1 Tuesday, 12 March 2019 2 (10.15 am) 3 LORD JUSTICE HICKINBOTTOM: Yes, Mr Jaffey. 4 MR JAFFEY: Good morning. Before I start, I see Mr Banner 5 is in his new place, in his new outfit, many 6 congratulations on behalf of the bar. 7 LORD JUSTICE HICKINBOTTOM: Yes. 8 Opening submissions by MR JAFFEY (continued) 9 MR JAFFEY: Air quality and surface access then, if I may. 10 Three introductory points, first of all. The first 11 is that air quality and surface access issues are very 12 closely linked together. The reason they are closely 13 linked is because most people either drive or take 14 a taxi to Heathrow, and public transport users are still 15 a distinct minority. 16 Crossrail will help with that a bit, as will 17 southern rail access and western rail access if they 18 happen. But, as things stand at the moment, there is 19 very limited public transport access to Heathrow from 20 the west and from the south. 21 That essential fact, the fact that most people use 22 cars to get to and from Heathrow is also the cause of 23 the air quality problems relating to Heathrow expansion. 24 The most serious air quality problems that will be 25 caused by building a third runway aren't from the 1 1 aircraft themselves or from ground equipment from the 2 airport, although both do make a contribution. The 3 problem comes from surface access, in particular using 4 diesel cars, diesel taxi, lorries, other vehicles; 5 passengers, staff and freight that are coming to and 6 from the airport. 7 Those problems, of course, are not contributed to by 8 the much loved hub passengers, the hub passengers never 9 leave the airport and they don't require any surface 10 access. 11 The surface access issues are caused by the 12 additional passengers who are coming to Heathrow or 13 arriving in London as their final destination and who 14 require surface access, and there will be additional 15 ones as a result of expansion. 16 The second preliminary point is that the purpose of 17 the policy statement -- I don't think this is terribly 18 controversial -- is to make a strategic choice for the 19 United Kingdom. The strategic choice made by the 20 government is a northwest runway at Heathrow. 21 Now, the claimants have no quarrel with the idea of 22 making a strategic choice. That is the policy of the 23 2008 Act and, I dare say, it is a sound one. 24 The issue that arises in this case is that those 25 strategic choices are often quite finely balanced and 2 1 they require consideration of a number of factors which 2 are interdependent. 3 If one aspect of the decision is flawed, it may 4 affect other parts of it. So, let's assume, for 5 example, that the decision relating to air quality is 6 flawed and in consequence the runway may open late or 7 may not be able to open at all. If that occurs, it will 8 affect the economic case for the third runway, as 9 opposed to the economic case which was considered for 10 the alternatives, such as Heathrow Hub and in 11 particular, Gatwick. 12 If the consequence of the decision on, for example, 13 air quality is that the development consent order is 14 likely to be refused in due course, or will have to 15 cover such conditions that the economic case for the 16 runway will be economically affected, then there may be 17 a defect which needs to be addressed at this stage. 18 You have already heard from Mr Pleming, and you are 19 going to hear some more from him about the difference 20 between the national policy stage and the development 21 consent stage. But, just as a practical matter, the 22 claimants are not very sanguine about the prospect of 23 kicking the can down the road if it means that 24 a decision will be made which is fundamentally mistaken, 25 and we will end up having to go back to square one. 3 1 Because a decision which can't be implemented is one 2 which, in the claimants' view, ultimately makes very 3 little sense and that is why this claim is brought now. 4 The third preliminary point I wanted to make is 5 about air quality issues. With apologies for the 6 bluntness of what I am about to say, tens of thousands 7 of people in the United Kingdom die every year due to, 8 in particular, nitrogen dioxide pollution. It is not 9 great for orchids, nitrogen dioxide, but it is even 10 worse for people. Those figures are not the claimants' 11 figures, they are DEFRA's figures. Thousands of those 12 deaths occur in London each year, and the burden of 13 illness is of course even greater than that. 14 The reason I raise that is because the approach the 15 court takes to cases involving harm to human health may 16 be different from those which are taken in relation to 17 other planning decisions, and I'll show the court the 18 domestic and EU authority to that effect later on this 19 morning, if I may. 20 I'll turn now, if I may, to the surface access 21 complaint. Putting it very broadly, there is 22 a consultation challenge and there is a rationality 23 challenge. The facts which are relevant to both are 24 pretty similar and the logical starting point is the 25 national policy statement, which sets out the surface 4 1 access requirements. I know the court has seen it all 2 too many times already, but if I could ask the court to 3 go back to it, it is volume 6, tab 7. The relevant 4 provisions dealing with surface access we can pick up on 5 page 252 of the bundle numbering, at paragraph 5.17. 6 What the policy statement says is: 7 "An application for a DCO must [it is mandatory] 8 include details of how the applicant will increase the 9 proportion of journeys made by public transport, cycling 10 and walking to have a mode share of at least 50 per cent 11 by 2030 and 55 per cent by 2040. 12 So, that is for passengers. 13 Then there is a different approach taken for members 14 of staff. Details of how from a 2013 base line there 15 will be a 25 per cent reduction of all staff car trips 16 by 2030, and a 50 per cent reduction by 2040. 17 Then 5.18, annual public reporting and 5.19, that 18 the applicant for the development consent order, that 19 will be Heathrow Airports Limited, will be required to 20 pay for works that are required for the runaway to 21 physically open. So, tunnel for the M25, local road 22 changes, and so on. 23 But there is no requirement to pay for more general 24 public transport improvements to the airport. But, at 25 5.20, the government will consider the case for public 5 1 funding and a potential contribution from the airport 2 operator. 3 Those are the sum total of the surface access 4 reports. 5 MR JUSTICE HOLGATE: There's also 5.22 on this point, the 6 first sentence. So far as public funding is concerned, 7 from reading into the case -- tell me if I am wrong -- 8 my understanding was that public funding may provide 9 a contribution, but that doesn't rule out the 10 possibility of requiring a contribution from the 11 developer. 12 MR JAFFEY: Yes, that's my understanding, also. 13 MR JUSTICE HOLGATE: Yes. 14 MR JAFFEY: There is no requirement in the national policy 15 statement that various of the schemes for improving 16 public transport access to Heathrow do in fact happen, 17 but if they do happen, there may be a shared cost 18 arrangement. 19 MR JUSTICE HOLGATE: That is a DCO decision, effectively. 20 MR JAFFEY: Yes. 21 The upshot of these requirements, in my submission, 22 is first of all that there may be more road traffic to 23 and from the airport. The reason for that is that there 24 is no requirement that road traffic is maintained at the 25 existing level or is reduced. The only requirement is 6 1 that the percentage of people or passengers taking 2 public transport is increased by various dates. 3 Now, that shift in percentage is likely to be 4 dwarfed by the total number of persons going to the 5 airport increasing. So, the upshot of these 6 requirements is that more people will be on the roads 7 and there will be greater pressure on private transport 8 and road access; that is before you add into account 9 additional freight and the potential for increased 10 catalytic demand in other words, additional road traffic 11 demand caused by the economic growth stimulated by 12 a third runway at Heathrow. 13 MR JUSTICE HOLGATE: My understanding of catalytic demand, 14 the old term used to be "induced demand". That is to 15 say, demand that would not exist but for the 16 introduction of the new infrastructure. 17 MR JAFFEY: Exactly. 18 MR JUSTICE HOLGATE: For example, a new bypass. Because you 19 will get growth in any event. 20 MR JAFFEY: You will, but this is the growth that would not 21 have happened but for the third runway, so 22 I respectfully agree with that. 23 MR JUSTICE HOLGATE: Yes. 24 MR JAFFEY: All that is pretty much accepted at 25 paragraph 5.38 of the policy statement, which is the 7 1 bottom of page 255: 2 "Heathrow Airport should continue to strive to meet 3 its public pledge to have landside airport related 4 traffic no greater than today." 5 There is a requirement to set out and review plans. 6 So, it is not a requirement, it is a pledge which 7 they should strive to achieve. Nice to have, rather 8 than must have. 9 So, those are the requirements. 10 Dealing, first of all, if I may, with the 11 consultation challenge, the focus of this challenge is 12 on the materials that were put before the Secretary of 13 State by Transport for London and the Mayor of London 14 and the response, which the claimants say is inadequate 15 to that consul -- to those consultation responses. In 16 order to make that point good, I'll need to show you 17 show what was put in and the points that were made, and 18 show you the outputs of the consultation and see what 19 the Secretary of State said about them. 20 The essence of the case, as the court has seen from 21 the skeleton arguments, is this is a case relying on the 22 fourth Sedley criteria, a requirement to conscientiously 23 consider and take into account the points that are made 24 by consultees. 25 As the court will appreciate, an overarching 8 1 submission I make is that submissions in particular by 2 Transport for London, who is the expert body responsible 3 for public transport within Greater London, are 4 submissions that ought to be accorded particular 5 consideration and particular weight. This is not an 6 Internet link "click here to send in a consultation 7 response objecting to the third runway", reasoned 8 analysis is obviously going to be treated in a different 9 way from a simple objection, based upon a person's 10 personal situation. 11 Indeed, it was on a similar basis that 12 Lord Justice Carnwath concluded the surface access 13 approach that was taken in the Hillingdon 2010 judicial 14 review was unlawful. Mr Pleming took you briefly to 15 that case yesterday and I'll take you back to it, just 16 on this point, later on, if I may. 17 The Mayor's submissions and the TfL submissions are 18 all put together in volume 12 of the bundle. The first 19 report that was put in is a report by external 20 consultants at tab 1 of volume 12. That is the Steer 21 Davies Gleave report produced on Transport for London's 22 instructions. 23 The purpose of this report was to carry out 24 a detailed piece of modelling, which was designed to put 25 some flesh on the bones of what the proposals, as they 9 1 then were, in the draft policy statement, would mean in 2 practice for traffic in London. 3 So, if I can use the bundle numbering and pick it up 4 at page 8, which is the executive summary. 5 It explains the background that it was at the time 6 the report was written. First paragraph deals with the 7 Airports Commission report, and the second paragraph 8 sets out the passenger projections at the time, and 9 then, in the middle of the second paragraph: 10 "There will be some catalytic or induced demand as 11 a result of economic growth." 12 Then the third paragraph sets out the pledge by 13 Heathrow, which has not formed part of a requirement in 14 the policy statement, and the actual requirements in the 15 then draft policy statement of changes to the public 16 transport mode share. 17 So, that is what the consultants were considering. 18 Then, over the page, at page 10, there is a table 19 producing some analysis, summarising analysis of the 20 additional demand that would be created by Heathrow 21 expansion. The number of passengers, the number of 22 passengers once you remove the hub passengers, the ones 23 that are transferring at Heathrow, additional staff, 24 additional freight, and the effect on induced employment 25 and the traffic that would cause. 10 1 Then, on page 11, there's a summary of the different 2 options that are being considered. The main option that 3 is considered is the third one in the table on page 11, 4 which is: 5 "Future year expansion case with assumed 6 interventions." 7 The assumed interventions are explained in bold, to 8 the right, which are: 9 "Rail schemes assumed by the Airports Commission as 10 useful." 11 That is western rail access and southern rail 12 access. It includes, of course, the schemes that had 13 already been committed by then, such as Crossrail and 14 improvements to the Piccadilly Line. 15 So, the modelling was done on the basis that there 16 would be other transport improvements beyond those that 17 were already being constructed. 18 Page 14 is the summary of the results of the 19 consultants. What they concluded at the top of page 14 20 is that the effect on mode share of what they called the 21 "future year de minimum" -- which is Elizabeth Line, 22 Crossrail and upgrading the Piccadilly Line -- is 23 a change from 38 per cent, as it currently is, to 24 44 per cent, which is a significant change, but 25 obviously isn't close to 50 per cent. That would rise 11 1 to 46.3 per cent in the future year expansion committed 2 case, and then with western and southern rail access, 3 46.7 per cent. 4 They point out that's all below 50 per cent. 5 Then, halfway down the page in a passage starting 6 with the word: 7 "Furthermore ..." 8 They explain that even a mode share of 50 per cent 9 will not achieve no extra traffic. They explain, on 10 their calculations, you would have to have a much, much 11 higher mode share to avoid an increase in traffic. 12 MR JUSTICE HOLGATE: Sorry, where is that? 13 MR JAFFEY: Halfway down the page, the passage beginning 14 "Furthermore ...": 15 "50 per cent will not achieve no extra traffic." 16 Then they do some calculations as to what mode share 17 you would need in order to achieve no extra traffic, so 18 65 or 69. 19 MR JUSTICE HOLGATE: So, if I have followed so far, the 20 output of this modelling was to derive changes in mode 21 share and the upshot of this is that the changes in mode 22 share are below those which are espoused in the ANPS, 23 and that's where this point goes. 24 MR JAFFEY: Yes, that's the point that's being made by the 25 consultant. 12 1 MR JUSTICE HOLGATE: Right. 2 MR JAFFEY: Then they consider the possibility of road 3 access charging because the targets, in their view, were 4 not going to be met otherwise. They consider what level 5 of charging might be required to discourage people from 6 going to Heathrow by car in order to achieve the 7 required levels of mode share. They conclude that 8 potentially very large charges might be needed to be 9 imposed. 10 Then, just jumping on to page 24, the consultants do 11 some work on induced demand and they produce some 12 figures for additional numbers of road trips and 13 additional road traffic that would be caused by induced 14 demand at paragraph 3.14 and the table there. They 15 explain that they base their figures and their 16 assumptions about induced demand from Heathrow Airport 17 submissions, prepared by Heathrow's economists and work 18 done by the Airports Commission. They have taken those 19 as the basis and then they have done some calculations 20 based on that. So, they have done some calculations to 21 the effect of induced demand. 22 Now, I am not relying on this for the content, I am 23 relying on it for the points that were made and whether 24 those points were considered or responded to. I am just 25 seeking to identify what was said. 13 1 There was another submission put in by the Mayor 2 in November 2017. That is at tab 9 of the same bundle. 3 MR JUSTICE HOLGATE: Just one moment. 4 (Pause) 5 Just to make sure I am following, can you show us 6 where the points you have taken us to -- before we dig 7 further down in the documentation -- fit into the issues 8 which have been agreed between the parties and the 9 skeleton. 10 MR JAFFEY: Yes, of course. 11 MR JUSTICE HOLGATE: That is why I asked my earlier 12 question. These points go to the mode share point, 13 which is issues 3(2) and 3(3). 14 MR JAFFEY: Yes. 15 MR JUSTICE HOLGATE: Does that mean you are passing over 16 3.1? 17 In the skeleton, issue 3(1) is at page -- 18 MR JAFFEY: I am dealing with issue 3(1), the new 19 information that was put forward. 20 MR JUSTICE HOLGATE: It is just that when we come to 21 paragraph 18, on page 7 of the skeleton, there are four 22 headings as to matters which it is said the department 23 failed or the Secretary of State failed to deal with. 24 MR JAFFEY: Yes. 25 MR JUSTICE HOLGATE: The second is 18.2, "Freight impact 14 1 assessment", the third is "Induced demand", and the 2 fourth relates to the rail infrastructure assumptions. 3 MR JAFFEY: Yes. 4 MR JUSTICE HOLGATE: But the first one is updated passenger 5 demand forecasts, and so far you have not taken us to 6 anything on that. 7 MR JAFFEY: I haven't. The reason -- 8 MR JUSTICE HOLGATE: See if we can cut through this. My 9 understanding of what is said by HAL and the department 10 is that the passenger forecast, which your consultants 11 espoused, broadly speaking equate to those which were 12 used by the government's consultants anyway. That is 13 what they say. 14 MR JAFFEY: That is what they say and I am going to show you 15 in a moment, if I may, why that is wrong. The reason 16 I haven't come to that yet is I am doing it in 17 chronological order, and so I am just showing the -- 18 MR JUSTICE HOLGATE: We need to understand how this fits 19 with the issues in the skeleton because at some stage we 20 have to write a judgment. 21 MR JAFFEY: Shall I deal with paragraph 18 of the skeleton 22 now? 23 MR JUSTICE HOLGATE: Yes. 24 MR JAFFEY: I am going to show you in a moment the passenger 25 demand document. 15 1 MR JUSTICE HOLGATE: Because I have to say, I did look at 2 the references given and I found it very difficult to 3 see how some of the points alleged on either side were 4 borne out by the references given. 5 MR JAFFEY: Yes. 6 MR JUSTICE HOLGATE: That potentially involves an awful lot 7 of court time, perhaps to chase after nothing. 8 MR JAFFEY: I will try and help you as best I can. 9 MR JUSTICE HOLGATE: Thank you. 10 MR JAFFEY: So, passenger demand forecasts in 18.1. I am 11 going to show you in a moment the January 2018 technical 12 note, which raises that point. I will also show you the 13 consultation response, which shows how that was dealt 14 with by the Secretary of State. 15 MR JUSTICE HOLGATE: Yes, but let's be clear about this, the 16 consultation response is one thing. Whatever it says, 17 the real question is to whether they took it into 18 account, which may or may not be revealed by the 19 consultation response. But if you are going to pursue 20 this point, it is dealt with in the evidence on the 21 other side, as well. 22 MR JAFFEY: I am going to deal with the evidence as well. 23 There are two stages to the consultation argument. 24 First of all, have they dealt with it in their 25 consultation response? If no, then the next question 16 1 is: is it dealt with in the evidence? It has been dealt 2 with in the evidence. 3 Then, if it has been dealt with in the evidence, the 4 first question is whether or not that is permissible 5 ex post facto reasoning. If it is permissible 6 ex post facto reasoning, is it a good reason, or is it 7 an adequate reason, such as to address the points that 8 are made? 9 It is a very familiar structure. The arguments 10 always run in exactly the same way. The claimant says: 11 you haven't dealt with. 12 The government says: yes, we have. We don't have to 13 deal with every point. We don't have to deal with it in 14 detail. We are entitled to focus on what we think are 15 the primary issues. Here is our consultation response. 16 It's absolutely fine. If it isn't good enough, then 17 have a look at our evidence, where in light of the 18 specific points we have made, we have one of our 19 officials explaining why all your points were no good, 20 and they weren't terribly important anyway. 21 The claimant then says: you are trying to add new 22 reasons after the event. 23 In a context in which reasons are required by 24 statute, that's not permissible. We have that legal 25 argument. 17 1 Then, if the court accepts those additional reasons, 2 the court will then look at whether or not there is 3 sufficient, within those reasons, to satisfy the 4 requirement for reasons. 5 That's the way these arguments tend to play out and 6 this case is no exception, in my submission. 7 MR JUSTICE HOLGATE: Well, except that -- are you relying on 8 South Bucks? 9 MR JAFFEY: As a summary of what proper reasons are? 10 MR JUSTICE HOLGATE: Because we might have to address that 11 at some stage because this is a formulation of policy, 12 not a decision of a planning appeal. There are cases 13 which deal with the extent to which the South Bucks 14 criteria is to be read across when you have a statutory 15 duty to give reasons for the policy. It is not an 16 obligation, one might say, to give reasons dealing with 17 every objection, for example, which is raised in the 18 consultation process. 19 MR JAFFEY: Yes. As my Lord has seen from the skeletons, 20 that is a point which is taken against me by Mr Maurici, 21 who says it is a different context and the requirement 22 for reasons is correspondingly lower. 23 Indeed, what he says is that reasons need not be 24 given at all for rejecting a consultation submission. 25 The only requirement is to give positive reasons for the 18 1 reason to select the option in the national policy 2 statement for selecting Heathrow. 3 As my Lord says, that is an issue which the court 4 may have to grapple with, and it is ultimately 5 a question of law. My submission -- 6 MR JUSTICE HOLGATE: That is why I asked it. 7 MR JAFFEY: My submission is, in light of cases such as CPRE 8 Kent in particular, the strand of authority which was 9 prevalent for a time, particularly in planning cases, 10 that you don't need to give reasons why you are 11 rejecting someone's submissions, you do need to give 12 reasons for the positive policy that you are adopting, 13 has been criticised and suggested to be incorrect by the 14 decision in CPRE Kent, and the role of the court is 15 a more sophisticated one. It depends on the 16 circumstances, what's required under -- 17 MR JUSTICE HOLGATE: In the circumstances, CPRE Kent was 18 a decision by a local planning authority on a planning 19 application. 20 MR JAFFEY: It was, that's right. 21 MR JUSTICE HOLGATE: Not policy making. 22 MR JAFFEY: The policy was whether or not there ought to be 23 a very substantial and wide ranging exception in that 24 case for the building of a very large development in an 25 area of outstanding natural beauty. 19 1 MR JUSTICE HOLGATE: Sorry, I shouldn't hold you up, I just 2 wanted to make sure I was following how this fitted into 3 the skeleton. 4 MR JAFFEY: No, no, I am, I hope, alive to the points and 5 the objections which my Lord is putting to me. 6 MR JUSTICE HOLGATE: They are not objections. 7 MR JAFFEY: No, but they are objections taken by my learned 8 friend. 9 MR JUSTICE HOLGATE: Sorry. 10 MR JAFFEY: My Lord wants to make sure that I do actually 11 deal with them. 12 MR JUSTICE HOLGATE: Yes, please. 13 MR JAFFEY: And I will. 14 Just dealing with paragraph 18. I have dealt with 15 18.4 about the schemes that will be delivered, or not 16 delivered. That is pointed out in this SDG report. 17 Catalytic demand in 18.3, I have just dealt with. That 18 is in the SDG report and the other is in the January 19 report, that I am just going to come to now, so I am 20 going to cover them. 21 The November 2017 report, which is referred to, is 22 at tab 12. We have only given you part of it, and 23 I don't think you need to go through it because I think 24 you get the same points in the preceding and the 25 subsequent submissions. 20 1 So, the only other submission by TfL that I need to 2 show you is in tab 16 of volume 12, which is described 3 as the technical note on surface access, 4 dated January 2018. The passages I need to show the 5 court are, first of all, paragraph 3.9, on page 506. 6 MR JUSTICE HOLGATE: This is now on taking into account the 7 updated DfT October 2017 passenger forecast; is that it? 8 MR JAFFEY: Yes. 9 MR JUSTICE HOLGATE: This is 18.1 of the skeleton. 10 MR JAFFEY: Exactly, yes. 11 So, paragraph 3.9 tries to convert those updated 12 assessments into actual numbers of what the increase in 13 demand would be for surface access. 14 Then, paragraph 3.11 -- 15 MR JUSTICE HOLGATE: That's what I didn't follow because it 16 doesn't refer to the DfT forecasts at all, does it? Not 17 directly. 18 MR JAFFEY: No, it doesn't, but it does adopt those numbers. 19 I don't believe that's in dispute. 20 MR JUSTICE HOLGATE: The numbers we focus on are which ones, 21 please? 22 MR JAFFEY: The number is in the table, at table 3-1, and it 23 is passenger demand, million passengers per annum. 24 MR JUSTICE HOLGATE: First row: 25 "Expansion revised 132." 21 1 Is that it? 2 MR JAFFEY: That's correct. 3 Then calculations are made based on assumptions of 4 what proportion would be transfer passengers and how 5 many staff the larger airport will need. Then that is 6 converted by the modelling into a total daily demand of 7 the number of trips either to or from an enlarged 8 Heathrow. 9 MR JUSTICE HOLGATE: I think if you are going to pursue this 10 point we need to understand it because the last column 11 says "primary source", and it says "AC", Airports 12 Commission. You criticise the department for text which 13 uses language like "based on the Airports Commission", 14 so this table is using the Airports Commission and NPS; 15 what does NPS mean? 16 MR JAFFEY: It is the draft national policy statement. 17 MR JUSTICE HOLGATE: The February 2017 version? 18 MR JAFFEY: Yes. 19 MR JUSTICE HOLGATE: So, that wouldn't be taking into 20 account, then, the October 2017 document then, by 21 definition. This is why I find it so difficult to 22 follow. 23 MR JAFFEY: Well -- 24 MR JUSTICE HOLGATE: And this is your own consultants doing 25 the same thing, which is Mr Humphries' point. 22 1 MR JAFFEY: The purpose of this document was to take the 2 updated figures as being -- 3 MR JUSTICE HOLGATE: Yes, but, forgive me, at the moment 4 I don't see where you get that from, and I spent some 5 time staring at this. 6 MR JAFFEY: If that's wrong, and that's also -- 7 MR JUSTICE HOLGATE: They say it is wrong. So, by now, you 8 should have addressed this. 9 MR JAFFEY: I am not sure they do say it's wrong. I think 10 they say it doesn't make any difference in practice. 11 MR JUSTICE HOLGATE: Okay. 12 MR JAFFEY: I understood that there were many things 13 disputed, but one of the things that wasn't disputed was 14 whether or not that's what this modelling did and was 15 intended to do. If I need to give some further 16 references, I will do that in a short while, if I may. 17 3.11 explains that TfL's assessment includes freight 18 and induced economic activity. The national policy 19 statement doesn't explicitly include assumptions 20 relating to freight, and therefore TfL explains what its 21 assumptions are on calculation. 22 MR JUSTICE HOLGATE: The freight point is that you say the 23 modelling done for the defendant looked at freight 24 generated -- freight trips between 7.00 am and 7.00 pm, 25 not 24 hours, seven days a week. That is the issue. 23 1 MR JAFFEY: Yes, and of course most of the freight arrives 2 at night because that's when the roads are quieter. 3 MR JUSTICE HOLGATE: Where does it actually say in this 4 document that is the difference it is grappling with? 5 MR JAFFEY: It doesn't say that. It does say that 6 figures -- the TfL -- in 3.11, it says the NPS does not 7 explicitly include assumptions relating to freight 8 traffic demand and therefore TfL has adopted the 9 assumptions and methodology used by the 10 Airports Commission, namely that freight traffic demand 11 grows in proportion to passenger demand. 12 What the government was doing with freight was not 13 entirely clear at this point, and it was a matter of 14 concern for TfL, which is why they did their own 15 modelling. They said: you don't look like you've 16 properly understood about the freight impact, so we are 17 going to take the Airports Commission data and we are 18 going to model it ourselves. 19 It is what they do. TfL have a large team of 20 transport modellers. They said: you need to include 21 freight and you need to include catalytic demand, so we 22 are just going to get on with it and do it. We're not 23 just going to complain that you haven't done it. We are 24 an expert transport authority, so we are going to do the 25 job for you and tell you what we think the figures ought 24 1 to be. 2 LORD JUSTICE HICKINBOTTOM: As the primary source column 3 suggests, on the basis of the raw figures from the 4 Commission -- 5 MR JAFFEY: In relation to freight, what they have done is 6 they said they assume that freight grows in demand with 7 passenger demand, so you work out how much freight there 8 is -- 9 LORD JUSTICE HICKINBOTTOM: I understand that, I understand 10 the modelling bit. The modelling is different. The 11 basic assumptions of the figures come from the 12 Commission. 13 MR JAFFEY: Yes, that's right. 14 LORD JUSTICE HICKINBOTTOM: Sorry, this is a question -- 15 what is different, as I understand it, is the modelling 16 on the basis of those figures. 17 MR JAFFEY: Or that there has been modelling. 18 LORD JUSTICE HICKINBOTTOM: Yes. 19 MR JAFFEY: Of freight. 20 LORD JUSTICE HICKINBOTTOM: So, it is what they have done 21 with the raw figures. 22 MR JAFFEY: Yes. 23 LORD JUSTICE HICKINBOTTOM: They have done more, you say. 24 MR JAFFEY: But they have been included. 25 What it appears happens, as my Lord, 25 1 Mr Justice Holgate has just put to me, is that the 2 national policy statement and the work that was done 3 leading up to it only included, for example, freight for 4 a particular part of the day, during the time when there 5 was most traffic on the roads, and didn't consider 6 freight impacts during the night. 7 MR JUSTICE HOLGATE: But the simple point I am putting, so 8 I can follow this, is: if there was a difference between 9 experts at a highly technical level, you would expect 10 the nature of that difference to be articulated clearly 11 in the document, not least so the decision maker can 12 react to it. If there are uncertainty, as you put it 13 a moment ago, in what the government's consulting were 14 doing, you would expect your experts to get in touch 15 with them and ask for clarification. 16 I put down this marker because we are being asked to 17 review this process, where at the moment I don't find 18 the source material you rely upon in itself clear, as 19 identifying these issues. 20 MR JAFFEY: What this report does, in my submission, in the 21 one I have just shown you, is it indicates that there 22 are likely to be very serious problems as a result of 23 the full modelling, which has taken place by TfL, which 24 includes, for example, higher passenger demand, freight 25 and induced demand. Then they go on, having made these 26 1 various inclusions, to explain what the actual impact 2 will be in terms of road traffic. 3 MR JUSTICE HOLGATE: I understand your earlier point, that 4 it goes to the likelihood of the mode shift -- or 5 whatever the expression was -- being achieved, but if 6 you wouldn't mind taking your skeleton again. 7 MR JAFFEY: Of course. 8 MR JUSTICE HOLGATE: We have looked at paragraph 18, but at 9 page 8, paragraph 19, you say: 10 "The significance of ..." 11 I beg your pardon, Mr Jaffey: 12 "The significance of these changes is shown by the 13 new modelling carried out by SDG set out in the August 14 2017 report. SDG considered [look at this] the new 15 freight analysis and the catalytic demand analysis." 16 Those are points 2 and 3, so at face value it 17 doesn't suggest that the difference in the modelling 18 related to either points 1 or 4, which fits with my 19 difficulty in understanding how the source material you 20 rely on supports 1 and 4. 21 I can see that you have an induced demand point. 22 I have grasped that. I am not sure you have a freight 23 analysis point yet clearly articulated. But the upshot 24 seems to be paragraph 19, where you are only pursuing 25 two points and not the first one, which is to do with 27 1 the revised October 2017 DfT forecast; do you see why it 2 is difficult to follow? 3 MR JAFFEY: Yes, my Lord puts to me I need to make that 4 clearer, and I will look and see what additional 5 references I can find. 6 But the point of this document -- and where we are 7 at the moment is we are just looking at what the outputs 8 are to it. Then there are the conclusions, once you 9 have run the modelling, which are set out in section 4, 10 under "Mode share": 11 "What are the consequences for mode share of this 12 analysis?" 13 That's what we have already looked at and already 14 seen. So, a quite similar effect that you won't be able 15 to meet the targets. 16 Then, section 5 applies the modelling to the effect 17 on road traffic across west London. 18 Transport for London have a number of very detailed 19 road traffic models, and applying this additional 20 traffic to those models shows where there will be 21 increased congestion and how long that increased 22 congestion will be. 23 They then do the same exercise in their public 24 transport models, in section 6, of showing where there 25 will be additional and, in TfL's view, unmanageable 28 1 crowding on certain rail links. That's section 6 of the 2 report. 3 So, that's the additional material that was put in, 4 in the consultation. 5 The next step in the argument is how that was 6 responded to, and whether it was responded to 7 adequately. That's dealt with, initially at least, in 8 the government's response to the consultation, which is 9 in volume 8 of the documents, at tab 10. The relevant 10 parts on surface access start at page 495, and there's 11 approximately 10 pages of response on the surface access 12 issues that are raised by consultees. 13 There is no mention in there of the effect of the 14 increased demand forecasts. 15 Now, the reason why that's a potential concern is -- 16 MR JUSTICE HOLGATE: That's the DfT? 17 MR JAFFEY: If you increase the number of passengers going 18 to and from Heathrow by -- let's take a random number -- 19 10 per cent, that does not necessarily have a linear 20 effect on congestion and demand for public transport. 21 Because on an already congested road link, if you 22 increase the number of people using that link by 23 a certain percentage, the effects on congestion may be 24 proportionately much greater, and that is why it is the 25 results of the modelling, which TfL produce, which were 29 1 of concern. 2 MR JUSTICE HOLGATE: Assuming that you can show us that they 3 took into account the DfT material, and that it was 4 different. 5 MR JAFFEY: I take that, yes. 6 Then there is catalytic demand. There is no mention 7 in here of catalytic demand or induced demand. I'll be 8 corrected in due course if I've missed something, but 9 the claimants don't think there is any reference in 10 here. 11 The importance of southern rail access and western 12 rail access was also emphasised in the consultation 13 responses, and that in order to get anywhere close to 14 complying with the mode share targets in the draft 15 policy statement, you would need them. 16 The only response to that starts at page 502, at 17 paragraphs 5.59. What is said at 5.59 is: 18 "The government notes comments about public 19 transport." 20 5.60: 21 "New rail schemes may have a significant role." 22 It mentions western and southern rail access. 23 5.61, the government supports the western rail link. 24 Application for development content in 2019. Completed 25 in 2026 and 2027. Southern rail access is different. 30 1 5.63 is at an early conceptual stage. And that's it. 2 The difficulty with that response is that there is 3 no explanation for what the government are going to do 4 if the early conceptual stage doesn't come to fruition 5 because the view of Transport for London is that schemes 6 such as that were, in effect, essential. 7 So, that's the content of the consultation response. 8 The additional evidence before the court is produced 9 by Mr Jones, the Secretary of State's witness, in 10 particular in his second witness statement, which also 11 conveniently includes again most of the points made in 12 his first one. 13 That witness statement is in volume 5, at tab 2, 14 where he addresses these points. 15 If I can pick up his statement at page 126, 16 paragraph 11. At paragraph 11: 17 "Mr Williams [who is the TfL witness] repeats, in 18 paragraph 11, five points which TfL and the Mayor made 19 in their representations about the ANPS." 20 So, first of all, Mr Jones is accepting that the 21 Secretary of State thought the representations were made 22 and understood them as such, and then responds to the 23 specific points below. 24 Then paragraph 12 says: 25 "Mr Williams notes that the Department for Transport 31 1 published updated forecasts which show higher growth in 2 demand than the Airports Commission forecast. The 3 revised forecasts in appraisal report showed faster 4 growth at Heathrow with expansion, but over time and by 5 around 2040 converges with the Airports Commission 6 forecast. So, the main effect of the demand update 7 could be a requirement on the airport to take measures 8 sooner, but it does not fundamentally change the nature 9 of the surface access challenge at Heathrow." 10 So, that's his response, and he appears to be 11 accepting that representations were made about the -- 12 MR JUSTICE HOLGATE: But he doesn't say what the 13 representations were, so it doesn't help address my 14 earlier question. 15 MR JAFFEY: The representations were that it would, when you 16 redid the modelling -- and that is what TfL did -- it 17 radically increased the surface access problems. 18 Increased traffic and congestion and greater demand 19 and -- 20 MR JUSTICE HOLGATE: He is here dealing with the DfT revised 21 passenger forecast, so it doesn't actually nail down 22 that point yet. 23 MR JAFFEY: I think it is, in my submission, tolerably clear 24 that he is addressing those increased passenger demand 25 forecasts. 32 1 MR JUSTICE HOLGATE: Yes, forgive me, I'll try again. He 2 doesn't actually -- you haven't shown us anything yet 3 which deals with how they were taken into account. The 4 table you took us to before, your own document, doesn't 5 suggest that it changed what your experts did. So, just 6 to go to the end of the process, without showing what 7 Mr Williams -- it doesn't actually deal with the point. 8 MR JAFFEY: Well, what Transport for London did is they took 9 those figures as the basis for their modelling, the 10 updated figures. 11 MR JUSTICE HOLGATE: So far we have not seen any evidence 12 that they did that, but I don't want to keep repeating 13 that. You have to deal with that. 14 MR JAFFEY: No, I do have to deal with that, and I will come 15 back to it. 16 MR JUSTICE HOLGATE: That's what the skeleton was supposed 17 to deal with. 18 MR JAFFEY: I understood that was common ground and it 19 wasn't disputed. I will come back to the court with 20 proper references, but I don't want to try and do it on 21 the hoof because I can't guarantee I'll do it completely 22 and I'm sorry about that. 23 What he says, though, is that the effect of the 24 demand update could be a requirement on the airport to 25 take measures sooner, but it doesn't fundamentally 33 1 change the nature of the surface access challenge. 2 So, that's the best response which is produced in 3 the context of the litigation. One can see the 4 difficulty and the incompleteness of that response, 5 which is that rail capacity and tunnels can't be built 6 overnight. If the demand is going to exist much sooner, 7 how are those problems going to be met in relation to 8 Heathrow? That is why the modelling was done, to show 9 the seriousness of the effect. 10 At paragraph 18, he deals with catalytic impact. 11 His conclusion, relying on the Airports Commission, is: 12 "The scope and timescales of induced growth in wider 13 economic activity was too uncertain and wide raging to 14 be meaningfully assessed and modelled." 15 He then makes a submission that it is unclear what 16 public law error this evidence can be said to give rise 17 to. 18 It says it can't be modelled. Of course, it was 19 modelled. It was modelled by Heathrow Airport Limited 20 and their initial data was taken by TfL, and they 21 modelled it as well. 22 One thing that can be said for sure about catalytic 23 impact is there may well be have a very wide range of 24 reasonable views between experts as to what the 25 catalytic impact ought to be, but one thing that is 34 1 certainly not in doubt is that it is not zero. 2 You can't say, "Because it's difficult, we are going 3 to treat it as zero", which is what Mr Jones has done. 4 You might well say, "I don't agree with TfL's modelling, 5 and I've got my own views about what it should be", but 6 saying that it's zero because it's difficult isn't an 7 answer to the problem, in my submission. It just 8 doesn't answer the points that are being made. 9 Then paragraph 19, Mr Williams's point that London's 10 Transport network could not cope with expansion, and the 11 answer is the department disagrees, the analysis shows 12 there will be impacts on expanded Heathrow Airport on 13 the existing surface transport networks and the ANPS 14 sets out the framework for how this should be addressed. 15 That is the sole response you get to the detailed 16 modelling, which TfL has done, as to why this scheme is 17 simply not going to work. There is no attempt to meet 18 detail with detail. It just says, "Oh well, there will 19 be impacts", and the ANPS sets out a framework. The 20 whole purpose of the submission was to explain why the 21 ANPS doesn't provide an adequate framework when you 22 actually look at the consequences and model them 23 appropriately. 24 That's not to say they couldn't have done some work 25 and say, "Actually, we've analysed your model and we 35 1 think it's rubbish". Simply to say this is, in my 2 submission, not adequate reason in the context of the 3 importance of the issues. 4 On the law relating to these issues, I only need to 5 show you, I think, two authorities. First of all, to go 6 back to the Lord Justice Carnwath and the Hillingdon 7 2010 case and, secondly, to look at CPRE Kent. Can 8 I look at Lord Justice Carnwath in Hillingdon first? 9 That is in authorities volume 2, at tab 37. The 10 surface access issues are dealt with in the court's 11 judgment from paragraph 85 onwards. 12 Paragraph 86 of the judgment quotes the 2003 Air 13 Transport White Paper. The government accepted in the 14 white paper that further expansion at Heathrow will 15 place pressure on congested road and rail networks. No 16 plans for motorway widening. Solution will be 17 improvements to public transport. Spend several million 18 pounds and prospects for the introduction of road user 19 charging should also be considered. 20 Then, at paragraph 88, the Mayor of London submitted 21 a detailed response to the consultation paper, supported 22 by technical notes. It all sounds quite familiar. 23 Then the second part of paragraph 88, criticising 24 the narrow focus of the assessment of public transport 25 demand and capacity directed to the immediate area of 36 1 Heathrow. No assessment of the wider impacts, and 2 commented on the projections that were used by the 3 department. 4 Then 89, the Department for Transport's response 5 was, "Oh well, it's all a matter when you get to 6 a detailed application for a planning application in due 7 course". 8 Then, paragraph 92 sets out the court's conclusions 9 that the claimants' criticisms were justified. 10 Impossible to understand what the Secretary of State 11 understood about the scope of the third condition. 12 MR JUSTICE HOLGATE: Isn't paragraph 90 relevant? The 13 Secretary of State's statement to Parliament, because in 14 the quotation he assumed that there were major 15 improvements going to be made to the Piccadilly Line. 16 He treated those as commitments. 17 MR JAFFEY: Yes, he did. 18 MR JUSTICE HOLGATE: That is the point that 19 Lord Justice Carnwath picks up at paragraph 93. He 20 didn't endorse any of the other more generalised points 21 that you have drawn attention to. He was saying that 22 was a plain error. 23 MR JAFFEY: At paragraph 92, Lord Justice Carnwath says in 24 the third line: 25 "It is impossible to ascertain what, if anything, he 37 1 has made of the points raised by Transport for London. 2 Difficult to see how a concluded view of any 3 significance could be arrived at without addressing 4 directly their concerns as the responsible statutory 5 authority." 6 MR JUSTICE HOLGATE: I see. 7 MR JAFFEY: So, in my submission, the judgment does range 8 a bit wider, in the sense that the particular criticism 9 was raised by the Mayor of London and Transport for 10 London on his behalf, did need to be properly addressed 11 as part of the decision-making process. They are 12 criticisms which are not a million miles away from the 13 issues that have arisen here, about essentially a vast 14 overoptimism in the extent of what needs to be done in 15 order to manage, effectively, a three runway airport at 16 Heathrow on the basis of the current highly constrained 17 road network and transport network. 18 For Mr Maurici, at least, ten years later, it is 19 very much a kind of wake up in the morning and still 20 arguing about surface access at Heathrow. The arguments 21 and the problems are very similar, in my submission. 22 The other legal issue which I need to address is 23 CPRE Kent and the extent to which it is necessary to 24 give reasons for rejecting the detailed representations 25 made by TfL and the Mayor. 38 1 CPRE Kent is in volume 3 of the authorities at 2 tab 70. 3 Bearing in mind the context is different, and this 4 is a planning case as opposed to a national policy 5 statement case, one of the things which the court 6 considered is the proper extent of reasons that are 7 required in response to submissions which are made 8 against a proposal that planning consent should be 9 granted. 10 If I can pick up the judgment paragraph 35, the 11 heading is: 12 "Standard of reasons." 13 First of all, Lord Carnwath gives the classic 14 citation of South Bucks and the passage that is familiar 15 to everyone. 16 Then cites a series of planning decisions between 35 17 and 40, finishing up with the decision of 18 Mrs Justice Lang, at paragraph 40, in Hawksworth 19 Securities v Peterborough City Council, which is really 20 one of a number of cases in which courts have said, in 21 planning cases, it is not a requirement to give reasons. 22 This is quoting from Mrs Justice Lang, at H, on that 23 page: 24 "Not required to give reasons for rejecting the 25 representations made by those who object to the grant of 39 1 planning permission." 2 Lord Carnwath's conclusion on that line of 3 authority. The most important and well-known case in 4 that line is the decision of Lord Justice Sullivan in 5 Siraj, which is also cited at 38, is: 6 "Lord Carnwath is not persuaded the difference 7 between the two processes bears such significance. In 8 both, the decision-maker may have to taken into account 9 and deal fairly with a wide range of differing views and 10 interests and reach a reasoned conclusion. Where there 11 is a legal requirement to give reasons, what is needed 12 is an adequate explanation of the ultimate decision. It 13 should not, in principle, turn on differences in the 14 procedures by which it is arrived at." 15 So, it takes you back, in essence, to the basic 16 principle in South Bucks, that what counts as adequate 17 reasons will depend on the circumstances. 18 MR JUSTICE HOLGATE: He then goes on to qualify what he has 19 just said. 20 MR JAFFEY: Yes, he does. 21 MR JUSTICE HOLGATE: Rather heavily. 22 MR JAFFEY: He does, and he explains it is going to be 23 a matter for the court to consider what reasons are 24 appropriate depending on the circumstances. 25 Now, what reasons are appropriate here in the 40 1 circumstances? Well, as you would expect, I say that 2 the particularly important factors are those that 3 Lord Justice Carnwath, as he then was, in Hillingdon, 4 thought were particularly important, that you had 5 a detailed analysis being prepared by the public body 6 that was responsible, ultimately, for the road and 7 public transport infrastructure in London, therefore it 8 needed to be adequately and properly addressed. If 9 there was no sign of the submissions being properly 10 addressed, then that was likely to give rise to a public 11 law fairness difficulty. 12 Very different from the types of more general 13 representations that one will often see in response to, 14 for example, a planning application. 15 So, of course, if someone makes very detailed 16 submissions about the merits of a policy, then one can 17 see why a general response, emphasising the positive 18 reasons why a particular option has been selected, is 19 likely to be all that is required; but where the 20 government has produced technical detail as part of its 21 analysis and that has been responded to, then in my 22 submission something more is required, particularly in 23 respect of an expert consultee. 24 That's the procedural fairness case. Irrationality 25 I can deal with very briefly. 41 1 The basic difficulty, which the Mayor and TfL 2 identify, is the one I have already identified, which is 3 that the mode share targets do not in fact mitigate the 4 harms of a third runway. So, there can be a very large 5 increase in traffic without a commitment to additional 6 public transport infrastructure with very severe 7 consequences for the existing road and rail network, and 8 that a third runway can be opened without resolving 9 those. That the results of TfL's modelling -- which has 10 not yet been responded to, attacked or criticised -- is 11 that this is not an arrangement which will in practice 12 work. 13 So, the basic irrationality point is that it is 14 irrational to set binding mode share targets that will 15 actually not achieve a resolution of the problems that 16 they must be set to address. 17 MR JUSTICE HOLGATE: Binding mode share targets, that is 18 something which goes back to the policy? 19 MR JAFFEY: Yes. 20 MR JUSTICE HOLGATE: But the policy, if I remember 21 correctly, says "at least". 22 MR JAFFEY: At least, yes and so -- 23 MR JUSTICE HOLGATE: Is that a binding mode share target, 24 that you do need no more than that? 25 MR JAFFEY: Development consent can be granted if they are 42 1 met. That is all that the policy requires. It doesn't 2 require southern rail access, it doesn't require. 3 MR JUSTICE HOLGATE: It does leave it open to the 4 decision-maker to require more than that which has been 5 specified in the policy statement, doesn't it? If it 6 uses the words "at least". 7 MR JAFFEY: Yes, so then there is the possibility that, for 8 example, on the inspection some extremely swinging 9 requirements could be imposed on Heathrow Airport 10 Limited or, for example, a condition could be imposed 11 that you are not going ahead and building until, for 12 example, the following public transport infrastructure 13 is in place. 14 But if that is not required and is not going to 15 happen, then all that has happened is some years have 16 passed and we are in the Heathrow game of snakes and 17 ladders, back to square one. So, it is this national 18 policy statement which proposes to set out a scheme 19 under which consent for a third runway at Heathrow could 20 be granted, but without addressing how the problems with 21 it can be properly mitigated, is what the Mayor 22 criticises as irrational. 23 I am not saying you couldn't impose lots of 24 exceptionally strong conditions at the DCO stage, but 25 the disadvantage of that is it just shows how flawed the 43 1 national policy statement is because it means that will 2 happen in a year, two years time, whenever, or possibly 3 conditions are imposed that can't be fulfilled many 4 years down the line, in which time new airport capacity 5 will not have been delivered for the South East. In 6 particular for the Mayor, that is a serious concern. 7 That is the difficulty. 8 I notice the time. It is just past quarter past. 9 MR JUSTICE HOLGATE: Just before we move on, I have asked 10 you about how the DfT forecasts were taken into account, 11 if you wouldn't mind going back to -- you were taking us 12 to Mr Jones's second witness statement -- 13 MR JAFFEY: Yes, my Lord. 14 MR JUSTICE HOLGATE: -- which, as you say, to some extent 15 repeated -- I am sure we are grateful for the 16 repetition -- what was in his first witness statement, 17 which is tab 1, volume 5. 18 I may not have followed this correctly, but I just 19 happened to have noticed at page 55, paragraph 167, 20 under the heading: 21 "Updating the DfT analysis." 22 It says: 23 "Surface access outputs, highway and public 24 transport trips for airport passengers and staff were 25 next estimated using the DfT surface access models and 44 1 used the updated DfT 17 aviation forecasts." 2 So, that is asserting they did take it into account. 3 I mean, that is not referenced, unfortunately, in the 4 defendants' skeleton, but I just happened to notice 5 that. 6 MR JAFFEY: I will look at that, and if everyone -- 7 MR JUSTICE HOLGATE: There is so much material here, by now 8 one would have hoped that the parties on both sides had 9 digested it, so you could refine everything for the 10 benefit of the court. Otherwise we have to plough 11 through this. 12 MR JAFFEY: We have tried. If both sides have completely 13 misunderstood what has happened, then I will make sure 14 the court gets told and it gets corrected, but that's 15 the basis on which we have been proceeding with the 16 arguments. 17 MR JUSTICE HOLGATE: This is a point, as I say, which 18 I noticed from Mr Humphries' skeleton and the government 19 assert this point. 20 MR JAFFEY: If we have that wrong, I will make sure I tell 21 the court, and I am not going to pursue a point which is 22 a bad one, if that is what it turns out to be. 23 MR JUSTICE HOLGATE: Look at 169 over the page, as well. It 24 is more of the same. This is why we need to tread very 25 carefully, bearing in mind the function of the court, to 45 1 make sure that we have accurate references that we can 2 place reliance on. Otherwise the argument is on 3 a flimsy foundation. 4 MR JAFFEY: I am not going to disagree with any of that. 5 MR JUSTICE HOLGATE: No, self-evidently. Thank you. 6 MR JAFFEY: I am grateful. Would now be a convenient time 7 to take a break? I will then move on to air quality. 8 LORD JUSTICE HICKINBOTTOM: Yes, 11.30. 9 (11.20 am) 10 (A short break) 11 (11.36 am) 12 MR JAFFEY: Just before we broke, my Lord, 13 Mr Justice Holgate asked about Mr Jones's first witness 14 statement, and the statement which he seemingly made 15 that modelling and analysis was done in relation to the 16 updated passenger figures. 17 That was, after that statement was served, the 18 subject of correspondence between the parties. An 19 answer was given by the government legal department, 20 which we added into the bundle last week because of this 21 uncertainty. 22 If I could just show the court that document. We 23 are still in bundle 12, and it has been added as 24 tab 28A, page 666.11. The court should have had added 25 to the bundles -- fingers crossed -- a letter from the 46 1 government legal department to TfL. 2 At the bottom of page 666.11, there is a request 3 from TfL for the traffic estimate used in the air 4 quality re-analysis, and then there is a list of 5 specific requests. Then the explanation is over the 6 page, at the top of the page, the government legal 7 department say: 8 "After due consideration of the updated passenger 9 forecasts in 2017, the Department for Transport decided 10 there was no case to update the Airports Commission 11 surface access modelling at that point. There are 12 therefore no detailed traffic estimates as requested 13 here in addition to the estimates provided by Jacobs." 14 So, they didn't reconsider, so they said, their 15 surface access modelling in light of the updated 16 passenger forecasts. 17 So, we have taken that to be ultimately the correct 18 statement of what they did or didn't do. 19 MR JUSTICE HOLGATE: There is a difference between not 20 changing the modelling, as opposed to not thinking about 21 changing the modelling, but, in the first case, having 22 a reason for not doing it. Okay. 23 MR JAFFEY: That is where the evidence has ended up on that. 24 May I now turn to the air quality issues. Taking 25 the issues? Taking the issues in turn, and air quality 47 1 is issue 4 in the list of issues, the first submission 2 is that the air quality decision is flawed for 3 essentially the same reasons as the surface access. 4 MR JUSTICE HOLGATE: That is 4.1, is it? 5 MR JAFFEY: That is 4.1. As you will appreciate, I have 6 little to add there because I have already made those 7 submissions. 8 MR JUSTICE HOLGATE: Yes. 9 MR JAFFEY: Issue 4.2 is a failure to apply a precautionary 10 approach, and 4.3 is the same type of argument framed 11 through rationality, that there is a high risk of 12 a breach as a result of the proposals in the Airports 13 National Policy Statement, and that is irrational. 14 4.4 is that unjustified assumptions have been made 15 about the possibility of mitigating harms. That relates 16 to the points that I have already raised with the court 17 about whether or not new public transport schemes are in 18 fact going to be introduced. 19 Then 4.5 is a failure to act rationally or give 20 reasons, because the Secretary of State did not identify 21 the test for compliance with the air quality directive. 22 I am actually going to say what I submit the correct 23 test is to apply under the air quality directive and 24 we'll see whether or not it is answered, and if it isn't 25 answered, then that point will remain and it remains 48 1 a mystery; if it is answered, then the fog may lift and 2 it may not be necessary for the court to determine that. 3 We have set out in our skeleton, as well, what we say 4 the correct test is. 5 I will start again, if I may, with the Airports 6 National Policy Statement, to see what the requirements 7 were that were imposed in relation to air quality. The 8 court knows where it is already. It is at volume 6, 9 tab 7. 10 The air quality requirements start at 11 paragraph 5.31, on page 254. 12 Most of 5.31 deals with the analysis that has been 13 carried out by the Secretary of State and the Secretary 14 of State's consultants. Then the last four lines are 15 the important part: 16 "The result of this analysis helped inform the 17 government's view that with a suitable package of policy 18 and mitigation measures, including the government's 19 modified air quality plan, the northwest runway scheme 20 would be capable of being delivered without impacting 21 the UK compliance with air quality limit values." 22 Then 5.32, "What the applicant has to do": 23 "Undertake an assessment, demonstrating to the 24 Secretary of State that the construction and operation 25 of the runway will not affect the UK's ability to comply 49 1 with legal obligations." 2 It is put in very clear and stark terms: 3 "Failure to demonstrate this will result in refusal 4 of development consent." 5 Then there is more detail given of those issues and 6 those requirements on page 256, from 5.42 onwards, under 7 the heading: 8 "Decision making." 9 5.42 indicates: 10 "The Secretary of State will consider air quality 11 impacts over the wider area to be affected. As well as 12 in the vicinity of the scheme. 13 "Secretary of State will need to be satisfied that 14 with mitigation the scheme would be compliant with legal 15 obligations for the protection of human health and the 16 environment." 17 Then particular relevant considerations are set out 18 in 5.43. 19 The most important one is the second bullet point on 20 257: 21 "Would have effects sufficient to bring about the 22 need for new air quality management areas or a change to 23 an area." 24 And then importantly: 25 "Or bring about changes to exceedances of the limit 50 1 values or have the potential to have an impact on nature 2 conservation sites." 3 Then the final bullet point: 4 "After mitigation, significant air quality impact in 5 relation to an EIA or to a deterioration in air quality 6 in a zone or agglomeration." 7 "Zone" and "agglomeration" are words used in the Air 8 Quality Directive. 9 It is also right that I should note that the 10 defendant, the Secretary of State's skeleton, gives 11 particular emphasis to this part of the national policy 12 statement and describes it as being one of the "red 13 lines", which is their words, the Secretary of State's 14 words in that statement. 15 It means what it says, that's -- 16 MR JUSTICE HOLGATE: It also aligns with the provision of 17 the statute, doesn't it? 18 MR JAFFEY: The? 19 MR JUSTICE HOLGATE: In section 7, from memory. 20 MR JAFFEY: Yes. Of the Planning Act? Yes. 21 MR JUSTICE HOLGATE: Yes. It is a red, red line. 22 MR JAFFEY: Red, red line. 23 It is being said that there are some other 24 undefined, unspecified red lines in the policy statement 25 that aren't quite so red on the final analysis. Maybe 51 1 that is an issue for another day, but it is accepted by 2 the Secretary of State that this is the reddest of red 3 lines. 4 Now, the evidence on air quality that led the 5 Secretary of State to reach these conclusions is set out 6 in the appraisal of sustainability, which of course 7 accompanies the national policy statement. That 8 appraisal is in volume 9, and if I could ask the court 9 to turn to that now, tab 2. 10 The relevant provisions on air quality here -- and 11 this is of course the document that sets out the 12 evidence which supports the decision that is being 13 taken. 14 The relevant part in air quality we can pick up from 15 page 146 of tab 2, where there is a heading at the 16 bottom of the page: 17 "Air quality." 18 Then, under that: 19 "EU directive limit value compliance." 20 7.4.87 explains that WSP, who are the government's 21 consultants, updated re-analysis of the Airports 22 Commissions impact assessment, taking into account the 23 2017 Air Quality Plan, indicate that the northwest 24 runway does not impact on modelled compliance with limit 25 values in the re-analysis core scenario, ie taking 52 1 account of updated vehicle emissions factors and with 2 the measures set out in the Air Quality Plan 3 implemented. 4 Then the caveat is in the next paragraph: 5 "Subject to uncertainty, the risk of an impact on 6 the compliance of limit values increases the earlier the 7 assumed opening year. For early opening, the set is for 8 2026 in the re-analysis, the risk is high and the option 9 is likely to impact on compliance with limit values due 10 to impact in Central London. The risk falls to medium 11 in 2030. 12 Now, 2026 is when Heathrow wishes to open. They 13 believe that is a feasible date, and that is what they 14 are working towards. 15 What do those words "high" and "medium" in fact 16 mean? They are not just general phrases. They are 17 defined terms in this appraisal document, and the 18 definition section is at page 58. 19 LORD JUSTICE HICKINBOTTOM: Sorry, page ? 20 MR JAFFEY: Page 58, my Lord, of the same document. I am 21 going from the bundle numbering, rather than the 22 internal. 23 I hope the court will see at the bottom of page 58 24 there is a table and the penultimate entry on that page 25 is "probability". Then looking at it in reverse order, 53 1 "high" means "in excess of 80 per cent, eg highly likely 2 that a receptor will be affected or effect will occur 3 based on available evidence". 4 So, extremely likely. 5 "Medium" means somewhere between 40 and 80 per cent 6 of a breach of the limit values. 7 So, what the airport's national policy statement 8 does is it proposes to pursue a policy which has 9 a greater than 80 per cent chance of a risk of an impact 10 on compliance with limit values at the proposed opening 11 date, which is a red line for the operation of the 12 runway or the grant of development consent. It is a red 13 line which, on the face of it, the government's own 14 appraisal of sustainability suggests is extremely likely 15 to be breached. 16 What does the Secretary of State say about that? 17 Because that's a rather surprising bit of public policy 18 for obvious reasons. 19 Well, the Secretary of State says: don't worry, fear 20 not because, if necessary, development consent will be 21 refused, or perhaps a condition will be imposed that the 22 runway won't be operated if it will lead to a problem 23 with compliance with the limit values. 24 But what that doesn't engage with is the strategic 25 exercise that is the whole point of the national policy 54 1 statement, which is: if that does happen, the balance of 2 risk and reward between the different options, in 3 particular between Heathrow and Gatwick, is altered 4 fundamentally, and indeed the economic case along with 5 it. 6 Just to raise the obvious questions, if there is, in 7 2026, at least, at best, an 80 per cent chance of the 8 limit values not being complied with, the reddest of red 9 lines that the government has, and that is a condition 10 which the government has itself imposed in the policy 11 statement, then how is Heathrow supposed to raise money 12 for the building and ultimately the operation of the 13 runway on that basis? 14 It is not obviously a sensible way of making 15 a strategic decision about airport expansion because if 16 this problem eventuates -- and the appraisal of 17 sustainability suggests there is a very high probability 18 it will -- then in that game of snakes and ladders we 19 are again back to square one, because whilst of course 20 the development consent stage and any conditions imposed 21 may prevent a breach, we are in a position where airport 22 capacity and the building of additional airport capacity 23 will inevitably have been delayed by several years, and 24 the economic case -- which is an part of the case for 25 Heathrow -- will itself have been altered. 55 1 That's the fundamental difficulty which underlies 2 the Mayor and the Borough's concern about the airport's 3 approach to air quality which is taken in this decision. 4 It is a pattern which is seen in other air quality 5 litigation, and I'll show you the ClientEarth decisions 6 in a moment. 7 What happens is the government produces some wildly 8 over-optimistic proposals about how air quality issues 9 will be managed. They are not in fact complied with and 10 much greater steps are required to be taken, and as 11 a result, some years later, it becomes apparent that 12 there are very serious problems and very drastic steps 13 need to be taken, by which point the public policy harms 14 that we are concerned about -- about making the right 15 decision on airport expansion and minimising the effects 16 on human health -- have already occurred. 17 That's why this claim is being brought now, rather 18 than just at the development consent stage. Because the 19 Mayor in particular, who I represent, is concerned that 20 a correct strategic decision is made, rather than 21 a decision is made which is overwhelmingly likely to 22 lead to fundamental problems at development consent 23 stage. It is just a fundamentally wrong piece of public 24 policy, which doesn't add up, even on its own terms, 25 even to the extent it can be said to comply with the 56 1 law. 2 On the law relating to air quality, I have already 3 mentioned that the approach to be taken is slightly 4 different because of the context. My submissions on the 5 law are based on trying to assist the court in 6 explaining what this promise in the policy statement 7 actually means, because it refers to the limit values, 8 and the limit values are the limit values in the 9 directive. So, I am going to seek to assist the court 10 by what that promise actually means in legal form. 11 The answer I am going to give is that if the runway 12 has an effect on compliance with limit values, such that 13 it will create or maintain or worsen a breach, that is 14 a breach of EU law, specifically it is a breach of 15 Article 13 of the directive and therefore the runway 16 will not be able to be granted development consent or 17 will not be able to operate. 18 So, that's why I'll take you in a moment to the 19 directive itself and the cases on it. 20 MR JUSTICE HOLGATE: As an argument, if correct, it would 21 apply to development in general, would it not? 22 MR JAFFEY: No, well, here that issue, which was an issue 23 that was raised by the Court of Appeal in Shirley, 24 doesn't arise because the Secretary of State has chosen 25 to promise to adopt that as the standard. 57 1 So, let's assume that we had an Airport National 2 Policy Statement without any of the provisions which 3 I have just shown the court, that would then be an 4 argument that was open to the Secretary of State, that 5 you can't say that a particular piece of national policy 6 should or shouldn't take place. 7 But, here, the Secretary of State has chosen to bind 8 himself to a condition, a requirement for the grant of 9 consent, which is, it appears, extremely unlikely to be 10 achieved on the Secretary of State's own material at the 11 proposed date. 12 One of the issues that arises in these cases is, for 13 example, the issue that was before the Court of Appeal 14 in its recent decision in Shirley, where it was a rather 15 ambitious claim. It was said that, as a result of 16 potential air quality impacts, what the Secretary of 17 State had a duty to do under the directive was to call 18 in a development application and to decide it himself, 19 presumably negatively, because there were potential 20 consequences for air quality. 21 Perhaps not entirely surprisingly, the Court of 22 Appeal said: no, that's a decision which is perfectly 23 well capable of being taken at a local level. 24 But one of the things the Court of Appeal said -- 25 and I'll show the court the judgment very briefly in 58 1 a moment -- is that whether or not there is such an 2 obligation to do that in domestic law does not affect 3 the question of whether particular development or 4 particular conduct amounts to a breach of Article 13 of 5 the directive. 6 MR JUSTICE HOLGATE: To some extent, this might be to do 7 with the relationship then between the directive and 8 what's in the statute, whatever the policy statement 9 says. 10 MR JAFFEY: Yes, and the policy statement as well, in this 11 case, but I agree with that, yes. 12 MR JUSTICE HOLGATE: Because 104(4) applies: 13 "If the Secretary of State is satisfied that 14 deciding the application in accordance with a national 15 policy statement would lead to the UK being in breach." 16 So, perhaps the link between the two provisions 17 needs exploring. 18 MR JAFFEY: That's right. At the risk of speculating -- 19 MR JUSTICE HOLGATE: Or the relationship, rather. 20 MR JAFFEY: Yes, exactly. At the risk of speculating why 21 the Secretary of State has chosen to bind himself to 22 this red line, the speculation must be the reasons which 23 my Lord has just put to me; that it would be a basis for 24 refusal of development consent in any event, and so you 25 might as well make it clear and, also, if the UK engages 59 1 in a massive piece of national strategic airport 2 development and that creates or worsens a breach of the 3 limit values and if I am right that that is a breach of 4 Article 13, that will inevitably lead to enforcement 5 action by the European Commission, subject to what 6 happens today in another place. The UK would be subject 7 to potential fines or other enforcement action. 8 That's why it makes perfectly good sense for the 9 Secretary of State to bind himself to these requirements 10 and that's no doubt why it was done. It was done for 11 a combination of legal and practical and policy and 12 enforcement reasons. 13 But having done that, my submissions are directed to 14 the consequences of whether or not this scheme any 15 longer makes sense. 16 Can I turn to the directive itself then? 17 It is in volume 1 of the authorities, at tab 21. 18 There are various definitions in the directive in 19 Article 2, and the most important one is the definition 20 of a limit value, which is Article 2(5): 21 "A level fixed on the basis of scientific knowledge 22 with the aim of avoiding, preventing or reducing harmful 23 effect on human health and/or the environment as 24 a whole. To be attained within a given period and not 25 to be exceeded once attained." 60 1 That can be compared to, for example, 2(9), a target 2 value, which is what is imposed for certain other 3 pollutants, which is to be attained where possible over 4 a given period. So, a conditional obligation to be done 5 where possible. 6 Article 4 of the directive requires the 7 establishment of zones and agglomerations, and there are 8 some detailed provisions in the annexes for what that 9 means, but the Greater London area is an agglomeration 10 within the meaning of the directive. 11 Then the standards in the directive that have to be 12 complied with start at Article 12. 13 Article 12 deals with a situation where: 14 "The levels of particular pollutants [and here the 15 important one is nitrogen dioxide] are lower than the 16 limit values. The duty of member states is to maintain 17 the levels of those pollutants below the limit values 18 and shall endeavour to preserve the best ambient air 19 quality compatible with sustainable development." 20 So, the absolute requirement is to keep it below the 21 limit value, and there is a requirement of endeavours to 22 have the best quality compatible with sustainable 23 development. 24 Then Article 13 deals with the situation of where 25 there is an exceedance of the limit value: 61 1 "Member states shall ensure that throughout their 2 zones and agglomerations levels of [the pollutants] do 3 not exceed the limit values." 4 Then the second clause: 5 "In respect of nitrogen dioxide [which is the one 6 here] the limit value specified in annex 11 may not be 7 exceeded from the date specified therein." 8 So, the duty in respect of nitrogen dioxide is an 9 absolute one. It can't be exceeded from the applicable 10 date. 11 Then, Article 16, just by way of comparison, for 12 some of the lesser pollutants where a target value is 13 imposed. 14 In contrast, Article 16.1: 15 "Member states shall take all necessary measures not 16 entailing disproportionate costs to ensure that 17 concentrations of, for example, particulate matter do 18 not exceed the target value from the date specified 19 therein." 20 Then, finally, Article 23: 21 "Where there is an exceedance requires the 22 preparation of an air quality plan." 23 The second clause of 23.1 requires: 24 "The Air Quality Plan set out appropriate measures 25 so the exceedance period can be kept as short as 62 1 possible." 2 Then, just for completeness, annex 11, which is the 3 limit values for nitrogen dioxide. The pagination is 4 not entirely clear, but the numbers are in the top left 5 of the page. It is page 30, 152/30. The limit value 6 for nitrogen dioxide, or the limit values, in the table 7 at the bottom of page 30, and there are two of them. 8 One hour, that is an average over one hour, 9 200 micrograms per cubic metre, not to be exceeded more 10 than 18 times in a year. That has to be done by 11 1 January 2010. 12 Then averaged over an entire calendar year, 13 40 micrograms per cubic metre to be achieved by the same 14 date. 15 Mr Pleming reminds me that the title of annex 11 is: 16 "Limit values for the protection of human health." 17 That is the purpose of the directive. 18 The effect of those provisions was dealt with in the 19 ClientEarth litigation, of which there has been a lot. 20 If I could ask the court to take up authorities 21 bundle 4, which contains the air quality authorities. 22 The first judgment that I'll show the court is at 23 tab 73, which is the decision of the Supreme Court 24 making a reference to the Court of Justice in 25 ClientEarth Number 1. What had happened in that case is 63 1 that the United Kingdom was in breach of the limit 2 values in Article 13, and there was a claim for 3 a declaration that there had been a breach of those 4 limit values, and also for the preparation under 5 Article 23 of a new Air Quality Plan to keep the 6 exceedance as short as possible. 7 If I can pick it up at paragraph 26 of the judgment 8 of Lord Carnwath, which was the only judgment in that 9 Supreme Court, at page 800 of the report. He explains 10 the history of the proceedings. Mr Justice Mitting 11 originally heard the case in December 2011. He held 12 that Article 22 -- which was a separate issue about 13 extensions of time -- was discretionary and declined to 14 grant a mandatory order requiring the United Kingdom to 15 take any steps and explained that would raise, at the 16 bottom of the page: 17 "Serious political and economic questions not for 18 this court." 19 Then, at page 801, the quote making various points 20 about: 21 "In particular, in London, will impose on taxpayers 22 and individuals a heavy burden of expenditure, difficult 23 political choices, significant economic impact." 24 The courts have been very wary about entering this 25 area of political debate for good reason. 64 1 Then Mr Justice Mitting declined to make 2 a declaration, even a declaration there had been 3 a breach of Article 13. 4 Then, in paragraph 27, the appeal was dismissed by 5 the Court of Appeal in a judgment of Lord Justice Laws. 6 That was one of those happy days at the bar when my 7 opponent wasn't called upon. 8 The Supreme Court took a different approach. 9 At paragraph 37, the court sets out its preliminary 10 conclusions. I should add I wasn't representing 11 ClientEarth by that stage, which probably explains the 12 difference: 13 "The court is satisfied that it should grant the 14 declaration sought [that is a declaration of a breach of 15 Article 13]. The fact that a breach has been conceded 16 is not a sufficient reason for declining to grant 17 a declaration where there are no other discretionary 18 bars. It is a formal statement of the legal position 19 and makes clear that, regardless of arguments about the 20 effect of Articles 22 and 23, the way is open to 21 immediate enforcement action at the national or European 22 level." 23 So, what the court is deciding there is that 24 Article 13 creates a separate and independent obligation 25 to comply with the limit values, and a failure to comply 65 1 with those limit values is a breach of EU law, and led 2 to a declaration of that fact in that case. 3 The case then went to the Court of Justice and came 4 back. The government was then ordered to produce a new 5 Air Quality Plan. That new Air Quality Plan didn't 6 really contain much in the way of new measures, and that 7 led to a new judicial review, which was ClientEarth 8 Number 2. ClientEarth Number 2 is at tab 76 of the 9 bundle, and it is a decision of Mr Justice Garnham 10 sitting in the administrative court. It was a challenge 11 to the Air Quality Plan prepared under Article 23 of the 12 directive. 13 Mr Justice Garnham's conclusions on the law start at 14 paragraph 46 of the judgment, on page 215. 15 Paragraph 45 records the submissions of Ms Smith for 16 the Secretary of State about the broad discretion which 17 is available to member states, and so on. All of the 18 usual things. 19 Then, 46, Mr Justice Garnham says: 20 "I accept the Secretary of State's submissions that 21 Article 23 gives some discretion. It is plain on the 22 face of the Article, in my judgment, the discretion is 23 narrow and greatly constrained." 24 He then cites various authorities in support of that 25 proposition. Then his conclusions on the proper 66 1 approach are set out from paragraph 50 onwards, at the 2 bottom of page 215. 3 There is some debate about the meaning of 4 proportionality and the relevance of cost. Then, over 5 the page, at 216, at letter B: 6 "Mr Justice Garnham rejects any suggestion that the 7 state can have any regard to cost in fixing the target 8 date for compliance or determining the route for the 9 achievement of compliance where one route produces 10 results quicker than another." 11 The determining consideration is efficacy, not cost, 12 and that flows from the requirement to keep the 13 exceedance period as short as possible. 14 Then 51: 15 "Proportionality is a requirement, but that means 16 proportionate in the sense of no more than is required 17 to meet the target." 18 So, he then goes on to give an example between C and 19 D of: 20 "Unless it would be necessary to deny all access to 21 vehicles in city centres forthwith, one wouldn't do 22 that." 23 Then, at paragraph 52, Mr Justice Garnham records he 24 accepts counsel for ClientEarth's first submission, that 25 the Secretary of State must choose a route to that 67 1 objective, that's compliance which reduces exposure as 2 quickly as possible, and then sets out further details 3 of the test at paragraph 53. 4 I draw the court's particular attention to the last 5 sentence of 53: 6 "Implicit in the obligation to ensure is an 7 obligation to take steps which means meeting the limits 8 is not just possible, but likely." 9 My submission, as the court will appreciate, that is 10 the opposite of what is proposed here. 11 Then Mr Justice Garnham repeats the same point at 12 paragraph 54: 13 "The plan must include measures intended to ensure 14 compliance within the shortest possible time. It cannot 15 intend to ensure an outcome that is anything less than 16 likely." 17 So, nothing less than likely will do. 18 Those are the legal principles that 19 Mr Justice Garnham concluded should be applied. 20 He then turned to the facts. The relevant part of 21 the facts we can take from paragraph 83, on page 222. 22 DEFRA did some modelling. The judge concludes it is 23 apparent that DEFRA recognised they were adopting an 24 optimistic forecast in their modelling. 25 Then, at paragraph 86, the judge sets out his 68 1 conclusions on that: 2 "It is plain that, by the time the plan was 3 introduced, the assumptions had been shown to be 4 markedly optimistic. The Air Quality Plan didn't 5 identify measures that would ensure the exceedance would 6 be kept as short as possible. Instead, it identified 7 measures which in very optimistic forecast happened to 8 be proved right and emerging data happened to be wrong 9 might achieve compliance. To adopt a plan based on such 10 assumptions was to breach both the directive and the 11 domestic implementing regulations." 12 A familiar concern, which I submit is repeated in 13 this case. 14 That decision was not appealed by the Secretary of 15 State for Environment, Food and Rural Affairs. Instead, 16 the Secretary of State produced a new Air Quality Plan, 17 which needless to say was challenged again. That is 18 ClientEarth number 3. That judgment is at tab 77, the 19 next tab in your Lordship's bundle, also a decision of 20 Mr Justice Garnham. 21 This decision is of interest because it deals with 22 the relationship between the Secretary of State's 23 obligations under the directive and the obligations 24 which may be owed by others, such as third parties; here 25 it was local authorities, who were being asked to 69 1 participate in achieving the Air Quality Plan. 2 The relevant parts of this judgment starts at 3 paragraph 78. 4 I should probably add, at 77, Mr Justice Garnham 5 repeats his previous analysis of the law and also notes 6 halfway through 77 that DEFRA chose not to appeal his 7 previous decision, so therefore he was going to apply 8 the same legal principles. 9 Then, at 78, he sets out what was happening in 10 relation to the conduct of local authorities, and he 11 explained that in respect of 45 local authorities there 12 was no mechanism for enforcing the local plan, that is 13 a local plan for air quality. The Under Secretary of 14 State, Dr Coffey, wrote to most of the local 15 authorities, encouraging them to bid for a grant, 16 stressing the importance of achieving compliance in the 17 shortest time available, offering training and so on. 18 On the 19 January, a similar letter was sent to the 33. 19 So, local authorities are being urged and encouraged to 20 come up with proposals to improve air quality, but are 21 not being required to do so. 22 Then, at 79, Mr Justice Garnham concludes that sort 23 of exhortation is not sufficient, and then explains why 24 by reference to the obligations under the directive. 25 So, the Air Quality Plan was quashed for a third 70 1 time. 2 MR JUSTICE HOLGATE: In its entirety? 3 MR JAFFEY: No. It had to be revised. The parties agreed 4 that it didn't need to be quashed because it needed to 5 stay in force in the meantime, but there was an 6 obligation imposed that it be revised. 7 MR JUSTICE HOLGATE: The revision, does that relate to the 8 whole plan or just to these elements? 9 MR JAFFEY: The elements of the plan. 10 MR JUSTICE HOLGATE: As regards the 45 local authorities? 11 MR JAFFEY: Yes, yes, exactly. 12 MR JUSTICE HOLGATE: The local plans there referred to, 13 could you just help me on that; what sort of local plans 14 were they? 15 MR JAFFEY: They were local plans produced by local 16 authorities, setting out what they intended to do in 17 their own area in order to achieve compliance with the 18 limit value. 19 One of the main issues in dispute is there is 20 a technique which is known to be effective for achieving 21 much more rapid compliance of the limit value, and that 22 is to introduce a low emission zone in which cars which 23 do not meet modern emission standards are charged for 24 entering that zone, and that's what's coming into force 25 in London in April of this year. 71 1 Many other local authorities or regional governments 2 are less enthusiastic about introducing such forms of 3 charging, and so the use of local plans meant that there 4 was no compulsion for them to do so, and that was the 5 difficulty; by handing it off to others, the Secretary 6 of State was not achieving compliance in the shortest 7 possible time. So, it required more. 8 Since the ClientEarth litigation, there have been 9 two decisions in very quick succession. 10 First of all, the decision in Shirley of the Court 11 of Appeal, which was handed down on 25 January of this 12 year and, secondly, a week or so ago, there was 13 a decision of Advocate General, or an opinion of 14 Advocate General Kokott in the Court of Justice, in 15 a case called Craeynest. Can I just show you Shirley 16 first of all. Shirley is at tab 81. I have already 17 described the facts of the case. But the key passage in 18 the reasoning of the judgment of Lord Justice Lindblom 19 is at paragraph 32. It is a lengthy paragraph, 20 paragraph 32. Could I invite the court to read it but 21 with particular attention to the last two sentences of 22 paragraph 32 which deal with the question of breach of 23 Article 13. 24 (Pause) 25 In that helpful passage what the Court of Appeal is 72 1 doing is explaining the proper relationship between 2 Article 23, the duty to prepare an Air Quality Plan, and 3 Article 13 which is the strict liability obligation not 4 to breach the limit values. Both of them are 5 requirements of EU law. There may be, and this is the 6 last couple of sentences, it doesn't follow that 7 a breach of Article 13 is automatically removed when an 8 Air Quality Plan is adopted because there may still be 9 a breach of the limit values. So there may still be 10 a breach of EU law. Indeed, there is a breach of EU law 11 if the limit values are exceeded but there might be 12 a lawful Air Quality Plan in place which is designed to 13 remediate that defect over a period of time and remove 14 it. 15 So those are the issues. But of course in this case 16 the obligation, which the Secretary of State has bound 17 himself to, I said had to bind himself but doesn't 18 matter, is to comply with both Article 13 and 19 Article 23, to comply with the limit values and to have 20 a lawful Air Quality Plan. 21 The second recent decision is the opinion in 22 Craeynest which I hope is tab 81A of the court's 23 authorities bundle. That was a challenge or it is 24 a challenge to the siting of sampling points for air 25 quality in Brussels. What the City of Brussels said is 73 1 that the siting of the sampling part was a matter of 2 evaluative expert and scientific judgment and it really 3 wasn't a matter for the court to get involved in. 4 MR MAURICI: Sorry to interrupt my learned friend, when did 5 that come through, do you know, because it is not in my 6 bundle. I know there have been a lot of papers and 7 I might have missed it. 8 MR JAFFEY: I am sorry my learned friend doesn't have a copy 9 but I can give him a spare. I think it was added in 10 last week. I think we are actually doing quite well so 11 far in terms of missing bundle entries, not to tempt 12 fate. 13 This decision or this opinion is of interest because 14 it deals with the proper approach to contested 15 scientific and evaluative evidence in the context of the 16 air quality directive and its objectives to protect 17 human health. 18 If I can pick up the opinion at paragraph 34 there 19 is a section by the Advocate General headed "Intensity 20 of judicial review". And the Advocate General at 21 paragraph 36 explains that "in areas where the highest 22 concentrations occur must be identified at least as 23 a rule by a combination of measurements, modelling 24 techniques and other information. In this context there 25 is considerable scope for differences of opinion, for 74 1 example, regarding the siting, timing and frequency of 2 measurements and above all the modelling techniques that 3 are used." 4 And then just above paragraph 41 there is a further 5 heading, "The review of scientific complex assessments". 6 At 43 the Advocate General notes in the second line 7 that: 8 "As a rule broad discretion exists which can be 9 reviewed only to some degree. That discretion is 10 nevertheless limited in certain cases and must be 11 reviewed more intensively, in particular where they are 12 particularly serious interferences with fundamental 13 rights." 14 The Advocate General then applies those principles 15 to the present case from paragraph 51 and explains that 16 siting sampling points is a complex assessment. And 17 then at 52: 18 "In principle EU law would allow broad discretion 19 and require only limited judicial review." 20 And then 53 is the but: 21 "Note should be taken of the considerable importance 22 of the rules on ambient air quality highlighted by the 23 commission. The air quality directive is based on an 24 assumption that exceedance of the limit values leads to 25 a large number of premature deaths. The rules on 75 1 ambient air quality therefore put in concrete terms the 2 union's obligations to provide protection following from 3 the fundamental right to life and Article 2 of the 4 charter and the high level of environmental protection 5 required under Article 3 TFEU, 37 of the charter, 6 and 191 TFEU: 7 "Measures which may impair the effective application 8 of the directive are thus comparable in their 9 significance with the serious interference with 10 fundamental rights on the basis of which the court made 11 the rules on the retention of call data, subject to 12 strict review." 13 It is interesting that the Advocate General there 14 cites the Court of Justice's recent data retention 15 authorities because they are cases in which the court 16 has identified that particular conduct by member states, 17 in those cases the retention of call data, about who was 18 calling who, when and where, and in what circumstances, 19 involves a potential interference with fundamental 20 rights. Therefore the scrutiny which the court will 21 give to that conduct is particularly strict. 22 The conclusion of the -- 23 MR JUSTICE HOLGATE: The submission you are making here is 24 that there is no freestanding argument based on 25 fundamental rights. It is just that the fundamental 76 1 rights are implicit in the legislation which has been 2 created in Europe. 3 MR JAFFEY: The purpose of the legislation is -- 4 MR JUSTICE HOLGATE: Is to protect those fundamental rights, 5 it is built into. 6 MR JAFFEY: Exactly. So, the approach one may take to the 7 assessment of a scientific dispute or the extent to 8 which a national court or the Court of Justice will 9 accept risk as to compliance is different to that which 10 it would adopt in an ordinary case in which there was 11 a scientific or expert assessment dispute. 12 Indeed, at paragraph 53, the Advocate General cites 13 Article 191 of the TFEU, which is the provision setting 14 out the precautionary principle as a fundamental 15 principle of EU law. 16 MR JUSTICE HOLGATE: Your point is followed up in 55 and 56. 17 MR JAFFEY: I respectfully agree. That is, where it is 18 applied. 19 MR JUSTICE HOLGATE: But then the question is posed at 57. 20 MR JAFFEY: Yes. Then, at 57, what the Advocate General 21 does is cite Article 6.3 of the Habitat Directive, which 22 we looked at yesterday, and cites the case law under 23 that directive. But then explains, at 60, you can't 24 quite apply quite the same standard, and explains that 25 air quality prediction and assessment is slightly 77 1 different from the context of the Habitat Directive, and 2 so it is not necessary to eliminate all reasonable 3 scientific doubt. 4 But, at paragraph 61: 5 "The competent authorities may in principle apply 6 the best available method. It should be the method 7 which is subject to the least reasonable scientific 8 doubt." 9 That is not unproblematic, from a scientific point 10 of view, as the different doubts must be weighed in 11 order to ascertain which doubts have less significance. 12 It is an interesting test because, although the 13 Advocate General doesn't cite -- and perhaps wasn't 14 aware of -- the decisions of Mr Justice Garnham in the 15 ClientEarth litigation, it is striking that she applies 16 what in essence is exactly the same test; a test of 17 likelihood; a test of looking at the best available 18 evidence and not permitting the national government to 19 adopt a highly optimistic approach and just say, "Well, 20 we think our highly optimistic approach is all going to 21 be fine". 22 Then the Advocate General proposes an answer that 23 she invites the court to give along those lines. 24 There is a second issue in the case, which is dealt 25 with from paragraph 72 onwards, about whether or not 78 1 exceedances can occur at a single sampling point or 2 whether you average the results of all sampling points 3 over the whole agglomeration. 4 There is a difference between the language versions. 5 The English version is clear that it is sampling point 6 by sampling point, and some of the other language 7 versions are less clear. Her opinion is that the 8 English version, which is repeated in the German and 9 other versions, is a correct statement of the 10 principles. 11 But that is not an issue in this case. Indeed, it 12 has never been suggested by the Secretary of State that 13 you don't proceed other than by sampling point to 14 sampling point, but that is her opinion on that separate 15 issue. 16 So, having gone through those authorities and what 17 the Secretary of State has done, can I turn then to some 18 brief submissions on each of the air quality grounds? 19 Issue 4.1, I can deal with in a sentence or two 20 because the submission is simply that the air quality 21 decision was flawed for the same reasons as the analysis 22 of surface access. 23 As applied to air quality, it is necessary to do 24 that modelling because you need to capture the 25 multiplication effects of congestion on air pollution, 79 1 so slower vehicles, sitting in traffic and not moving, 2 produce more pollution over a given distance than free 3 flowing traffic. That is why you do modelling. 4 The precautionary principle and irrationality, 4.2 5 and 4.3, go together. 6 The submission is that the application of the 7 precautionary principle under EU law and also which 8 is -- and this is a test which the Secretary of State 9 has chosen to bind himself to by the wording of the 10 national policy statement, and also the rationality of 11 a decision will depend on the context. I am not going 12 to plough through decisions like Brind and ex parte 13 Smith for that proposition, but this is an area in which 14 human health is engaged and fundamental rights may be 15 affected. So, although the test of irrationality stays 16 the same, the degree of examination the court will give 17 the evidence may be different. 18 The simple submission is one which I have already 19 made, which is this is not a rational approach to 20 strategic decision making, to do something that has, at 21 best, an 80 per cent chance of leading to a failure to 22 comply with EU law on the proposed opening date. That 23 is not a contest of expert evidence about what the 24 correct number is, that is the Secretary of State's 25 assessment of sustainability -- 80 1 MR JUSTICE HOLGATE: I was wondering, insofar as we have 2 looked at the evidence in the hearing, you have taken us 3 to that one passage in the Secretary of State's own 4 material and you construct your argument based on that. 5 MR JAFFEY: Yes. 6 MR JUSTICE HOLGATE: So, your argument doesn't depend on 7 criticising any method which is being used, which is 8 what the Advocate General's opinion was about. You 9 take, what, the output at face value, and you then say 10 that is irrational when measured against the 11 requirements of the 2008 Act and the Air Quality 12 Directive. 13 MR JAFFEY: It is. I think I'm probably making those points 14 pre-emptively because I am expecting "it will be all 15 right on the night" type submissions and, "Don't worry, 16 it can all be fixed through the process of --" 17 MR JUSTICE HOLGATE: There is a distinction between drawing 18 up a policy as opposed to the way in which the law will 19 fall to be applied in any event when the DCO decision is 20 taken. But you are saying that if you predict, when you 21 draw up a policy, an 80 per cent or more chance of 22 non-compliance with the Air Quality Directive, put in 23 a nutshell, that calls into question the rationality of 24 the policy. 25 MR JAFFEY: It does. 81 1 MR JUSTICE HOLGATE: That is really what the argument is, 2 isn't it? 3 MR JAFFEY: The answer is then going to be either we will 4 introduce additional mitigation measures or we won't 5 open the runway, in which case I say the policy is still 6 irrational because that itself will fundamentally impact 7 on the economic case for Heathrow. 8 MR JUSTICE HOLGATE: The deliverability of the policy? 9 MR JAFFEY: The deliverability of the policy, because if you 10 can't deliver the policy, then there is no economic case 11 for Heathrow. 12 MR JUSTICE HOLGATE: You have made that point several times 13 and it is a concept we see in planning policy quite 14 often. The Secretary of State's housing communities, 15 and local government now has had a policy for many years 16 that, when local planning authorities draw up 17 development plans -- I forget the language which is 18 used, but it is along the lines of "deliverable". They 19 should be practicable, they should not espouse land 20 allocations and uses and so on, or infrastructure 21 projects, which may not be deliverable. 22 MR JAFFEY: Yes. 23 MR JUSTICE HOLGATE: But then that begs the question: what's 24 the court's role when someone challenges that? Whether 25 it be a development plan policy or something of this 82 1 nature. 2 MR JAFFEY: I do say that -- 3 MR JUSTICE HOLGATE: It is a rationality point, isn't it? 4 MR JAFFEY: The approach the court may take may be different 5 when it is about the rationality of the deliverability 6 of a development plan relating to, for example, housing 7 developments, to the context here, which is one relating 8 to human health and -- 9 MR JUSTICE HOLGATE: I understand that, yes. 10 MR JAFFEY: So, that is where those type of issues start to 11 come in and they may become relevant, anticipating the 12 type of responses that are likely to be made to that 13 point. 14 LORD JUSTICE HICKINBOTTOM: Why is it irrational if, let's 15 say for the moment, Gatwick is not a runner because of 16 the hub argument? Let's just take that as an example. 17 What's irrational in having a policy that may not be 18 deliverable? Probably won't be deliverable, but it may 19 be deliverable, what's irrational about that? What's 20 irrational about that as a policy? 21 MR JAFFEY: Because what is done in the airport's national 22 policy statement is to compare -- and I am not going to 23 go through it again, but it compares, for example, in 24 great detail, the economic case with detailed modelling 25 for, for example, Gatwick and Heathrow, and works out 83 1 where additional capacity can be delivered and how much 2 capacity can be delivered. 3 This goes back to the point which we discussed 4 yesterday, which is that the idea that the fact that 5 Heathrow and the expansion at Heathrow would create 6 a better hub at Heathrow has never previously been 7 thought to be dispositive -- 8 LORD JUSTICE HICKINBOTTOM: No, I understand that. 9 MR JAFFEY: -- on all of the issues. 10 LORD JUSTICE HICKINBOTTOM: I have that argument. But let's 11 just say Gatwick is not a runner. At the moment, I am 12 struggling to see why it is irrational to have a policy, 13 an NPS that may well not be deliverable, but it may be 14 deliverable because Gatwick's gone, on this hypothesis, 15 and it may be that Heathrow is not a runner either, at 16 the end of the day. Well, so be it. That is what the 17 DCO is for. But what's irrational about that? 18 MR JAFFEY: The struggle that I have with agreeing with 19 my Lord's proposition is, I suppose, with a premise, 20 which is the whole point of the five years of work and 21 the national policy statement was to decide which of 22 those options -- 23 LORD JUSTICE HICKINBOTTOM: I understand that. 24 MR JAFFEY: In one was to be able to say that Gatwick is 25 truly a no hoper and there is no case for extending 84 1 capacity at Gatwick in order to meet demand in the South 2 East, despite the constraints, but that's not, in my 3 submission, the case. 4 LORD JUSTICE HICKINBOTTOM: No, I am sorry. I understand 5 that you may well not agree and you may be right that 6 the proposition on which the question is put is not 7 a good proposition, but if it were, what would be 8 irrational about that? 9 MR JAFFEY: What one would still be doing is one would be 10 going through the development consent stage, potentially 11 granting development consent subject to conditions, 12 presumably relating to air quality, which ultimately 13 could not be fulfilled, which would lead to the vast 14 expenditure of private funds, which is the -- the reason 15 why we want to expand airport capacity is to improve 16 economic growth and to provide economic benefits to the 17 United Kingdom, and they would not in fact be achieved. 18 So, even if no other airport in the South East existed 19 and there were no other option, pursuing something at 20 this stage, which is highly unlikely to ultimately be 21 deliverable or successful is still, in my submission, 22 irrational. It is bolstered by my prior point about 23 Gatwick. 24 LORD JUSTICE HICKINBOTTOM: No, I have -- 25 MR JAFFEY: Even in the scenario that my Lord is putting to 85 1 me, the fundamental problem still remains, that you are 2 doing something which is ultimately pointless because it 3 can't be delivered. 4 LORD JUSTICE HICKINBOTTOM: It is probably pointless. 5 MR JAFFEY: Or probably pointless, yes. 6 MR JUSTICE HOLGATE: Just to be clear about this, the way 7 you are analysing this does not involve a higher 8 intensity of judicial review because of the Air Quality 9 Directive because it is the insistence upon compliance 10 with the directive which is giving rise to the 11 unlikelihood of the project materialising. 12 MR JAFFEY: Yes. 13 MR JUSTICE HOLGATE: So -- 14 MR JAFFEY: The red line. 15 MR JUSTICE HOLGATE: -- forgive me, although this is policy 16 making on a big scale, it does come back to the question 17 I was asking: would the court's approach be materially 18 different if we were looking at deliverability of plans 19 more generally? 20 MR JAFFEY: It might be different because what the 21 government has chosen to do is to bind itself to 22 requirements relating to human health. 23 Now, if I had to -- and it doesn't arise in this 24 case -- I would say the government had to do that. The 25 reason it had to do that is because if it didn't have 86 1 such a requirement, as it does in 5.32 of the national 2 policy statement, you could imagine what the Commission 3 would say in its current enforcement proceedings against 4 the United Kingdom, which are brought under Article 13, 5 which is that you're proposing to build an extremely 6 large expansion to Heathrow. Here is what your own 7 modelling says, what is that going to do to the size of 8 your fine, and indeed the economic case for the United 9 Kingdom once that fine has been paid? 10 So, that is why it is there. They have chosen to do 11 that, and the context of the protection of human health 12 is I submit potentially different from a traditional 13 plan that My Lord is putting to me. 14 Issue 4.4, the point here is a pretty simple one, 15 which is that all of the air quality analysis was 16 carried out on the basis that western rail access and 17 southern rail access would be in place and would 18 therefore encourage people onto public transport, rather 19 than drive. 20 Just to make that point good, that's one of the 21 points in the statement of common ground, which is 22 volume 6, page 25, paragraph 38. That is the basis of 23 the modelling. As is, I think, also common ground, it 24 cannot be assumed that those schemes will be in 25 operation by the time that the northwest runway opens. 87 1 It is not a requirement of the national policy statement 2 that that be so. 3 The logical problem which exists is quite easy to 4 state, which is that the air quality analysis, even on 5 the government's very optimistic approach, that it is 6 possible to achieve compliance, only works if southern 7 rail access and western rail access are in place, but 8 there is no promise to achieve them. So, it is an 9 additional point on top of the point which I have 10 already made. 11 LORD JUSTICE HICKINBOTTOM: That is right. It come pounds 12 that point. It makes what you say is unlikely less 13 likely still. 14 MR JAFFEY: Yes, because all of the modelling which leads to 15 the high risk is modelling on the basis of. 16 LORD JUSTICE HICKINBOTTOM: Is optimistic modelling. 17 MR JUSTICE HOLGATE: Or WRL and SRA or just -- 18 MR JAFFEY: Both. And Crossrail 2, as it happens. But, 19 Crossrail 2, there is a dispute about how important it 20 is for Heathrow. The proposed route of Crossrail 2 21 doesn't go to Heathrow, but it will provide additional 22 connectivity in north-east and south-west London. 23 LORD JUSTICE HICKINBOTTOM: As you say, it is really the 24 same point. It is just a compounding point. 25 MR JAFFEY: The final point in relation to air quality is 88 1 about the failure of the government to identify their 2 test for compliance with the UK's legal obligations. 3 I suspect the best way to deal with that is that the 4 claimants hope that in their skeleton and in oral 5 submissions they have set out what they say the legal 6 obligations that apply as a result of the government's 7 choice to include this provision, 5.32, in the national 8 policy statement. We can probably hear what the 9 Secretary of State's counsel says about it because it 10 may be the issue will not arise because it is going to 11 be explained, what the government's position is. 12 But if it isn't explained, if there is still some 13 ambiguity about what is necessary to obtain 14 a development consent order or what conditions it will 15 be necessary to impose, then that's of itself 16 unsatisfactory, because it must be possible to work 17 out -- it needs to be possible to work out whether the 18 national policy statement is, in principle, deliverable. 19 In order to do that, we have to have some idea of what 20 the standard that is being imposed is because the 21 claimants' concern is that for air quality reasons this 22 is a proposal that is not realistically deliverable. 23 Again, it links very closely to the previous points 24 and it is a compounding, rather than an entirely 25 separate one. 89 1 May I just turn my back for a moment and see if 2 there are any additional points I can deal with? 3 LORD JUSTICE HICKINBOTTOM: Yes, certainly. 4 (Pause) 5 MR JAFFEY: I am very grateful. Unless I can assist the 6 court further, those are my submissions. 7 MR JUSTICE HOLGATE: It might just help, I am just looking 8 at your skeleton now, and I apologise if I have missed 9 this, but I just make sure we have what you say is the 10 test that should have been applied when formulating the 11 policy of this nature in order to comply with the AQD. 12 MR JAFFEY: Yes. 13 MR JUSTICE HOLGATE: It starts at page 18 I think, internal 14 pagination. A lot of this is to do with why the 15 Secretary of State is obliged to be transparent, but can 16 you just pinpoint what you say the right test is? 17 MR JAFFEY: Yes. Paragraph 49, there is a bit of complaint. 18 Then, three or four lines in, by reference to what the 19 Airports Commission did: 20 "The Airports Commission thought that even if the 21 runway made exceedances worse for a period, with adverse 22 consequences for human health. The Airports Commission 23 thought this would be lawful so long as compliance was 24 not delayed." 25 This is contrary to the second limb of ClientEarth, 90 1 that the government must have a plan which reduces 2 exposure as quickly as possible. 3 And so -- 4 MR JUSTICE HOLGATE: Forgive me, just pausing there for 5 a moment. If I have understood your submissions 6 correctly, that proposition goes to the remedy, doesn't 7 it? Because you have been making a submission about 8 what defines a breach. 9 MR JAFFEY: Yes. 10 MR JUSTICE HOLGATE: But producing a plan which reduces 11 exposure as quickly as possible to the limit values is 12 an Article 23 point, isn't it? 13 MR JAFFEY: Yes, it is. 14 MR JUSTICE HOLGATE: It is a remedy. So, your point on 15 breach is very straightforward, isn't it? 16 MR JAFFEY: Yes. To give it to my Lord in a sentence, it is 17 that the limits, values shall not be exceeded as 18 a result of the operation of the third runway. 19 MR JUSTICE HOLGATE: Given that is a correct understanding 20 of Article 13, the approach taken by the Airports 21 Commission didn't comply with that; is that your 22 submission? 23 MR JAFFEY: Oh yes, that is why the government -- 24 MR JUSTICE HOLGATE: Is that the submission? 25 MR JAFFEY: That is pointing out that, historically, the 91 1 Airports Commission adopted a very different approach to 2 what the requirements of the directive were. That is 3 not an approach that, in all fairness, I suggest the 4 government is necessarily taking. I think they may 5 recognise it. 6 MR JUSTICE HOLGATE: You say you don't know? 7 MR JAFFEY: I am not entirely sure, but I don't think they 8 are going that far, and it would be unwise for them to 9 do so. 10 But my submission is that if the operation of the 11 third runway leads to exceedances at any sampling point, 12 and indeed that's what they have said there is a high 13 risk of occurring, then that would be a breach of 14 Article 13 of the Air Quality Directive, and therefore 15 cross the red line. 16 MR JUSTICE HOLGATE: Okay. 17 MR JAFFEY: Thank you. 18 LORD JUSTICE HICKINBOTTOM: Yes, thank you, Mr Jaffey, yes, 19 Mr Pleming. 20 Submissions by MR PLEMING 21 MR PLEMING: My Lord, in the time before the break, could 22 I deal, first of all, with the question that was posed 23 yesterday, my Lord? 24 It is in yesterday's transcript at page 98. Could 25 I hand up for your Lordships, it is a page which we hope 92 1 would go in core bundle 10, tab 1, at the end of our 2 skeleton argument. 3 (Handed) 4 Your Lordships will, I hope, amongst all the words 5 spoken, recall the exchange. What I was dealing with is 6 the DCO stage and what can happen then, and whether or 7 not our overall complaints would be met. What I was 8 seeking to emphasise is that insofar as there are 9 alternatives, such as Gatwick, they may be off the 10 table, see the Thames Blue Green litigation judgments 11 and the submissions made on behalf of the interested 12 parties. 13 But we also want to ensure that there is some 14 clarity as to what can be argued if this claim were to 15 fail. Or even if this claim were to succeed, your 16 Lordships quashed the NPS, and the Secretary of State 17 then reconsiders, for example in relation to noise, 18 taking on board our area points, which I am coming to. 19 So, if he does that again, but reaches the same 20 conclusion, or dealing with our local plan complaint, he 21 does the same, what happens then? 22 What we did yesterday, after considering your 23 Lordship's question, was to go through the NPS and see 24 if we could work out where it's all going, and that led 25 to a short response to your Lordship's question. What 93 1 you wanted us to do was to clarify the claimants' 2 position of what matters can be considered at the DCO 3 stage. 4 What we set out in paragraph 2 is paragraph 4 of the 5 addendum that we added to the agreed statement of common 6 ground and the references, core bundle 6, tab 3, at page 7 66C. 8 My Lord, it may help if I just read this out again 9 because of what flows over the next page: 10 "The claimants agree, however, that the examining 11 authority in Secretary of State can and must 12 [I emphasise] consider matters such as surface access, 13 air quality, noise, carbon emissions, biodiversity, 14 community and ecological conservation, insofar as they 15 are relevant to the issues to be determined at the DCO, 16 including the question under 104(7) of the Planning Act 17 of whether the adverse impact of the development would 18 outweigh its benefits." 19 So, then if we turn the page, in response to the 20 question asked by my Lord, Lord Justice Hickinbottom and 21 the reference, it is part of about 10 to 12 lines at the 22 end of 98. It trickles into 99: 23 "You must have a positive case on those matters 24 which you say should be left over to the DCO." 25 Our answer is as follows: 94 1 "What is to be considered at the DCO stage, rather 2 than left over to [and we don't seek to criticise your 3 Lordship, but we say they are two different stages] 4 relevant to the issues identified in the claimants' 5 grounds is, at the minimum, compliance with the general 6 principles of assessment listed in the ANPS at 7 paragraphs 4.4 to 4.5, and 4.12 to 4.25, and the 8 relevant sections of chapter 5. 9 My Lord, you have been looking at some of chapter 5 10 today, to see what is required of the applicant when it 11 comes to the assessment process. 12 My Lord, could I just take you to the bundles, 13 bundle 6, with the ANPS, the last tab, and to explain 14 why we have added not a caveat just a question, so that 15 my learned friends can think about it. What we have 16 identified in 4.4.5 as an example of what is still to be 17 done. 4.4 is on page 237: 18 "In considering any proposed development and, in 19 particular, when weighing its adverse impacts against 20 its benefits [which is 104(7), or the language of 21 104(7)] the examining authority and the Secretary of 22 State will take into accounts its potential benefits 23 [that's the economic development, job creation, 24 et cetera] its potential adverse impacts, including any 25 longer term and cumulative adverse impacts, as well as 95 1 any measures to avoid, reduce or compensate for any 2 adverse impacts. In this context, environmental safety, 3 social and economic benefits and adverse impacts should 4 be considered [and then these words] at national, 5 regional and local levels." 6 So, those were two example areas. 7 We then turn to 4.12, which is a summary of what is 8 expected from the applicant if it gets to the EIA stage, 9 and that is 4.12 to 4.25. Amongst those you will find 10 reference to various factors, including climate change, 11 for example, and pollution control. 12 We paused at 4.28 because this caused us -- or 13 certainly caused me as the reader a little uncertainty, 14 so we thought we should expressly bring it to your 15 Lordships' attention: 16 "The applicant should comply with all legal 17 obligations and policy set out in the airports NPS on 18 the assessment of alternatives. In particular, the EIAS 19 directive requires projects with significant 20 environmental effects [such as Heathrow] to include 21 a description of the reasonable alternatives studied by 22 the applicant, which are relevant to the proposed 23 development and its special characteristics, and an 24 indication of the main reasons for the option chosen, 25 taking into account the significant effects of the 96 1 project on the environmental effects. There may also be 2 other specific legal obligations ..." 3 What we have written in paragraph 4 of our note is 4 that we remain uncertain as to the meaning and intent of 5 4.8, and whether this is mere puff or does this bring in 6 some other alternative to deliver the air capacity, the 7 aviation capacity that is referred to? So, we put it 8 down as a marker. I hope that was helpful. 9 LORD JUSTICE HICKINBOTTOM: That seems to me to be fair. If 10 something is not an alternative -- if it is not an 11 alternative -- it is not a reasonable alternative. 12 MR PLEMING: Yes, so that's why I am raising it. 13 LORD JUSTICE HICKINBOTTOM: No, I understand. 14 MR PLEMING: Does this mean that Gatwick can't be included 15 because it is not the hub that is referred to, or does 16 it still have to be included because it could deliver 17 the aviation capacity, which is part of the need of the 18 country? That is why I raise it. 19 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 20 MR PLEMING: Section 5, you have seen some of the 21 references, but they cover assessment of impacts. It 22 begins on page 250. I won't take your Lordship through 23 it in detail. 24 I hope that at least helps to answer your question. 25 LORD JUSTICE HICKINBOTTOM: No, thank you. 97 1 MR PLEMING: I am in your Lordships' hands as to time. 2 Should I just set out what I am hoping to do for the 3 rest of the day? 4 LORD JUSTICE HICKINBOTTOM: Yes, please. 5 MR PLEMING: My Lord, you will see that there are still 6 issues of substance to address, and I have two and 7 a quarter hours to deal with them all. We have had to 8 make selections as to what I can talk about and what 9 there will be no time to talk about, but I am going to 10 start with the point of general concern as to whether or 11 not the Blewett test applies to examination of strategic 12 environmental assessment reports. It seems to us that 13 is a point of general public importance, particularly 14 when it is said by my learned friends that there is now 15 a Court of Appeal authority that confirms that the 16 Blewett test is right, and we are therefore applying 17 their version of Blewett, not even permitted to go on 18 and deal with the various complaints we make. 19 So, that will take rather longer than we expected, 20 but it is a reply submission and involves looking 21 through a few cases. 22 We then have a various grounds under issue 8, 23 dealing with subrequirements of annex 1 to the SEAD, but 24 it's Strategic and Environmental Assessment Directive. 25 We have decided that we would focus on two of them, and 98 1 that is on the area point, which is noise effectively, 2 and then on relevant plans, which allows me to show you 3 some material about the impact of this proposal on 4 Hillingdon, as one of the particular councils 5 I represent, but with general application across the 6 claimants. 7 To that, my Lord, we turn to the issue of 8 consultation and then a few words, but only a few words, 9 on relief. So, that is where we are going this 10 afternoon. That might be a moment to pause. 11 LORD JUSTICE HICKINBOTTOM: Thank you very much. 12 (1.00 pm) 13 (Luncheon Adjournment) 14 (2.00 pm) 15 LORD JUSTICE HICKINBOTTOM: Yes, Mr Pleming. 16 MR PLEMING: My Lords, I turn to issue 7, the proper test 17 for compliance with the requirements of the strategic 18 environmental assessment directive. 19 The starting point is that it is common ground that 20 the directive and the regulations contain mandatory 21 requirements. The issue is what test the court should 22 apply when determining whether there has been compliance 23 with those mandatory requirements. 24 My Lords, I am pleased to be able to say that the 25 relevant provisions of the directive are set out in the 99 1 ASCG. You may wish to see them in volume 1, but they 2 are in both places. They are in cases volume 1, tab 19. 3 I wasn't going to take you to them for a moment or two, 4 but of course I have to spend some time with them. 5 To save going to the regulations, your Lordships 6 will be no doubt well aware of Lord Reid in Walton v The 7 Scottish Ministers, where he said: 8 "As claimants are entitled to rely on the terms of 9 the directive, it is perhaps unnecessary to refer to the 10 domestic provisions." 11 So, I am going to focus on the directive. The 12 reference is Lord Reid, paragraph 30, without taking you 13 to it, cases volume 4, tab 96. 14 My Lords, our submissions on this topic are 15 structured under headings, at least for me, and I will 16 try and pursue them. 17 First of all, what the directive requires as 18 a matter of law, what the member states must do to be 19 compliant. 20 Secondly, why the approach to the review of the EIA 21 set out in Blewett should not apply to the SEA as a 22 matter of analysis. 23 Then the third, and perhaps particularly important 24 question, is: is there any binding authority on this 25 issue? 100 1 We will respond to the Secretary of State's new 2 submissions post our skeleton argument, on the relevance 3 of the Court of Appeal's decision in No Adastral, to 4 shorten it. 5 The first issue is: what does the SEA require? 6 We set it out, we hope, fully enough in our skeleton 7 argument, in paragraph 71, volume 10, tab 1, page 27. 8 The correct test for appraising the environmental 9 report, one aspect of the assessment, prepared by or for 10 the Secretary of State, if whether it (1): 11 "Applies with the mandatory requirements of the 12 SEA Directive." 13 And (2): 14 "Is of sufficient quality. That is based on proper 15 information and expertise, and covers all the potential 16 effects of the plan or programme in question." 17 I have emphasised in the skeleton potential effects, 18 and that's taken from Save Historic Newmarket Limited v 19 Forest Heath District Council. I will be coming back to 20 that case in a few moments, but the reference is in 21 volume 4, tab 94. 22 Thirdly: 23 "It contains sufficient information to allow public 24 authorities and members of the public to understand the 25 environmental impacts and comment accordingly." 101 1 Here, one could also add that it contains sufficient 2 information to allow the Secretary of State to reach an 3 informed decision as a fully informed decision as to the 4 environmental impacts and comment accordingly. 5 We continue in paragraph 72 to explain where that 6 comes from. So, at this point, it may be helpful to 7 have the directive to hand, which is at volume 1, 8 tab 19. We submit, as we set out there, that the 9 combined effect of Article 5 and annex 1 is that the 10 information referred to in annex 1 is mandatory. 11 Could I, whilst we have it open, just remind you of 12 the recitals, perhaps only two. At paragraph 4, the 13 fourth recital on the first page: 14 "Environmental assessment is an important tool for 15 integrating environmental considerations into the 16 preparation and adoption of certain plans and programmes 17 which are likely to have significant effects on the 18 environment in the member states because it ensures that 19 such effects of implementing plans and programmes are 20 taken into account during their preparation and before 21 their adoption." 22 If I could pick it up at -- perhaps it is 23 unnecessary. Just go straight to the objective, which 24 is Article 1, and: 25 "The objective of this directive is to provide for 102 1 a high level of protection of the environment and to 2 contribute to the integration of environmental 3 considerations into the preparation and adoption of 4 plans and programmes with a view to promoting 5 sustainable development." 6 Then these words: 7 "By ensuring that, in accordance with this 8 directive, an environmental assessment is carried out of 9 certain plans and programmes which are likely to have 10 significant effects on the environment." 11 Then the definition, just below that, you will see 12 there is a difference between "environmental assessment" 13 and "environmental report". There is no need to refer 14 to "plans" and "programmes": 15 "Environmental assessment shall mean the preparation 16 of an environmental report, the carrying out of 17 consultations, the taking into account of the 18 environmental report and the results of the 19 consultations in decision making and the provision of 20 information on the decision in accordance with Articles 21 4 to 9." 22 And: 23 "Environmental report shall mean the part of the 24 plan or programme of documentation containing the 25 information required [that is the important word] in 103 1 Article 5 and annex 1." 2 Over the page, you get to environmental report in 3 Article 5: 4 "Where an environmental assessment is required under 5 Article 3.1 [so it falls within the definition] an 6 environmental report shall be prepared in which the 7 likely significant effects on the environment of 8 implementing the plan or programme and reasonable 9 alternatives taking into account the objectives and the 10 geographical scope of the plan or programme are 11 identified, described and evaluated. The information to 12 be given for this purpose is referred to in annex 1." 13 5.2 deals with current knowledge, et cetera. 14 Consultations are dealt with in Article 6, 15 paragraph 4: 16 "Member states shall identify the public for the 17 purposes of paragraph 2 [which I will go back to next] 18 including the public affected or likely to be affected 19 by or having an interest in the decision making subject 20 to this directive." 21 So, you have another aspect of this precautionary 22 approach, as you see in most European directives dealing 23 with the environment. 24 Paragraph 2 of Article 6: 25 "The authorities referred to in paragraph 3, and the 104 1 public referred to in paragraph 4, shall be given an 2 early and effective opportunity within appropriate time 3 frames to express their opinion on the draft plan or 4 programme and the accompanying environmental report 5 before the adoption of the plan or programme or its 6 submission to the legislative procedure." 7 The general obligations go back to Article 4. 8 Could I then turn to one other Article before 9 looking at annex 1? Article 12 is on the opposite page, 10 Article 12.2: 11 "Member states shall ensure that environmental 12 reports are of a sufficient quality to meet the 13 requirements of this directive and shall communicate to 14 the commission any measures they take concerning the 15 quality of these reports." 16 So, emphasis on quality. 17 In annex 1, two pages over, you see the list of 18 requirements of the information to be provided. I will 19 be focusing, my Lord, on (a) and (c), when I get to the 20 substance, if I get that far. 21 The first one is: 22 "An outline of the contents, main objectives of the 23 plan or programme and the relationship with relevant 24 plans and programmes." 25 That is when I will be addressing the local plan in 105 1 Hillingdon. 2 Then, at (c): 3 "The environmental characteristics of areas likely 4 to be significantly affected." 5 That's our noise case, and could I invite your 6 Lordships at some time to read the rest? They are 7 reproduced in schedule 2 to the regulations. 8 Could I then just invite you to look over the page 9 at the criteria for determining the likely significance 10 of effects referred to in Article 3.5. The 11 characteristics of plans and programmes are then dealt 12 with -- sorry, first dealt with, and then this: 13 "Characteristics of the effects and of the area 14 likely to be affected, having regard in particular 15 to probability, duration, frequency and reversibility of 16 the effects, the cumulative nature of the effects." 17 Could I just pause there? I will be focusing on 18 noise, but we present to you a series of issues, 19 including air quality. When looking at the overall 20 effect, it is that cumulative effect. It is the 21 impact -- Mr Spurrier describes it better than I do -- 22 of living in a flight path where you have noise, but you 23 also have problems with air quality. 24 Then the transboundary nature of the effects. We 25 haven't come to that stage yet. Then the risks to human 106 1 health or the environment, eg due to accidents, but in 2 our example in relation to noise, air quality, 3 et cetera. 4 Then: 5 "The magnitude and spatial extent of the effects." 6 Important words: 7 "Extent of the effects (geographical area and size 8 of the population likely to be affected)." 9 That links back with the reference to areas in 10 annex 1: 11 "The value and vulnerability of the area likely to 12 be affected due to special national characteristics, 13 et cetera." 14 Then: 15 "The effects on areas or landscapes which have 16 recognised national community or international 17 protection status." 18 I hope that slightly breakneck speed run through of 19 the directive -- the latest gadget is about to collapse. 20 (Pause) 21 My Lord, so if I bring that together, we have 22 mandatory requirements, as we have seen in annex 1, we 23 also have the necessary level of detail described in 24 Article 5(2), including the contents and level of 25 detail. But distinct from EIA, there is the obligation 107 1 under Article 12.2 on member states to ensure that 2 environmental reports are of sufficient quality to meet 3 the requirements of the SEAD. 4 MR JUSTICE HOLGATE: Your case is that there has been 5 a breach of Article 5? 6 MR PLEMING: A breach of Article 5, read with annex 1, in 7 terms of -- 8 MR JUSTICE HOLGATE: And Article 12. 9 MR PLEMING: And Article 12, yes. 10 At the moment, my Lord, I am discussing the test 11 because I am faced with the Blewett, No Adastral 12 argument and the distinction is that this is a specific 13 requirement that quality should be considered and it 14 becomes, we submit, a little difficult to apply the 15 language of Blewett in that context. 16 MR JUSTICE HOLGATE: Do we need to know about environmental 17 assessment as well? 18 MR PLEMING: The EIA? 19 MR JUSTICE HOLGATE: No, going back to Article 2, 20 definitions (b), environmental assessment embraces the 21 report, but it also builds on the consultation process. 22 MR PLEMING: Yes. 23 MR JUSTICE HOLGATE: In terms of what the Secretary of State 24 is required to do before adopting a plan, such as ANPS, 25 that is Article 4, is it? 108 1 MR PLEMING: Yes, my Lord. 2 MR JUSTICE HOLGATE: So, what's critical to the Article 4 3 decision is compliance with the requirements for 4 environmental assessment, part of which is the report. 5 MR PLEMING: Part of which, certainly. Indeed, in the case 6 law, we can see reference to correcting errors, for 7 example, when dealing with the whole process. 8 MR JUSTICE HOLGATE: The report isn't the end of it. 9 MR PLEMING: No. We have a report. The report here is that 10 attached to the ANPS in the AOS, but there has been the 11 process, and part of it was the consultation. 12 It is said, for example, when I refer, or we refer 13 to our complaints in relation to non-compliance with 14 Article 5, that we are raising consultation points. 15 Whereas, in our claim, the consultation point is 16 confined to Gunning and the minds made up. 17 That misses the point that the environmental 18 assessment is part of an engagement with the public. 19 So, when we come to the area likely to be affected, 20 where people are, it involves telling the people that 21 you are likely to be affected because you are in that 22 area. So, that's the only reason we refer to 23 consultation. 24 My Lord, the importance of quality is not 25 determinative, but it is an important distinction 109 1 between the SEA approach and the environmental impact 2 assessment approach. Could I invite you to look at one 3 of the cases that we have already -- if we haven't 4 referred to it, you may now be familiar with it, and 5 that is the Forest Heath District Council case. It is 6 in authorities bundles 4, where most of the authorities 7 are for this topic. Sadly, it is the heaviest. Not the 8 heaviest case, but the heaviest bundle, but I will try 9 and not have it open for too long. 10 94, in volume 4. One paragraph I wanted to show 11 your Lordships is paragraph 12. 12 This is a case where Mr Justice Collins is 13 addressing what is meant by Article 12(2): 14 "Article 12(2) requires member states to ensure that 15 environmental reports are of a sufficient quality to 16 meet the requirements of this directive." 17 Then these words: 18 "Quality ..." 19 If I could read just a few lines: 20 "Quality involves ensuring that a report is based on 21 proper information and expertise, and covers all the 22 potential effects of the plan or programme in question." 23 MR JUSTICE HOLGATE: Where does that come from? 24 MR PLEMING: It comes from Mr Justice Collins. 25 MR JUSTICE HOLGATE: Right, not an entirely rhetorical 110 1 question. 2 MR PLEMING: Whether it is assisted by the guidance to the 3 directive, I am not sure. I have the guidance to hand 4 somewhere. It reads on, and: 5 "In addition, since one of the purposes of the 6 directive is to allow members of the public to be 7 consulted about plans or programmes which may affect 8 them, the report should enable them to understand why 9 the proposals are said to be environmentally sound. To 10 that end, the report must not only be comprehensible, 11 but must contain the necessary information required by 12 the directive." 13 So, the overall purpose of the directive is to 14 integrate environmental considerations, et cetera. The 15 objective, as you have seen, is for a high level of 16 protection of the environment and to contribute to the 17 integration of environmental considerations. 18 We say that it follows from what I have read to you 19 that the requirements are as we set out in our 20 paragraph 71, if I could repeat them quickly: 21 "To ensure that the mandatory requirements of the 22 directive are complied with, to ensure that the 23 environmental report is of sufficient quality [That is 24 using again Mr Justice Collins' language] based on 25 proper information and expertise, and covers all the 111 1 potential effects of the plan or programme." 2 And: 3 "To ensure it contains sufficient information to 4 allow the public to be engaged." 5 That's an overview, at speed, of the directive. 6 Then we turn to the perhaps more interesting argument, 7 which is: is it Blewett or is it not Blewett? 8 We say that the Blewett approach should not apply to 9 members of the -- who are sitting in court and sitting 10 in the overflow court -- if there are any left, that 11 haven't gone to sleep -- they may not know what the 12 Blewett approach is, but this is the Secretary of 13 State's summary of it in his skeleton argument. That 14 the correct test is whether any alleged deficiencies in 15 the report are so serious that the document could not be 16 described as in substance an environmental report for 17 the purposes of the regulations. 18 That is from paragraph 186 of his detailed grounds 19 of defence, and it is core bundle 1, tab 8, page 286. 20 That is the Blewett test: 21 "Could not be described as in substance an 22 environmental report." 23 I have long struggled with that language, but that 24 is the law of the land and approved at a very high level 25 for EIA. 112 1 We say that there are a number of reasons why that 2 approach is inappropriate for SEA. The shortest way of 3 dealing with it is to go to our skeleton at 4 paragraph 74. 5 My Lord, this is, again, if it is necessary to put 6 anything up on screen, it is volume 10 of the core 7 bundle, tab 1, pages 28 to 30. 8 What we do in paragraph 74 is set out a few 9 paragraphs of reasons, and I wasn't going to add to 10 those reasons in oral submissions, but could I run 11 through them, making a correction and giving an 12 explanation? 13 The contention of the Secretary of State is set out 14 in the first few lines, relying on Blewett v Derbyshire, 15 Shadwell Estates, and then also citing Seaport 16 Investments. Those are the three cases. We say this is 17 not the correct approach in law, and we make the 18 following points: first, Blewett. We originally said 19 Shadwell, that was my typing error. It was meant to be 20 Edwards, of course. First Blewett and Edwards and the 21 Environmental Agency, which endorsed Blewett, concerned 22 EIA statements. There was no suggestion that the 23 observations were intended to apply to an SEA 24 environmental report. 25 Second, the language of the EIA and the 113 1 SEA Directive differ. Whereas the SEA imposes mandatory 2 requirements as to information, the directive, so the 3 EIA Directive gives member states a degree of choice 4 without taking you to the regs. 5 Further, there is no provision in the 6 EIA Directive -- which is one of our more important 7 points -- equivalent to Article 12.2 of the 8 SEA Directive regarding quality. 9 These textual differences matter. Then I read you 10 a few lines from Seaport: 11 "While in an EIA context, the court will consider 12 whether the specified matters have been addressed, 13 rather than considering the quality of the address [that 14 is Seaport]. This approach would be contrary to the 15 express requirement in Article 12 to ensure not only 16 that specified matters have been addressed, but also 17 that the report is of sufficient quality." 18 That is one of our main distinctions. 19 Thirdly, the rationale for adopting a restrictive 20 test for review of EIA environmental statements stems 21 from the fact that the statement is prepared by the 22 applicant and is only part of the environmental 23 information before the decision-maker. The latter can 24 then supplement or correct the information in the 25 statement. That is Blewett, which becomes relevant when 114 1 Blewett is applied in the context of SEA, as we will see 2 in later cases. 3 The same rationale does not apply in respect of 4 a plan or programme because the purpose of the SEA is as 5 set out earlier in this skeleton argument. This purpose 6 would be undermined by the addition of further 7 information post-consultation, in that it would negate 8 the effectiveness of public consultation. 9 Indeed, one can go a bit further. If you get to the 10 NPS stage, it would negate the purpose of the exercise 11 if you could add further information at that stage, 12 subject of course to the DCO stage, which I have been 13 dealing with. 14 MR JUSTICE HOLGATE: That is not a watertight distinction 15 though, is it? Because take EIA, you can have 16 a situation where the public responds in the 17 consultation stage and that influences the ultimate 18 decision without other consultees having an opportunity 19 to influence that process. 20 MR PLEMING: It is not -- no, my Lord, it is not watertight 21 and there are similarities, of course, between the two 22 processes. I am trying to address why, at the strategic 23 level -- 24 MR JUSTICE HOLGATE: But, even in the SEA context, the same 25 situation could arise, couldn't it? That some 115 1 consultees put forward some very cogent representations 2 which cause government to change the content of the NPS 3 and other members of the public don't find out what that 4 is until we get to the final document? 5 MR PLEMING: Yes, my Lord, but it is whether that is the 6 right approach in the SEA context. It is one of our 7 points. 8 MR JUSTICE HOLGATE: Forgive me, that is why I was asking 9 the question. 10 MR PLEMING: The distinction. 11 MR JUSTICE HOLGATE: The distinction between report and 12 assessment, because the report is the starting point for 13 the process, it is not the end point, is it? 14 MR PLEMING: My Lord, the point we are trying to make in 15 this environment paragraph is that the environmental EIA 16 statement, which comes from the applicant, is part of 17 the dialogue between applicant and eventual 18 decision-maker. 19 MR JUSTICE HOLGATE: The point I am trying to put to you is 20 that the report is also part of a dialogue. It's not 21 exactly the same sort of dialogue, but there is a 22 dialogue nonetheless, which is multi-party. 23 MR PLEMING: The point I am trying to make is it is a very 24 different dialogue because we are operating at the 25 strategic level, where the decision in this case to 116 1 designate is made at Secretary of State level and, after 2 that decision, it is either a decision that can be 3 challenged under section 13 and quashed, or it sets the 4 scene for what follows on the DCO stage. 5 Whereas in the Environmental Impact Assessment there 6 is a dialogue going on between decision-maker, often at 7 local authority level of course, and the applicant. It 8 is one point amongst many. 9 Fourthly, there are good reasons why the court 10 should afford greater scrutiny to SEA reports under the 11 Blewett test, and that is part of what I was just 12 saying. The SEA report is prepared by or on behalf of 13 the public body, which also promotes the policy or plan. 14 So, the obligation is on the public body itself to 15 collect and present the information. 16 In the EIA context, the obligation is on the 17 planning authority to ensure that the applicant's report 18 contains sufficient information and, if not, to request 19 further information or supplement it before consultation 20 takes place and we give you the regulations references. 21 My Lord, an apology -- of which there will be more 22 than one -- we had put in case references for the cases, 23 but I realise we hadn't put in volume references for 24 regulations and the like, but they are all in volume 1, 25 so I hope not too difficult to find. 117 1 Then, fifthly, Shadwell and Gladman should not be 2 followed. That is our approach on that line. Neither 3 considered Forest Heath, instead referring to case law 4 on the approach to the EIA reports. 5 My Lord, we then refer, at 74.7, to the respect in 6 which SEA and EIA differ. See the decision in the CJEU 7 and the references, which I wasn't going to take you to. 8 My Lord, those are our submissions under this second 9 point. 10 MR JUSTICE HOLGATE: Will we need to look at that in detail? 11 MR PLEMING: Not -- 12 MR JUSTICE HOLGATE: Does it directly bear upon your primary 13 submission? 14 MR PLEMING: No, my Lord. It explains what I have just been 15 explaining. It supports the analysis I have just been 16 giving you. 17 MR JUSTICE HOLGATE: Okay. 18 MR PLEMING: My Lords, I hope it is unnecessary having 19 rather taken up your time reading out those reasons to 20 expand on them. 21 We say that the Blewett approach might not -- and 22 that would be enough for my submissions -- enable the 23 court to ensure that the mandatory legal requirements 24 are complied with, including the obligation that the 25 reports be of sufficient quality. 118 1 That's the second stage in the reasoning, and then 2 the no binding authority approach is the third part. 3 This is where there is a need for dipping into the case 4 law because the approach of the Secretary of State, in 5 his skeleton argument, is that Adastral answers the 6 question, determines at a Court of Appeal level that the 7 Blewett test applies to SEA, and that filter must apply 8 to all our submissions that follow. 9 We cannot argue that there is insufficiency of 10 quality. We cannot argue that there is a failure to 11 comply with the mandatory requirements of the SEA under 12 annex 1, because if you put your hand up under volume 9 13 and lift it up, it looks like and sounds like when you 14 read it, a report. 15 There is no binding authority. 16 The submission for the Secretary of State is that 17 through a series of cases, Blewett onwards, there has 18 been consistency in approach. It is paragraph 108 of 19 the Secretary of State's skeleton argument, where he 20 sets out the case law. 21 My Lord, at 104 is where it begins. So, if I could 22 just tick a couple of boxes. 104 is the reference to 23 Blewett and there, at paragraph 105, is the important 24 paragraph from Blewett. That was endorsed, as we know, 25 by the House of Lords in Edwards. 119 1 Then we turn to 107, where for the first time a new 2 case arrives that hadn't been in the argument before, 3 that is No Adastral, and it is said in paragraph 108 4 that No Adastral and Cogent Land together provide 5 a clear endorsement, an application of the Blewett test 6 in the context of SEA by a Court of Appeal. It is 7 binding on this court. It is a complete answer to the 8 Borough's suggestion that the Blewett test does not 9 apply in SEA challenges. 10 When we get to the arguments themselves, it is said 11 that we can't advance the arguments because we have been 12 hit by No Adastral. That is in summary. 13 This is the first time that No Adastral had appeared 14 on the stage. In the pleaded case, there is no 15 reference to it, but it is picked up by Arora. It may 16 be Arora is the source, at paragraphs 13 and 14 of its 17 skeleton argument. 18 So, until we get to those cases, we have Blewett 19 endorsed by Lord Hoffmann in Edwards, in an EIA context. 20 Then, bearing in mind this one remark from 21 Lord Carnwath, talking about Lord Hoffmann in the same 22 case, but in a different context, when he was dealing 23 with when relief should be granted, could I just show 24 you one line from the same case I mentioned earlier, 25 that is Walton v The Scottish Ministers. I am taking 120 1 you to a passage, which says this: 2 "Care is needed in applying statements in another 3 statutory context." 4 It is volume 4 of the authorities, tab 96. 5 This is the judgment of Lord Carnwath, whose 6 judgment begins on page 76, paragraph 98. 7 At page 83, there is a reference to part of 8 Lord Hoffmann's speech in Berkeley -- sorry, not in 9 Edwards, Berkeley, or Barclay depending on where you are 10 brought up, and you will see there is a passage at 126 11 dealing with the requirements of the EIA. And this: 12 "Although of course these statements carry great 13 persuasive weight, care is needed in applying them in 14 other statutory contexts and other factual 15 circumstances." 16 If you then go on, you get to Edwards in the top of 17 paragraph 129. If I just alert the court, if it is not 18 disrespectful to do so, that what is said, even by 19 Lord Hoffmann in one statutory context, doesn't 20 necessarily flow across to another. That is the simple 21 point. 22 We get to a series of cases. As I said, first of 23 all, Shadwell should not be followed for short reasons. 24 It is wrong as a matter of principle, for the reasons we 25 have just been setting out on the distinction between 121 1 the two regimes. 2 Secondly, the judgment contains no reasoning based 3 on the language or purpose of the directive, cites 4 exclusively EIA cases and then applies them to the SEA. 5 I will come back to Shadwell briefly. 6 The court should follow not Shadwell -- that is this 7 court -- but Mr Justice Collins in the Forest Heath case 8 and Mr Justice Ouseley in Heard. Again, I will come to 9 those cases. 10 Finally, No Adastral and Cogent -- these are the new 11 cases -- did not concern the test for review of 12 compliance with the SEA, and there is nothing in those 13 cases to suggest that the Blewett test is to be applied. 14 On the contrary, if one examines those cases on the 15 facts, the court had concluded that there had been 16 a breach of the requirements of the SEAD and, in doing 17 so, did not apply the threshold you find in Blewett. 18 The first point is Shadwell should not be followed. 19 I hope I can deal with this in a couple of minutes. 20 This is same bundle, tab 97. 21 My Lord, this may be a familiar case, at least for 22 one of your Lordships. It may be familiar to both. It 23 is a very well-known decision dealing with the Tetford 24 area action plan. The housing development is described 25 briefly in paragraph 3, paragraph 7. 122 1 Mr Justice Beatson, as he then was, deals with the 2 process at paragraph 71, I think is where it begins. 3 Yes, it is at the foot of -- there is no internal pages, 4 sorry. 5 There is a discussion heading above 71: 6 "The process and the role of the court." 7 Over the following paragraphs, you will see there is 8 reference to Blewett. The quotation that we have seen 9 before is at paragraph 76, and then we get, at 78, to 10 Seaport. There is a quotation from Seaport at 78: 11 "Mr Justice Weatherup stated that the responsible 12 authority must be accorded a substantial discretionary 13 area of judgment in relation to compliance with the 14 required information for environmental reports. He also 15 stated the courts will not examine the fine detail of 16 the contents of such a report, but will seek to 17 establish whether there has been substantial compliance 18 with the information required. He went on to consider 19 whether the specified matters have been addressed, 20 rather than considering the quality of the address." 21 But that is the distinction that I was seeking to 22 make. 23 If I could just pause. If the substantial 24 compliance test is correct, which we say it isn't, then 25 our fallback position is that failure to identify the 123 1 area within annex 1C is not substantial compliance, but 2 in any event, we have the quality point. 3 I don't think it is necessary to go through Shadwell 4 in any greater detail. It is to be noted that 5 Mr Justice Beatson didn't refer to either Forest Heath 6 or Heard. 7 My Lord, our information through one of the counsel 8 involved is that the court was not informed of those 9 cases. It didn't appear in written or oral argument, 10 that's Forest Heath or Heard. My learned friend, 11 Mr Maurici, may be able to confirm or clarify that. 12 We have a problem with that case, so can I then go 13 to Forest Heath and Heard? 14 LORD JUSTICE HICKINBOTTOM: Can I just raise this quality 15 point, I just want to make sure that I have understood 16 it. Can it be put in this way, or is this a different 17 point, or is this a bad point: I understand that even in 18 the SEA the environmental report is only part of the 19 environmental assessment. It is a point my Lord pointed 20 out. 21 But in Article 12.2, which is the Article that 22 refers to quality: 23 "The obligation on the member state is to ensure 24 that an environmental reports [it is not assessment] are 25 of sufficient quality to meet the requirement of this 124 1 directive." 2 MR PLEMING: Yes. 3 LORD JUSTICE HICKINBOTTOM: It seems to me that the 4 difference -- and I think this is the difference which 5 you say is -- 6 MR PLEMING: Important. 7 LORD JUSTICE HICKINBOTTOM: -- an important or crucial 8 difference between the two in this context -- is that 9 the environmental report in an EIA need not be 10 comprehensive because it can be added to in all sorts of 11 other ways after it has been sent in by the applicant. 12 MR PLEMING: Exactly. 13 LORD JUSTICE HICKINBOTTOM: But, here, the report -- forget 14 about the word "quality", the report has to meet the 15 requirements of the directive. 16 MR PLEMING: Yes. 17 LORD JUSTICE HICKINBOTTOM: That is what 12.2 says. 18 MR PLEMING: It has to do that and be of sufficient quality. 19 LORD JUSTICE HICKINBOTTOM: Well -- I am sorry, I was going 20 to say no. It has to be sufficient quality to meet the 21 requirements of the directive. 22 MR PLEMING: Yes, my Lord. 23 LORD JUSTICE HICKINBOTTOM: The obligation is to meet the 24 requirements of the directive. 25 MR PLEMING: Correct, but part of the requirements are in 125 1 Article 1, which is to protect the environment. 5.2 is 2 as relevant, I suppose, as 5.1, and there are then 3 references to the ability of the public to engage with 4 the information. But the focus is on the report, 5 certainly. 6 LORD JUSTICE HICKINBOTTOM: The focus is on the report. 7 MR PLEMING: Yes. 8 LORD JUSTICE HICKINBOTTOM: It is the report which has to do 9 the job. 10 MR PLEMING: Yes. 11 LORD JUSTICE HICKINBOTTOM: Whereas, in the EIA, it doesn't 12 have to do the job because it can be added to 13 afterwards. 14 MR PLEMING: It has to do a job, it has its own obligations 15 under the directive, but we say not only is it 16 different, Article 12 was added as an extra protection, 17 if one goes through the emergence of the SEA, SEAD, and 18 I think that is dealt with by Advocate General Kokott in 19 one of the cases. 20 LORD JUSTICE HICKINBOTTOM: Virtually everything is, I think 21 it is probably fair to say, but, yes. 22 MR PLEMING: Yes. 23 MR JUSTICE HOLGATE: Can I just ask -- 24 MR PLEMING: Of course, my Lord. 25 MR JUSTICE HOLGATE: -- the quality approach that you 126 1 advocate, is that based solely on Article 12.2 so far as 2 the directive is concerned? 3 MR PLEMING: Yes, it is. Save that under annex 1 and 4 annex 2 you have a list of requirements that set out the 5 parameters for quality. Then there is the -- I -- 6 MR JUSTICE HOLGATE: It is information, isn't it? 7 MR PLEMING: Yes. 8 MR JUSTICE HOLGATE: Ordinarily, in public law terms, you 9 might be looking at the line of authority which includes 10 Khatoum as to how far decision makers have to go to 11 obtain information. It is subject to a rationality 12 test, which is something else, which Mr Beatson said in 13 Shadwell in addition to adopting Mr Justice Sullivan's 14 approach re EIA. 15 So, it is based on Article 12(2). I have two other 16 questions, one, how is that being transposed into 17 domestic regulations? Have we just simply copied that 18 down? Because the thrust of Article 12(2) -- and this 19 is the second point -- is that it seems to -- as my Lord 20 just pointed out -- be directed at reports in the 21 plural, so it could be said not to be setting a legal 22 standard capable of being enforced in relation to 23 individual reports, and it goes on to reinforce that 24 message by saying that the government must communicate 25 to the Commission measures they take concerning the 127 1 quality of reports. 2 So, that doesn't naturally read, it might be said, 3 as a legal stand for determining the legal adequacy of 4 an individual report. 5 MR PLEMING: My Lord, we say it covers both. It covers 6 the -- because it is coming down from the European 7 level, they are requirements on member states to police 8 the process. 9 MR JUSTICE HOLGATE: Exactly. It is organisational, in 10 terms of obligation. 11 MR PLEMING: Not exactly, with great respect. That is one 12 aspect of it. The other aspect is it is to ensure -- 13 hence the reason for introducing it -- that the quality 14 of the environmental information that has been provided 15 to the public and provided to the decision-maker is of 16 good quality, of high quality, or however it is put. 17 The fact that it is in there and not in the EIA we 18 say is significant. At the end of the day, I can only 19 make the submissions to your Lordships, but it has 20 already been suggested by at least one court that it is 21 a factor of some relevance, as I showed you. 22 My Lord -- 23 MR JUSTICE HOLGATE: That is the Forest Heath? 24 MR PLEMING: Yes, I am about to turn to those cases now. 25 I am conscious that this is not only important, it 128 1 is also a very interesting area because it affects, as 2 I said earlier, every challenge to an SEAD if 3 No Adastral has decided the point and you can only get 4 behind Blewett at the Supreme Court level, or persuade 5 the Court of Appeal that whatever remarks it made were 6 obiter. 7 So, I have to focus on this, but every minute 8 I devote to Forest Heath is a minute lost to noise, so 9 I may then have to speed up when I get to noise, and 10 I hope you will be sympathetic, but those behind me will 11 say this is law, Mr Pleming. We want you to talk about 12 noise. So, could I make a bit of noise and talk about 13 Forest Heath? 14 This is in the same volume, at tab 94, and it is 15 Mr Justice Collins. You have seen paragraph 12. Just 16 a bit more detail, if you look at 10 and 11, it begins 17 with these words: 18 "I shall consider, first, the claim that there was 19 a breach of the directive and the regulations." 20 The directive is the SEA Directive. 21 The objectives are then spelt out in the next 22 paragraph. 23 He deals, as I have said, with Article 12 and 24 appears to be applying it to the report, rather than in 25 some form of general instruction. My Lord, the words to 129 1 similar effect, or the reasoning continues in the next 2 few pages, but I will leave it. 3 The point that I wanted to emphasise is that what 4 Mr Justice Collins is doing is looking at the SEA 5 itself. If I pick up one or two other paragraphs, we 6 can see this is absolutely clear. 7 Paragraph 15, for example, just beyond 12, dealing 8 with the significant effects, deals with the guidance on 9 implementation. So, he's considering the detail of the 10 analysis. You can see this also in 16 and 17. 17 is: 11 "It is clear from the terms of the Article 5 of the 12 directive, on the guidance of the commission, that the 13 authority responsible for the adoption of the plan or 14 programme, as well as the authorities and public 15 consultants, must be presented with an accurate picture 16 of what reasonable alternatives are there and why they 17 are being considered or not considered." 18 Finally, if we just pause at paragraph 40, we can 19 pick it up at 35. Could I invite your Lordships at some 20 stage to read 35? But if I pause at 40: 21 "In my judgment, Mr Elvin is correct to submit that 22 the final report accompanying the proposed core strategy 23 to be put to the inspector was flawed. It was not 24 possible for the consultees to know from it what were 25 the reasons for rejecting any alternatives to the urban 130 1 development where it was proposed, or to know why the 2 increase in the residential development made no 3 difference. The previous reports did not properly give 4 the necessary explanations and reasons, and in any event 5 were not sufficiently summarised, nor were the relevant 6 passages identified in the final report. There was thus 7 a failure to comply with the requirements of the 8 directive and so relief must be given to the claimants." 9 It is the relief of "properly" and "sufficiently", 10 this is not the language of Blewett. 11 Could I then turn to Heard, my Lord. That is the 12 next tab. This is Mr Justice Ouseley. He takes a very 13 similar approach. You will see there is reference again 14 to Commission guidance at paragraph 6 and 7. 15 There is reference at 12 and 13, first of all, to 16 the Article 1 I have mentioned more than once, but also 17 to Forest Heath, the one we have just been looking at, 18 and paragraph 40. 19 Then, at 55, there is a more detailed analysis, 20 where you have a heading, if you go back a page, "SEA 21 and alternatives": 22 "Mr Harwood's skeleton argument for the claimant 23 contained a number of what seemed to me to be rather 24 carping criticisms of the SEA, but he refined and 25 improved his submissions in oral argument ... he focused 131 1 wisely on the appraisal of alternatives, the claimant's 2 area of interest." 3 Then there is detail, and 55 deals with the 4 evolution of the planning documents. We get, at 56, to 5 a conclusion on ground 1. You will see that, again, 6 there is reference to the requirements of the directive. 7 This is continued in the following paragraphs. 8 If we could jump ahead to the 60s -- 63, 64 9 onwards -- you'll see the same detailed analysis in 69. 10 This is again dealing with the outline of reasons. 11 I don't want to read the whole thing to you or even 12 great extracts. What you find is no application of 13 Blewett, but a separate examination of the requirements 14 of the SEA process. We invite your Lordships to follow 15 the approach that I have taken at speed from 16 Forest Heath and Heard. 17 So, I get now, at last, to perhaps the most 18 important part of the submission -- 19 MR JUSTICE HOLGATE: Let us see if I follow. These are both 20 examples of cases which we will have to read more 21 carefully, about alternatives. 22 MR PLEMING: Yes, one aspect only. 23 MR JUSTICE HOLGATE: In this instance, the defect in the 24 report was that it didn't explain -- am I right? -- in 25 thinking, what alternatives had been examined. 132 1 MR PLEMING: Yes. 2 MR JUSTICE HOLGATE: So, it is a hole in the report. 3 MR PLEMING: Yes. 4 MR JUSTICE HOLGATE: The topic is not addressed at all. 5 MR PLEMING: Correct. It is -- 6 MR JUSTICE HOLGATE: It would be meaningless, some might 7 say, to require a claimant to demonstrate that a report 8 is no report at all, in the sense that it doesn't tick 9 any of the boxes in the annex. But if there is one 10 particular matter which is required to be addressed and 11 it is not addressed at all, that is an obvious legal 12 defect. 13 MR PLEMING: Yes, my Lord, I take that point. I am showing 14 you cases where -- and Forest Heath was the main case, 15 and that has been applied or followed in Heard. So, all 16 I have presented to you are two first instance cases 17 where it has been applied, so that's why I have to go to 18 No Adastral. 19 MR JUSTICE HOLGATE: In a sense, this is not a discussion 20 about the quality of the report. It is just something 21 which is required to be there, which is totally missing. 22 MR PLEMING: My Lord, let me apply that and take that 23 forward to what we are doing. When we come to the area 24 point, the argument between us will be there was 25 compliance with the area of noise around the third 133 1 runway because indicative flight paths were used, and 2 that is of course an area. But it is not "the area" 3 where people are likely to be significantly affected. 4 That's a point of principle which really tests the 5 Blewett approach. Here is an area, we say it is not an 6 area that satisfies the language of annex 1C. 7 MR JUSTICE HOLGATE: But for that argument to be advanced, 8 it is really dependent on the use of this quality 9 criterion. 10 MR PLEMING: No, my Lord, it is also entirely consistent 11 with just applying the language of C. 12 MR JUSTICE HOLGATE: Okay. 13 MR PLEMING: No Adastral and Cogent, I hope in ten minutes, 14 and then I'll move to the substance. 15 Unless your Lordships say "No, you can't move to the 16 substance", which would be a bit unfortunate. So, could 17 I just go through the No Adastral and Cogent? 18 MR JUSTICE HOLGATE: Yes. 19 MR PLEMING: This, as I said, the way it is put by my 20 learned friends for Arora, the eventual developer of the 21 hotels is, that No Adastral is a killer blow, a complete 22 answer to our case, and that's it. 23 We have to look at three cases, again at speed, but 24 inviting your Lordships in what passes for judicial 25 leisure to read the three in sequence. Our firm and, 134 1 I hope, clear submission is that there is no support at 2 all in No Adastral for my learned friend's submission 3 when properly read and understood. 4 The starting point is Mr Justice Singh, as he then 5 was, in a case called cogent. This is behind tab 98, in 6 volume 4. In that case, Mr Justice Singh, if 7 I summarise, concluded that a technical report and 8 I quote from -- I think it is paragraph 89. Yes, the 9 technical report for the SA/SEA, in 2008: 10 "Did not set out adequately the reasons for 11 preferring the alternatives that were selected." 12 So, this is not a failure to deal with alternatives 13 at all. This was a failure adequately to deal with the 14 reasons for preference. So, this is what we say is the 15 right approach, not the Blewett approach. It was indeed 16 prudent, as Enfusion advised the defendant to undertake 17 a review of the sustainability. 18 That would be the error. But what happened, as you 19 will see in the next paragraph, is: 20 "However, the matter does not rest there, in my 21 view. This is because the claimant's submission depends 22 on its grounds 3 and 4 relating to the addendum. If, as 23 the defendant and Bellway submit, the addendum cured any 24 defects in the earlier stages of the process, ground 3, 25 and if, as a matter of law, it was capable of doing so 135 1 in ground 4, there would be no merit in ground 2 2 either." 3 So, here was the defect, the issue was whether it 4 could be cured after the event. 5 You can see that is the central point when we turn 6 over the page to 108, when ground 4 is discussed. 7 At 112, picking up a point addressed by both members of 8 the court, this is today: 9 "I prefer the submissions that were made by the 10 defendant and Bellway. First, it should be noted that 11 strategic environmental assessment is not a single 12 document, still less is it the same thing as the 13 environmental report. It is a process. In the course 14 of which the directive and the regulations require 15 production of an environmental report." 16 Then there is reference to the directive. 17 Then there is reference to case law, and you get to 18 the analysis. At 124, there is reference to Forest 19 Heath and Heard, and there is, as your Lordship 20 mentioned, these were cases where the court was 21 satisfied that no adequate assessment of the 22 alternatives have been produced prior to adoption of the 23 plans. 24 And that it could not or cannot be cured by a later 25 document. 136 1 Then the question in the next paragraph is: 2 "Could never be cured." 3 So, what we are looking at is curing a defect, so we 4 get to 126: 5 "As both the defendant and Bellway submit, an 6 analogy can be drawn with the process of EIA, where it 7 is settled that it is 'an'." 8 If you read through it, it is the familiar text, but 9 it is dealing with whether or not an error can be 10 corrected. That is where you find the analogy. It is 11 not an endorsement of what is said in those cases, in 12 the Blewett approach, and there is no criticism, as you 13 can see, of Forest Heath and Heard. 14 So, that is what you are getting out of the first 15 instance. 16 That is cogent. In No Adastral the issue was about 17 the timing of assessments, and the defendant relied on 18 Cogent to support an argument that the directive, the 19 SEA Directive, requires an environmental assessment to 20 be carried out during the preparation of the plan. That 21 was the technical and interesting point for people who 22 are interested in this area of law. 23 That came before the late Mrs Justice Patterson and 24 her judgment is in tab 101. 25 LORD JUSTICE HICKINBOTTOM: Tab 100 for her judgment, 137 1 I think. 2 MR PLEMING: Then I have reversed them. I have mine the 3 wrong way round. 4 It is 100 for Mrs Justice Patterson. The only 5 paragraph I need show you -- again because of time -- is 6 at 105: 7 "The defendant relies upon Cogent Land." 8 This is dealing when -- when do errors occur? Then 9 you go on to 123, fourth line down: 10 "I agree with the words of Mr Justice Singh in 11 Cogent, whether the scheme of the regulations and 12 directive is in fact breach will depend on the facts of 13 each case. But, in this case, there was a flaw in the 14 early decision-making process on the part of the 15 defendant, so could that flaw be corrected?" 16 The significant errors are then set out. You will 17 see when we get to the discussion and conclusion, which 18 begins on page 65. Her reasoning is -- it is picked up 19 a bit earlier in 120 and then, 129: 20 "The errors can be corrected before the plan is 21 adopted." 22 You will see that at 129. 23 Her conclusion is at -- that will probably do to 24 cover this. Yes, that will cover it. 25 That is the background to what's coming down the 138 1 road in the Court of Appeal, which is tab 101. 2 So, now we have the case that apparently ends the 3 debate. If we look at what's happening in the Court of 4 Appeal, the issue was still whether or not an error 5 could be corrected. You will see this, my Lord, at 6 paragraph 96. 7 46: 8 "The council does not seek to challenge the judge's 9 findings that there were two deficiencies in the course 10 of the SEA process." 11 Those are the deficiencies set out. 12 What is said is that they were capable of being 13 cured later in the process, see in 47. As to the legal 14 issue, a convenient starting point is Cogent Land in 15 which, third line: 16 "A very similar issue arose." 17 The issue was whether deficiencies, errors could be 18 cured later. 19 At 52, you will see -- this is Lord Justice 20 Stephen Richards. 21 Finally, at 126, you have already seen this from 22 Mr Justice Singh in the earlier decision in Cogent, he 23 drew an analogy with the cognate area of EIA impacts 24 assessment, quoting from the judgment of Sullivan, 25 Mr Justice Sullivan in Blewett, and we have that same 139 1 extract. 2 In the middle of the extract is, fourth line down: 3 "They recognise that an environmental statement may 4 be deficient." 5 Mr Buxton goes on in the next paragraph: 6 "Mr Buxton, in his submissions on behalf of NANT, 7 said he did not disagree with the analysis in Cogent, 8 that was a realistic stance. In my judgment, the 9 conclusion reached by Mr Justice Singh on the issue of 10 principle ..." 11 The issue of principle is whether you can correct or 12 cure a defect: 13 "... was correct for the reasons he gave." 14 And he is saying yes, without going through the rest 15 of it. 16 What he's not saying -- nor is the Court of 17 Appeal -- is not saying that the EIA Blewett test should 18 apply to the identification of errors. Indeed, it would 19 be odd if that was what was intended by the Court of 20 Appeal because, as you may have noticed, there is also 21 a paragraph 50, a reference to Forest Heath and Heard, 22 and no hint of a criticism. 23 So, in a phrase or a sentence: 24 "Cogent and No Adastral are concerned with the 25 question of whether or not defects can be cured prior to 140 1 the taking of the relevant decision." 2 And that's the context. That is the issue of 3 principle. My Lord, we say that there is nothing in 4 No Adastral to support my learned friends. 5 I was going to deal with Gladman, but it is perhaps 6 unnecessary. I hope I have made the arguments good by 7 now or not at all, and noise calls me. 8 Could I leave that subject -- 9 MR JUSTICE HOLGATE: Just so we are clear about what we have 10 to decide, if we go back to your skeleton page 27, 11 paragraph 71, what you are asking us to do is to say (a) 12 I have grasped the Blewett approach is wrong. 13 MR PLEMING: Yes. 14 MR JUSTICE HOLGATE: But the alternative approach is the one 15 set out in 71.2. 16 MR PLEMING: Yes, my Lord. 17 MR JUSTICE HOLGATE: It is a quality test. 18 MR PLEMING: It is a quality test if we need to get to 19 quality, but the point I am about to turn to is: was 20 there compliance with the mandatory requirements of 21 annex 1? 22 Could I -- 23 MR JUSTICE HOLGATE: So, you may not need the quality test? 24 MR PLEMING: Correct. But more than that, when looking at 25 compliance with the mandatory requirements you don't 141 1 take some kind of broad-brush approach, you look at the 2 requirements and look at the report, has there been 3 compliance? 4 My Lord, as I said, we get to 3 o'clock and I have 5 lots of interesting topics to deal with, so noise and 6 local plans. I won't deal with the other subparagraphs 7 of 8. They are in our skeleton argument. I am not 8 intending to supplement them. 9 So, could I deal with noise, which is in our 10 skeleton argument. Noise, it means areas in this. It 11 is in our skeleton argument beginning at paragraph 82. 12 Looking at it through this whole section of the 13 skeleton argument, I am dealing shortly with the 14 arguments, but focused on these two. 15 We have also dealt with our amended statement of 16 facts and grounds. The reason I need to mention it is 17 just to show you tab 7 of bundle 1, which is our amended 18 statement of facts and grounds. We deal with the SEA 19 ground in paragraph 76 onwards. 20 My Lord, could I ask you to turn to "Areas", which 21 is on page 205. The reason I show you these is in light 22 of the Article IX arguments, regrettably there has been 23 no acceptance, as I said, I may have said earlier, by 24 the Secretary of State of the facts and figures in the 25 Transport Select Committee's March 2018 report, so 119 142 1 needs to be ignored. The same applies to 131. We 2 cannot adopt as our own the figures in the Select 3 Committee. 4 The essential reading list on noise, my Lord, which 5 you will have seen, focuses on the witness statements of 6 Colin Stanbury, who is the aviation project officer for 7 the London Borough of Richmond Upon Thames, for the 8 claimants, and Mr Michael Lotinga, for the Secretary of 9 State for transport, together with a few paragraphs of 10 the witness statement of Caroline Low and I don't, for 11 the reasons I have already given, have time to go 12 through that written evidence in detail. 13 But what we are looking at, as I have shown you 14 already, the environmental characteristics of areas 15 likely to be significantly affected. 16 The context is important, particularly for those who 17 I represent. Aviation generated noise is central to the 18 concerns of the population represented by the various 19 boroughs who are before you. We need to look a bit at 20 the technical language, so we've added a little bit of 21 information. It is in bundle 11, supplemental 22 bundle 11, and we have added behind tab 5, which is 23 a report from Jacobs, advising the Airports Commission 24 in 2014. What we have added, at 36.1 -- you can ignore 25 36.1, it is just the topic before we get to what 143 1 follows -- is I hope a useful document if your Lordships 2 wish to understand, if you don't already, what's meant 3 by 57 dB LAEQ 16 hours. So, this is a way of measuring 4 noise, averaging it out. 5 MR JUSTICE HOLGATE: It is not averaging, it is an equated 6 sound level. 7 MR PLEMING: I'm sorry, ending up with a contour, that was 8 what I was trying to get to. 9 What this does, my Lord, at 1, 2, 3, 4, 5 and 6, 10 those are explanations of the sub-topics. But you also 11 have supplementary metrics addressed in (iii), and this 12 deals with N70, N60, et cetera, and we will have a look 13 at those. 14 The end advice is when looking at noise for flight 15 changes, you look at those figures, such as the 57 16 figure we just showed you, and then you look at 17 supplementary metrics because they make it much easier 18 for people to understand. 19 But there is a caveat when you get to metrics. At 20 the foot of 36.3: 21 "It should be noted that the number above 'metrics' 22 have two weaknesses. Firstly, they do not provide any 23 information about the number of events that may occur 24 under the threshold level ..." 25 So what's below 60 or 70. They don't tell you about 144 1 those: 2 "... nor do they provide any indication as to the 3 extent to which the threshold was exceeded." 4 So, if it says N65, it doesn't tell you whether it 5 is 70, 80, 90, it is just that it is above. 6 The overview of noise, if I can give you just a few 7 background figures as to why this is so central to our 8 case. 9 The noise from the current two runway Heathrow 10 significantly affects somewhere in the region of three 11 quarters of a million people. This is applying a level 12 above 55 decibels. That is taken from Colin Stanbury's 13 first witness statement at paragraph 8. There may be 14 disputes between the right-hand side and the left-hand 15 side of the courtroom as to whether it should be half 16 a million or three quarters of a million. A huge 17 number. 18 This is what is so striking about Heathrow and why 19 this point is so important: this accounts for more than 20 a quarter of all people, significantly adversely 21 affected by aviation noise across Europe. 22 Or to put it another way: the aviation noise at 23 Heathrow affects more people than its main European 24 rivals combined, the same source, footnote 3 to Mr Colin 25 Stanbury. 145 1 That is with two runways, based on 45 dB LDEN, 2 approximately 55 in the other method of approaching it. 3 Not 51. And they are 2014 figures, so they may be up or 4 down. 5 So, the third runway, as I said in my opening 6 remarks, is likely to make a difference. When dealing 7 with the proper approach to JR, I mentioned the contrast 8 with a possible development at Gatwick and why it 9 matters to get these figures right, so the Secretary of 10 State can know who is affected and how they are 11 affected, and whether it affects his eventual decision 12 and whether it affects how Parliament votes on such 13 a decision. 14 What we have is an example. Could I take you to one 15 example, my Lord, from CB9? This is the AOS's to the 16 aviation NPS. There is a noise section. It is part of 17 the appendix, appendix AA4, at tab 5. It is just one of 18 the many examples. 19 This is a whole section on noise. Importantly, just 20 to see what the figures are, at page 283, you have two 21 or three figures I wanted to show you. First of all, 22 leave NOEL, no observed effect level. This is paragraph 23 4.5.4. You have the lowest observed adverse effects 24 level LOAEL, the level above which adverse effects on 25 health and quality of life can be detected. That, in 146 1 this report, is 54 decibels. We say that's another 2 error and it should be 51, but I'll explain that in 3 a moment. 4 The second one is significant observed adverse 5 effects level. The level above which significant 6 adverse effects on health and quality of life are 7 expected to occur, and that's 63. 8 Then, 4.5.5 has the next one, unacceptable adverse 9 effect, UAE. That is 69 decibels or above, and you can 10 see the box in table 4A where those three numbers 11 appear. 12 So, over the page, you have the 54, the 63 and the 13 69. 14 54 is described at the top of 284. It is the 15 level -- my Lord, I am missing out all of the further 16 initials, but 54 decibels is the level at which the 17 recent UK sonar research shows significant community 18 annoyance starts to occur. It doesn't, but we'll look 19 at that. But that's 9 per cent of respondents highly 20 annoyed: 21 "This level can therefore be taken as within the 22 observed adverse effects range." 23 Then 63, and then 69. 24 I just wanted to show you one piece of contrast, and 25 that's when we get to some comparative tables at 147 1 page 314. 2 My Lord, I'll only show you, because of time, one 3 figure. 4 My Lord, this is objective 6, to minimise and, where 5 possible, reduce noise impacts on human receptors, which 6 sounds rather hollow if you are in the flight path for 7 Heathrow. 8 The question is: will it avoid, prevent or reduce 9 the harmful effects due to exposure of people and 10 sensitive buildings to noise? 11 The disparity you can see when looking at LGW2R, 12 that is London Gatwick two runways, and go down to 13 "Airspace noise, do something", and the total exposure 14 with a second runway at Heathrow for SOAEL, which is 15 63 decibels, where harm can be expected rather than 16 serious annoyance, is 600. The same one, if you read 17 across for the same year for Heathrow, is 35,600. So, 18 35,000 more. 19 Even going to a lower level of 54 decibels, you will 20 see just above that, for 2040, half a million, 525,600, 21 for Gatwick, 21,000. 22 The point I was making on Monday is: if those 23 figures change to a million or more because the decibel 24 level is either higher, or the area being considered is 25 larger, then the disparity itself is larger and should 148 1 be of increased concern. But even on those figures, 2 significant negative, as it is called, the impact on 3 Heathrow dwarfs that of Gatwick. 4 So, we now turn to overarching principles of 5 precautionary principle, best information, up to date 6 consideration and we look at area. We have come at last 7 to annex 1C. 8 My Lord, could I spend two or three minutes on that 9 before we have the break? 10 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 11 MR PLEMING: So, what we say in a sentence is the SEA 12 reports should have identified, on a precautionary 13 basis, the spatial area in which flight paths, wherever 14 they may ultimately be fixed, will be. That is the 15 first point. 16 That should win the argument, but there is 17 a subsidiary point that if that had been carried out, 18 applying government policy, it should have been 19 51 decibels, not 54 and, therefore, even with indicative 20 flight paths, the area identified should have been 21 extended. 22 So, fairly straightforward points. The Secretary of 23 State doesn't disagree that this wider area wasn't 24 covered. It is said that indicative flight paths are 25 satisfactory. 149 1 Could I just get rid of two points? It is 2 surprising to see this in the Secretary of State's 3 evidence, but we are not insisting, never have suggested 4 in the evidence that there should be actual, precise 5 flight paths. 6 That's clear from our statement, clear from 7 Mr Stanbury at paragraphs 20 and 26, if I can give you 8 the reference without taking you to it. Volume 3, 9 tab 7, page 131 to 133. 10 But the Secretary of State's witnesses, Caroline Low 11 and Michael Lotinga, and in the skeleton argument for 12 the Secretary of State, say that we are asking for 13 precise flight paths. Caroline Low, paragraphs 514 to 14 515. CB4 .1, page 203. Mr Lotinga, 3.3.3, CB5, tab 6, 15 page 263. Those are straw man responses. And, my Lord, 16 at that point, could I suggest we rise and I'll turn to 17 51 decibels. 18 MR JUSTICE HOLGATE: Just so we follow the argument, I have 19 the point about using 51 instead of 54, but are you not 20 maintaining there should have been something other than 21 the indicative flight paths used? 22 MR PLEMING: Yes. 23 MR JUSTICE HOLGATE: What would that be if not the straw 24 man? 25 MR PLEMING: It would be the area in which it is to be 150 1 expected that all the flight paths would arise. I'll 2 show you, my Lord, that is exactly what Heathrow has 3 done, and they did it after the event. We say that this 4 is pretty close to -- 5 MR JUSTICE HOLGATE: Your earlier point should have 6 identified the areas where the flight paths might 7 ultimately be. 8 MR PLEMING: We have been a little cross about this, and 9 I'll show you the evidence next, my Lord. Unless you 10 want to continue, I am very happy to, but as the 11 stenographer -- 12 LORD JUSTICE HICKINBOTTOM: Half past, thank you. 13 (3.17 pm) 14 (A short break) 15 (3.30 pm) 16 MR PLEMING: My Lord, I was just about to get to the 17 51 decibel LA EQ16 hour contours. Before I get there, 18 as I read the skeleton argument from my learned friends, 19 the Secretary of State does not suggest that he has 20 identified the area "likely to be significantly 21 affected". His case is the indicative example flight 22 paths are okay, even though they do not tick the annex 1 23 box. 24 If you haven't seen an indicative flight path, there 25 are many examples in the papers. Could I show you one, 151 1 because I am coming to volume 11? Supplemental 2 volume 11, tab 13. This is, as I say, one of many on 3 various presumed bases. This was prepared for the 4 Airports Commission in 2015, and -- tab 13, my Lord, in 5 11. Supplemental volume 11. 6 It is a flight path -- indicative area covering 7 flight paths, or area covering indicative flight paths. 8 You will see that it has an outer contour of 55, and 9 this is based on average annual average LDEN, which we 10 were looking at earlier. You will see that it covers 11 a band going from just below Slough in the north, down 12 to Englefield Green in the south, to the west, Acton, 13 down to Wimbledon in the east. 14 So, it is 55. It doesn't cover, we say, the area 15 likely to be affected. 16 But when coming to 51 and this spatial area, you 17 start with the point that the third runway will require 18 an airspace change. You can't have one without the 19 other. 20 The government's argument is that they are two 21 separate things. Well, they are two separate 22 consultations, but they are not separate things. They 23 are interrelated. In fact, you would need changes, even 24 if none of the proposals could be delivered, but the 25 fact that one is being recommended or preferred makes it 152 1 blindingly obvious that there will be airspace changes. 2 The fact that it will be necessary is, Mr Lotinga, 3 for example, confirms this view in -- and I will give 4 you the reference without taking you to it -- core 5 bundle 5, tab 6, pages 263 to 264. It should be common 6 ground that the third runway could not be operational 7 without airspace changes. 8 It seems to be common ground, or we'll get there in 9 the end, that the use of the 51 decibel contour is 10 consistent with the Secretary of State's own policy on 11 airspace changes. So, it is difficult, if not 12 impossible, to see how if that is the contour to be 13 applied in airspace changes, it should not also apply to 14 support for a third runway, which will inevitably bring 15 in airspace changes. 16 So, we say there is no answer to the precautionary 17 spatial area argument. 18 Could I pick up our own skeleton argument at 19 paragraph 84, and show you, at speed, the documents 20 there referred to, and then pick up a submission made 21 against me that it would not be feasible to draw these 22 lines or it would not be helpful to go backwards and 23 reconsult. 24 There are three documents. First of all, from 25 supplemental bundle 12. This is a Heathrow Airport 153 1 document, behind tab 15. This was Heathrow expansion 2 stage 1 defined assessment brief. It is dated 3 11 January 2018. You will see that it is anticipating 4 the DCO stage: 5 "For the DCO, it will be necessary to assess the 6 likely significant effects of the third runway within 7 the parameters of the noise envelope, without certainty 8 of the final airspace design." 9 It is those few words. This is only HAL's view and 10 not necessarily the view of the government. 11 Three bullets down: 12 "The DCO requires an assessment of the likely 13 significant effects of flying from a three runway 14 airport, and this will be based on best estimates of 15 what the future airspace might be." 16 Below that, you will see "Airspace design process" 17 with an overview, and you will see some maps at the foot 18 of the page. One of them is illustrative. In fact, 19 they are all illustrative, and they show areas around 20 the airport, three rings, and they also show, above -- 21 if you can read it -- 4,000 feet, a swirl going out of 22 or towards the airport. So, these were the kind of 23 documents more carefully explained on page 496. 24 This shows who we will consult. Do you see the 25 heading, my Lord? 154 1 So, this is what HAL was anticipating: who we will 2 consult. 3 There is an outer ring based on the furthest 4 possible region, 7,000 feet above ground level, and then 5 an inner ring based on the estimate of max extent of 6 LOAEL, but without a number. 7 MR JUSTICE HOLGATE: Sorry, that is a term of art, is it 8 not, the LOAEL. 9 MR PLEMING: Yes, my Lord. 10 MR JUSTICE HOLGATE: And it corresponds to 51 or 54? 11 MR PLEMING: It is blank. We say it should be 51, but it 12 isn't a number at the moment. 13 You will see that other airports are also included 14 because there may be cross-overs from City of London, 15 Luton and Gatwick. 16 Below that, on the next page, 497, there is 17 a proposal for a second airspace consultation this year. 18 You will see have illustrative examples of planes, 19 airspace coming in. You can turn over the page to see 20 various exercises, and that's where we go next. 21 But before getting to what happened this year, there 22 was a meeting and the meeting is in the same bundle, 23 behind tab 10. This, for the residents affected by this 24 proposal, perhaps makes uncomfortable reading. 25 This is a document disclosed under the duty of 155 1 candour, and it is the notes of a meeting on -- or 2 a memo to the Secretary of State on 16/11/2017. The 3 issue for discussion was: 4 "Heathrow Airports Limited next major milestone 5 relating to their expansion proposals will be their 6 first consultation on their proposed development consent 7 application, planned January 2018. The scope and scale 8 of this consultation is such that communities who have 9 previously not been engaged may receive expansion 10 related material from HAL for the first time." 11 They have not been previously engaged; why haven't 12 they? 13 We turn over and we can see why. At some stage, 14 my Lord, please read what is said, but we get to "scope 15 of con 1", on 265. Paragraph 10, this is consultation 16 1, schedule for January 2018. 17 "We understand that HAL, based on their 18 interpretation of DCLG and CAA guidance, are currently 19 planning to inform all individuals who might be 20 significantly affected by expansion based on a lowest 21 observable adverse impact measure, which HAL have 22 defined as any individual within a 51 decibel noise 23 contour in a 3 runway airspace scenario. HAL, under the 24 Planning Act, are also required to consult people living 25 in the vicinity of the land." 156 1 And then: 2 "As exact flight paths are not known, this means 3 that HAL will be leafletting in the region of 5 million 4 individuals with con 1 information. 5 "We understand that HAL will also be informing 6 communities who could have overflight of an aircraft 7 flying between 4,000 and 7,000 feet." 8 Then, into 12, 13, and I'll quickly turn over: 9 "We do not agree with this interpretation of the 10 level of consultation required to determine the 11 principles of airspace change, and we believe HAL are 12 going much further than is required by the CAA. There 13 is no formal requirement to consult on principles and 14 a direct consultation to all those who may be affected 15 is not necessary until much later in the process when 16 specific flight path options have been identified. In 17 the case of 3R, this is likely to be in 2019 at the 18 earliest. 19 "We understand HAL wishes to be seen to be going 20 above and beyond minimum requirements, but no other 21 airport has taken such a comprehensive approach at this 22 early stage of airspace change, and we do not believe it 23 is proportionate or sensible to undertake this now. 24 "In addition, many communities within the leafletted 25 zone will be affected by traffic from other airports and 157 1 this may continue to be the case, even with 3R. This 2 could cause confusion for communities who may be under 3 the impression that this is Heathrow traffic." 4 Then we get to presentation and handling: 5 "The issue of the potential expansion of Heathrow 6 Airport remains of significant interest." 7 Then, missing a few lines, in paragraph 20: 8 "It is likely that any consultation by HAL would 9 result in further scrutiny of the scheme particularly 10 given the scale of their proposed engagement. Using 11 media to reach around 13 million people, who could be 12 overflown [note those words] by aircraft as a result of 13 expansion, is likely to create significant public debate 14 [we wouldn't want that] and unnecessary controversy. 15 "Most of the people receiving this communication 16 will not have previously engaged with the expansion of 17 the airport. Although many of them ultimately will not 18 be affected by overflights, local media, campaign groups 19 and political representatives will focus on the worst 20 case scenario [which we would call the precautionary 21 principle] and it will reopen the issue of flight paths 22 not being available until post-NPS designation. The 23 possibility that people might be overflown is likely to 24 create a significant public disquiet and could cause 25 previously supportive or neutral stakeholders to 158 1 reconsider their position. 2 "If HAL took a more proportionate approach [this is 3 what is being suggested] and consulted with local 4 community representatives." 5 That is what is being suggested. 6 So, what happens next? 7 We go to the same bundle at tab 32, just to 8 illustrate, although this is this year, we put into the 9 bundle to show what could be done. This is 10 a consultation between the 8 January this year and the 11 4 March, ended a few days ago. As you will see, there 12 is a page 685, "Look at the noise information": 13 "We have also provided an indication of the number 14 of flights that may exceed 65 decibels, equivalent to 15 noise levels in a busy office. This measure known as 16 N65 is recommended by both the Secretary of State and 17 the CAA, 65 decibels is a measure of daytime 18 operations." 19 Daytime, as your Lordships will know, is between 20 7.00 in the morning and near midnight, 11.00 at night. 21 So, now they seem to have dropped to the 22 51 decibels, but over the page you will see some plans 23 which are similar to the ones you saw earlier. Let me 24 take an example. If you turn to page 688 and 689, which 25 should be seen together, this is arrivals for the 159 1 northern or middle runway (westerly operations), bearing 2 in mind what your Lordship saw as the indicative flight 3 paths which were relied on by the Airports Commission 4 and the Secretary of State. 5 Taking an example, if you go down to the drawing on 6 689, you will see the word "London". London, that zone 7 is a pinkish zone between 3,000 to 4,000 feet. If you 8 go up the page, it tells you how many flights per hour 9 and the number of flights above 65 decibels in that 10 hour. It tells us that there will be up to 47 flights 11 an hour coming over that zone. Of course, they then 12 keep going through the lighter pink, the light blue, the 13 darker blue, the green and then land. The number of 14 flights above 65 decibels, well, this one seems to be in 15 error. It says 10 flights per hour, so one every six 16 minutes -- HAL will confirm this when they make their 17 submissions -- if you go online and make the same 18 request, it jumps to 32 flights an hour. So, 32 flights 19 an hour out of 47 will have a decibel range of over 65. 20 It doesn't say whether it is 70, 80 or above. 21 If you just turn the pages -- this is the second 22 reason for putting this in -- you will see just by 23 turning every even and then looking at the odd pages, 24 you will get the impression -- which wouldn't be 25 wrong -- that most of the area around Heathrow is 160 1 covered either by landings or departures and it isn't 2 that thin band that you saw in the indicative flight 3 paths. 4 My Lord, the only visual aid I was going to offer to 5 the court, unless there is any resistance, is what we 6 have done, or Mr Stanbury has done, is put these 7 pictures together to make a kind of overlay. One can do 8 it oneself with cut and paste, or you can do it in 9 a more helpful way. Can I hand these up to your 10 Lordship? 11 (Handed) 12 Can I just hand these up too? 13 (Handed) 14 My Lord, there are two. 15 All we have done is we have taken the pictures that 16 you see. I don't know why it has turned so green, but 17 the object is the same. There is a coarser version, 18 which I could hand up, which just literally cuts and 19 pastes. What it shows, my Lord, are the flights that 20 are coming in and departing. There are two pages. 21 MR JUSTICE HOLGATE: One is marked "take off" and I presume 22 we should mark "landing" on the other one. 23 MR PLEMING: Yes, my Lord. 24 LORD JUSTICE HICKINBOTTOM: I have one can "take off" on the 25 left-hand side and "landing" on the right-hand side. 161 1 MR PLEMING: I may have handed you the one I wrote on. 2 LORD JUSTICE HICKINBOTTOM: Taking off the words you have 3 written on it, are these are the same? 4 MR PLEMING: Yes, what we have done is we've taken out 5 those -- take for example, 707, unfortunate numbering, 6 you then find a triangle that fits into one of these 7 maps. What it is showing is flights coming in -- this 8 is at 5,000 feet, we do the same for 4,000. It is 9 showing arrivals and then departures and the area of 10 land covered, and it is the area of land. When 11 comparing it with those, the indicative flight path, you 12 will see that there is a complete and striking mismatch. 13 MR JUSTICE HOLGATE: Is this showing geographically, as it 14 were, as you have just said, the areas which are 15 overflown? 16 MR PLEMING: Yes, more than that, my Lord. They are showing 17 not only the areas overflown, but because you can work 18 out, although they don't have those decibel lines, you 19 can apply the number of flights per hour where they are 20 going to be above 65. 21 What this does -- and HAL will explain, Heathrow 22 Airport will explain -- it just has the single figure 23 and it doesn't do what it was going to do, which is to 24 put 51 LOAEL, but if you go round a different -- sorry, 25 this is just literally a cut and paste -- you can see 162 1 what is happening is there are rings of effect. It is 2 the area significantly affected. Whether it should be 3 54 or N65 or N70, or 51, is really up for further 4 submissions, but the effect is clear. 5 LORD JUSTICE HICKINBOTTOM: Over and above the forensic 6 point, linking this back to your ground, is your 7 submission that this is something which could have been 8 done and should have been done? 9 MR PLEMING: Yes. 10 LORD JUSTICE HICKINBOTTOM: At the time. 11 MR PLEMING: Exactly. 12 LORD JUSTICE HICKINBOTTOM: That is the point. 13 MR PLEMING: It is to resist the submission being made that 14 it wasn't feasible to do it. There is a suggestion, 15 I think it is paragraph -- I am not sure what the number 16 of Ms Low's -- I don't think anybody has said in the 17 government's department they couldn't do it. They do 18 say that 51 would be difficult. 19 We know that's nonsense as well because that's 20 already been done by the sonar examination. Could 21 I show you that document? Otherwise this will take 22 until 4.30 just to go through the figures, so I am going 23 to have to sadly leave it. 24 The point we want to make on the 51 decibels is that 25 has become government policy. 163 1 MR HUMPHRIES: My Lord, can I just rise for a moment to make 2 clear, I am not entirely sure what has been done here, 3 but I think the impression is being left that all of 4 those areas covered yellow are areas that will be 5 overflown. That is clearly not the case. 6 What the document that my learned friend was taking 7 you to shows -- and you can see it clearly on 8 page 686 -- if that is brought up, it actually says 9 quite clearly these are simply the envelopes within 10 which there could be a flight path. Because you could 11 have different flight paths, they have simply given 12 a range. You can see there, on the green, it is brought 13 slightly up in the bottom right-hand corner, what the 14 designers have done is simply demonstrate technically 15 you could bring an aircraft in this way, you could bring 16 it in that way. 17 MR JUSTICE HOLGATE: Your point is explained at 686, diagram 18 bottom right-hand corner. It is the arrows. 19 MR HUMPHRIES: Yes, and what it is making very clear in the 20 text there is the arrows illustrate a range of potential 21 flights that could position within the envelope. They 22 do not indicate that flights would be spread throughout 23 the envelope. 24 So, insofar as this -- and we can all look at the 25 transcript -- suggested it is the area that would be 164 1 overflown, that is simply not correct. 2 MR JUSTICE HOLGATE: It is the areas that could be 3 overflown. 4 MR HUMPHRIES: It's the area within which the actual flight 5 paths could take place, but there would be a flight 6 path. 7 MR PLEMING: That is exactly our point. Because we don't 8 know the flight paths, we say there should be a spatial 9 area which, applying a precautionary principle, does 10 exactly what has just been said. These are the areas 11 where you may be overflown if there is a third runway. 12 MR JUSTICE HOLGATE: Yes. 13 MR PLEMING: My Lord, I am really now getting very concerned 14 about time but time is in my hands. 15 My Lord, the 51 decibel argument is pretty well set 16 out in our submissions. The resistance to it is in part 17 that 51 doesn't matter because it is not policy. It 18 clearly and obviously is policy and if it is said that 19 it isn't, then we will resist and show you. 20 But you can see it becoming policy as one goes 21 through the documents. By the time you get to, for 22 example, October 2017 it is clear beyond argument that 23 the policy is that 51 should be the correct example. 24 But if you looked at just the it is not feasible 25 sonar -- I have forgotten the date, 2017. It is 165 1 probably in volume 11, my Lord. You have heard 2 reference to the sonar suggestions. My Lord, it is 3 volume 11, tab 23. This is the report that is a very 4 important report in the case because it deals with 5 survey of noise attitudes. You might have heard it 6 being mentioned and 23 refers to it. 7 It is said, as part of the evidence for the 8 Secretary of State, that it would not be feasible to 9 have 51 decibels because of other noises around the 10 airport. What we have is from as clear a source as can 11 possibly be at page 586.1, behind tab 23. This is a map 12 from 2014 showing noise exposure contours for study 13 airports. This is produced by sonar for all the 14 airports and absolutely no difficulty in producing, as 15 you can see, a 51 decibel outer ring. 16 In terms of the documents that support, this was 17 clearly possible. Can I give you three references and 18 then I'll have to move to my second topic. 19 My Lord, that is by February 2017 the emerging UK 20 airspace policy and that's SB11/22/505. Then there is 21 a consultation and we end up with an impact assessment 22 at SB12/2/107. Could your Lordships look at page 111 23 and 113. Finally, the October 2017 consultation 24 response which is at SB12/7/143. The paragraphs are as 25 follows 147, 149. 166 1 MR JUSTICE HOLGATE: Are these in the skeleton at all? 2 MR PLEMING: My Lord, the links are in the evidence. 3 MR JUSTICE HOLGATE: The links are hopeless. We are not 4 going to start going through links. These should all be 5 referenced in the skeleton. That was the whole purpose 6 of the directions in the PTRs. 7 MR PLEMING: My Lord, I think they are. I am just going 8 slightly at speed, my Lord. That's all. Yes, they are 9 all in there, the main one. 10 MR JUSTICE HOLGATE: Can we just nail that down, please, so 11 when we come to read this afterwards we can find them. 12 MR PLEMING: It is paragraph 84, my Lord. 13 MR JUSTICE HOLGATE: Those are different references. 14 MR PLEMING: 85 is dealing with 51 but I would have taken 15 you to the documents, so, my Lord -- 16 MR JUSTICE HOLGATE: There are some SB12 documents in 17 paragraph 84 but the tab numbers are different. 18 MR PLEMING: No, because they are dealing with a different 19 topic. They are dealing with this one, my Lord. 20 MR JUSTICE HOLGATE: So -- 21 MR PLEMING: I won't trouble you with them. I won't have 22 enough time. 23 MR JUSTICE HOLGATE: I just want to make sure that I have 24 the key points. 25 MR PLEMING: The key points are in sequence. The move to 167 1 airspace policy at 51 goes through stages 2 in February 2017, in an impact assessment in August 2017 3 and eventually a consultation response in October 2017. 4 MR JUSTICE HOLGATE: And this is SB12. 5 MR PLEMING: These are all SB12. SB11 is for 6 the February 2017. Tab 22, page 505. 7 MR JUSTICE HOLGATE: Could we have the references on a piece 8 of paper? Thank you. 9 MR PLEMING: Yes, I will do that. I am sorry I am racing 10 because I just want to make one extra point on noise, 11 and this could go on, really for hours. 12 All of this matters and it matters because of the 13 evidence of Councillor Hilton. Because 14 Councillor Hilton explains what happened during a change 15 of flight path which brought Ascot into below 16 50 decibels and caused a local uproar. His witness 17 statement is at CB3/9/161. He produces and explains 18 that he ends up with thousands of people complaining and 19 there's a petition with comments with two or three 20 thousand people making comments. 21 Could you look at that and then just see how 22 Mr Lotinga responds to that personal description of harm 23 at his paragraphs 3.3.5 to 3.3.52. My Lord, the rest is 24 in the skeleton argument or in the witness statements of 25 Mr Colin Stanbury. I simply don't have time to take you 168 1 to more documents. 2 MR JUSTICE HOLGATE: Yes. 3 MR PLEMING: Could I move quickly to our second point which 4 is on plans. This is really a fairly simple point. 5 Either it is good on first reading or it is not. This 6 is the complaint that the Secretary of State has failed 7 to discharge the obligation to deal with the 8 relationship with relevant plans. At the time this was 9 going on there were plans in place, local plans covering 10 housing, open space and the ANPS is unusual of its kind 11 because it impacts at a precise place. It authorises or 12 permits an application for development which will have 13 a precise impact in a precise part of a heavily crowded 14 part of London. It effectively allocates land. And it 15 doesn't, unlike the nuclear ANPS -- the NPSs refer to 16 land away from populations, which is usually the case 17 for nuclear power stations. This dumps the airport in 18 the southern part of Hillingdon. 19 There will be 300 to 500 additional houses per local 20 authority per year and that converts to between 30,000 21 and 70,000 between 2020 and 2030. 22 114,000 additional jobs are part of the government 23 puff or pledge. 5,000 additional apprenticeships. 24 There will be destruction of a 1,000 homes and there 25 will be a loss of thousands of more homes in the 169 1 compulsory acquisition zone. So there will be a need 2 for essential supporting structure. 3 Hillingdon is particularly sensitive. All of this 4 is described in Mr Thynne's witness statement and it is 5 described in the local plan. It is said that there has 6 been no engagement with the plans, according to the 7 Secretary of State, but the topics covered by the plans 8 have been addressed. 9 We say that is simply not good enough. It fails to 10 discharge the obligation. 11 My Lord, it may help if I show you just how it was 12 being put in May 2017. It probably covers the topic as 13 well as the evidence. This is a complaint that has been 14 going on for some time. It is at volume 11, tab 25. 15 This is a consultation response on behalf of four of the 16 Boroughs who form the claimants. The topic is set out 17 in really brief detail in paragraphs 7.5 through to 7.13 18 and onwards. The complaint hasn't changed since that 19 submission made in 2017. You will see a subheading 20 above 7.5:"Failure to consider other plans and 21 programmes." 22 "The draft NPS purports to be a high level document. 23 However, the accompanying AOS clearly appraises a 24 particular scheme presented by Heathrow Airport or the 25 Airports Commission. Heathrow Airport has presented 170 1 a specific master plan which shows what land take is 2 likely to be required for the expansion." 3 And the point that is made, you will see it over the 4 page, at 7.10: 5 "The AOS has only considered plans, programmes or 6 policies set at national level or above and there is no 7 regard for local or regional plans and programmes, 8 themselves subject to SEA due to their likely 9 significant effects. Consequently, the draft NPS puts 10 in place a development framework which has serious 11 implications for other plans and programmes and as 12 a result all those implications should be part of the 13 environmental assessment." 14 In a word, the failure is that the ANPS, the 15 environmental assessment at strategic level, has failed 16 to engage with the consequences, the effects as 17 Mr Lotinga would refer to it, the expected results or 18 outcomes in terms of noise, what are the consequences 19 for the affected local population of the destruction of 20 housing, the demand for increased housing and the loss 21 of open space? 22 All of those topics are addressed in the local plan. 23 Mr Justice Holgate will be very familiar with local 24 plans and how they are reached and they deal with, what 25 are their expectations for their own development? What 171 1 are they going to build? What are they going to set 2 aside for open space et cetera? 3 We say that there should have been an engagement 4 with the local plans. There hasn't been and this is an 5 example from Mr Thynne from his first witness statement 6 at paragraph 69, CB3/5/91. The local plan part 1 makes 7 it clear that there is a fragile capacity to accommodate 8 growth as set out in the supporting evidence base such 9 as the council's strategic infrastructure plan. 10 So none of that, there hasn't been that engagement 11 to see what the consequences are. And we say that that 12 is a fatal flaw. 13 At paragraph 81 of our skeleton argument we refer to 14 the example of open space and again, if I can give you 15 a reference to Mr Thynne. If you see his first witness 16 statement -- this is 118 to 121 -- dealing with the loss 17 of open space, nearly 100 hectares of usable open space 18 is likely to be lost or rendered inhospitable by 19 aircraft noise. 20 He takes the same approach when dealing with housing 21 and deals with the impact on the local plan, place after 22 place. 23 He summarises this ground, this is Mr Thynne, at 24 paragraph 12 and 59 to 63, and the response is Miss 25 Ursula Stevens', second witness statement at paragraphs 172 1 1.6 to 1.20. I won't take you there, but the point we 2 make is that there is no engagement, there is no 3 engagement in that evidence. The main points that 4 Hillingdon is making is that the SEA does not at the 5 strategic level consider the consequences within 6 Hillingdon of the scheme the SEA is addressing. And you 7 can see that over and over again. 8 My Lord, I can take you to the evidence but I am 9 conscious of the time available. 10 My Lord, this is a point I hope will be fairly 11 readily understood as you go through the witness 12 evidence. 13 My Lord, that takes me to my last two topics. First 14 of all, consultation. This is perhaps a rare topic in 15 this judicial review. There is happily an agreement 16 between the claimants and the Secretary of State as to 17 the applicable legal principles. They are set out in 18 the agreed statement of common ground at paragraphs 170 19 to 171. My Lord, perhaps we can quickly see them. It 20 is tab 3, page 64. At the foot of the page, beginning 21 of 65, "Principles applicable to consultation". You 22 will see, my Lord, this is the familiar Moseley test. 23 That's whether or not the consultation was carried out 24 at a time when proposals are still at a formative stage. 25 Second, that the proposer must give sufficient 173 1 reasons for any proposal to permit of intelligent 2 consideration and response and thirdly, adequate time 3 must be given for consideration and finally, fourth, and 4 it is the first and the fourth, the product of the 5 consultation must be conscientiously taken into account. 6 We say the consultation was not at a time when 7 proposals were still at a formative stage because by 8 that time the Secretary of State's mind was made up. 9 And the product could not conscientiously be taken into 10 account if he had already formed a firm view. 11 My Lord, it is important to deal first of all with 12 the preference argument. It is said by my learned 13 friend that because there is a preference, that is the 14 preference for Heathrow, and because we accept that 15 there can be a preference, that is somehow significant. 16 This is how the Secretary of State puts it in his 17 skeleton argument. 18 I think it is paragraph 136 -- yes. If you just go 19 to his skeleton argument, you get to 132 and it is 136 20 and 137. The lack of merit in this ground is 21 illustrated by the two key factors which the Boroughs 22 relied in paragraph 100 of their own skeleton argument, 23 namely, the acceptance by the defendant from 24 25 October 2016 that there was a need for increased 25 flight capacity in the South East and that NWR was the 174 1 preferred scheme for meeting that need. 2 Then you go through subpoints and then this: 3 "The latter point [the preference] is a highly 4 significant concession." 5 My Lord, that involves a misreading of the case law. 6 It is a concession of no importance at all when it comes 7 to the consultation requirements. Without taking you to 8 it, the Supreme Court had no difficulty in Moseley. The 9 reference is paragraphs 24, 27 and 28 in dealing with 10 these principles even when there was a preference. 11 That's cases volume 5, tab 114. It is not necessary to 12 go there. 13 The Secretary of State is wrong that it somehow 14 dilutes the responsibility to comply with the 15 consultation principles because we accept or don't 16 challenge the increased flight capacity need and we do 17 accept that there is a preference, it is possible to 18 have a preference. 19 My Lord, I can't think of any recent consultations 20 where there hasn't been a preference. That is what 21 usually you are consulting about and that is why you 22 have alternatives, but we say the Secretary of State is 23 wrong on that. 24 A guide to the right way forward is probably 25 usefully found in the Secretary of State's own guidance. 175 1 Your Lordship may or may not have spotted this amongst 2 the papers. It is supplemental bundle volume 11, 3 tab 24. It is the tabs straight after the map I showed 4 you from the sonar report. It is guidance from the 5 Department for Transport. It is dated February 2017 and 6 it deals with moving on to the consultation process. 7 You will see that in the forward. 8 LORD JUSTICE HICKINBOTTOM: Did you say February 2017? 9 MR PLEMING: Yes. 10 LORD JUSTICE HICKINBOTTOM: The print date is 2016. 11 MR PLEMING: Is it? Yes, but it should be. 12 LORD JUSTICE HICKINBOTTOM: Page 588. It may not matter. 13 MR PLEMING: It doesn't matter, my Lord, and it may be the 14 end of 16 but you will see on page 589, second line: 15 "The consultation will begin in 2017." 16 But I have given it a date of February 2017. 17 What you see on page 590 is the statement of 18 approach: 19 "Ministers who are responsible for developing the 20 policy and recommending it to Parliament must act, and 21 be seen to act fairly, and evenhandedly, by bringing an 22 unbiased, properly directed and independent mind to the 23 consideration of the policy in question." 24 Then skip a few lines: 25 "The following arrangements apply for the duration 176 1 of the period following an announcement of the 2 government's preferred scheme, completion of the 3 consultation, any re-drafting, laying the draft airports 4 NPS in Parliament, and designation of the draft airports 5 NPS by the Secretary of State." 6 And it is the third bullet: 7 "During this time Department for Transport ministers 8 will avoid expressing views that may be perceived as 9 predetermining the contents of the draft airport NPS 10 prior to publishing and consultation or the re-drafted 11 airport NPS following the conclusion of the consultation 12 or inferring that the results of the consultation have 13 not been conscientiously taken into account." 14 My Lord, you can see that there is reference to "if 15 necessary you can refer to the preferred scheme" on the 16 opposite page. 17 Either the Secretary of State has ignored his own 18 guidance or, far more seriously, he has offended the 19 first principle in the Gunning principles because you 20 can see when going through the evidence -- I will give 21 you where the evidence is. It is all in the evidence of 22 Councillor Puddifoot and Paul Baker and summarised in 23 our skeleton argument at paragraphs 97 to 102. 24 The evidence relied on by the Secretary of State is 25 that when going through these various statements, the 177 1 Secretary of State mentioned or said that this was 2 subject to the result of consultation. But this isn't 3 correct if one goes through the evidence. Could I just 4 show you, for example, Councillor Puddifoot, volume 3, 5 tab 1, pages 36 to 37. You can see various speeches are 6 made here. Take paragraph 135, for example, on page 36. 7 This is where the Secretary of State, The Right 8 Honourable Chris Garyling -- I apologised for the 9 misspelling, my Lord, in paragraph 134, four lines down. 10 Please delete the extra T. This is a speech he made at 11 the Airport Operators Association Conference: 12 "On October 25th I announced the government support 13 for a new northwest runway at Heathrow. There were 14 three good proposals on the table but the new runway at 15 Heathrow was the right decision for Britain and the 16 aviation industry. 17 "By expanding Heathrow we will show that we are open 18 for business, confident about who we are as a country, 19 and ready to trade with the rest of the world. 20 "The project will include a world leading package of 21 compensation ..." 22 Worth up to 2.6 billion. It will address air 23 quality ..." 24 "We are going to get cracking building the new 25 runway as soon as possible. That's why we are 178 1 delivering it using an NPS. 2 "Once the statement has been designated by a vote we 3 will grant a DCO. 4 "The airport operator can submit a detailed planning 5 application confident that the high level arguments are 6 settled and won't be reopened by the planning 7 inspector." 8 Does this go further than pushing a preference? We 9 say it goes far further. See what Councillor Puddifoot 10 says in the rest of that paragraph. 11 There is more to like effect. I will give you one 12 other example. You can see the interview at 13 paragraph 139 in an interview on 17 July 2017. This is 14 between the two consultations. 15 "In a response to a question about whether the NWR 16 scheme was definitely going to happen, the Secretary of 17 State stated with emphasis added, 'We will bring the 18 draft NPS to a vote in the first part of next year. 19 We'll table those proposals formally for Parliament to 20 approve in the first part of next year and as long as 21 Parliament approves it, and I think it will, then the 22 project will go ahead.' 23 "When asked a follow-up question whether there would 24 be any backtracking on that statement, the Secretary of 25 State unequivocally stated, 'No backtracking on that.' 179 1 This statement was made before the new evidence on air 2 quality and passenger demand ..." 3 141, just two more examples: 4 "In a speech at the Conservative party conference on 5 2 October the Secretary of State said..." 6 And this is three weeks before the further 7 consultation: 8 "'I was proud to be the Transport Secretary who 9 announced that we intend to go ahead and build a third 10 runway at Heathrow Airport. Subject to the necessary 11 consultation work and securing the backing of 12 Parliament, we are aiming to give it the formal go ahead 13 in the first half of next year.' 14 "It is clear to me," says the witness, "and when 15 read in context, should be equally clear to any informed 16 reader, that the reference to the building of a third 17 runway and being subject to the necessary consultation 18 work was no more than lip service to the requirements of 19 the Act." 20 My Lord, we invite you to read it the same way. 21 Finally, and I don't go through the whole document, 22 in a speech to Airlines UK on 24 October 2018, the 23 Secretary of State stated -- this is shortly after 24 a further consultation ends: 25 "We are currently considering responses to the draft 180 1 airports national policy statement. Plans remain on 2 track for a vote in Parliament in the first half of this 3 year. However, I also want to stress that now is not 4 the time to undermine the scheme in any way. Until the 5 Parliamentary process is complete and a vote in 6 Parliament has been delivered, we need the whole 7 aviation industry to support the new runway. With such 8 manifest benefits for airlines, other UK airports and 9 the wider economy, we need to keep focused on the prize 10 to come ..." 11 My Lord, it is always a matter for the court as to 12 how it reads this evidence. You have seen how the 13 witness reads it and we say it is the correct way to 14 read it. 15 If you look, for example, at Ms Low's evidence, this 16 was referred to by my learned friend Mr Jaffey earlier, 17 and we mention it in paragraph 101.3 of our skeleton 18 argument, that Gatwick was effectively excluded from 19 consideration as an alternative by September 2017, so it 20 was excluded a month before the renewed consultation. 21 You have our submissions on the leaflet. It is 22 unnecessary to take you to that. That is covered by our 23 skeleton argument and the evidence of Mr Baker. 24 Can I just mention one point that is repeatedly made 25 in the evidence and that is the presence of Sir Jeremy 181 1 Sullivan. It is quite difficult to make submissions 2 without first of all recognising Sir Jeremy Sullivan's 3 experience, career and praising him for all of it, but 4 then to say that there is an element of concern that the 5 appointment of a retired Court of Appeal judge in some 6 way deals with the minds made up issue, I don't think he 7 wanted even to engage in that suggestion, and when it 8 comes to the leaflet he was also concerned as to whether 9 or not that was a leaflet which went too far. 10 MR JUSTICE HOLGATE: My reading of the references we have 11 been given is that he wasn't really asked to deal, for 12 example, with Gunning stage 4. 13 MR PLEMING: No. 14 MR JUSTICE HOLGATE: He dealt with the way in which the 15 public were being consulted, and I think your point on 16 Gunning stage 1 is to what extent could he have been 17 expected to look into the mind of the decision-maker? 18 MR PLEMING: We say he's irrelevant to this point, with the 19 very greatest of respect to Sir Jeremy. Your Lordships 20 read this material, the case law tells us that you form 21 your view as of now and either you are persuaded by the 22 evidence of Caroline Low, who says she had no doubt the 23 Secretary of State hadn't made his mind up. It seems to 24 me completely irrelevant again. You read these 25 statements and either you agree with our view on it, our 182 1 reading of it or you don't and if you don't that's -- 2 MR JUSTICE HOLGATE: With respect, it is not a matter for 3 the witnesses on either side to state what they think 4 the inferences are to be drawn. 5 MR PLEMING: My Lord -- 6 MR JUSTICE HOLGATE: Inadmissible, as I made clear in the 7 preliminary hearing. 8 MR PLEMING: My Lord, I am only saying it because I am of 9 the many, many pages of Caroline Low's evidence dealing 10 with this topic. But at the end of it it is a matter 11 for your Lordships and if your reading is consistent 12 with the way we put the case, we are right and it is 13 made out, if you don't, it is not made out. 14 My Lord, that is our short submission on 15 consultation which leaves me two minutes to deal with 16 relief if you need it. 17 I was going to just outline where we are on relief 18 without making any detailed submissions. There are two 19 issues on relief. The first one is whether section 20 31(2A) of the Senior Courts Act has been raised in 21 pleadings and is he allowed to use it or deploy it and 22 if he is, what evidence does he need to lead to deal 23 with that? We have put in our submissions on this 24 aspect in I think it is core bundle 10, tab 8, page 223. 25 I wasn't going to go through that in detail. You have 183 1 our submissions and the case law that is there. 2 The real question is if you find that our arguments 3 in whole or in part are attractive and you find in our 4 favour, it is whether there should be a review or 5 a quashing. This is really an important one minute 6 submission on the scope of section 6. 7 We say that the review, you could declare that we 8 are right on our various complaints and then could the 9 Secretary of State review? We say that you would have 10 found that the NPS was unlawful if you accept our 11 submissions, particularly in relation to the SEA and it 12 doesn't seem to us on our reading of section 6 that it 13 is available in the event that an NPS is found to be 14 unlawful. The whole review process is predicated on the 15 basis that there is a lawful ANPS. 16 Secondly, it is entirely forward looking. For 17 example, section 6.1: 18 "The Secretary of State must review each NPS 19 whenever the Secretary of State thinks it appropriate to 20 do so." 21 So there has to be an NPS to review. You can see 22 when you look at section 6.3 it is talking in terms of 23 since the time when the statement was first published. 24 We say that it shouldn't be review, it should be 25 a quashing, and the reason is as follows: it is for 184 1 a strategic decision. The strategic decision was finely 2 balanced or should be subject to our consultation 3 ground, so there is much suggestion that it was finely 4 balanced. 5 It involved comparing the northwest runway with 6 alternative options for meeting airport capacity in the 7 South East and it was a result of a decision-making 8 process involving a number of interlinked 9 considerations. 10 My Lord, we address this in our submissions on 11 relief, core bundle 10, tab 8, page 226. The way it is 12 put by Hub in their submissions -- not in our bundles -- 13 is that it was looking at matters in the round. It is 14 the same point. 15 For all of the evidence that we have presented, the 16 importance of getting this right in terms of the impact 17 on local people, we say the errors go to the heart of 18 the NPS. They cannot be corrected at the DCO stage and 19 if there are flaws, particularly if it involves not 20 providing proper information to affected persons, then 21 it should be necessary to return to the time in the 22 process when the flaws occurred. That necessarily 23 involves a quashing. 24 My Lord, that is two minutes after but that is our 25 short submission on relief. 185 1 LORD JUSTICE HICKINBOTTOM: Yes. 2 MR PLEMING: My Lord, unless I can assist you further on any 3 of the topics. 4 LORD JUSTICE HICKINBOTTOM: Thank you very much, Mr Pleming. 5 MR MAURICI: My Lord, can I just raise one point. Earlier 6 this morning Mr Jaffey promised additional references to 7 support his surface access submissions. My Lord, I just 8 want to know when I am going to get those because 9 obviously I have quite a broad range of things to cover 10 in due course and a timetable that I need to deal with 11 in terms of meeting those points, so I was wondering 12 when I was going to get those. 13 MR JAFFEY: I thought I gave the answer by reference to the 14 GLD letter after the break. What I will do is put those 15 in an email and I will make sure Mr Maurici gets it 16 after court and I'll have a proper copy for the court 17 first thing tomorrow morning. I hope that assists. 18 LORD JUSTICE HICKINBOTTOM: Yes, thank. 19 10.15 tomorrow. 20 (4.35 pm) 21 (The court adjourned until the following day at 10.15 am) 22 23 24 25 186 1 INDEX 2 Opening submissions by MR JAFFEY .....................1 (continued) 3 Submissions by MR PLEMING ...........................92 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 187