub status. The national policy 19 statement is in bundle 6, at tab 7. The relevant part 20 dealing with hub status starts on page 213, at 21 paragraph 1.32. If I could just invite the court to 22 read 1.32, which sets out the conclusion on Hub status. 23 LORD JUSTICE HICKINBOTTOM: I am sorry, which paragraph? 24 MR JAFFEY: I am sorry, 1.32, on page 213. That is the 25 decision, in effect, which is being challenged. That is 139 1 the decision there is no alternative. 2 LORD JUSTICE HICKINBOTTOM: Just going back to 3 paragraph 1.3, because that reflects the brief of the 4 Airports Commission. Its brief was: 5 "To examine the scale and timing of any requirement 6 for additional capacity to maintain the UK's position as 7 Europe's most important aviation hub." 8 So, isn't that the overall objective? 9 MR JAFFEY: It depends on what you mean by "Europe's most 10 important aviation hub", and "identify and evaluate how 11 any need for additional capacity should be met in the 12 short, medium and long-term". 13 The conclusion of the Airports Commission was three 14 options. Heathrow Hub, northwest runway, or Gatwick. 15 All of those options permit the continued operation of 16 a traditional hub and spoke airport at Heathrow, albeit 17 that only an option of an extended runway at Heathrow 18 would allow a large amount of additional capacity at 19 Heathrow. All of those were thought to be potential 20 options for achieving the brief which the Airport 21 Commission had put to them. They rejected, for example, 22 other options, like Luton or Stansted, as meeting that 23 brief. 24 LORD JUSTICE HICKINBOTTOM: I understand that submission, 25 but this was not a requirement for additional capacity 140 1 willy-nilly. It was for additional capacity to 2 maintain -- as you say, it may not be absolutely clear 3 what's meant by this, but to maintain the UK's position 4 as Europe's most important aviation Hub. That is why 5 the capacity was required. 6 MR JAFFEY: Yes, but if the answer to that is only building 7 a third runway at Heathrow could achieve that, then that 8 is what the Airport Commission would have said. They 9 ruled out a very large number of other options on all 10 sorts of grounds. They ruled out the Isle of Grain. 11 They ruled out any option in the Thames Estuary. They 12 ruled out Luton and Stansted, and they ruled out various 13 options within Heathrow and Gatwick. What was left were 14 three options they thought potentially met their brief, 15 each with different advantages and disadvantages. 16 MR JUSTICE HOLGATE: Would it be fair to say this: the 17 objective, as defined in 1.3, is not some kind of 18 afterthought, it was there early on, but your complaint, 19 instead, is that it is only latterly that the ability of 20 Gatwick to meet that objective has been treated by the 21 government as not being met. 22 MR JAFFEY: I accept that way of putting it. I think I also 23 probably put it a bit higher. 24 MR JUSTICE HOLGATE: That is another way of putting it. 25 Also, would it be fair to say this: in terms of law, 141 1 are you really criticising 1.3 as a permissible 2 statement of an objective? 3 How Gatwick is then handled is then another issue, 4 but is it at least a permissible, in terms of the law, 5 objective? And if not, why not? 6 MR JAFFEY: 1.3 is I think a permissible statement of the 7 objective, but one has to look at what one means by "hub 8 status" because no one is suggesting, for example, 9 closing Heathrow Airport. The analysis and reasons we 10 see at 1.32 -- and I will show you in chapter 2 -- are 11 concerns about whether or not Heathrow, in the absence 12 of another runway, a third runway in particular, would 13 be able to continue to be the premier hub airport and 14 would be able to continue to compete, for example, with 15 airports in the Middle East. 16 Those are perfectly acceptable strategic reasons to 17 take into account, but they don't eliminate something 18 else as an alternative. 19 MR JUSTICE HOLGATE: So, it then becomes an argument about 20 the application of the objective. 21 MR JAFFEY: In terms of what the objective is, the objective 22 is the objective, in my submission, set out at 1.32. 23 MR JUSTICE HOLGATE: Right. 24 MR JAFFEY: The objective at 1.32 is dealing with the UK's 25 hub status. Not dealing with Heathrow's Hub status -- 142 1 LORD JUSTICE HICKINBOTTOM: No, quite. 2 MR JAFFEY: -- it is dealing with the United Kingdom's hub 3 status. 4 LORD JUSTICE HICKINBOTTOM: Yes, absolutely. 5 MR JAFFEY: The Airport Commission's conclusion -- I am not 6 going to go through all the reports, but the Airport 7 Commission ultimately came up with three options that it 8 thought potentially achieved that. The government 9 thinks, as we know from the Airport National Policy 10 Statement, that Heathrow is clearly the best option for 11 the reasons identified in 1.32, but it doesn't mean the 12 others aren't alternatives, in particular for the 13 purposes of the Habitats Directive. 14 LORD JUSTICE HICKINBOTTOM: Yes. 15 MR JAFFEY: There is a reference in 1.32 to chapter 2 of the 16 national policy statement. Chapter 2 starts on 17 page 216. One sees the heading in chapter 2 is: 18 "The need for additional airport capacity." 19 Of course, that is the same as the point that was 20 identified to the Airports Commission about capacity in 21 the South East. 22 Then the details on hub status are in chapter 2, at 23 2.13 and 2.14. They are making the point I just made to 24 the court about the government's decision about 25 competition, in particular with the Middle East. 143 1 MR JUSTICE HOLGATE: This is -- as I think the first part of 2 2.13 makes clear -- to do with connectivity. Amongst 3 other things, the destinations you can travel to. 4 MR JAFFEY: Yes, and the point that's being made is that if 5 you don't build another runway at Heathrow and the words 6 are "would not enhance", and would "consequently 7 threaten" the UK's hub status. 8 LORD JUSTICE HICKINBOTTOM: Sorry, which paragraph is that 9 in? 10 MR JAFFEY: I think I have given you the wrong paragraph. 11 Sorry, at 2.13 it gives the point about connectivity 12 and competition with the Middle East. Then chapter -- 13 MR JUSTICE HOLGATE: In that context, forgive me, it says in 14 the fourth line: 15 "These competitors [Paris, Frankfurt and Amsterdam] 16 have benefited from the capacity constraints at Heathrow 17 Airport." 18 So, that is Heathrow Airport in its capacity as 19 a hub. 20 MR JAFFEY: Those are the reasons that are being put 21 forward. It doesn't eliminate the others as 22 alternatives. 23 MR JUSTICE HOLGATE: No, sorry. 24 MR JAFFEY: I am not pushing back against the point my Lords 25 are putting to me, which are perfectly proper. The 144 1 government has reasons why it selected the option it 2 did, and I am resisting the temptation to make any 3 submissions about the merits of the decisions because 4 I could easily give you my client's top ten reasons why 5 in fact this analysis of hub and spoke airports, and all 6 sorts of other points about airports are all a load of 7 rubbish, and those points have indeed been made. I am 8 going to do my best to avoid giving them to the court 9 because I have no right to say them and the court won't 10 be interested in them. But I do accept that the 11 government had reasons, which it put forward, why, 12 ultimately, of those three options the Airport 13 Commission left open it went for Heathrow. My point is 14 a more modest one about alternatives. 15 The conclusion on hub status and alternatives is 16 then in chapter 3 of the report, on page 225, 17 paragraph 3.19: 18 "By contrast, expansion at Gatwick would not enhance 19 and would consequently threaten the UK's global aviation 20 hub status. Gatwick would remain a point to point 21 airport, attracting very few transfer passenger. 22 Heathrow would continue to be constrained, outcompeted 23 by competitor hubs." 24 Then: 25 "At the UK level there would be fewer long haul 145 1 flights and long haul destinations served less 2 frequently, and therefore Heathrow is the better 3 option." 4 That is quite careful wording: 5 "Unless you built another runway at Heathrow it 6 would not enhance, and would consequently threaten." 7 But Heathrow, of course, still remains a hub. It 8 will just remain a constrained hub, subject to 9 significant competition. 10 You might think that is a significantly worse 11 option. You might think that is a better option. But 12 the fact is that, in that scenario, of maintaining 13 Heathrow as an airport that's open, and expanding 14 Gatwick it is still an alternative to the issue of 15 maintaining the UK's hub status and also delivering 16 airport capacity in the South East. 17 MR JUSTICE HOLGATE: I see 3.19 purports to be supported by 18 the first sentence of 3.20: 19 "This was demonstrated by the forecasts produced by 20 the Airports Commission", and refers to the department's 21 2017 forecasts. 22 MR JAFFEY: Yes. 23 MR JUSTICE HOLGATE: I think someone has referred us to the 24 executive summary of the Airports Commission which deals 25 with the destination predictions, both for Gatwick and 146 1 Heathrow. That may be what the writer had in mind then. 2 MR JAFFEY: Yes, it may be, but the existence of a hub is 3 something that does not change as a result of, for 4 example, going for the Gatwick option. In addition, 5 some of the other options that the Airport Commission 6 considered would have involved the closure of Heathrow. 7 So, for example, an airport in the Thames Estuary would 8 only have been possible if Heathrow had its doors shut. 9 LORD JUSTICE HICKINBOTTOM: But the overall objective as set 10 out in 1.3 is not simply to have a hub in the UK. It is 11 to maintain the UK's position as Europe's most important 12 aviation hub. That is the overall objective. 13 I understand your points about 3.19. But there is 14 quite a bit in paragraph 3.19 which suggests that that 15 status won't be maintained. 16 MR JAFFEY: If that's right and it has always been obvious 17 that only Heathrow and building another runway at 18 Heathrow could have achieved the objective which was set 19 out to the Airports Commission, then first of all, the 20 Airports Commission might have said so, and that the 21 whole exercise of five years of work ever since the 22 Airport Commission was commissioned to carry out its 23 work has always been a bit of a waste of time if the 24 answer is simply only Heathrow will ever do. Only 25 building more capacity at Heathrow can ever meet the 147 1 government's objective. And so therefore we don't need 2 to worry about any of the other options or consider 3 anything else. We don't need -- 4 LORD JUSTICE HICKINBOTTOM: After paragraph 3.19, after that 5 conclusion, that is the paragraph -- you say it doesn't 6 do this, but that's the paragraph which says Gatwick 7 simply doesn't do this. 8 MR JAFFEY: That's the government's conclusion that Gatwick 9 doesn't do this. But Gatwick has never been said to be 10 a replacement hub airport. One of the reasons why it 11 considered was that Heathrow would remain a hub airport 12 and more capacity would be delivered in the South East 13 at Gatwick as an alternative solution. Gatwick of 14 course, and I am trying to resist the temptation to make 15 merits points, but of course Gatwick said that they 16 would become a hub airport and that argument was 17 ultimately rejected. Gatwick said that they would 18 develop just as much hub capability as Heathrow. 19 Now, you don't see much of the analysis relating to 20 that because it wasn't the arguments the government 21 ultimately agreed with but, nonetheless, it has been 22 considered throughout that a credible response to the 23 proposals which are being made is Heathrow hub, Heathrow 24 third runway and Gatwick, and Gatwick disappears. 25 LORD JUSTICE HICKINBOTTOM: Yes. 148 1 MR JAFFEY: I notice the time. Would now be a convenient 2 time to take a short break for the shorthand writers? 3 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. 3.30. 4 Thank you. 5 (3.20 pm) 6 (A short break) 7 (3.30 pm) 8 LORD JUSTICE HICKINBOTTOM: Yes. 9 MR JAFFEY: Just before the break I identified the passages 10 in the national policy statement that dealt with hub 11 status. The second reason for excluding Gatwick doesn't 12 appear in the policy statement. It only appears in the 13 Habitats Regulations assessment that was published 14 alongside it. Could I invite the court to turn to that 15 now. It is in volume 9 at tab 12. The relevant page is 16 page 645 in tab 12. The second reason for excluding 17 Gatwick is set out at paragraphs 9.2.11 to 12. Because 18 they are quite lengthy paragraphs could I invite the 19 court to read them. 20 (Pause) 21 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 22 MR JAFFEY: So 9.2.11 indicates that London Gatwick's second 23 runway results in fewer types of impact than at Heathrow 24 for either the third runway or Heathrow hub, ENR. 25 Couldn't discount consequences of the Mole Gap SAC which 149 1 contained a priority habitat site. 2 Then 9.2.12, fourth line down: 3 "Accordingly, given the potential for adverse 4 effects to priority habitats at London Gatwick second 5 runway, opinion from the European Commission would be 6 necessary with regard to other imperative reasons of 7 overriding public interest. In the absence of such an 8 opinion it is not possible to conclude that London 9 Gatwick second runway is an alternative solution." 10 That is a curious bit of reasoning in my submission 11 because it is up to the Secretary of State to ask for an 12 opinion if the Secretary of State wants one. The 13 Secretary of State can't say, "We haven't taken the 14 procedural step of asking an opinion, so we've disabled 15 ourselves from considering an alternative that may have 16 less serious effects on European protected sites 17 overall." 18 Indeed, I am not sure there is any requirement to 19 obtain an opinion from the Commission at the stage of 20 identifying and considering alternatives. It is only 21 once you are proposing to go ahead with a plan or 22 project which would have effect on one of those 23 alternative sites. There wasn't a requirement for an 24 opinion at that stage in any event. 25 The Secretary of State gives some reasons why an 150 1 opinion of the Commission was not asked for. In fact 2 one wasn't necessary but that is the Secretary of 3 State's position that one would have been necessary in 4 order to consider Gatwick. 5 That reasoning is given in response to the 6 consultation on the national policy statement which is 7 in bundle 8 at tab 10. The Secretary of State's 8 reasoning on this point is at page 547, paragraph 11.39. 9 The last three or four lines of 11.39: 10 "In response to Gatwick Airport Limited's specific 11 concerns that the European Commission have not been 12 consulted in regard to whether imperative reason of 13 overriding public interests exist, it was not considered 14 to be necessary to consult the European Commission at 15 this stage." 16 Nothing further is offered as to why. 17 It is a classic catch 22 situation. The Secretary 18 of State chooses not to ask for an opinion from the 19 Commission so the Secretary of State says that as 20 a result of his decision not to ask the Commission and 21 take that procedural step, it can be considered to be 22 definitively not an alternative. 23 Why is it not necessary? Well, we are not told. 24 And so by that technique, which of course I submit is 25 not the permissible one, the Secretary of State has 151 1 a second reason for avoiding carrying out the necessary 2 comparison with Gatwick. 3 How did all this happen? How did we end up with 4 these two reasons? That's the next aspect of the 5 submissions which I make, because let's be honest, this 6 is a decision which above all decisions has been 7 lawyered up to the eyeballs throughout. There has been 8 very careful legal advice taken at every stage by the 9 government for obvious and entirely proper reasons. 10 So how did the government come to alight on these 11 two reasons? That's set out in the ministerial 12 submission which preceded the decision being taken to 13 adopt the course the government have. 14 That ministerial submission has been disclosed and 15 it is at volume 12, tab 5. If I could ask the court to 16 turn that up next. This is to the Secretary of State 17 from officials in the airport capacity policy division 18 and it is dated 25 September 2017. The summary of the 19 submission and the last two or three lines: 20 "The revised approach [which is what ministers are 21 being been asked to agree] confirmed that only the 22 preferred scheme ..." 23 MR JUSTICE HOLGATE: I beg your pardon, what is the stage in 24 the process which is being addressed? 25 MR JAFFEY: Where this fits into the process at 152 1 25 September 2017 is there had already been 2 a consultation on whether or not Gatwick was an 3 alternative. 4 MR JUSTICE HOLGATE: Yes, exactly. 5 MR JAFFEY: It was proposed to reject Gatwick as an 6 alternative on the basis of the Mole Gap and Reigate 7 escarpment SAC argument but not on the basis of the hub 8 argument. The hub argument had not yet appeared at this 9 stage. 10 What this ministerial submission is about is about 11 whether or not the hub argument should now be adopted 12 and if so why. 13 And that first consultation, I should add, took 14 place between February and May 2017, looking at my 15 chronology, and the second consultation which introduced 16 this point was launched in October 2017, so just after 17 this ministerial submission. 18 Paragraph 1 sets out what the minister is being 19 asked to agree, that the revised approach which confirms 20 that only the preferred scheme, that is Heathrow third 21 runway, can meet the government's objective. 22 Then turning over the page, there is a summary in 23 the section headed "Background of the facts" that I have 24 already introduced to the court. 25 Then at paragraph 11 there is a summary of the legal 153 1 position: 2 "... necessary to consider alternative solutions 3 which may be less damaging." 4 And it is the responsibility of the appropriate 5 authority to make the necessary comparisons between 6 potential alternative solutions. 7 Then there is the legal advice at paragraph 12. 8 Then at paragraph 13 after a redacted word or two, 9 something like "nevertheless" I assume: 10 "It is reasonable to argue that the assessment of 11 alternative solutions needs to be made not only against 12 the objective of increasing airport capacity in the 13 South East (as in the Airport Commission's work and as 14 set out in the draft HRA) but also the objective of 15 maintaining the UK's hub status. This is also an 16 important objective and one which has been included 17 a number of times in the draft NPS and other government 18 announcements." 19 So that's as high as the point is being put it is 20 reasonable to argue. 21 MR JUSTICE HOLGATE: I notice also 14. 22 MR JAFFEY: Yes, paragraph 14 sets out the conclusions which 23 were ultimately reached which is the government has 24 already stated that only Heathrow will maintain hub 25 status. Gatwick is therefore not an alternative 154 1 solution. 2 So that is the argument adopted. One sees the 3 wording at the end of paragraph 14, at the top of 4 page 126: 5 "... would not enhance but subsequently threaten the 6 UK's global aviation hub status." 7 MR JUSTICE HOLGATE: And that is said to be taken from the 8 draft NPS so that would take us back to a document 9 issued in what, February 2017? 10 MR JAFFEY: That's right, yes. 11 MR JUSTICE HOLGATE: So one had the opportunity to be 12 consulted on that formulation if the text was the same. 13 MR JAFFEY: Yes. 14 Then at paragraph 16, there are a number of drafting 15 changes that are proposed in order to -- as paragraph 16 16 puts it: "reinforce the importance of the UK's hub 17 status in the former document." That is the draft 18 national policy statement. So they propose to beef up 19 the wording relating to hub in paragraph 16. 20 Then much of 17 to 23 is redacted for legal 21 professional privilege. 22 Then at 24 there is the presentation and handling 23 section which is admirably frank. The fourth line down: 24 "The perception will be that we are only now making 25 this change because Gatwick Airport have provided strong 155 1 evidence to show that their scheme will be less damaging 2 ecologically and therefore the Heathrow northwest runway 3 scheme could not be approved in compliance with the 4 Habitats Regulations." 5 At 25 that point is continued. Then 26 and 27 6 summarise the contrary arguments. 26: 7 "The argument that Gatwick does not meet the hub 8 status objective is also likely to be strongly 9 challenged especially given the updated passenger demand 10 forecasts and the strengthened economic case for 11 expansion at the UK's second biggest airport." 12 Which was of course Gatwick. 13 27: 14 "The amendment to the HRA will be accompanied by 15 a full explanation but will still face criticism 16 surrounding the timing of the change, particularly in 17 light of GAL's habitats assessment." 18 And the press office are going to develop robust 19 reactive lines. 20 This is all pretty frank stuff, but for an 21 explanation and a bit more detail about what's really 22 going on one then comes to annex D which sets it out 23 even more bluntly. Annex D is on page 133 and what it 24 is considering for the benefit of the minister is what's 25 called the "do nothing" approach. And by the do nothing 156 1 approach what officials mean is maintaining the current 2 draft policy statement. So not saying that Gatwick is 3 excluded because of hub reasons, but continuing to 4 maintain the Mole Gap argument. What would happen if 5 the minister does nothing? 6 That is explained in paragraph 1: 7 "If we were to maintain the current approach the 8 government's position would remain that the second 9 runway is not an alternative solution under the Habitats 10 Directive from an ecological perspective [that is the 11 Mole Gap argument] but would be assumed to be 12 alternative in respect of meeting the overall 13 objectives." 14 Then the problems of that are explained. 15 Paragraph 4: 16 "Gatwick has done its own assessment and explains 17 that..." 18 I am not going to read it all out but there is no 19 problem. 20 And then paragraph 5, four lines down: 21 "It is possible that Gatwick Airport Limited would 22 be able to demonstrate no likely impacts on these 23 sites." 24 That is the sites that are potentially affected by 25 Gatwick. 157 1 "If that were the case, government would have no 2 option under the Habitats Regulations but to choose the 3 Gatwick second runway scheme if it would be assumed to 4 meet the plan's objectives. Our own consultants have 5 conducted a review of Gatwick's critique of our draft 6 habitats assessment and determined that the conclusions 7 made in the draft are valid and in accordance with the 8 data available at the time of the assessment." 9 That, my Lords, is how we have ended up in this 10 position. That contrary to many years of direct and 11 intense competition between Gatwick and Heathrow as 12 legitimate alternative options, Gatwick was suddenly 13 decided, during the process of consultation, to be so 14 hopeless in terms of meeting the government's strategic 15 requirements that it could not be considered, contrary 16 to the original consultation, as being a suitable 17 alternative for the purposes -- 18 MR JUSTICE HOLGATE: Could I ask about the end of 19 paragraph 5. 20 MR JAFFEY: Yes. 21 MR JUSTICE HOLGATE: I mean is that actually a correct 22 statement of the law: "No option under the regs but to 23 choose"? Surely in that situation they would still be 24 left with the Article 6(4) exercise, wouldn't they? 25 MR JAFFEY: Article 6(4), imperative reason of overriding 158 1 public interest, only arises in the absence of 2 alternatives. This is all on the assumption, because we 3 are at the preliminary stage of doing analysis, if we 4 were to assume for the purposes of argument that the 5 detailed work would show that there would be significant 6 harms caused by a Heathrow third runway to European 7 sites on that assumption, and it could be shown that 8 there was no prospect to the high scientific standards 9 required, no prospect of harms as a result of building 10 a Gatwick runway, then yes, the requirement under 11 European law is to select the alternative option. That 12 is why the government was so concerned about this; that 13 that's -- 14 MR JUSTICE HOLGATE: There is no further way. 15 MR JAFFEY: It is the wrong way round, in my submission. 16 What happened is that the arguments are being baked 17 in order to secure the desired policy outcome and, as 18 a matter of the approach that we ought to be taking for 19 the assessment of alternatives under European 20 environmental law, that's not in my submission a proper 21 or a lawful approach. They have gone about it in 22 entirely the wrong way. 23 I am not going to plough through all the examples of 24 how Gatwick was treated as a serious contender during 25 the process, but can I just give you a few references? 159 1 LORD JUSTICE HICKINBOTTOM: In respect of the document we 2 have just looked at, we just want to narrow down 3 precisely how far your submission goes. But is it 4 really tantamount to an allegation of bad faith in 5 manipulating, really, the Habitats Regulation regime? 6 MR JAFFEY: I don't need to go as far as to suggest there is 7 bad faith. All I do need to do is to point out, in 8 support of the arguments that I make in relation to hub 9 anyway, that this is an argument which appears in very 10 curious and very late circumstances. It appeared and 11 was adopted only because the Secretary of State's 12 original reasons for being able to avoid the 13 consideration of Gatwick as an alternative had collapsed 14 in the face of the evidence. 15 My submission, need go no further than the proper 16 approach to the identification and development of 17 alternatives -- is the one which I have identified, and 18 the suggestion that in truth Gatwick was not an 19 alternative is not supported and is indeed undermined by 20 the circumstances in which it was said to have been 21 ruled out. 22 Gatwick has always been a legitimate alternative, 23 and the fact that the Secretary of State made a volte 24 face at a late stage, and only adopted this argument at 25 a time when the other reasons had fallen apart, and the 160 1 Secretary of State was advised it had fallen apart, is 2 not an auspicious basis for saying that Gatwick is truly 3 not an alternative. 4 But I am not making an allegation that the Secretary 5 of State has acted in bad faith or didn't indeed follow 6 the advice, but the circumstances in which it happened 7 are circumstances which the court, in my submission, 8 ought to take note. 9 MR JUSTICE HOLGATE: I am just trying to follow this 10 chronologically. Was there something in the ecological 11 material, the Habitats Regulation material, which caused 12 this change of view at page 133 and, if so, when? 13 MR JAFFEY: Yes, this is what's referred to at paragraph 4 14 of annex D, on page 133. What I'll do just to make that 15 point good. 16 MR JUSTICE HOLGATE: In other words there's a Gatwick 17 Airport consultation response during the first part of 18 the consultation exercise, which showed the difficulties 19 over the HRA argument; is that right? 20 MR JAFFEY: Which showed the ecological difficulties at 21 Mole Gap, and said that therefore Gatwick was not -- 22 MR JUSTICE HOLGATE: Then led to this reappraisal in this 23 note. 24 MR JAFFEY: What Gatwick did, is Gatwick then produced 25 a long report saying, "That is a load of rubbish, there 161 1 is no problem at Mole Gap". 2 MR JUSTICE HOLGATE: That is picked up at paragraph 4; is 3 that right? 4 MR JAFFEY: That is the response to the consultation 5 referred to at paragraph 4. 6 Then paragraph 6, our own consultant, that is the 7 Secretary of State's consultant, has had a look at 8 Gatwick's critique and they concluded it is a sound one. 9 It is at that point, when the Secretary of State 10 goes -- 11 MR JUSTICE HOLGATE: That is why I asked the question -- 12 MR JAFFEY: -- our basis for excluding Gatwick, what else do 13 we have? 14 MR JUSTICE HOLGATE: Forgive me, the point you are making 15 based on page 133 is in the same document as at 16 paragraph 14, which I asked you about earlier on, which 17 appears to be based on text which appeared in 18 the February 2017 draft NPS, which said already the 19 government had considered -- before they had this 20 reaction from the Gatwick promoters -- that only 21 expansion of Heathrow Airport would maintain UK's hub 22 status. 23 MR JAFFEY: Yes, that is the argument that is being put 24 forward. 25 MR JUSTICE HOLGATE: It is a factual point. 162 1 MR JAFFEY: It is a factual point, but that is the argument 2 which is being put forward as to why Gatwick must be 3 excluded as an alternative for the purpose of the 4 habitats. 5 MR JUSTICE HOLGATE: Yes, but forgive me, it was an argument 6 being put forward, if this is right, back in February, 7 before this consultation response on habitats -- 8 MR JAFFEY: I am sorry, my Lord, it is not an argument that 9 was put forward for exclusion as an alternative under 10 the Habitats Regulation. It is an argument which is 11 being put forward in favour of why Heathrow is the 12 preferred proposal. It is why the preference was made. 13 It was only at the point of this ministerial 14 submission that that argument was taken and repurposed 15 as a basis for excluding Gatwick under the Habitats 16 Directive. That's why I say the timing is curious, 17 because in the original consultation there was no 18 suggestion that Gatwick was out for the purpose of 19 Habitats Regulation Assessment because of the hub status 20 argument. That only appeared in the circumstances set 21 out in this ministerial submission, which is: Mole Gap 22 doesn't work. We invite you, minister, to adopt this 23 argument instead. 24 LORD JUSTICE HICKINBOTTOM: Are you saying that the hub 25 status argument equals no alternative; that Gatwick is 163 1 no alternative? That argument? Was that used in 2 circumstances other than the Habitats Regulation? 3 MR JAFFEY: No. 4 LORD JUSTICE HICKINBOTTOM: So, you are saying -- 5 MR JAFFEY: It was part of the reasoning as to why Heathrow 6 was the preferred option. 7 LORD JUSTICE HICKINBOTTOM: But that is a different point. 8 MR JAFFEY: Yes, it is. 9 LORD JUSTICE HICKINBOTTOM: To say one alternative is 10 preferred over the other is not saying that one is not 11 an alternative. 12 MR JAFFEY: But this only popped up as a reason. Original 13 consultation, one reason is put forward for the 14 exclusion of Gatwick as an alternative, namely Mole Gap 15 special area of conservation. 16 Gatwick put in their response. Ministerial 17 submission goes up, saying, "We have shown Gatwick's 18 response to our consultants. Here is what we think you 19 should do. You need to have another reason for 20 excluding Gatwick". 21 LORD JUSTICE HICKINBOTTOM: In terms of Habitats Regulation, 22 I understand that. But what you are saying is that 23 because it is not actually a Habitats Regulation point 24 alone. 25 MR JAFFEY: No. 164 1 LORD JUSTICE HICKINBOTTOM: I am just wanting to make sure, 2 so far as you are concerned, it wasn't used in any other 3 context. 4 MR JAFFEY: No, it was put forward in the context of 5 a reason why this is the government's policy, in the 6 draft policy. 7 LORD JUSTICE HICKINBOTTOM: Why Heathrow is better than 8 Gatwick? 9 MR JAFFEY: Yes. 10 LORD JUSTICE HICKINBOTTOM: Yes. 11 MR JAFFEY: That's no surprise, but its use in these 12 circumstances for this purpose -- 13 LORD JUSTICE HICKINBOTTOM: But it hadn't been used in any 14 circumstances to say that Gatwick was not an 15 alternative. That is my understanding of your 16 submission. 17 MR JAFFEY: That's right. 18 LORD JUSTICE HICKINBOTTOM: It happens that is relevant to 19 habitats, but its relevant. 20 MR JAFFEY: That is correct. This is the first time we had 21 seen it being said that Gatwick is not an alternative 22 because of hub. 23 LORD JUSTICE HICKINBOTTOM: Yes. 24 MR JAFFEY: It is being done for this purpose in the 25 circumstances where, if you don't do this, minister, you 165 1 might not be able to go ahead with Heathrow. That is 2 the reason. 3 MR JUSTICE HOLGATE: Just so as to pin this point down, if 4 you go back to paragraph 14, maybe that sentence has to 5 be looked at very carefully. You have paragraph 14, 6 page 125, after the semicolon: 7 "As already stated in the draft airports NPS 8 expansion at Gatwick would not enhance, but consequently 9 threaten." 10 So, that seems to be saying that had been stated 11 before. 12 MR JAFFEY: It had, yes. 13 MR JUSTICE HOLGATE: But what you are saying is that the 14 preceding text hadn't appeared before. 15 MR JAFFEY: No, that Gatwick was not an alternative. 16 Because Gatwick had always been viewed as an 17 alternative. 18 MR JUSTICE HOLGATE: That is a different point. In terms of 19 what the government were saying, you are seeing the 20 preceding text, before the semicolon, hadn't appeared in 21 a government document before; is that right? 22 MR JAFFEY: I don't know if those words had appeared, but 23 the suggestion that Gatwick was not an alternative for 24 the purposes of the Habitats Directive, but I will check 25 overnight whether those words appear. 166 1 MR JUSTICE HOLGATE: Or anything to the same effect. 2 LORD JUSTICE HICKINBOTTOM: Because the first sentence in 3 paragraph 14 is: 4 "The government has already stated that any 5 expansion ..." 6 MR JUSTICE HOLGATE: Exactly. That is why I asked the 7 question. 8 LORD JUSTICE HICKINBOTTOM: We'll leave that now. 9 MR JAFFEY: But that relates to the government's reasons 10 why, ultimately, amongst the three competing options it 11 has chosen to go for this one; that is a factor which 12 the government was entitled to take into account. It 13 requires a weighing and balancing and assessment of 14 evidence, and so on, but the suggestion that Gatwick was 15 therefore not an alternative for the purposes of the 16 Habitat Directive is new. 17 MR MAURICI: My Lord, if you want the language that was used 18 in the previous draft. It is in Ms Low's first witness 19 statement, in core bundle 4, tab 1, page 179, at 20 paragraph 443, she quotes what was said in 21 the February 2017 version of the NPS, about the role of 22 Gatwick and how it would fit with hub status. Page 179 23 to 180. So, it is core bundle 4, tab 1, page 179, over 24 the page to 180. 25 MR JUSTICE HOLGATE: It picks up the point after the 167 1 semicolon. 2 MR MAURICI: My Lord, yes. 3 MR JAFFEY: It doesn't say, "Not an alternative one". 4 MR JUSTICE HOLGATE: That is why I asked the question. 5 MR JAFFEY: I am grateful to Mr Maurici for saving me the 6 task this evening. 7 Just to complete the point, and also in answer to 8 my Lord, Lord Mr Justice Holgate's question, about what 9 Gatwick put in. Can I just briefly show you what 10 Gatwick did put in, which is in bundle 12 still, at 11 tab 13. 12 Just so the court have the analysis that was put in 13 by Gatwick, I can deal with it -- 14 MR JUSTICE HOLGATE: Is this tab 13? 15 MR JAFFEY: It is. It is dated December 2017. Over the 16 page, at page 278, in relation to the date, it explains 17 that it has been updated. So, it is actually not 18 significantly different. We haven't burdened the court 19 with all the different versions. 20 LORD JUSTICE HICKINBOTTOM: We have seen the ministerial 21 submission, and this plays a part in that. 22 MR JAFFEY: Yes. 23 LORD JUSTICE HICKINBOTTOM: Logically, it shouldn't have, 24 should it, because, logically, you say, if Gatwick was 25 still an alternative, then it had to go through the 168 1 exercise of which this sort of evidence may have been 2 part? But this new evidence should not, as I understand 3 your submissions, have had the effect that it did. I am 4 sorry, I put that very badly. 5 Because the Secretary of State should have twigged 6 before getting this evidence that if Gatwick was an 7 alternative, then there was a process to be gone 8 through; that is right, isn't it? 9 MR JAFFEY: Yes. 10 LORD JUSTICE HICKINBOTTOM: So, this appears to have had an 11 impact because it is mentioned in the ministerial 12 submission. But you say it shouldn't have had that 13 impact because the minister should ... 14 MR JAFFEY: What happened is that there were two reasons 15 which were ultimately put forward, and indeed are still 16 maintained, as to why Gatwick is not an alternative for 17 the purposes of Article 6(4). 18 LORD JUSTICE HICKINBOTTOM: But before the ministerial 19 submission there was one reason, Mole Gap. 20 MR JAFFEY: Just Mole Gap. 21 LORD JUSTICE HICKINBOTTOM: But as I understand your 22 submissions, the true position in Mole Gap, which this 23 is evidence of, was not the point. 24 The point was that if Gatwick was still an 25 alternative, because we hadn't thought about the hub 169 1 argument yet, there was an exercise to be gone through 2 in the Habitats Regulation of which this evidence may 3 have formed part, but -- 4 MR JAFFEY: What the government did is, they did do 5 something, and what they did is, they said, "We can 6 exclude Gatwick because there is a potential effect on 7 priority species". That is the part of the Habitats 8 Directive which I showed my Lord. They said, "Therefore 9 we are excluding Gatwick because a potential effect on 10 priority species can only be justified in very limited 11 circumstances, human health, protection of the 12 environment and so on, unless you have a Commission 13 opinion. 14 Not only did they not ask for a Commission opinion, 15 but also Gatwick put in a submission saying, "Well, you 16 say the Mole Gap SAC is going to be affected, actually 17 that is a load of rubbish". Then what annex D shows, of 18 the ministerial submission, is the government's 19 consultants looked at Gatwick's work and said, "You know 20 what? They're right, this argument doesn't go 21 anywhere", and therefore hub was promoted. 22 LORD JUSTICE HICKINBOTTOM: I understand. 23 MR JAFFEY: Sorry, it's quite a complicated factual sequence 24 of events, but ... 25 LORD JUSTICE HICKINBOTTOM: But you say that it was 170 1 erroneous, both of those limbs were in error. 2 MR JAFFEY: Yes. 3 LORD JUSTICE HICKINBOTTOM: I have it, thank you very much. 4 MR JAFFEY: Can I just show the court what Gatwick put in? 5 I almost dare not show you a map, but page 323 does it 6 quite quickly, tab 13. 7 The hatched area on the map is the special area of 8 conservation. The M25 runs from the top left in the 9 northwest to the east, and you can just about see M25 in 10 blue. The black lines either side of the M25 are the 11 200-metre zone in which plant species might be affected 12 by higher levels of nitrogen dioxide. That is the 13 government's assessment range, and then there is a tiny 14 bit of the SAC which overlaps with that, and that was 15 the potential area where there was a concern and the 16 concern is in relation to orchids. 17 There is an enlargement at page 443 of that small 18 section. 19 Then what Gatwick did -- and it is illustrated at 20 445 -- is they did a survey to see whether any of the 21 priority species were in fact present. The lines show 22 the survey. The conclusions, just turning back, are at 23 441, and at 5.2 and 5.3, that the priority species were 24 not there. Not least because the site is grazed by 25 cattle and rabbits and lots of people. That's no doubt 171 1 why the government's advisers, when they were sent this 2 report, said that this work appears to be correct. So, 3 that wasn't the basis for excluding Gatwick. 4 MR JUSTICE HOLGATE: 441, was it? 5 MR JAFFEY: 441, paragraphs 5.2 and 5.3 are the summary of 6 the conclusions. There's lots of nice photographs of 7 rabbit-nibbled bits of orchids, which are exhibited to 8 the report. 9 All of this, of course, shows an admirable 10 enthusiasm. This argument, by the way, is still being 11 maintained, despite the fact the Secretary of State's 12 own advisers, and the Secretary of State was informed in 13 a ministerial submission that this argument was not 14 relevant. It is still being run before the court today 15 as the basis for excluding Gatwick as an alternative. 16 Admirable enthusiasm for very strict environmental 17 protection and an absolutist version of the 18 proportionality principle, but it is just not supported 19 by any of the material that was before the Secretary of 20 State. 21 The final part of that picture is Natural England's 22 opinion, and Natural England were also not very 23 supportive of what the Secretary of State was doing. 24 Their report to the Secretary of State is at tab 14, the 25 next tab. Their conclusions are set out on the final 172 1 page of tab 14, page 488, and they say at paragraph 14: 2 "These sections [and they refer to the bits of the 3 habitats assessment that I took my Lords to earlier] 4 identify the potential for air quality impacts for road 5 traffic at Mole Gap, with the presence of a priority 6 habitat making an imperative reason for overriding 7 public interest case challenging." 8 The section concludes: 9 "Based on the information available at this stage, 10 it has not been possible to identify any alternative 11 solutions to the proposed scheme." 12 Then what Natural England say is interesting: 13 "Whilst we recognise this position for the strategic 14 level assessment, we would advise that if the detailed 15 project level HRA for the Heathrow northwest runway also 16 produces findings that are negative or uncertain, then 17 a more detailed assessment of alternatives (including 18 Gatwick) is needed." 19 Then talks about further detail and assessment of 20 Mole Gap. Then they conclude by saying: 21 "For example, if the priority features of interest 22 [that's the orchids] do not fall within the distance 23 criteria for air quality, [200 metres for roads] then 24 such an impact may be able to be ruled out, which may 25 affect the view taken on alternative solutions." 173 1 Gatwick do say one curious thing, which is that they 2 recognise this position for the strategic level 3 assessment. They can't quite say they agree with it. 4 They say they recognise it. 5 As it happens, it is incorrect in law because 6 Article 6(4) requires an appropriate assessment at both 7 stages, both the planned stage and the project stage. 8 But, nonetheless, Natural England do conclude that an 9 assessment of alternatives including Gatwick is 10 required. 11 So, that was their view and their advice. 12 In light of that, we can make some brief submissions 13 about what I say about the government's overall legal 14 approach. 15 First of all, it is for the competent authority to 16 proactively take steps to identify the alternatives, 17 ensure there is an appropriate assessment. That hasn't 18 happened. 19 Consideration of the alternatives objectively and 20 broadly, including options at a different location. No, 21 Gatwick was treated as a reasonable and feasible 22 alternative throughout the process, up to the point at 23 which the ecological reason for excluding Gatwick fell 24 apart. 25 The Secretary of State is now trying to exclude it 174 1 on the basis of a hub status argument. That was one of 2 the strategic aims and objectives, but was never 3 previously thought to be a sole reason of itself for 4 excluding Gatwick as an option over many years. 5 No alternative option is identical. Any project is 6 going to have a number of competing advantages and 7 disadvantages, and this was never thought previously to 8 be a basis for excluding Gatwick. 9 What had happened is that, at quite a late stage, 10 the option of Gatwick was excluded by giving overriding 11 emphasis to what was previously a single factor in 12 a very wide ranging, strategic assessment, that Heathrow 13 is the only possible location for airport expansion. 14 Indeed, we need not have both bothered with all of 15 the comparative work which took place over many years 16 previously. 17 MR JUSTICE HOLGATE: You call that giving overriding 18 emphasis to what was previously a single factor. In 19 fact, I think you are saying it is the introduction of 20 a new factor. It is not change of emphasis. 21 MR JAFFEY: I don't need to go as far, and I don't say it 22 was entirely new. 23 MR JUSTICE HOLGATE: To say it is the only one that meets 24 the hub objective -- 25 MR JAFFEY: That's new. 175 1 MR JUSTICE HOLGATE: That's new. That is what you were 2 saying before. 3 LORD JUSTICE HICKINBOTTOM: It became a knockout blow. You 4 say it was one factor in lots of factors. 5 MR JAFFEY: Now it is a knockout blow. 6 LORD JUSTICE HICKINBOTTOM: It was a knockout blow. 7 MR JAFFEY: Yes, knockout blow. We don't need to consider 8 anything else all of a sudden because Heathrow is the 9 only conceivable option. 10 LORD JUSTICE HICKINBOTTOM: It doesn't do the job. 11 MR JAFFEY: It doesn't do the job. 12 MR JUSTICE HOLGATE: Whereas previously it wasn't a knock 13 out blow. 14 MR JAFFEY: That only happened when the other habitat 15 directive basis that had been vigorously pursued 16 throughout, Mole Gap, doesn't work -- 17 LORD JUSTICE HICKINBOTTOM: No, we have that. Yes. 18 MR JAFFEY: So, that is the point. 19 Whether that passes muster as a matter of EU law and 20 the proper approach to a derogation from a system of 21 strict protection, my submission is the answer is pretty 22 straightforward. That in those factual circumstances 23 the proper course is to tell the Secretary of State to 24 go and do the job properly, and to conduct an 25 alternative assessment, including looking at the extent 176 1 to which it is accepted that there will be harm at 2 European protected sites as a result of Heathrow, and at 3 Gatwick. Then deciding what to do in light of that 4 actual factual position, which reflects what has been 5 done before. 6 That's the first issue in relation to Habitats 7 Directive. Can I turn now to air quality and surface 8 access? 9 MR JUSTICE HOLGATE: Before you leave the habitats regs 10 I have the skeleton, your skeleton alongside. Can 11 I take it that the way the case is being put is really 12 as you have set out in your oral submissions, rather 13 than your skeleton? 14 MR JAFFEY: I hope they are pretty similar. 15 MR JUSTICE HOLGATE: There are additional cases referred to 16 there. You have highlighted the Commission v Portugal. 17 There are one or two others, Commission v Netherlands 18 and Commission v Italy. 19 MR JAFFEY: They don't set out any additional principles 20 that I haven't already mentioned. 21 MR JUSTICE HOLGATE: That is the reason for asking the 22 question. I am not sure that I picked up the reference 23 to the ministerial briefing that you have shown us this 24 afternoon, but the real focus of the argument you put 25 forward is as we shall re-read on the transcript; is 177 1 that right? 2 MR JAFFEY: Yes. Air quality and surface access -- 3 LORD JUSTICE HICKINBOTTOM: We have to break today, 4 Mr Jaffey. 5 MR JAFFEY: Of course, I do apologise. I had forgotten. 6 LORD JUSTICE HICKINBOTTOM: Because this is a new topic, 7 isn't it? 8 MR JAFFEY: That is a very convenient point. 9 LORD JUSTICE HICKINBOTTOM: So, what are you going to deal 10 with tomorrow? You are going to deal with air quality 11 first tomorrow? 12 MR MAURICI: I am going to do surface access first and then 13 air quality, and I expect to finish by the short 14 adjournment. Then Mr Pleming will deal with the SEA, 15 and the consultation and predetermination issues 16 tomorrow afternoon. 17 LORD JUSTICE HICKINBOTTOM: Good, thank you very much. 18 10.15. 19 MR WOLFE: Can I just ask about the consequence about that 20 because Mr Pleming raised issues about the additional 21 hour. I know there is an additional hour. My sense is 22 that the Boroughs team have expanded on that time. 23 I don't complain about that, I just want to a possible 24 indication of where that leaves me in terms of the 25 overall timetable because we were previously scheduled 178 1 not to start until Wednesday morning, which is fine. 2 But if there is a possibility that we'll start tomorrow 3 afternoon, it would be useful to know that, only because 4 different people come for different things. 5 LORD JUSTICE HICKINBOTTOM: I think you have been a bit 6 over-optimistic there. If Mr Pleming finishes tomorrow 7 afternoon -- 8 MR PLEMING: You have made it very clear that I must. But 9 just to deal with my learned friend's request, in the 10 two and a quarter hours, whatever it is, in the 11 afternoon, I have an awful lot to cover. I doubt 12 whether there will be an opportunity to move to climate 13 change before Wednesday. 14 LORD JUSTICE HICKINBOTTOM: I think that answers the 15 question. 16 MR WOLFE: That's helpful. 17 LORD JUSTICE HICKINBOTTOM: Good. 10.15 tomorrow. 18 (4.15 pm) 19 (The court adjourned until the following day at 10.15 am) 20 21 22 23 24 25 179 1 INDEX 2 Housekeeping .........................................1 3 Opening submissions by MR PLEMING ...................11 4 Opening submissions by MR JAFFEY ...................100 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 180