1 Thursday, 14 March 2019 2 (10.15 am) 3 Submissions by MR SPURRIER 4 LORD JUSTICE HICKINBOTTOM: Yes, Mr Spurrier. 5 MR SPURRIER: Thank you very much, my Lords. Good morning. 6 If I may, I have one hour, my Lords, and what I would 7 like to address you on is a couple of preliminary points 8 that are set out in my skeleton argument, which is at 9 page 97 of volume 10, tab 7 of your bundles. 10 LORD JUSTICE HICKINBOTTOM: Yes. 11 MR SPURRIER: Then I would like to address you on one more 12 point on air quality. One more point on noise, and in 13 particular night noise. If I have time, then I'll 14 briefly address you on one point on climate change and 15 then bias, if that is acceptable, my Lord. 16 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much indeed. 17 MR SPURRIER: First of all, we have had a considerable 18 discussion over whether this should be DCO or ANPS, and 19 the Hillingdon claimants have made substantial 20 submissions on this. I would just like to record my 21 position is that it is entirely right and proper that 22 due consideration should be given in the ANPS of whether 23 expansion of Heathrow is or is not sustainable. This is 24 particularly so for air quality, noise and climate 25 change. 1 1 In my submission, the Secretary of State and the 2 ANPS must, as set out in section 10(2) of the 3 Planning Act, in exercising those functions, do so with 4 the objective of contributing to the achievement of 5 sustainable development. 6 I think Mr Wolfe took you through the national 7 planning structure of what sustainable development might 8 be. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR SPURRIER: So, my submission, my Lords, is that if the 11 ANPS can't fulfil that on its face, then it should fall. 12 I hope that I am going to be able to contribute 13 towards showing that it is in problems on that. 14 I would just mention that the DCO process has 15 already started. If you look at the national planning 16 inspectorate national infrastructure website, there are 17 already 13 pre-DCO documents on there. 18 The other point I would just make is Article IX, and 19 I am not sure what the Secretary of State's position is. 20 The Secretary of State had said that he considered that 21 my application was so infected by Article IX that it 22 shouldn't proceed. 23 I submit, obviously, that it is not and that I have 24 come to an agreement with the speaker's counsel on what 25 portions -- which are not large -- should be deleted, 2 1 and they have been deleted. Parliamentary privilege is 2 for the benefit of Parliament, so I am hoping that that 3 might be the end of that and I don't need to say 4 anything more on that. 5 Now, if I may, I won't take the matters in the order 6 in my skeleton because I think some are more important, 7 and I would like to take the most important first. If 8 I may deal with what I consider the most important, 9 which is air quality, which is grounds 4 and 5 of my 10 claim. 11 Now, the Hillingdon claimants have dealt with much 12 of this and Mr Jaffey has explained, at length, and 13 submitted at length on the law and on the possible 14 emissions from surface access. Obviously, I won't -- 15 and I don't want to and I wouldn't presume to -- go 16 across that again, save to say that I absolutely support 17 what he said, as I know do many of my friends and 18 neighbours. 19 But I would like to address you, my Lords, on the 20 emissions from the aircraft themselves. 21 It is, as I understand it, my Lords, the Secretary 22 of State's case that they have little effect and, 23 indeed, Heathrow themselves have stated in meetings with 24 us that they don't have effect. 25 Now, the government position was set out in the 3 1 Jacobs report, at paragraph 3.2, and I will just give 2 you the reference, which is volume 7, tab 6, at 3 page 241. 4 That position is also confirmed by Ursula Stevenson, 5 who is in paragraph 3.163 of her first witness 6 statement, at volume 4, tab 3, page 429, and 7 Caroline Low, in her first witness statement, has also 8 confirmed this at paragraph 422. That is volume 4, 9 tab 1, page 173. In which she says: 10 "Where the AOS provides estimates of population 11 affected by worse air quality, this is based on the 12 population within the 2-kilometre study area identified 13 by the Airports Commission." 14 LORD JUSTICE HICKINBOTTOM: Yes. 15 MR SPURRIER: Now, I say that it is fundamentally wrong to 16 confine the study area for Heathrow expansion to 17 encompass just a 2-kilometre radius round the boundary 18 of the intended expanded airport. 19 The Secretary of State appears to make light of this 20 part of my claim. He says, in his skeleton argument, 21 that "much ink has been spilt" on this. 22 I am sorry, but I come back, my Lords, to say that 23 bad air quality, below the required legal standards, 24 spills a lot more than just ink. I will hopefully show, 25 from some of the gruesome statistics, which I'll come to 4 1 in the report from the Royal College of Physicians. 2 If I am correct, that is, that there are substantial 3 emissions from planes -- and I will come to three 4 studies that I say show that there are -- then it is not 5 just the immediate health consequences, but many other 6 analysis that become infected with this error; thus the 7 WebTAG costings, which include the effects on people of 8 the proposed expansion. They are likely to be incorrect 9 because of the absence of consideration of the 10 population upon unassessed parts of that population. 11 The appraisal of sustainability is inaccurate because of 12 the absence of consideration of a much greater area than 13 studied, and the health impact analysis is inaccurate 14 because of this; because it has not studied a wide 15 enough area, and the list goes on. 16 I emphasise that the consequences, if found to be 17 likely -- if you consider them likely, my Lords -- will 18 cause breaches of the current law, and that is the basis 19 of this ground. I am not asking the court to look at 20 the merits, but I am asking the court to look at whether 21 breaches of the law will or will not occur and what 22 those consequences might be. 23 Learned counsel, Mr Jaffey, has already referred you 24 to the risk of non-compliance being high, defined as 25 over 80 per cent by WSP. So, it is no small thing this, 5 1 my Lords. 2 I will come, if I may, to the works DEFRA have 3 referred to, and I will just clarify, the terms that 4 I am using, and I am talking about are -- when I say 5 emissions, I am talking about nitrogen dioxide and 6 particulates. Particulates, I am classifying into three 7 types. We have PM10s, which are defined in the EU 8 regulations of 2008 50. I have set these out in my 9 skeleton argument, but basically these are 10 10 micrometres, and a micrometre being 1 millionth of 11 a metre. 12 There is PM2.5s, which are much smaller, which are 13 2.5 micrometres, and there are these things called 14 "ultrafine particles", which are 0.1 micrometres or 100 15 nanometres. 16 Now, I have set out in my skeleton, my Lords, the 17 definitions of these, and I will just take PM2.5s. 18 These are particulant matter, which passes through 19 a size selective inlet, as defined in the reference 20 method for sampling and measurement of PM2.5, and then 21 there is a specification number with a 50 per cent cut 22 off rate. 23 I am not a technical person, my Lord, but my 24 understanding of that -- and I have no doubt that the 25 Secretary of State or Mr Maurici will correct me in due 6 1 course if I'm wrong -- but basically my understanding is 2 that is a filter, and anything less than 2.5 which 3 succeeds to go through a filter is a PM2.5. So, by 4 definition, an ultrafine particle is a PM2.5, although 5 it is given its own classification. 6 Now, if I could go to volume 4, tab 2, page 305, 7 Caroline Low. That is Caroline Low's witness statement 8 and, at paragraph 14, page 311, Caroline Low says: 9 "As shown above, the concentration of pollutants 10 decreases quickly as you move away from the POE [and 11 that is point of emission, I imagine]. This effect is 12 so pointed that the search presented by DEFRA found that 13 aircraft emissions produced above 100 metres altitude 14 have almost no impact on the ground level concentration. 15 "Two thirds of emissions from the landing and take 16 off cycle occur above 100 metres, and therefore two 17 thirds of the aircraft emissions have a negligible 18 impact on human health." 19 She then refers to a report of DEFRA produced in 20 2004 called: 21 "Nitrogen dioxide in the UK." 22 That report, I say, my Lords, is outdated and has 23 been superseded by the later research that I am going to 24 refer to, with the ultrafine particles. 25 Similarly, Ursula Stevenson, in her witness 7 1 statement says -- and that is also at volume 4, tab 3, 2 page 429 -- at paragraph 3.165 she says: 3 "The 2-kilometre study area was appropriate to 4 evaluate both the maximum impact of airport expansion on 5 any receptor and to evaluate the change and exposure to 6 air pollution for the purposes of the AOS in the context 7 of human health. The impacts of both air-side and in 8 air activities, and surface access, decrease with 9 distance from the airports due to the dispersion of 10 emissions and the dispersion of the airport related 11 traffic. This is illustrated in figures 5.7 and 5.8 in 12 the first appendix of the AC's Module 6 Air Quality 13 Assessment." 14 I would say I never succeeded in finding those 15 figures, my Lord, but I don't think anything turns on 16 that. Basically, Ursula Stevenson, as I understand it, 17 is saying that most of the harm, if there is going to be 18 any harm, is going to occur within the 2-kilometre 19 boundary. 20 The report from DEFRA on the ultrafine particles -- 21 which I would like to refer you to, my Lords, if 22 I may -- is at volume 13, tab 7, page 75. I probably 23 included, rather unnecessarily, the Roman numeral 24 introductions. But, in my excerpts, the main text 25 starts at page 10, which is the executive summary, which 8 1 is at page 86 of the bundle. 2 That gives a definition of the ultrafine particles, 3 which are defined: 4 "Those are with one dimension less than 100 5 nanometres. They are therefore the smallest group of 6 particles in the atmosphere and comprise a minor 7 component of PM 2.5 and PM 10. However, their 8 contribution to particle mass is generally very small. 9 They typically contribute the greatest number of 10 particles per unit and volume relative to the number of 11 particles present. 12 "UFPs are both primary and secondary." 13 The third paragraph: 14 "UFPs are believed to contribute to the toxicity of 15 the air borne particulate matter, but the magnitude of 16 their contribution is currently unclear. While it is 17 possible that their small size and large surface area 18 may make them particularly harmful to health, the 19 available evidence is limited and, as yet, no air 20 quality guideline has been set for their concentration." 21 So, things are a bit uncertain at the moment, but 22 there is a possibility of considerable harm, and I'll 23 come on to this shortly. 24 Over the page, to page 11, "Abatement": 25 "Policies and actions to control ambientPM2.5s 9 1 and PM 10 will not always control UFPs. 2 "There are no emissions standards for UFP other than 3 for diesel and gasoline direct injection engine road 4 vehicles, which must meet a type approval standard ... 5 some of the technologies routinely used by industry for 6 abatement of particulate matter emissions are efficient 7 for the removal of UFP." 8 And then for instance there. 9 Then the recommendations, just beneath that. The 10 third sentence: 11 "It is insufficient to determine exposure from 12 poorly understood UFP emission sources, such as airports 13 and shipping/ports, and also the way in which existing 14 policies to reduce PM 10 andPM2.5s are affecting UFP 15 exposure." 16 Then, if I may, my Lords, go on to 1.5, which is 17 page 18 of the document. 18 LORD JUSTICE HICKINBOTTOM: Could you just help me with one 19 thing, what is the date of this document? 20 MR SPURRIER: The date of this document is 2018 and it comes 21 out just slightly after the national policy statement. 22 But, my Lords, first of all, it is a government 23 document, so I would say that the contents must have 24 been known, certainly ought to have been known, prior to 25 the ANPS. The studies upon which it is based are well 10 1 before the ANPS. They are -- and I'll come to the 2 Hudda, Keuken and Riley studies and they are from 2014 3 and 2016. 4 LORD JUSTICE HICKINBOTTOM: So, what's the public law 5 error -- 6 MR SPURRIER: What I say. 7 LORD JUSTICE HICKINBOTTOM: -- that you say arises out of 8 this. 9 MR SPURRIER: The public law error, my Lord, is, firstly, 10 Heathrow operates in an area which is in breach of the 11 air quality regulations. The air quality in the London 12 boroughs -- in none of the London boroughs, is my 13 understanding, is scheduled to comply until well after 14 2021. So, any increase in emissions is going to cause 15 a further breach of the law. We already have an 16 estimate, or a forecast, that if Heathrow is allowed to 17 expand there is an 80 per cent chance of there being 18 a further breach in 2026. High. Mr Jaffey addressed 19 you on that. 20 From what I am saying, my Lords, that 80 per cent 21 may be low because there is a whole area that simply has 22 not been assessed. 23 MR JUSTICE HOLGATE: The ultrafine particulates? 24 MR SPURRIER: The ultrafine particulates, and it should have 25 been assessed. But the Hudda study, my Lords -- 11 1 MR JUSTICE HOLGATE: Sorry to interrupt, but coming back to 2 my Lord's question, I can't remember offhand whether the 3 Air Quality Directive has a limit for ultrafine 4 particulates as opposed to PM 10. 5 MR SPURRIER: No, it is different, my Lord. 6 MR JUSTICE HOLGATE: Does it have a limit at all? 7 MR SPURRIER: It does. 8 MR JUSTICE HOLGATE: We can look at it then. 9 MR SPURRIER: It has a 20. 10 MR JUSTICE HOLGATE: We can look it up, don't worry. 11 MR SPURRIER: Yes, there is a target reduction, if I can put 12 it that way, my Lord. 13 MR JUSTICE HOLGATE: So, it is not a limit value then? 14 MR SPURRIER: The limit value is 20 by 2020. 15 MR JUSTICE HOLGATE: For ultrafine? 16 MR SPURRIER: No, forPM2.5. 17 MR JUSTICE HOLGATE: That is why I asked the question. 18 MR SPURRIER: I am sorry, my Lord. There is nothing 19 specific for ultrafine, but ultrafine -- what I am 20 saying, my Lords, is that ultrafine is part ofPM2.5. 21 MR JUSTICE HOLGATE: I have grasped that, yes. 22 MR SPURRIER: Thank you very much, my Lords. 23 Shall I continue, my Lords? 24 MR JUSTICE HOLGATE: Sorry, I didn't mean to ... 25 MR SPURRIER: No. Have I answered my Lord's question 12 1 about -- 2 MR JUSTICE HOLGATE: Yes, you have. Thank you very much. 3 MR SPURRIER: If we go on to page 18 of -- that's the page 4 number of the documents, my Lords. I am sorry, it is 5 not the page number of the bundle. Section 1.5, "Health 6 concerns": 7 "ultrafine particles penetrate deep into the 8 respiratory system, allowing interactions with lung 9 tissue and potential translocation into the 10 bloodstream." 11 I'll mention, my Lords, that there is a report now 12 from Queen Mary's Hospital, which shows that this 13 actually does happen. 14 "This together with the hypothesis that the toxicity 15 of particulate matter is governed by the surface area of 16 the particulates, rather than their mass, has led to 17 suggestions that ultrafine particles may be particularly 18 harmful to health." 19 HEI, that is the Health Effects Institute 2013. 20 "Recent authoritative reviews have noted that few 21 epidemiological studies investigating concentration 22 effect relationships of UFP are available, because of 23 insufficient measurements of UFP. The World Health 24 Organisation concluded that epidemiological data are 25 currently too scarce to evaluate or to use as a basis of 13 1 recommending an air quality guidance specifically for 2 UFP. 3 "Nonetheless, in the light of evidence that UFP act 4 (in part) through mechanisms and not shared with larger 5 particles, and can contribute to the health effects 6 of PM, they recommended that efforts to reduce the 7 numbers of UFP in engine emissions should continue." 8 That is the WHO of 2013. 9 It carries on. 10 If I could take you then over the page, to page 67 11 of the document. I think that is over the page in 12 selection that I copied. It's section 4.4: 13 "UFP from aviation and shipping." 14 If I can go to the third paragraph, second paragraph 15 reports the study of Hudda, which I am coming to, and 16 then Riley. 17 If we look at the penultimate sentence of the third 18 paragraph, it says: 19 "The implications of this work [that was Riley] are 20 potentially important for exposure to UFP 21 concentrations. For example, a location such as 22 Heathrow Airport, where aircraft tend to approach the 23 airport from the east (flying over the London 24 conurbation), there is potential for considerable 25 exposure to UFP from aircraft. It should be stressed, 14 1 however, that there are no measurements of UFP upwind of 2 Heathrow to confirm whether elevated UFP concentrations 3 can be detected due to landing aircraft." 4 Perhaps I could just pause there, my Lords, and say 5 that, typically, the prevailing wind blows from the west 6 to the east, about 65 to 70 per cent of the time. The 7 other 35 per cent, it blows the other way. So, the 8 potential for exposure exists more to the east, which is 9 over most of London, but it does also affect the 10 residents to the west, as well. 11 Now, at page 99 of your bundles, if I may, I am 12 coming off the DEFRA report. There is a report from 13 Queen Mary's research university and, at the bottom of 14 page 99 -- I think it is 99 of your bundles, my Lords -- 15 is: 16 "First evidence that inhaled pollution particles 17 move to the placenta. Team studied a total of 3,200 18 placental macrophage cells from five placentas and 19 examined them under high powered microscope. They found 20 60 cells that between them contained 72 small black 21 areas that researchers believed were carbon 22 particles ..." 23 They went on to study. 24 Now, that is, I think, the first substantial 25 indication that ultrafine particles are passed on to the 15 1 next generation. 2 My Lords, if I could just briefly go back to the 3 second witness statement of Caroline Low, at page 321, 4 paragraph 35: 5 "Mr Spurrier references research 'endorsed' by 6 DEFRA's air quality expert group that appears to show 7 that dispersion of particulates occurs over a wide area 8 and that therefore the study area drawn from the air 9 quality modelling is too narrow. 10 "While DEFRA's report does reference these studies, 11 it in no way endorses them. The research DEFRA 12 highlights is in respect of UFP, a form of particulate 13 matter emitted from aircraft. Unlike NOx and 14 particulate matter UFP are not currently the basis of 15 air quality legislation and are not the subject of air 16 quality modelling. 17 "As DEFRA's full report notes, the evidence base for 18 UFPs is not as well defined as other pollutants and 19 Mr Spurrier is incorrect to apply its findings to the 20 dispersal of NO2. For example, DEFRA's air quality 21 expert group in their latest report still maintain that 22 aviation emissions above 100 metres have little impact 23 on ground level concentrations." 24 I have to say, my Lord, I have searched the DEFRA's 25 air quality expert group report and I have found no 16 1 indication whatsoever of that last statement. Indeed, 2 the passage I have just read out to you shows that they 3 do have an effect. 4 I think my Lords, it was my friend Mr Crosland, 5 yesterday, who made the point -- I think in connection 6 with climate change -- that if you don't know what the 7 answer is, the answer is not nought. 8 LORD JUSTICE HICKINBOTTOM: Do you accept the last part of 9 the sentence in the last part of paragraph 36: 10 "UFP are not currently the basis of air quality 11 legislation and not the subject of air quality 12 modelling." 13 MR SPURRIER: As far as there's not -- subject to the air 14 quality modelling, my Lord, I am not equipped to say 15 that, but I assume the answer to that is: yes, I do 16 accept that. 17 As far as the "not the subject of air quality 18 legislation", no, my Lords, I don't accept that because 19 they are the subject ofPM2.5. 20 MR JUSTICE HOLGATE: Because they are smaller than 2.5? 21 MR SPURRIER: They are smaller than 2.5 and they travel 22 through the filter of 2.5. They are therefore included 23 in 2.5 and, with that in mind, the harm they cause, 24 my Lords, is within at least the ambit of the current 25 legislation. One may say that it would be desirable to 17 1 have specific rules and regulations on UFPs, but I would 2 say (a) they arePM2.5s -- 3 MR JUSTICE HOLGATE: Or anything smaller than 2.5 microns, 4 something even smaller than UFP would be, too. 5 MR SPURRIER: Is a PM 2.5. Yes, my Lords. I would say (b), 6 that as far as the assessment of sustainability is 7 concerned, they must be relevant because they are now 8 being -- we have evidence that they are being passed on 9 to next generation. 10 LORD JUSTICE HICKINBOTTOM: What's that evidence? 11 MR SPURRIER: That is the report, my Lords, of Queen Mary's 12 university. 13 LORD JUSTICE HICKINBOTTOM: That didn't say that. 14 MR SPURRIER: Yes, it did. 15 LORD JUSTICE HICKINBOTTOM: Firstly, it is a press release, 16 isn't it? 17 Secondly, there was no -- I think this is right, 18 correct me if I'm wrong -- evidence in that press 19 release that the particles pass through the placenta to 20 the foetus. It may be that nobody knows, but there was 21 no evidence that it did. 22 MR SPURRIER: Well, no, I suppose it doesn't say that, 23 my Lord. 24 LORD JUSTICE HICKINBOTTOM: No, I am sorry, it does say 25 that. It says positively there is no evidence that it 18 1 passes through to the foetus. I mean, I accept that it 2 may be a matter of some scientific concern, but there is 3 no evidence. 4 MR SPURRIER: Yes, but, my Lords, we come back to the point 5 that if you don't know the answer, the answer is not 6 nought. 7 LORD JUSTICE HICKINBOTTOM: The answer to what? What's the 8 question? 9 MR SPURRIER: The question, in this instance, my Lord, was 10 whether (a) whether these particulates do any harm -- 11 and I'll come to you to show you that they do -- and 12 (b), as to whether they are going to be passed on to the 13 next generation. 14 LORD JUSTICE HICKINBOTTOM: Yes. 15 MR JUSTICE HOLGATE: But, in terms of the law -- 16 I understand your point that by definition they are 17 smaller than 2.5-microns, but there isn't a separate 18 legal control for particles as small as this or even 19 smaller than. 20 MR SPURRIER: That is correct, my Lords, yes. But we still 21 have the sustainability point. 22 Thank you very much, my Lords. 23 Now, if I could come to the research studies. 24 I don't want to spend too much time on this, my Lords 25 but if I could take you to the abstracts because they do 19 1 show that these plane exhaust particulates spread at 2 least 20 kilometres and maybe even 40 kilometres 3 downwind. 4 The Hudda report, my Lord, is at volume 13, tab 2, 5 page 21. 6 LORD JUSTICE HICKINBOTTOM: So, what page, Mr Spurrier? 7 MR SPURRIER: It is page 21, my Lords. 8 LORD JUSTICE HICKINBOTTOM: Yes. Page 21 in the bundle? 9 MR SPURRIER: Correct. It is headed up: 10 "Environmental science and technology." 11 This is a report of 2014. The abstract, which has 12 a little map at the side of it, says: 13 "We measured the spatial pattern of particle number 14 [PM] concentrations downwind from Los Angeles 15 International Airport with an instrumented vehicle that 16 enabled us to cover larger areas than allowed by 17 traditional stationary measurements." 18 Then the next sentence: 19 "We measured at least a twofold increase in PM 20 concentrations over unimpacted baseline PM 21 concentrations during most hours of the day in an area 22 of about 60 square kilometres that extended to 23 16 kilometres downwind, and a 4 to 5 fold increase to 8 24 to 10 kilometres downwind." 25 By the side of it, you have a particle number 20 1 concentration, normal, 1 and a half times normal, 2 to 2 4, 4 to 6 and 6 to 8. 3 If you go over the page, my Lords, to figure 6, it 4 is page 6633 of their numbering. I don't have the 5 bundle numbering, my Lords. It is 26. 6 LORD JUSTICE HICKINBOTTOM: Yes. 7 MR SPURRIER: On the left-hand side, it says, "Other 8 pollutants": 9 "Over large areas downwind of LAX, concentrations of 10 pollutants other than PM were also elevated, figures 11 5(a) to (c) [and I will come to those in a minute] show 12 nearly indistinguishable spatial patterns of PM BC [that 13 is black carbon] and NO2 concentration measured 14 simultaneously at distances of 9.5 to 12 kilometres from 15 LAX. This suggests a common source for these 16 pollutants ..." 17 The figures 5(a) to (c) are just above that. So, 18 here we have, my Lords, a study that is primarily on 19 particulates, but also did measure nitrogen dioxide, 20 which is clearly very much within the EU Regulations 21 208 50. 22 In 2016, there was a study in Amsterdam by Keuken et 23 al. That is at page 29 of volume 13. 24 LORD JUSTICE HICKINBOTTOM: I have one eye on the clock, 25 Mr Spurrier. 21 1 MR SPURRIER: Yes, I am conscious. 2 LORD JUSTICE HICKINBOTTOM: If you give us the references, 3 we can look at this, but you say these are references 4 are to research papers which suggest that the spread of 5 UPFs, and you say NO2 as well is -- 6 MR SPURRIER: Yes, my Lords, if I could ask my Lords, 7 then -- that is very kind of you, my Lords. If I could 8 ask you to refer to the abstract of Keuken's report, 9 which is on page 29, and then at page 37 of your bundle, 10 there are maps showing the spread because in that survey 11 they found elevated levels at 40 kilometres away from 12 Schiphol. 13 LORD JUSTICE HICKINBOTTOM: Yes. 14 MR SPURRIER: If I could then also refer you to page 65 of 15 the bundle, same bundle, and the abstract, I have only 16 given you the abstract in this from Riley's report. 17 They put transacts of between 5 and 10 kilometres. 18 LORD JUSTICE HICKINBOTTOM: Yes. 19 MR SPURRIER: If I could also then, my Lords -- I am sorry 20 to gallop through this -- refer you to Royal College of 21 Physicians report 2016, which is tab 4, pages 41 to 64. 22 We have the definitions at (xviii). At page standard 23 Arabic number 18, and pages 81 and 82, they have the 24 figures. 25 LORD JUSTICE HICKINBOTTOM: I am sorry, page? 22 1 MR SPURRIER: It is 81 of that document, my Lords. 2 LORD JUSTICE HICKINBOTTOM: Internal pagination, which in 3 our bundle is 63. Thank you. 4 MR SPURRIER: Yes, thank you very much, my Lord. 5 Down at the bottom, there is a table COMEAP which is 6 the specialist medical organisation that reports to the 7 government, and those are the figures that they give. 8 PM2.5 exposure. There is no distinction. I can't tell 9 you, my Lords, what the distinction between ultrafine 10 particles andPM2.5's responsibility. But, as you will 11 see, the mortality in the UK of number of attributable 12 deaths is nearly 29,000. I mean it is really grisly. 13 We have the government, and the DfT, and 14 Caroline Low saying to you in a witness statement that 15 they haven't measured them, we haven't any rules for 16 them. In effect, I am interpreting that to be the 17 answer is nought, which of course is the very point that 18 my friend Mr Crosland was making. 19 LORD JUSTICE HICKINBOTTOM: Yes. 20 MR SPURRIER: I'll also mention that surely must go against 21 the precautionary principle that we have been taken 22 through at length, both yesterday and the day before 23 yesterday. 24 LORD JUSTICE HICKINBOTTOM: Yes. 25 MR SPURRIER: Thank you very much, my Lord. If I may, 23 1 I will then move on to noise. 2 LORD JUSTICE HICKINBOTTOM: Yes. 3 MR SPURRIER: Mr Pleming took you through, in detail, the 4 noise, the noise levels, of the 51 dB LOAEL and the 54 5 dB LOAEL, and what happens between those two levels. 6 I won't go over that again, my Lords, because that is -- 7 I couldn't explain that as well, anyway. 8 But I would like to put to you, my Lords, that even 9 51 is hugely greater than the World Health Organisation 10 recommendations. 11 It has been made plain that the World Health 12 Organisation guidelines are guidelines only, but I would 13 like to put this: according to the government's own 14 analysis, the number of people newly affected by noise 15 will be 2.2 million. This is shown by the worksheets, 16 and they are in volume 12, my Lord, page 3, at page 117. 17 LORD JUSTICE HICKINBOTTOM: Volume 12? 18 MR SPURRIER: 12, page 117, yes, my Lords. 19 LORD JUSTICE HICKINBOTTOM: Thank you. 20 MR SPURRIER: This is an extract of the DfT's worksheet. In 21 the bottom box of figures, which is the third box from 22 the bottom: 23 "Households experiencing increased daytime noise in 24 the forecast year: 972,957." 25 That is households. So, if you put the average 24 1 household as having 2.3 people, that gets you to over 2 2.2 million. 3 The government's argument -- because they put this 4 in their defence to me -- is: yes, but wait a minute, 5 you have households expecting a reduced daytime noise in 6 the forecast year of 673,784, so it is not 2.2 million. 7 But, my Lords, the small print is "forecast year". 8 Over the page, my Lord, at page 118, the forecast 9 year is 2060. Heathrow is intended to be fully 10 operational by 2026. So, between 2026 and 2060 you are 11 going to have either 2.3 million, or 2.3 million 12 reducing by whatever technology produces. 13 The government has never explained, my Lords, how 14 putting an airport the size of Gatwick as a bolt on to 15 Heathrow, you actually reduce noise and get 673,784 16 households suffering less noise. I can only assume that 17 that is hoped for technology improvements. But, as 18 I have explained in my skeleton argument, my Lords, that 19 even with the draft documents on the Aviation Strategy 20 Consultation of 2050, that is put into doubt because of 21 the likely future design of jet engines. 22 One of the reports there is that the current design 23 of turbo fan engine is probably coming to the limit of 24 its ability to reduce emissions. One would have to go 25 to a new design, which they refer to as an "open rotor". 25 1 It allows the fuel -- I'm not a scientist, my Lord -- to 2 burn at a higher temperature to reduce emissions, but it 3 will be noisier. So, reduced noise is up in the air and 4 we are crystal ball gazing. 5 These figures are also cast in doubt because, at 6 page 120, there is an email exchange between the CAA and 7 the DfT. 8 MR JUSTICE HOLGATE: Those look to be CAA figures, the ones 9 we have just looked at. 10 MR SPURRIER: They probably are, my Lords, yes. They came 11 under a Freedom of Information Act question posed by one 12 of our members of the action group. 13 MR JUSTICE HOLGATE: Look at page 120. 14 MR SPURRIER: This is correspondence between the CAA and the 15 DfT, the DfT asking the CAA to produce some figures and, 16 down at the bottom, my Lords, the start of the email at 17 the bottom, 14 September: 18 "I feared this might come up. No contours have been 19 produced for minimise newly affected and maximise 20 respite, only minimise total. My understanding is that 21 these were dropped as the number of scenarios was too 22 high to complete by the end of August." 23 If I could refer you to the Airports Commission map, 24 I will just show you what minimise total is, my Lords, 25 which is at volume 11, page 345. 26 1 The minimise total is an entirely theoretical 2 principle. Flights are, in theory, directed over the 3 minimum number of people -- and Mr Lotinga refers to 4 this and I'll come to his witness statement in 5 a minute -- but you can see that, for example, coming in 6 from the east side, aircraft fly over Richmond Park and 7 then turn left over Hounslow, to come into Heathrow. 8 Coming in from the east on the north side, they come 9 to the north of Westminster, go to the north of 10 Brentford, turn left over Osterley Park, and then come 11 into Heathrow. 12 They don't in fact, do that. They come in straight. 13 They need a straight approach. 14 These are, I believe the term is "indicative" flight 15 paths done for a comparative purpose. But, of course, 16 if you compare this at Heathrow with, say -- and I am 17 not advocating expansion at Gatwick, but if you compare 18 it to Gatwick, the differences are enormous. I mean, 19 Heathrow planes fly over a heavily populated urban area, 20 and Gatwick is much less populated. So, it is not 21 a fair comparison, but that is what has been done, 22 my Lords, in the figures. 23 Now, if I could just come back to the World Health 24 Organisation. Mr Lotinga, in his first witness 25 statement, says that the WHO guidelines are to be 27 1 informative for developing policies. He appears to seek 2 to reduce the significance of the WHO and where he says 3 that they should be interpreted as "representing 4 potential LOAELs". That is lowest observed adverse 5 effect levels. 6 To quote paragraph 444 of his witness statement: 7 "Do not represent legal objectives." 8 Now, I say that may well be, but if they are not 9 achieved, what are they there for? 10 He refers to the modelling that he's used to carry 11 out his assessment, which is based on a survey called 12 "SoNA", which was referred to earlier on by Mr Pleming, 13 my Lords. The SoNA, Mr Lotinga -- in fact he was 14 responding here to Councillor Hilton. He said: 15 "It is based on evidence from a controlled study of 16 a much larger sample of people in the UK exposed to 17 aviation noise, ie from the SoNA research, than the 18 localised uncontrolled evidence documented in 19 Councillor Hilton's statement." 20 That was Councillor Hilton's statement in support of 21 the Hillingdon claim, my Lords. 22 I strongly suspect, my Lords -- it is my opinion -- 23 that Councillor Hilton knows very much more about the 24 noise in the community than does Mr Lotinga. 25 The SoNA project is of quite poor quality. In 28 1 contrast to the WHO, the SoNA research has no research 2 institute input, has no medical examination, it had just 3 2000 respondents and was solely a questionnaire drawn up 4 with the assistance of Ipsos MORI. The majority of 5 respondents were around Heathrow and suffered noise 6 above 54 LAeq with 100 per cent above 51. That is well 7 above the WHO recommended level. 8 I only have five minutes, my Lords. If I may, 9 I will take you to the WHO light noise guidelines, which 10 is at volume 13, tab 1, page 1. If I could take you to 11 the abstract of that, which is the internal -- it is 12 page 7, I think, of the bundle. The internal numbering 13 is (vi) at the top, and I think it is page 7. 14 The second paragraph: 15 "Considering the scientific evidence on the 16 thresholds of night noise exposure, indicated by L night 17 outside, as defined in the Environmental Noise 18 Directive ... an L night outside of 40-decibels should 19 be the target of the night noise guideline to protect 20 the public, including the most vulnerable groups such as 21 children, the chronically ill and the elderly. L night 22 outside value of 55 is recommended as an interim target 23 for countries where the night noise guideline cannot be 24 achieved in the short term ..." 25 Over the page, on the sleep time. This is a 2009 29 1 research report, my Lords. It is well, well before the 2 ANPS: 3 "Average time of adult people in bed is around 4 7.5 hours, so the real average sleeping time is somewhat 5 shorter. Due to personal factors like age and genetic 6 make up, there is considerable variation in sleeping 7 time, for these reasons a fixed interval of 8 hours is a 8 minimal choice --" 9 MR JUSTICE HOLGATE: Can I just ask a question? You are 10 comparing this to the 54 LEaq parameter. 11 MR SPURRIER: Yes. 12 MR JUSTICE HOLGATE: That is a 16-hour parameter, is it not? 13 MR SPURRIER: That is correct, my Lord. 14 MR JUSTICE HOLGATE: It excludes night time, doesn't it? 15 MR SPURRIER: Yes, because night time, my Lords, starts 16 at 11.00 and finishes at 7.00. 17 MR JUSTICE HOLGATE: These are sleep disturbance criteria 18 for night -- 19 MR SPURRIER: Indeed, my Lord, yes. 20 "Though the results ..." 21 The next paragraph, still under "Sleep times" at the 22 bottom of this page: 23 "Though results vary from one country to another, 24 data shows that an 8-hour interval protects around 25 50 per cent of the population, and that it would take 30 1 a period of 10 hours to protect 80 per cent." 2 We are being offered, my Lords, 6.5 hours on 3 scheduled flights, so that is not 6.5 hours curfew. 4 Then, the next page, internal numbering (xi), "Noise 5 sleep and health": 6 "There is plenty of evidence that sleep is 7 a biological necessity and disturbed sleep is associated 8 with a number of health problems." 9 There is then a chart, my Lord, in the executive 10 summary at (xiii), which I think is page 11 in the 11 bundle, my Lords, which shows when the quality of sleep 12 is disturbed. 13 If I could just mention, over the page, (xiv), 14 table 2, medical conditions. Myocardial infarction, 15 that is liability to have heart attacks. That is at 16 50 decibels. The night time recommendation in the SoNA 17 and the government report is 51. 18 If I may make a point for just two minutes on two 19 things -- one minute. 20 Health impact analysis. It is part of the 21 government's defence that a health impact analysis has 22 been carried out. I would point out, my Lords, that the 23 health impact analysis is not the same as a health 24 impact assessment. I think this is in -- it was 25 a document I handed in, and I am afraid I can't lay my 31 1 hands on it for the minute. But it was handed in and 2 I think it is in your bundles, my Lords. 3 LORD JUSTICE HICKINBOTTOM: Volume 12, page 536.1. 4 MR SPURRIER: That's it, thank you very much, my Lords. 5 It does confirm that a full health impact assessment 6 is going to be required, and the executive summary of 7 that, on internal numbering, page 1: 8 "As the shortlisted scheme plans and baseline 9 information supplied by the Airports Commission were 10 limited in their detail, this assessment has been 11 limited to considering the impacts of each shortlisted 12 scheme. Collection review of additional baseline 13 identified vulnerable groups of supporting information 14 has been limited to the district level or above." 15 Then, finally, at 136, on internal page 4: 16 "A project specific health impact assessment should 17 be undertaken." 18 So, we don't know yet what the health impacts are 19 going to be, but of course that may be -- the analysis 20 may well be wrong if I am right in my effects about 21 ultrafine particles, my Lord. 22 Finally, my Lord, one minute, if I may, climate 23 change, my Lords. This has been dealt with more than in 24 detail by both Friends of the Earth and Mr Crosland, but 25 I would submit that in order to have due regard to 32 1 climate change, as is required by 5(8) and 10(2) of the 2 Planning Act, the Secretary of State should have regard 3 to the total emissions, greenhouse gas emissions, that 4 any airport expansion of this nature is going to have. 5 After all, how is one going to say whether expansion 6 elsewhere is going to be possible if the entire budget 7 of greenhouse gas emissions is going to be taken up by 8 expanded airports in the South East? 9 The regions are left with nothing, but yet we know 10 the regions are expanding. They are expanding now. It 11 is a free-for-all. 12 So, this hasn't even been addressed in the national 13 policy statement. It is all very fine for the Secretary 14 of State to say, "We can expand Heathrow and either 15 achieve a 2-degree target, 1.5-degree target reduction, 16 which we should ..." 17 It has been explained in detail yesterday why we 18 need to have that. But even if Heathrow could do that, 19 where is the assessment of where -- or where is the 20 consideration, even, of where this leaves regional 21 airports? 22 It is just not there. 23 I have run out of time, my Lords, and thank you very 24 much indeed for listening. 25 LORD JUSTICE HICKINBOTTOM: Yes, thank you, Mr Spurrier. 33 1 We'll break there, Mr Maurici, and come back 2 at 11.30. Thank you. 3 (11.20 am) 4 (A short break) 5 (11.30 am) 6 Submissions by MR MAURICI 7 MR MAURICI: My Lords, it was 51 years ago back in 1968 that 8 the then government tasked the Roskill Commission to 9 report on both the need for and the best location for 10 additional runway capacity to serve the South East of 11 England and, in particular, the London area. 12 My Lord, despite that commission recommending that 13 there was a need and indeed recommending a site, and 14 despite the government -- many governments since 15 returning to it, no new full length runway has been 16 built in the South East since the 1940s. 17 My Lords, it is now a critical matter as the ANPS 18 records because the existing London airports will be 19 full by the 2030s. Indeed, four out of five will be 20 full by the mid-2020s. My Lord, it is clear from the 21 conclusions of the Airports Commission, endorsed by 22 Secretary of State following detailed review, and as set 23 out in the ANPS, that additional runway capacity in the 24 South East is now needed urgently and without it there 25 will be serious negative impacts on the UK's 34 1 connectivity and, in turn, impacts on the UK economy. 2 So, my Lord, the need position is clear, but 3 inevitably -- and there is no hiding from this -- 4 airport expansion has environmental impacts. 5 My Lord, the NPS itself, the subject of these 6 proceedings, contains, we say, three key policy 7 decisions by the government. 8 First, it establishes that there is national need, 9 a pressing one, for new airport capacity in the South 10 East of England. 11 Secondly, it sets out the government's view that 12 this need is to be met by the Heathrow north runway 13 scheme, the preferred scheme. 14 Thirdly, it sets out a series of potential impacts 15 that scheme may have, including on matters such as air 16 quality, carbon and surface access, nature, 17 conservation, noise, and it lays down two things. 18 Firstly, the assessments of applicants at the DCO 19 will have to undertake and, secondly, it sets out the 20 detailed planning tests that the applicant will need to 21 meet in order for the DCO to be granted as being in 22 accordance with the NPS. 23 Those are the three key policy decisions. 24 My Lord, in all the claims that we are facing there 25 is of course no challenge to the need conclusion. But, 35 1 my Lords, there is also very little, in my submission, 2 by way of challenge to the content of the detailed 3 policy requirements that have been set for the northwest 4 runway scheme. There are some exceptions and I will 5 come in due course to the mode share. It is a rare 6 example of where the actual content of the requirements 7 has been set as being directly challenged. 8 Because instead many of the grounds seek to 9 challenge the view reached by the Secretary of State and 10 recorded in the ANPS, that the northwest runway scheme 11 is capable of being delivered. That is to say, it is 12 capable of meeting the test set in the DCO for grant, in 13 terms of things like air quality, et cetera, that it can 14 be compliant with the Planning Act section 104 and it 15 can be compliant with other legislation. The view the 16 Secretary of State recorded in the ANPS is it is capable 17 of being consented in accordance with those 18 requirements. 19 So, the Secretary of State has reached that view, 20 that it is capable of meeting those requirements, but of 21 course the detailed consideration of whether any scheme 22 does meet those requirements is for the DCO stage. So, 23 the issue for this court, in my submission, is whether 24 these type of grounds of challenge, which are focused on 25 the Secretary of State's conclusions about whether this 36 1 scheme is capable of being consented, the focus must be 2 on whether the Secretary of State reached a rational 3 conclusion that the scheme was capable of being 4 consented. It is not enough for the claimants to say 5 there are challenges that lie ahead for any applicant. 6 The claimants need to show instead that no reasonable 7 decision-maker could have concluded that this scheme was 8 capable of being consented. 9 My Lord, one of the difficulties the claimants face 10 in making the submissions they do on these grounds is 11 that the Secretary of State's view, that this scheme was 12 capable of obtaining consent, is shared by the 13 independent expert Airports Commission and its own panel 14 of experts and, secondly, by multiple expert assessments 15 that have been undertaken and commissioned by the 16 department. 17 My Lords, still by way of introduction, just -- 18 MR JUSTICE HOLGATE: We will have to see whether that 19 assessment, though, sits when you come to deal with the 20 SEA grounds of challenge and the Habitats Regulation 21 challenge. 22 MR MAURICI: Yes, the issue is slightly different there, 23 my Lord, but there are still -- I will come to this in 24 due course, my Lord -- in my submission, judgments that 25 obviously need to be made there -- 37 1 MR JUSTICE HOLGATE: Oh yes. 2 MR MAURICI: -- which I will be submitting are also subject 3 to the Wednesbury standard. 4 MR JUSTICE HOLGATE: Of course. 5 MR MAURICI: I think the cases your Lordship found 6 overnight, the night before last, and provided to us, 7 although they are SEA cases looking at alternatives, 8 my Lords, they do very clearly support the idea that it 9 is a Wednesbury test in relation to, for example, 10 a selection of alternatives. 11 MR JUSTICE HOLGATE: Yes. 12 LORD JUSTICE HICKINBOTTOM: You focus exclusively on 13 rationality, but not many of the grounds are based on 14 the narrow rationality. 15 MR MAURICI: No. 16 LORD JUSTICE HICKINBOTTOM: Most of them are, that the 17 approach taken by the Secretary of State was wrong in 18 this regard or that regard, or that he failed to take 19 something into account in coming to the decision. It is 20 not simply that no Secretary of State could have come to 21 this judgment. 22 MR MAURICI: No, my Lord. 23 LORD JUSTICE HICKINBOTTOM: Or this assessment. 24 MR MAURICI: Although, Mr Pleming accepted that several 25 aspects of his surface access and air quality challenge 38 1 are expressly pleaded -- sorry, Mr Jaffey -- as 2 Wednesbury. 3 Actually, I think it was Mr Pleming because it was 4 in the standard of review point at the beginning. 5 So, he accepted that there were very specific 6 grounds within air quality and within surface access 7 that are rationality, but I would go further than that. 8 I would be saying to you that, actually, quite a number 9 of the grounds pursued in relation to air quality and 10 surface access, however they have been pleaded, in the 11 end are rationality challenges. 12 My Lords, on SEA, if Blewett applies, there is 13 basically a rationality challenge that lies at the heart 14 of it. I will come to that in due course. On habitats 15 again, I will be saying the rejection of Gatwick as an 16 alternative in the end falls to be judged on Wednesbury. 17 That will be my submission. 18 So, my Lord, in actual fact, although the claimants 19 say, "Well, only part of our case is Wednesbury", they 20 accept part of it is Wednesbury, in my submission not 21 all of it, but a very much larger part of it actually is 22 Wednesbury. 23 LORD JUSTICE HICKINBOTTOM: Just before you move on -- and 24 I absolutely don't want to take you out of the sequence. 25 What I think what would be helpful to us, if you have 39 1 this -- I am sure you have -- would be a map of where we 2 are going. You are due, I think, to make submissions 3 today, tomorrow and Monday. 4 MR MAURICI: Yes. 5 LORD JUSTICE HICKINBOTTOM: It would be quite helpful if we 6 knew the order you were going to take matters in. 7 MR MAURICI: What I am going to do, I have a few other 8 introductory observations to make. I am then going to 9 turn to three preliminary points, which are the proper 10 standard of review applicable to this judicial review, 11 the scope of the duty to give reasons for designating 12 the ANPS, and then the effect of the NPS and its role in 13 any DCO application. So, those three preliminary 14 matters. 15 LORD JUSTICE HICKINBOTTOM: Yes. 16 MR MAURICI: My Lords, having dealt with those issues, my 17 intention is to deal with bias predetermination first, 18 then habitats, then SEA, then surface access and air 19 quality -- which inevitably will be tomorrow, those 20 two -- then next week climate change, and anything on -- 21 short submissions on relief. 22 My Lord, that's the order in which I was intending 23 to take it. 24 I have quite an ambitious timetable for getting 25 through those things, which I will be monitoring myself 40 1 on. I have a huge amount of ground to cover because of 2 the number of claims. 3 LORD JUSTICE HICKINBOTTOM: I know. That is very helpful. 4 Very broadly, and subject I suspect to interventions as 5 well as your ability to get through your own 6 submissions, you are hoping today to get through, what, 7 down to habitats? Then SEA, surface access tomorrow? 8 MR MAURICI: No, my Lord, I am hoping -- this may be hugely 9 overambitious -- to have done by bias predetermination, 10 habitats and SEA, or at least most of SEA today, and to 11 do air quality and surface access tomorrow. 12 I think it is inevitable that probably some of SEA 13 will go over to tomorrow, and it will be ambitious to 14 start. 15 LORD JUSTICE HICKINBOTTOM: It is very helpful to know where 16 we are going. 17 MR MAURICI: Thank you, my Lord. 18 Can I just make two other sets of observations by 19 way of introduction? 20 My Lords, first of all, just this, in broad terms: 21 why was the northwest runway scheme selected? 22 My Lord, the reasons are set out in the ANPS, but, 23 in short, the scheme was determined to provide the 24 greatest international connectivity, the greatest 25 economic and strategic benefits, including wider 41 1 economic benefits and passenger benefits and, my Lord, 2 obviously the hub issue is absolutely central to that, 3 the hub status issue of the UK. 4 But, my Lord, the ANPS did also recognise in 5 terms -- see paragraph 3.72. We don't need to turn it 6 up -- that it has the greatest potential for negative 7 environmental impacts. That was expressly recognised. 8 Of all the three schemes considered it was recognised 9 that the northwest runway scheme had the greatest 10 potential for negative impacts. 11 But the Secretary of State's view was with 12 mitigation -- and mitigation is obviously a subject that 13 is covered throughout the ANPS -- the potential 14 environmental impacts of the scheme were capable of 15 being dealt with in a way that made the scheme 16 acceptable in planning terms. 17 So, my Lord, at the heart of this, not surprisingly 18 perhaps, is the ANPS involved a planning judgment; 19 a classic planning judgment of weighing the benefits and 20 also the detriments. 21 LORD JUSTICE HICKINBOTTOM: Is this fair -- I think this is 22 really what your submission is: that, in the Secretary 23 of State's view, northwest runway, greatest benefits -- 24 greatest adverse effects. 25 MR MAURICI: Greatest potential adverse effects. 42 1 LORD JUSTICE HICKINBOTTOM: Sorry, greatest potential 2 adverse effects, yes. 3 MR MAURICI: Obviously, one key thing is about how those can 4 be mitigated and reduced to an acceptable level. That 5 is actually key. But recognised of the three schemes, 6 no question, while it had the greatest benefits, it also 7 had the greatest potential for negative impacts. That's 8 the final balance that was exercised. 9 My Lord, Lord Justice Hickinbottom, made the point 10 on Day 1 to Mr Pleming -- rightly, in our submission -- 11 that it is not right to just focus on the negatives, and 12 clearly we will mostly be focusing on the negatives in 13 these proceedings because that is what the claimants are 14 raising. But this was an overall judgment, looking at 15 both the positives and negatives, as one always sees in 16 planning. 17 My Lords, finally, by way of introduction, can 18 I just say something about the process by which we came 19 here? 20 The conclusion that the government reached in the 21 ANPS, that the northwest runway scheme was the preferred 22 scheme, is not a decision the government can be accused 23 of rushing into it. It has been given the most lengthy 24 and detailed consideration over a 6-year period -- 25 over 6-year period -- going back to the setting up of 43 1 the Airports Commission. 2 Indeed, in one of the documents -- we don't need to 3 go to it, but it is core bundle 8, tab 2, page 182 -- 4 the Secretary of State himself noted that a decision 5 made to support the northwest runway scheme had followed 6 the most comprehensive assessment of an infrastructure 7 project ever undertaken by government. 8 My Lords, of the voluminous evidence, only a tiny 9 fraction of which is before this court, shows that this 10 is clearly the case. 11 My Lords, can I just talk about five things in 12 relation to the process? Five stages. 13 Stage one is the Airports Commission, its 14 appointment to work. Independent body of experts; that 15 is agreed in the statement of common ground, who 16 themselves appointed an expert panel of advisers of 21 17 experts on all the key environmental issues. They 18 engaged in a lengthy process that ran 19 from September 2012 to July 2015 involving the 20 publication of numerous expert reports and assessments, 21 holding meetings and formal public consultations and 22 then, ultimately, following the interim report, made 23 a recommendation in favour of the northwest runway 24 scheme. 25 My Lords, the scale of the work is evident from 44 1 Mr Graham's witness statement -- I don't ask you to go 2 to it now. It is volume 5, tab 5. But just two 3 examples, alongside their final report were published 50 4 supporting detailed and lengthy technical documents; 5 three on air quality and 13 on surface access alone. 6 My Lords, you do have, in the bundle as well -- 7 I will just give you the reference, SB12/35/729 to 8 758 -- a list of all the hundreds of documents and 9 supporting assessments, running to tens of thousands of 10 pages, that the Airports Commission published over its 11 two and a half year consideration. 12 That is the Airports Commission, stage one. 13 Stage two, having received the report, the 14 government undertook its own lengthy in-depth review of 15 the conclusions, using internal departmental and 16 external expertise. This involved a huge amount of 17 additional work, including from expert consultants on 18 issues like air quality, carbon and noise. The purpose 19 of all that work being to review the conclusions of the 20 Airports Commission to seek further assurance around its 21 conclusions, and that work itself, my Lord, led, over 22 a number of years, to the publication of a very large 23 number of further expert reports and assessments, 24 supplementing and sometimes updating those of the 25 Airports Commission. 45 1 That is stage two. 2 Stage three, two statutory consultation processes 3 under the 2008 Act. My Lords, as you know, accompanying 4 those statutory consultations were a full suite of 5 voluminous documentation, including an AOS, which we say 6 fully complies with the SEA Directive, Habitats 7 Regulation Assessment, a health impact assessment, and 8 a vast amount of other detailed supporting documentation 9 from expert consultants. 10 The consultations together elicited 83,000 11 responses, and that whole process was overseen and found 12 overall to be very well executed by Sir Jeremy Sullivan, 13 who was appointed as the independent consultation 14 adviser. 15 My Lord, that is stage three, the statutory 16 consultation process. 17 Stage four, decision making within government. Over 18 the years that this has been considered, there have been 19 150 formal submissions to ministers. All of them were 20 disclosed. Nearly 150 of them in total, all of them 21 disclosed in the proceedings, and a process of approval 22 by the Cabinet subcommittee on three occasions. That's 23 just some of the decision-making. 24 Then, fifthly and finally, there has been 25 the parliamentary approval process, culminating in the 46 1 vote in the House of Commons in support of the ANPS. 2 My Lords, that is -- 3 MR JUSTICE HOLGATE: Which had two elements, the Select 4 Committee as well as the debate on the floor. 5 MR MAURICI: Yes, it was examined by the Select Committee 6 and my Lord also -- 7 MR JUSTICE HOLGATE: Both of which are covered by the 8 statute. 9 MR MAURICI: I will touch on that a little bit further in 10 a moment, when I talk about standard of review in 11 relation to the point about parliamentary approval. I'll 12 just touch on that issue a little bit further. 13 My Lords, all of that is of course only -- can only 14 be a thumbnail sketch, and it really does no justice to 15 the depth and the detail of the process that has been 16 undertaken. 17 Can I then turn to the three preliminary matters 18 that I said I would deal with? 19 The first of which was the proper standard of review 20 that is applicable to this judicial review. 21 My Lords, in a nutshell, there are really two 22 points. One is it is trite law, that the standard of 23 review is not immutable. It depends on the context. It 24 can be more or less intrusive. That is point one. 25 Point two is that we submit that the court here 47 1 should be adopting a less intrusive standard of review 2 for a number of reasons, six in total. 3 My Lords, the first one is the nature of the 4 decision. Very simply put: the ANPS is concerned with 5 the formulation of high level policy. It is a decision 6 that engages political, social and economic 7 considerations of the highest order. My Lords, those 8 kinds of decisions have been recognised by the courts to 9 be such that, if they are challenged, the claimants will 10 bear a heavy evidential onus to establish that such 11 decision is irrational, absent, bad faith or manifest 12 absurdity. 13 My Lords, Mr Pleming's submission was that these 14 cases, when dealing with macro political economic 15 decisions, are, he said, not relevant to the rationality 16 issues before the court. Even at the end of his 17 submissions, it wasn't clear that he had explained why 18 that was the case. 19 My Lord, in support of what I say is a clear point, 20 that this is a high level policy-type decision, there 21 are a just a handful of short points I want to make. 22 First of all, one only needs to look at the ANPS 23 itself to see that is the nature of the document, a high 24 level policy-type decision involving social, economic 25 and political factors. It is self-evident from the 48 1 document. 2 My Lord, secondly, I rely on the Wandsworth case, 3 and I don't think we need to go back to it, but you have 4 it in authorities bundle volume 2, tab 36. 5 The paragraphs that Mr Pleming took you to, 58 to 6 60, are the paragraphs that I would also go to because 7 what one gets from that, in my submission, is that you 8 get in paragraph 58 Mr Justice Sullivan referring to the 9 fact that there is this spectrum, and the submission 10 that was made by the Secretary of State in that case -- 11 which was about the Air Transport White Paper. A 12 similar policy document, not the same. I will come to 13 that, but a similar policy document to ones we are 14 talking about here. 15 Mr Justice Sullivan recognised the spectrum and 16 noted the Secretary of State's submission that this was 17 at the latter end of the spectrum, ie one where the 18 court should not be exercising intensive review. That 19 was accepted by the claimants in that case and, indeed, 20 by the judge. 21 The judge referred to, at paragraph 60, the Bushell 22 case in support of this and, in particular, the 23 observation -- 24 MR JUSTICE HOLGATE: Did the Air Transport White Paper 25 propose a location? I can't remember. 49 1 MR MAURICI: It supported both the expansion of Heathrow and 2 Gatwick, and I think also Stansted as well. 3 MR JUSTICE HOLGATE: Thank you. 4 MR MAURICI: So, my Lord, yes, it did. 5 My Lord, just on Bushell, which is mentioned in 6 paragraph 60 of the judgment in Wandsworth, what was 7 said in Bushell, that's prayed in aid by 8 Mr Justice Sullivan, is the observation that was made by 9 Lord Diplock in Bushell: 10 "A decision to construct a nationwide network of 11 motorways is clearly one of government policy in the 12 widest sense of that term." 13 Ie it is the kind of high level policy decision. 14 Just as the decision to build a nationwide network 15 of motorways is one of high level government policy 16 involving political, economic and social factors, so is 17 this decision. So is this decision. 18 My Lord, that's Wandsworth. 19 Two other very brief observations on this first 20 point about high level political decision. 21 First of all -- I don't ask you to go to it -- in 22 our skeleton, at paragraph 16, we cited the Hammersmith 23 and Nottinghamshire cases, which we say are applicable 24 to the NPS. I particularly draw your Lordship's 25 attention, when you go back to it, to one of the 50 1 passages Mr Pleming did take your Lordships to in 2 Hammersmith. It is authorities bundle bundle 2, tab 32, 3 page 597G, where it was said, in that case: 4 "The formulation and the implementation of national 5 economic policy are matters depending, essentially, on 6 political judgment." 7 My Lord, that description, "national economic 8 policy", I say equally applies and should apply to 9 national planning policy for a major airport. 10 Then, my Lord, finally -- I don't seek to make 11 a huge amount of this, and Mr Pleming went on the 12 offensive on this -- I referred in my skeleton, at 13 paragraph 11, to the observations of 14 Lord Justice Lewison in dismissing the Clarke case. Not 15 to suggest that the grounds in that claim were similar 16 to those pursued by the Boroughs or any of these other 17 claimants, but simply because Lord Justice Lewison 18 observed, rightly, the highly political context of the 19 decision in refusing commission. Not, in my submission, 20 a controversial point. 21 That is the first point. This is a high level 22 policy decision involving social, economic and political 23 factors. 24 Secondly, the second reason why review should be 25 less intrusive, this process has been subject to 51 1 parliamentary approval. We cite the relevant cases in 2 paragraph 15 of our skeleton. My Lord, I am not sure it 3 is necessary to turn them up. Mr Pleming did take you 4 to a number of them. This point, about less intensive 5 review where Parliament has approved is also in the 6 Nottinghamshire and Hammersmith cases as well. It is 7 also made in those cases. 8 MR JUSTICE HOLGATE: The point that you make must be subject 9 to consideration of the nature of the legal challenge. 10 If you have a consultation point, for example, the fact 11 that it has been through Parliament won't perhaps matter 12 so much. 13 MR MAURICI: My Lord, I accept that. 14 MR JUSTICE HOLGATE: The point has more force if you are 15 dealing with a challenge to a question of judgment. 16 MR MAURICI: My Lord, that is true. 17 My Lord, one of the cases we cite in support of the 18 parliamentary approval point is the SG case in the 19 Supreme Court, which Mr Pleming did take your Lordships 20 to. It is in the authorities bundle 2, tab 39. The SG 21 case. 22 My Lords, in relation to that, the one point I would 23 take out of that case is that I think I was challenge by 24 Mr Pleming on two points in relation to how far I took 25 this parliamentary approval point. One was about the 52 1 scope, ie does it just apply to the ANPS or does it 2 apply to the underlying documents, like the AOS, for 3 example? 4 The second one was whether I am confining my 5 submissions about, not just about parliamentary 6 approval, but about less intensive review solely to 7 Wednesbury. 8 My Lords, can I just deal with those? 9 First of all, am I confining these intensity review 10 submissions solely to Wednesbury? 11 They are not solely confined to Wednesbury. The 12 reason is, take for example the SG case that I have just 13 mentioned, that was not actually a Wednesbury challenge. 14 That was a Human Rights Act challenge, where the same 15 observations were intensely reviewed. 16 MR JUSTICE HOLGATE: Would that have been 17 a proportionality -- 18 MR MAURICI: Exactly. 19 MR JUSTICE HOLGATE: One can understand the analogy, yes. 20 MR MAURICI: But largely these submissions do go to the 21 irrationality challenges. But subject, my Lord, to the 22 caveat that I made earlier in answer to 23 Lord Justice Hickinbottom, that we consider that 24 actually the scope -- the number of grounds that are 25 actually Wednesbury challenges is wider than accepted by 53 1 the claimant. Subject to that, largely these 2 submissions are about Wednesbury or Wednesbury-like 3 grounds, as my Lord, Lord Justice Holgate, has -- 4 MR JUSTICE HOLGATE: It might also apply, for example, where 5 you have an argument that there is a failure to take 6 account, a material consideration, and you are applying 7 a Findlay analysis. 8 MR MAURICI: Exactly, which is our fallback argument in 9 relation to the climate change position. 10 My Lord, on scope, because I was also challenged, if 11 you remember, by Mr Pleming about whether I confined my 12 submissions on the effect on parliamentary approval 13 solely to the NPS itself, or whether I extended that to 14 the underlying documents. In particular, for example, 15 the example that Mr Pleming picked out was the AOS. 16 My Lord, I do accept extend the approval point to 17 those underlying documents because they were laid before 18 Parliament, the AOS, the habs regulation assessment were 19 placed before Parliament. Although I am not to go into 20 the detail of it, of course they were part of the 21 examination that took place before the Transport 22 Committee. It wasn't just the ANPS that was being 23 examined. 24 So, that is the second point, parliamentary 25 approval. 54 1 The third point is Newsmith, which is dealt with in 2 our skeleton at paragraph 13. 3 Very briefly on that, I actually think I do want to 4 go to Newsmith at the moment. But the boroughs accept, 5 as they must, that they are limited to public law 6 grounds. You can't have a merits challenge. But they 7 dispute the relevance of Newsmith, my Lord. 8 In particular, the complaint that was made -- if we 9 perhaps get out Newsmith, my Lord, that may assist us. 10 It is volume 2 of the authorities bundle, tab 42. 11 My Lord, if you go to page 1128, Mr Pleming's 12 objection to our reliance on this focused on paragraph 7 13 because, in that paragraph, it is said by 14 Mr Justice Sullivan: 15 "Moreover [and note that word 'moreover'] the 16 inspector's conclusions will have been based on hearing 17 oral evidence ..." 18 Or a hearing of some sort and a site inspection. 19 Mr Pleming's point is that doesn't apply to the 20 Secretary of State. 21 But, my Lord, we actually cited and we actually rely 22 on paragraph 6. 23 Paragraph 6 is freestanding. That is why say 7 says 24 "moreover". Paragraph 6 is: 25 "In case any case where an expert tribunal is the 55 1 fact finding body the threshold for Wednesbury is 2 difficult. But the difficulty is greatly increased in 3 planning cases because the inspector is not simply 4 deciding questions of fact, but reaching a series of 5 planning judgments." 6 Then some examples are given. One of them, as you 7 might notice, is: 8 "Is the site sufficiently accessible by public 9 transport?" 10 Then it is said about those kind of judgments: 11 "Since a significant element of judgement is 12 involved there will usually be scope for a fairly broad 13 range of possible views, none of which can be 14 characterised as unreasonable." 15 That paragraph applies equally to a decision by 16 Secretary of State as it does to an inspector. Indeed, 17 my Lord, it has been applied to Secretary of State 18 decisions in tens, if not hundreds, of cases before 19 planning courts. 20 So, my Lord, the only other observation I make on 21 Newsmith is to go back to something that was said by 22 Mr Justice Holgate to Mr Pleming on Day 1, which is that 23 paragraph 6, and indeed paragraph 8 of Newsmith, also go 24 to the Mott point -- which I am coming to -- about 25 judicial review not being a mechanism, a proper 56 1 mechanism for challenging technical judgments which are 2 disputed. 3 MR JUSTICE HOLGATE: There is also a line of authority in 4 the Supreme Court, Baroness Hale I think said more than 5 once that a margin of appreciation is accorded to 6 decisions by specialist tribunals, and that has been 7 extended to planning inspectors. I think my Lord has 8 said something along those lines. 9 LORD JUSTICE HICKINBOTTOM: I am sure I have. I think the 10 case is Clarke. The original case was Clarke with 11 Baroness Hale. 12 MR MAURICI: My Lord, that's point 3, which is Newsmith and 13 what we say applies. 14 If you keep that bundle open, we need to go next to 15 Hillingdon 2010. My Lords, that is in tab 37 of the 16 same bundle that we have open. My Lords, there are 17 three paragraphs that I want to go back to in Hillingdon 18 2010. First of all, paragraph 66. 19 LORD JUSTICE HICKINBOTTOM: Which? 20 MR MAURICI: Sorry, tab 37 in the same volume we had open, 21 volume 2. So, tab 37. My Lord, paragraph 66. 22 My Lord, I am working from the reported version. 23 I don't know why Mr Pleming preferred the unreported 24 one, but obviously this is a full JPR report, so it has 25 everything in it. I will give you the paragraph 57 1 numbers. 66: 2 "In considering the scope of review I found much 3 assistance in another judgment of Mr Justice Sullivan, 4 Greenpeace ... which also concerned consultations 5 pursuant to a white paper, although in a different 6 context." 7 Towards the end of that paragraph: 8 "Given the judgmental nature of high level strategic 9 decisions, it will be well nigh impossible to mount 10 a Wednesbury rationality challenge absent bad faith or 11 manifest absurdity." 12 So, one of the reasons that Lord Justice Carnwath, 13 as he then was, applied the showstopper approach and 14 a less intensive review approach was because he 15 considered the decision he was there dealing with to be 16 a high level strategic decision. Obviously, my 17 submission is so is the ANPS. 18 My Lord, secondly, paragraph 69. 19 MR JUSTICE HOLGATE: Sorry, just catching up with you. 20 Where does he say that's one of the reasons for the 21 showstopper? 22 MR MAURICI: My Lord, what you get is, this whole section, 23 you see the court's view, is on top of -- just above 24 paragraph 64 there is a heading "The court's view", and 25 then there are a series of paragraphs that build up to 58 1 the conclusion that you get at the end of 69. 2 MR JUSTICE HOLGATE: It is really in 69, isn't it? 3 MR MAURICI: I will come to 69 now, but I do say that part 4 of the reasoning that led him to apply the showstoppers 5 approach wasn't just the point I am coming to but it was 6 also a point around the level, the high level strategic 7 decision. 8 On 69: 9 "I gratefully adopt that analysis and the 10 conclusions directly relevant to the present case, 11 subject to one qualification ..." 12 And then this, my Lord: 13 "It is not simply the high level character." 14 So that is part of his reasoning in my submission. 15 It is not simply the high level character of some of the 16 policy judgments that limits the scope of review. 17 "I would also emphasise the preliminary nature of 18 the decision. As I said any grounds at this stage need 19 to be seen in the context not of an individual decision 20 on that but of a continuing process towards the eventual 21 goal of statutory authorisation and a flaw in the 22 consultation process should not be fatal if it can be 23 put right at a later stage." 24 Then he goes on to say something must be -- 25 MR JUSTICE HOLGATE: The next sentence is also part of the 59 1 context because the phrase clearly and radically wrong 2 is often used to deal with challenges to consultation 3 exercises. And then he says, "Well, we need something 4 more to justify intervention." It is an unusual 5 concept, you don't see it in many cases, intervention by 6 the court being justified at this stage. That then 7 leads up to the showstopper. 8 To me the thrust of this passage is focusing on the 9 fact that it is a preliminary document. There is 10 a distinction surely to be drawn between the ANPS and 11 this document. The ANPS has statutory consequences. As 12 you started off in your submissions, it closes off 13 certain policy decisions. 14 MR MAURICI: It does and I am coming to that again in 15 a moment. 16 MR JUSTICE HOLGATE: You can't have it both ways. 17 MR MAURICI: No, my Lord. Can I just say straight away 18 I accept there is a difference in the situation between 19 2010 Hillingdon and now for two main reasons. My Lord, 20 one is we are further along the road clearly because in 21 Hillingdon we were pre-NPS -- the NPS was still to 22 come -- and here we are talking about the NPS. So 23 clearly we are further along the road. 24 Secondly, I do accept, and I know 25 my Lord Mr Justice Holgate put this point to Mr Pleming 60 1 that part of the reasoning -- I think it is paragraph 53 2 that your Lordship -- and I fully accept this, was that 3 part of the reasoning was that the policy decision in 4 Hillingdon 2010, that policy decision, didn't have any 5 direct legal effects. Whereas of course an NPS does. 6 I accept those differences, as I must, my Lord. 7 I don't seek to hide from them or pretend that they are 8 not differences but part of the reasoning in 9 paragraph 69 that gets Lord Justice Carnwath to his 10 showstoppers is the high level character but also that 11 we are on a continuing process towards the eventual goal 12 of statutory observation. We are still on that 13 continuing process because of course we still have to 14 come the DCO stage. 15 LORD JUSTICE HICKINBOTTOM: The two concepts are not 16 entirely distinct: the high level concept and the 17 preliminary nature. 18 MR MAURICI: No, that's true. 19 LORD JUSTICE HICKINBOTTOM: Because one works from high 20 level policy iteratively through to a final decision. 21 They are linked concepts. 22 MR MAURICI: My Lord, they are. Although in my submission, 23 as your Lordships know, the ANPS is still a high level 24 policy document. It is a policy document which has 25 legal effect, absolutely. But it is still a high level 61 1 policy document. The only point I would make is that we 2 are still on the road or the process, as I think it is 3 said by Lord Justice Carnwath, to the eventual goal of 4 statutory authorisation. So there is still a stage to 5 come. 6 My Lord, I accept that further along the line but 7 the fact that there is this stage to come does have some 8 importance for reasons obviously I will come to in a bit 9 more detail later on, but obviously with the DCO comes 10 a requirement for a whole -- 11 MR JUSTICE HOLGATE: I think you have to be very careful 12 with this analysis because it depends on the nature of 13 the legal challenge. Say, for example, you had 14 a challenge which just went to a policy criterion as 15 opposed to a challenge which had the effect of 16 undermining the choice as between Heathrow and Gatwick. 17 MR MAURICI: Yes, my Lord, I accept that, my Lord, but 18 remember. 19 MR JUSTICE HOLGATE: It is not a uniform standard of review. 20 MR MAURICI: No, my Lord, again I accept that, but in these 21 observations that I am making, as I have said, are 22 principally focused on the Wednesbury challenges and 23 also focused on those grounds, in particular on those 24 grounds where the complaint is made that the Secretary 25 of State has said that the scheme is capable of 62 1 obtaining consent and that conclusion is wrong. 2 My Lord, I do say to those points this does go, but 3 I do accept Mr Justice Holgate's point, of course I do, 4 that it can't just be applied across the board to all 5 grounds. 6 Of course it is not just the DCO that we are talking 7 about here with its requirements for EIA, habitats 8 regulations assessment et cetera. There are, as we 9 point out in our skeleton in paragraph 21 -- I don't ask 10 you to go to it -- further processes that have to be 11 gone through before this airport could be operated, in 12 particular the airspace change process. 13 My Lord, that itself requires, you have the evidence 14 on this in Caroline Low's first witness, but this itself 15 requires detailed environmental assessment and 16 consultation. I will touch a little bit more in 17 a moment on that process when I come to the final 18 preliminary point about DCO versus ANPS. 19 My Lords, my point four was Hillingdon 2010. The 20 other point from Hillingdon that I should have mentioned 21 is I also do rely on paragraph 77 of Hillingdon which 22 really is relevant to the Mott point I am coming to, the 23 judicial review proceedings are not a suitable forum to 24 resolve this technical debate or technical debates in 25 general. That was a technical debate about carbon that 63 1 was particularly being addressed in 77. 2 MR JUSTICE HOLGATE: In that context, just to draw the 3 strings together, we had a debate at one of the 4 preliminary hearings about the admissibility of expert 5 evidence in reply and the inability of the court to 6 resolve matters of that kind if there were to be 7 a conflict. Perhaps we should bear those cases in mind 8 here as well, the Law Society cases. 9 MR MAURICI: Yes, my Lord, you are absolutely right because 10 what is being said by the divisional court in that case 11 is the reason why you don't very often admit this 12 evidence is it is not suitable for judicial review and 13 it can't help you in a judicial review. It can't go to 14 the issues that the court has to decide because the 15 court can't resolve that technical dispute. 16 My Lord, that is the fourth point which is 17 Hillingdon 2010. My Lord, two remaining of my six, 18 I can deal with briefly. 19 The fifth one is this: in the Prideaux case, which 20 I wasn't going to go to, my Lords, but that was 21 a decision we may look at later on habitats but that was 22 a decision of Mr Justice Lindblom (as he then was) where 23 he said that when you had a view from an independent 24 expert body, there Natural England, you as a planning 25 decision-maker were entitled to give that great weight. 64 1 You didn't have to follow their view but if you weren't 2 going to follow it, you had to give cogent reasons why 3 you were not going to follow it, but you were certainly 4 entitled to give it great weight. 5 My Lord, I say that applies equally to, and I am 6 going to come to Natural England to whom this directly 7 applies, but that applies here to the Airports 8 Commission. It is agreed to be in paragraph 4 of the 9 statement of common ground an independent body of 10 experts. It concluded in favour of the northwest runway 11 scheme. I say the Secretary of State was entitled to 12 give that great weight. That again, in my submission is 13 a point that it is relevant to the intensity of the 14 review the court will then exercise because the 15 Secretary of State is relying on this independent expert 16 body's position. 17 Then, my Lord, finally, point six in terms of 18 statutory review, Mott. My Lords, maybe we should just 19 look at Mott briefly. It is volume 2 of the authorities 20 bundle, tab 41. My Lords, if you go to page 4358, 21 paragraph 68, this was a challenge to a withdrawal of 22 a licence for salmon fishing and there were some highly 23 contested technical issues between the claimant and the 24 Environment Agency. 25 In 68 Lord Justice Beatson says: 65 1 "My starting point in considering the contention, 2 put at times in very strong terms, that the judge in 3 this case had not accorded sufficient weight to the 4 nature of the exercise or the exercise of the agency's 5 is the approach a judicial review court should take when 6 considering a challenge to the decision of the 7 designated regulator that it is the result of an 8 evaluation of assessments made using scientific material 9 as to what might happen in the future and is in that 10 sense predictive." 11 You may recall what happened was that the judge 12 effectively accepted that the agency's view was 13 irrational because he preferred the technical evidence 14 of the claimant over that of the agency and he was 15 overturned in the Court of Appeal. 16 My Lord, the helpful part is, if you go to 17 paragraph 69, over the page, so on page 4359m at the top 18 of page, A: 19 "It was common ground that in principle the court 20 should afford a decision-maker an enhanced margin of 21 appreciation in cases such as the present, involving 22 scientific, technical and predictive assessments." 23 All the assessments we are talking about are of that 24 nature. What will the air quality be in 2026? Carbon 25 position is the same. The noise situation. Technology, 66 1 how will it change? All of those things, they are 2 predictive assessments about the future based on 3 scientific, technical points. 4 Then at 71 there is reference to the abolition of 5 vivisection case and the Downs case: 6 "The decisions of this court and the Court of Appeal 7 in which the challenges have succeeded at first instance 8 but appeals by defendants were successful in broad terms 9 because this court ... the judge could substitute his 10 own inexpert view of the science with the view of the 11 decision-maker which was based on a tenable expert 12 opinion." 13 And then abolition of vivisection case is referred 14 to just below F, about halfway down paragraph 72: 15 "May LJ stated that a challenge to a composite 16 scientific judgment based upon an expert analysis of 17 scientific material is a type of decision that is 18 intrinsically less amenable to a successful judicial 19 review application than others and in the context of 20 perversity arguments that an analysis of apparently 21 competent expert scientific opinion is not a proper 22 subject of judicial review proceedings." 23 That is Mr Justice Holgate's point about the Law 24 Society case. 25 Then, my Lords, just finally on this case, two other 67 1 paragraphs, 74, the Cellcom case is referred to and just 2 below C, Lightman J stated that: 3 "The court must be astute to avoid the danger of 4 substituting its views for the decision-maker and 5 contradicting [as in this case] the conscientious 6 decision-maker in acting in good faith with knowledge of 7 all the facts. This was particularly so in the case of 8 the decision-maker's educated predictions for the 9 future." 10 Then, my Lord, 75: 11 "The context of the case and the evidence before the 12 bodies whose decisions were challenged are different 13 from the position in the present case. In Downs there 14 were differences between different experts. In the 15 vivisection case the view of the decision-maker was 16 supported by other experts. As well as those factors, 17 the scope of judicial review is acutely sensitive of the 18 regulatory context and in particular decisions involve 19 what Professor Lon Fuller called polycentric questions 20 posed particular challenges to a judicial review court. 21 Notwithstanding the differences and recognising the 22 importance of sensitivity to context and flexibility 23 I consider that these cases provide general assistance 24 in considering the approach of the decision of the 25 agency." 68 1 I say all of that applies in the context of this 2 case. Insofar as there are challenges, not just by the 3 Boroughs, by a number of other claimants, including 4 Mr Spurrier this morning, to technical assessments. 5 My Lord, that is the final point on preliminary 6 matters. Can I just add one footnote on that point 7 about Mott because Mr Jaffey cited the Advocate 8 General's opinion in Craeynest. That was the recent AG 9 opinion on air quality. Just for your reference -- I am 10 not going to go back to it -- AB4/81A. 11 My Lords, just a handful of short points on it. 12 First of all, it is obviously an AG opinion, so it is 13 not a binding court decision at this stage. Secondly, 14 in the passages Mr Jaffey showed you the 15 Advocate General recognised that the issues concerned 16 involved complex scientific issues, so there had to be 17 some margin of appreciation for the decision-maker. 18 Indeed what the Advocate General says is if there was an 19 air quality challenge to an EU body, you would apply the 20 manifest error of assessment test which is in my 21 submission pretty close to Wednesbury, but having regard 22 to the fact that the context was air quality and 23 protection of human health. 24 In the end, what it comes down to, the 25 Advocate General was asked the question: what should the 69 1 intensity of review be? In my submission I am not sure 2 the Advocate General actually provides an answer to that 3 question. But at paragraph 64, when you go back to it, 4 what it comes down to is the Advocate General says: the 5 defendant body will have to convince the court that they 6 did work that was based on a proper scientific view. 7 That pretty much in my submission is what it comes down 8 to. 9 My Lords, in short, I say there is nothing in that 10 to displace the Court of Appeal's decision in Mott and 11 certainly an opinion of the Advocate General couldn't 12 anyway at this stage. But, my Lords, in my submission 13 there is nothing there that takes us away from Mott. 14 There is another point, this is a point 15 Mr Justice Holgate put to Mr Jaffey, and I will come to 16 this tomorrow. The way Mr Jaffey put his case on air 17 quality, and I will be dealing with this tomorrow, 18 completely different from the way it has been put in 19 writing, all the way through. He solely relied on this 20 80 per cent point, 8 0 per cent chance of breach. 21 My Lord, we say he has that wrong and if it had ever 22 been raised before we could have pointed that out but it 23 had never been raised before. The high risk that's 24 identified in the appraisal of sustainability, that high 25 risk is referenced to coming from the WSP 2017 air 70 1 quality appraisal. My Lord, that is the document that 2 up until Mr Jaffey got on his feet the high risk point 3 was put on the basis of. I am going to say to you if 4 you want to know what high risk means in the context of 5 air quality, and that paragraph that Mr Jaffey showed 6 you, you have to go to that re-analysis document. 7 I will do that. That re-analysis document says what 8 high risk means in this context. It does not mean 9 80 per cent chance of breach. 10 My Lords, had that point ever been raised before 11 Mr Jaffey got to his feet, I would have corrected it 12 earlier but it was wrong, and I will come to the details 13 in due course. 14 MR JUSTICE HOLGATE: Just on paragraph 64, I am just looking 15 at it now, he then goes on to talk about the opposing 16 party being free to counter the claims of the agency or 17 the government body with their own scientifically 18 substantiated arguments and then it peters out and 19 doesn't quite tell you what the court is supposed to do 20 with all this. Is there anything rather more 21 substantial in European law which is supposed to help us 22 on this, on intensity of review? Is this the high 23 watermark? 24 MR MAURICI: I very much think it is. I think you are 25 right. What it says is the court could get its own 71 1 expert. 2 MR JUSTICE HOLGATE: Yes, this is all very helpful. 3 MR MAURICI: No. There is a point, what the 4 Advocate General says earlier on in the judgment is of 5 course all of this is subject to the concept of national 6 procedure of autonomy which is generally unless you are 7 making the exercise of EU rights ineffective, you can 8 apply your own procedures and your own practices in EU 9 cases. 10 Then can I turn to the other preliminary points. 11 I had three. I have dealt with standard of review. The 12 second one is reasons. I hope to deal with that quite 13 quickly. 14 A number of the grounds challenged raised points 15 around failure to give reasons, across all the claimants 16 in fact. The question for the court is what is required 17 by way of reasons in this case? We say the answer comes 18 from section 5(7) of the Planning Act which you have 19 been shown a number of times which says that what you 20 must do is give reasons for the policy set out in the 21 statement. 22 My Lords, I don't deal with section 5(8) which is 23 relevant to the climate change arguments. I will come 24 to that on Monday. But I am going to focus on 5(7) 25 which is the generally applicable reasons application at 72 1 this stage. My Lord, the first observation, the reasons 2 for policy does not mean you have an obligation to give 3 reasons for rejecting the objector's representations and 4 it does not require you to give reasons for reasons. 5 My Lord, those observations must be applicable here. 6 One only needs to think about the fact that we had 7 83,000 responses. The idea that we have to rebut in our 8 policy reasons even the list of points that you generate 9 from those 83,000 people, that is not what you have to 10 do. Parliament thought about, expressly, what is it 11 that you are going to have to do and you have to give 12 reasons for your policy. That is the obligation. 13 My Lords, the next observation I would make is that, 14 again, Mr Justice Holgate observed, on I think it was 15 Day 2, to Mr Jaffey, the reasons for policy is 16 self-evidently different from the reasons for the grant 17 of planning permission. Whether that is a grant by the 18 Secretary of State or by a local planning authority, 19 they are dealing with reasons for a completely different 20 thing. 21 So in my submission there isn't the case law, cases 22 like Dover, Oakley, et cetera, shouldn't just be 23 transplanted across to this context where -- 24 MR JUSTICE HOLGATE: It is a point Mrs Justice Lang made 25 recently in a decision to deal with reasoning in a very 73 1 different context, neighbourhood plans. She wasn't 2 prepared to read across, as I recollect, South Bucks. 3 MR MAURICI: Into policy making, my Lord, yes. In my 4 submission there is obviously good sense in that. But 5 even if one was going to treat cases like Dover and 6 Oakley as in some way analogous and relevant here, if 7 I just give you the reference, my Lords, I won't go to 8 it, but in Oakley, for example, which is authorities 9 bundle 3, tab 69, paragraph 58. In the judgment of 10 Lord Justice Elias, he says: 11 "Even in relation to the planning application 12 context they [that is objectors] cannot expect their 13 detailed representations to be specific and individually 14 addressed." 15 He says: 16 "But, as participants in the process, they can 17 expect to be told in general terms what the committee 18 perceived to be the advantages and disadvantages of 19 a particular development and why the former clearly 20 outweighed the latter." 21 My Lord, that must apply a fortiori to the statement 22 of national planning policy. 23 My Lords, in my submission those cases aren't really 24 relevant but if they are they don't really help the 25 claimants go anywhere at all in my submission. 74 1 MR JUSTICE HOLGATE: Another way of looking at this is to 2 bear in mind this was a case where consultation was 3 involved and Sedley principle 4, grappling 4 conscientiously, whatever the expression is, with the 5 output of consultation. Often you see a consultation -- 6 I think there has been something in the case law about 7 the extent to which in a consultation scenario you have 8 to go through all the points that were made. 9 MR MAURICI: Yes, of course. 10 MR JUSTICE HOLGATE: I have a feeling that was dealt with in 11 West Berkshire by the Court of Appeal possibly. 12 MR MAURICI: We have that in the bundles. 13 MR JUSTICE HOLGATE: If there is any help on that. 14 MR MAURICI: I will have a look at that. It does raise 15 a sort of footnote point on reasons because there was 16 a complaint made in writing, certainly that our evidence 17 constituted ex post facto reasons. It was mentioned by 18 Mr Jaffey but not really pursued in his oral submissions 19 to any degree at all. 20 But, my Lord, the fact is that we weren't required, 21 as I say, to give reasons for rejecting objections, but 22 of course the challenges that have now come in allege, 23 some of them allege, we haven't taken matters into 24 account. My Lord, in responding to that of course we 25 are entitled to produce evidence and a lot of it is 75 1 not -- the evidence is not ex post facto. And I'll come 2 to that when we come to surface access. 3 For example, Mr Jones has a section in his witness 4 statement where he sets out what the concerns of the 5 department were about the modelling work done by TfL. 6 That's not ex post facto because what he's doing and 7 what he tells us he's doing is repeating points that 8 were made by the Secretary of State's team to the 9 Transport Committee. It is repeated in his evidence to 10 avoid the Article IX issue. We have had a debate about 11 those paragraphs and they have been allowed to be 12 referred to because he is repeating evidence. 13 MR JUSTICE HOLGATE: I am sorry to ask another question. 14 Still on consultation, I remember in your evidence that 15 to some extent what happened on HS2 was used as a model 16 for how to run a consultation exercise here and the 17 consultants that were used. There was of course the 18 judgment of Mr Justice Ouseley which we have only in 19 a highly summarised form in the bundle. There was 20 a consultation challenge in that case. Could someone 21 look at his very long judgment to see whether there is 22 something that would assist us here on principle? 23 MR MAURICI: Yes. I did notice you only had -- 24 MR JUSTICE HOLGATE: I know there was a problem with the 25 consultation in that case because a number of 76 1 representations were lost and not dealt with. 2 MR MAURICI: Representations, including from one of the main 3 challengers, had not gone to the consultancy. 4 MR JUSTICE HOLGATE: Yes, but I think what we might be 5 interested in is something a bit broader which deals 6 with the way in which one expresses compliance with 7 Gunning principle 4, Sedley principle 4. 8 MR MAURICI: I am sure someone is taking a note of the 9 points your Lordship is raising and we need to deal 10 with. That is fine. We will look at that. 11 My Lord, I did notice you only had the summary in 12 there but as it is 230 pages I didn't want to add that 13 to the bundle. 14 MR JUSTICE HOLGATE: I haven't yet printed it off. I think 15 I have done enough research. 16 MR MAURICI: No, I wouldn't print it off now. We'll have 17 a look at it first and see. 18 My Lords, can I then deal with the final preliminary 19 matter which is the effect of the airports NPS and its 20 role in a DCO application. 21 Now, my Lords, the ANPS concluded, as I have already 22 said to you, not just that there was a need for the new 23 runway but that it should be delivered at the northwest 24 runway through the northwest runway scheme. That was 25 the government's preferred scheme. It sets out its 77 1 reasons in chapter 3 about why it is the preferred 2 scheme. So the fact is, and I accept this to be the 3 case, and it does have an impact on what can be raised 4 at the DCO stage, the northwest runway scheme has been 5 expressly preferred over two alternatives that are 6 themselves expressly considered and rejected in the 7 ANPS. That is Heathrow ENR and Gatwick. 8 What does that mean? It means the policy of the 9 ANPS is to deliver the preferred scheme. That is the 10 policy. So what effect does that have in terms of what 11 issues can and can't be raised at the DCO stage? 12 My Lords, I am going to take as an example the point 13 that is raised by Mr Pleming as his example which is 14 noise. 15 What can you say or not say about noise at the DCO 16 stage in the light of the statute and the ANPS? What 17 you can say, you definitely can say, is that if you are 18 opposed to the scheme you can raise any impact noise 19 issue arising from the Heathrow northwest runway scheme, 20 any issue at all and you can argue because of those 21 noise impacts either one, the scheme fails the tests on 22 noise in the NPS itself, so that the scheme is not in 23 accordance with the NPS or, secondly, that even if the 24 proposal meets the test in the ANPS on noise the DCO 25 should be refused under section 104(7) because the 78 1 harms, including noise impacts, outweigh the benefits. 2 You are not precluded from running any noise impact 3 point arising from Heathrow northwest runway. 4 MR JUSTICE HOLGATE: So, in other words, the fact that the 5 Secretary of State in adopting the ANPS, recognising 6 your earlier point that there is great benefits from 7 this proposal, but also great detriments, the fact that 8 he struck the balance so far by application in favour of 9 his preference is not conclusive as to -- because that 10 would otherwise buck section 104(7). 11 MR MAURICI: Yes, it would buck section 104(7). 12 MR JUSTICE HOLGATE: Subject to the inter-relationship 13 between that subsection and the preclusion of challenge 14 to merits of government policy. 15 MR MAURICI: My Lord, yes, I will come to -- 16 MR JUSTICE HOLGATE: You have to square that somehow. 17 MR MAURICI: Yes, and I will try and come to that in 18 a moment. 19 It is not just, of course, 104(7). It is also the 20 fact that the NPS itself sets a series of tests around 21 what the applicant must do on noise, what the 22 decision-making process must look at in noise. 23 MR JUSTICE HOLGATE: One way of trying to explain this 24 maybe, to say when you look at the merits of policy for 25 the purposes of applying whatever it is, section 106, 79 1 et cetera, et cetera, you have to read the policy as 2 a whole. If you have a policy which has a detailed raft 3 of criteria to be applied, then that points you in the 4 direction of section 104(7), and therefore justifies 5 what you have just said; the preference could be 6 overturned -- 7 MR MAURICI: My Lord, of course, yes. 8 MR JUSTICE HOLGATE: -- through the DCO process. 9 MR MAURICI: It is also section 104(3) requires the decision 10 to be made in accordance with the NPS. So, you have 11 criteria in the NPS of things you have to meet to 12 satisfy the noise criteria. 13 Now, if you fail to meet those, there would be an 14 argument about, "Well, if you failed to meet those, are 15 you in accordance with the NPS?" Because if you are 16 not, you lose that presumption anyway. 17 But if you don't lose that presumption because it is 18 held either you have met the noise criteria in the ANPS, 19 or you haven't, but for some reason that doesn't mean it 20 is not in accordance overall with the ANPS, for example, 21 you would still be able to run those arguments through 22 section 104(7). 23 Where the ANPS does come in to limit what you can 24 argue, my Lord, is about alternatives. I am going to 25 deal with that now because the ANPS, as I have said, 80 1 supports the northwest runway scheme and not other 2 schemes. Its location specific, something that the Act 3 expressly allows for and the ANPS does not support 4 a view that, instead of the northwest runway, a further 5 runway should be provided at Gatwick. Or that Gatwick 6 as an alternative should be reopened at the DCO stage, 7 subject to this, my Lord -- can we just look at the ANPS 8 for a moment? 9 It is in core bundle 6, volume 7, page 242. The 10 paragraph I want to go to is, in any event. This was 11 a paragraph Mr Pleming raised. 12 LORD JUSTICE HICKINBOTTOM: 428? 13 MR MAURICI: Yes, 428. There is a section on assessing 14 alternatives, and what it says is: 15 "The applicant should comply with all legal 16 obligations and policy set out in the airports NPS on 17 the assessment of alternatives." 18 In particular, obviously, there is an obligation to 19 deal with alternatives under the EIA Directive, which 20 can't be supplied to an ANPS. There is also, of course, 21 potentially a requirement to consider alternatives under 22 the habitats and -- we're not focusing on that in this 23 case, but the water framework directives. So, again, as 24 such, you can't simply disapply range because of the 25 ANPS. 81 1 LORD JUSTICE HICKINBOTTOM: You say that, and I understand 2 that conceptually, but if the NPS determines that, let's 3 say, Gatwick is not an alternative because it does not 4 fulfil the objective. 5 MR MAURICI: Which it does. 6 LORD JUSTICE HICKINBOTTOM: Then it can't be a reasonable 7 alternative. 8 MR MAURICI: Correct, my Lord. 9 LORD JUSTICE HICKINBOTTOM: So, it does determine that. 10 MR MAURICI: My Lord, it certainly rules out Gatwick, yes, 11 as a suitable alternative under a Habitats Regulation 12 Assessment. 13 LORD JUSTICE HICKINBOTTOM: It rules it out as an 14 alternative and, consequently, it necessarily rules it 15 as a reasonable alternative for the EIA, or ... 16 MR MAURICI: My Lord, it's certainly -- in EIA the 17 requirement is different. In the EIA, you don't have to 18 look at reasonable alternatives, you have to look at the 19 alternatives the developer studied. So, obviously, from 20 an EIA perspective, HAL will not have studied expanding 21 Gatwick because that is not their proposal. But, 22 my Lord, you are absolutely right -- and I accept 23 this -- that the effect of the conclusion in the ANPS 24 that Gatwick is not an alternative for habitats 25 purposes -- and indeed more generally, I would say, the 82 1 conclusion it is not an alternative. It has been ruled 2 as an alternative -- would mean you would still have to 3 undertake an alternatives assessment. You still have to 4 consider: is there any alternative? But the answer to 5 the question about whether Gatwick is an alternative 6 would be answered by the ANPS. 7 LORD JUSTICE HICKINBOTTOM: Yes. 8 MR MAURICI: My Lord, I accept that. It would have that 9 effect. 10 LORD JUSTICE HICKINBOTTOM: So, the ANPS has the effect of 11 knocking out Gatwick; is that right? 12 MR MAURICI: My Lord, yes, it knocks out Gatwick as an 13 alternative. 14 LORD JUSTICE HICKINBOTTOM: And Gatwick cannot come back in 15 at the DCO stage? 16 MR MAURICI: My Lord, they cannot, no. 17 MR JUSTICE HOLGATE: Even under subsection 7 of section 104. 18 MR MAURICI: My Lord, yes. 19 MR JUSTICE HOLGATE: On that analysis, that's where -- I am 20 sorry if I have forgotten the section number. The one 21 that says you can't challenge, or rather -- can you just 22 dig it out again? 23 MR MAURICI: Yes, my Lord, it is 106. 24 MR JUSTICE HOLGATE: It is expressed as a power rather than 25 a -- 83 1 MR MAURICI: My Lord, yes. 106(1), and there also 87(1) is 2 the examining authority. 3 MR JUSTICE HOLGATE: This is at? 4 MR MAURICI: Tab 8. 5 MR JUSTICE HOLGATE: You can disregard representations which 6 relate to the merits -- even relate to the merits. It 7 is obviously challenging the merits. 8 MR MAURICI: Yes. 9 MR JUSTICE HOLGATE: So, you say that precludes the 10 consideration of representations, which seek to put 11 forward Gatwick as an alternative, and that can't be 12 circumvented by going to section 104(7). 13 MR MAURICI: No, my Lord, for the reasons given by 14 Mr Justice Ouseley in Blue Green. The reason given by 15 Mr Justice Ouseley in Blue Green -- I don't necessarily 16 want to go back to it -- about section 104(7) and 17 whether that can allow you to reopen alternatives that 18 have been excluded. What he says is: 19 "It neither adds to the adverse impact nor detracts 20 from it. Nor does it add or detract from its benefits 21 that some different scheme might be thought to have 22 greater benefits or lesser impacts." 23 MR JUSTICE HOLGATE: Yes, but what I am slightly struggling 24 with -- and I am sure it is my fault -- is that you 25 previously said: leave aside alternatives, the way the 84 1 Secretary of State has hitherto struck the balance 2 between benefit and disbenefit in preferring, or even 3 being prepared to -- forget the comparison, being 4 prepared to put forward LNR in his ANPS, that can be 5 challenged through objections under the DCO, under 6 subsection 7. So, if you can do that, intellectually, 7 how do you distinguish the alternative? 8 MR MAURICI: Because what section 104(7) allows you to do 9 always -- always -- is to look at the scale of the 10 impacts. 11 MR JUSTICE HOLGATE: Yes, even though the effect is to 12 challenge the merits of policy. 13 MR MAURICI: My Lord, yes, because 104(7) says that. 14 My Lord -- 15 MR JUSTICE HOLGATE: So, then in that context 104(7) does 16 override 106(1). 17 MR MAURICI: It is not really challenging the policy because 18 on things like noise the policy doesn't just say: that's 19 all resolved, full stop, no more. 20 It actually says: here are a series of tests that 21 have to be satisfied. 22 The policy is expressly not closing down those 23 issues. 24 MR JUSTICE HOLGATE: That goes back to my earlier point 25 about reading it as a whole. 85 1 MR MAURICI: It does go back to exactly that point. That, 2 in my submission, is how this works. 3 If you are the boroughs and you are objecting, you 4 can raise the full suite of noise points about the 5 impacts of Heathrow NWR, and you can deploy them to say 6 you fail the test in the NPS itself, or you fail under 7 section 104(7). 8 LORD JUSTICE HICKINBOTTOM: But what you can't say is there 9 is no noise at Gatwick. 10 MR MAURICI: Yes, you can't say that. You can't, "Actually, 11 Gatwick will be better", because that is not relevant. 12 That was a strategic decision that has been made in the 13 NPS to prefer one scheme over the other. 14 Of course, boroughs say, "But Gatwick would have far 15 less noise impact". That is true and everyone has 16 accepted that all the way through, but nonetheless, the 17 decision has been made to prefer the northwest runway 18 scheme and to rule out the Gatwick scheme. 19 LORD JUSTICE HICKINBOTTOM: In this case, as I understand 20 it, Gatwick was ruled out because it didn't satisfy the 21 objectives. 22 MR MAURICI: Yes, my Lord, that is a key reason. Yes. 23 LORD JUSTICE HICKINBOTTOM: That's either the reason or it 24 isn't, isn't it? Because there are two -- 25 MR MAURICI: My Lord, can I just check, you mean in terms of 86 1 Habitats Regulation Assessment it was ruled out. 2 LORD JUSTICE HICKINBOTTOM: No. If Gatwick does not satisfy 3 the objectives, then it is not an alternative. 4 MR MAURICI: Yes, my Lord, that's true. That's what was 5 found. 6 LORD JUSTICE HICKINBOTTOM: And that is what it found. 7 MR MAURICI: Yes, my Lord. 8 LORD JUSTICE HICKINBOTTOM: That is different from the NPS 9 saying, "Well, it does satisfy the objectives. It may 10 satisfy the objectives. But, on balance, because of the 11 benefits and the detriments, it has to be Heathrow", 12 because that is an assessment. 13 MR MAURICI: Yes, my Lord. 14 LORD JUSTICE HICKINBOTTOM: The first is not an assessment 15 in that balancing sense. It is a knockout blow. 16 MR MAURICI: My Lord, yes. That's ultimately those 17 paragraphs which we are going to look at when we come to 18 habitats. 19 MR JUSTICE HOLGATE: Whatever you can do otherwise, in other 20 cases to section 104(7), if you try and run an argument 21 looking at noise or ecological effects and so on, 22 Gatwick is preferable, it is actually an irrelevant 23 objection because of the reason given for preferring 24 LNW. That is my Lord's point. That is the way one can 25 read it. 87 1 MR MAURICI: My Lord, yes. 2 LORD JUSTICE HICKINBOTTOM: That is, with respect, exactly 3 it, which means that Gatwick can never come back because 4 it just doesn't do the job. 5 MR MAURICI: Well, my Lord, not quite never, because next 6 point the boroughs raise is what happens if there is 7 a major change of circumstance in relation to the 8 reasons that you have made your choice. 9 I don't know what that would be. But, yes, my Lord, 10 the answer is review. The answer would be review 11 because the Secretary of State has a power to review if 12 he thinks it is appropriate. 13 My Lord, again, this was dealt with, I know it is 14 a commission decision. Although, as I understand it, it 15 was one of those commission decisions which has been 16 given permission to be reported. It's the Blue Green in 17 the Court of Appeal. Lord Justice Sales deals with it 18 at paragraphs 13 and 14. The exact point is put. 19 Because, in that case, effectively, the waste water NPS 20 said, "It can only be a tunnel. That is all it can be", 21 and the other alternatives are ruled out. 22 Their point was: what happens if something major 23 happens and you decide that, actually, that was a wrong 24 conclusion? That strategic conclusion to choose one and 25 rule out strategic alternatives turns out to be wrong 88 1 because of some change of circumstance; how do you deal 2 with that? 3 The claimant said, "That means you can raise that 4 again at the DCO", and the Court of Appeal and 5 Mr Justice Ouseley said: no, you can't do that. The 6 answer is review. You seek a review. 7 LORD JUSTICE HICKINBOTTOM: I understand that conceptually. 8 But, in this case, let's say there is a major change in 9 circumstance, in terms of some scientific change, the 10 science evolves in some way or another, which makes 11 Heathrow less attractive. But, nevertheless, unless the 12 government changes the objectives, Gatwick will never 13 ever come back. 14 They might change their objectives because they 15 might decide that the objective is to increase airport 16 capacity, full stop. No hub objective. Policy 17 objectives can change. 18 MR MAURICI: Objectives can change. Also, my Lord, what we 19 are talking about at the moment is meeting our airport 20 needs 2030s onwards. There is actually a whole future 21 planning about: what if we need more airport capacity in 22 the future? Could Gatwick have a role in the future? 23 LORD JUSTICE HICKINBOTTOM: No, I understand that. 24 MR MAURICI: I'm not going to say never. I can't say never 25 on behalf of the Secretary of State, but in this process 89 1 you are right. 2 LORD JUSTICE HICKINBOTTOM: Yes, but that has a different 3 objective. That is an objective to increase -- 4 MR MAURICI: It would be a different objective. Exactly, 5 my Lord. 6 LORD JUSTICE HICKINBOTTOM: With these objectives, with the 7 objectives that the Airports Commission had and the 8 objectives identified in the NPS, Gatwick just does not 9 do the job. 10 MR MAURICI: My Lord, that's correct. 11 MR JUSTICE HOLGATE: To borrow a phrase, the NPS has the 12 effect of operating as a showstopper in relation to 13 Gatwick. 14 MR MAURICI: My Lord, yes, you could say that. 15 MR JUSTICE HOLGATE: Which may have implications for how one 16 approaches intensity of review, given that is the 17 statutory effect of the ANPS insofar as you have 18 a ground of challenge which is relevant to that 19 particular point. 20 MR MAURICI: My Lord, in principle, yes. I see that. 21 My Lord, it obviously depends on quite which grounds we 22 are talking about. 23 MR JUSTICE HOLGATE: Obviously. 24 LORD JUSTICE HICKINBOTTOM: Not now, because I think you are 25 still on your preliminary points. 90 1 MR MAURICI: I am, my ambitions -- 2 LORD JUSTICE HICKINBOTTOM: But these are very important 3 points. 4 MR MAURICI: Yes, they are. 5 LORD JUSTICE HICKINBOTTOM: Which is no doubt why you have 6 raised them now. 7 But, at some stage, as I indicated yesterday, given 8 that, by the NPS, Gatwick was not a runner because 9 that's what the NPS said. I would like to know when 10 that decision was taken. 11 MR MAURICI: Yes. 12 LORD JUSTICE HICKINBOTTOM: Not now. You will do that in 13 the -- 14 MR MAURICI: My Lord, we have actually -- we have done a one 15 page chronology, my Lord, but it is more focused and the 16 habitat side. But that is where this kind of plays out 17 in terms of the chronology. I am very happy to give it 18 in now. 19 LORD JUSTICE HICKINBOTTOM: Yes, I am happy either way. You 20 must take your own course, I think. But it is an 21 answer -- it is a question -- 22 MR MAURICI: I will hand it in now. I won't get to it 23 before lunch, but I might as well hand it in now. We 24 have two for the court, and then ... 25 (Handed) 91 1 I won't turn to it now, but if your Lordships have 2 it, we will come to it later. 3 MR JUSTICE HOLGATE: We won't read it now. 4 MR MAURICI: I was going to turn to something else, but your 5 Lordships can read it now. 6 LORD JUSTICE HICKINBOTTOM: You will deal with that in 7 habitat? 8 MR MAURICI: I will deal with that in habitats, yes. 9 CL1, the reference is Caroline Low's witness 10 statement. 11 LORD JUSTICE HICKINBOTTOM: Everyone is reading it, 12 Mr Maurici. 13 MR MAURICI: I knew that would happen. Can I move on to the 14 first of the subjects I said I was going to deal with. 15 I think I have dealt with all the preliminary matters 16 now. Can I move on to the first subject? 17 My Lords, consultation was the first thing; bias, 18 predetermination. 19 My Lords, what I want to do is make four 20 introductory remarks in relation to that. Then, having 21 done that, I am going to turn briefly to what the 22 complaints are and deal with those. 23 So, my Lord, the first introductory points. First 24 of all, the boroughs' ground of challenge, as you know, 25 is entitled consultation failings. But, in essence, it 92 1 is under the fourth Gunning principle. What it is, is 2 an allegation of predetermination, or the appearance of 3 predetermination, on the part of the Secretary of State. 4 My Lords, in my submission, the boroughs' skeleton 5 continues to exhibit some confusion, evident also in the 6 pleadings, as to whether they really are alleging the 7 appearance of predetermination or actual 8 predetermination. 9 The reason I say that, just to give you an example, 10 if you take out the boroughs' skeleton arguments. 11 My Lord, I have these separately, but I think it is 12 in volume 10, tab 1, isn't it? 13 In the skeleton argument, if we go to paragraph 98 14 to start with ... 15 LORD JUSTICE HICKINBOTTOM: This is tab 1, paragraph 98? 16 MR MAURICI: Yes, tab 1, paragraph 98, page 37. 17 My Lords, you will see that the way it is put in 98 18 is the appearance of predetermination test, so the real 19 risk from Lewis v Redcar. But then, 99, the evidence 20 shows that 99.1, the Secretary of State did not carry 21 out the consultation with an open mind. 22 That is an allegation of actual predetermination. 23 There's then 99.2, that is appearance of. Then 100, 24 look at paragraph 100, this is first line, end of the 25 first line: 93 1 "This is because since October 2016, when the 2 Secretary of State expressed a preference for 3 development at Heathrow, the Secretary of State has not 4 been open to making any substantial changes to the 5 policy to support that development. He had already 6 decided the points." 7 So, there is a confusion about what is being 8 alleged. My Lord, it is repeated -- I am not going to 9 go to it -- 10 LORD JUSTICE HICKINBOTTOM: I am sorry to interrupt again. 11 There seem to me to be three concepts here. One is 12 actual closed mind -- 13 MR MAURICI: Yes. 14 LORD JUSTICE HICKINBOTTOM: -- one is a real risk of 15 a closed mind. Thirdly, appearance of a closed mind. 16 MR MAURICI: I think it is only two, in my submission, 17 because the first one is absolutely right. Is there 18 actual predetermination? But, in terms of the 19 appearance of predetermination, the test is, whether 20 there is a real risk. So, I think they are the same 21 thing. It is just a way of analysing whether there is 22 an appearance of predetermination. 23 LORD JUSTICE HICKINBOTTOM: Because if there is an 24 appearance, then there is a real risk. 25 MR MAURICI: If there is a real risk, then you meet the test 94 1 on appearance of predetermination. 2 I do want to look at the cases on this in a bit, but 3 I think -- 4 LORD JUSTICE HICKINBOTTOM: We will come to the cases, 5 but -- 6 MR MAURICI: But I think there are two concepts, I think. 7 LORD JUSTICE HICKINBOTTOM: Is either sufficient for the 8 claimants' point of view? 9 MR MAURICI: Yes, in reality, because this is a point of 10 them actually alleging predetermination because -- 11 LORD JUSTICE HICKINBOTTOM: No, no. 12 MR MAURICI: -- if they can win on the appearance, that 13 would be sufficient. 14 LORD JUSTICE HICKINBOTTOM: Yes. 15 MR MAURICI: My Lord, I don't need to go to it, but in their 16 evidence, similarly -- I will just give you the 17 references, if I may. So, Councillor Puddifoot's first 18 witness statement, paragraphs 131 and 135, which is core 19 bundle 3, tab 1, pages 35 and 37. That is one 20 reference. Then the other is Mr Baker's witness 21 statement, first witness statement, paragraph 6, which 22 is core bundle 3, tab 3, page 65. 23 In both of those, the comments that are made look 24 like allegations of actual predetermination, not the 25 appearance of. 95 1 That is the first preliminary observation. The 2 second preliminary observation is, my Lords, if we are 3 considering the appearance of predetermination, we look 4 at it from the perspective of the reasonable observer. 5 MR JUSTICE HOLGATE: In 99.2 of Hillingdon's skeleton: 6 "Fair-minded and informed observer." 7 It sounds a bit like the Gough Test. 8 MR MAURICI: It is basically the same test, my Lord. The 9 test from appearance of bias -- my Lord we will see as 10 we look at Lewis v Redcar -- has basically been 11 transplanted over to the appearance of predetermination. 12 Until Lewis v Redcar, there was some doubt about whether 13 the appearance of predetermination was actually 14 a concept, but the Court of Appeal said it was and you 15 basically analyse it the same way as bias. 16 So, it is the reasonable, fair-minded and informed 17 observer, who has full knowledge of all the facts. They 18 are almost omnipotent. They have a full consideration 19 of all the facts, but judge from their perspective. 20 If that is how we are judging it, my Lord, by way of 21 a preliminary point, I do say that the role of 22 Sir Jeremy Sullivan has some relevance in this, for two 23 reasons. One is his role is described in more detail in 24 Ms Low's first witness statement, but he had a direct 25 role -- which is described there -- in drafting the 96 1 questions, in putting into drafting questions how the 2 consultation events were run, the kind of information 3 that was provided, et cetera. So, he was looking at or 4 trying to ensure that this process was carried out in 5 accordance with good practice and fairly. 6 My Lord, I say that is relevant because 7 the fair-minded and reasonable observer would have 8 regard to the fact that there was this role for 9 Sir Jeremy Sullivan in inputting into documents. 10 Indeed, he attended a number of events to answer 11 questions and deal with people's concerns. 12 My Lords, there is a separate point that he did also 13 at least give some answer to complaints that were made 14 during the process, about whether the department had 15 a closed mind on this. 16 My Lords, I give you the reference. It is 17 Caroline Low's first witness statement, paragraph 7.20 18 and 7.21, which is core bundle 4, tab 1, page 265. 19 Sir Jeremy Sullivan did make some observations from the 20 perspective of his dealings with the department about 21 whether the process was genuine or closed. 22 My Lord, I don't say, and I couldn't say, that those 23 are decisive. Of course they are not, but they are 24 relevant considerations that the fair-minded observer 25 would have regard to. 97 1 MR JUSTICE HOLGATE: As you just said, the fair-minded 2 observer is omnipotent, so that person would take into 3 account all relevant material and we don't know the 4 extent to which Sir Jeremy Sullivan had access to that. 5 MR MAURICI: It is described in -- well, not all material, 6 but there is described in Caroline Low's witness 7 statement, from paragraph 202 onwards; that is core 8 bundle 4, tab 1, page 85 onwards. She does describe the 9 role that Sir Jeremy Sullivan took, including the fact 10 that he saw the questions, he inputted into all the 11 questions -- 12 MR JUSTICE HOLGATE: I understand that. I am referring to 13 particular evidence -- 14 MR MAURICI: Of course, not everything, my Lord. 15 MR JUSTICE HOLGATE: The particular evidence that, for 16 example, Councillor Puddifoot relies on. 17 MR MAURICI: No, and I would accept Sir Jeremy Sullivan 18 wasn't there to review that kind of point. He was there 19 to review a different point, which was some people were 20 coming to him saying, "Is there any point responding to 21 this consultation because I think they've made their 22 mind up already?" He was saying, "This is my 23 perspective, having been involved in this process". 24 LORD JUSTICE HICKINBOTTOM: He was mainly concerned with the 25 process, wasn't he? 98 1 MR MAURICI: He was concerned with the process, but the 2 reason that is relevant is part of the complaint that is 3 pleaded, and in the evidence and also in the skeleton on 4 this, is that the way in which the consultation was set 5 up is part of the evidence of predetermination. So, the 6 way the leaflet, the way boards were set up. So, to the 7 extent that is pursued -- and it is pursued in the 8 skeleton, it wasn't orally -- Sir Jeremy's Sullivan's 9 observations would obviously be relevant to that. 10 The third observation in terms of opening this, 11 my Lord, the reasonable observer would also have regard 12 to the procedures that were put in place by the 13 department to try and ensure propriety. That is on two 14 levels. First of all -- I will give you the 15 reference -- Caroline Low's first witness statement, 16 paragraphs 341 to 358. So, that is core bundle 4, 17 tab 1, pages 146 to 151. She sets out the very 18 extensive proprietary arrangements that were put in 19 place within the department to try and ensure fairness 20 and no predetermination. 21 In particular, of course, what Mr Pleming took you 22 to was the statement of approach by ministers. I don't 23 ask you to go back to it, but if you remember it was in 24 supplementary bundle 11, tab 25, page 587 onwards. 25 There is no criticism of that guidance by the boroughs. 99 1 They say section 8 didn't follow it, but the reasonable 2 observer would have regard to the fact that the 3 department put in place proprietary arrangements, 4 including for ministers, in order to try and ensure that 5 there was no appearance or predetermination of the 6 process. That is something that would be had regard to 7 by the reasonable observer. 8 Fourthly, my Lord -- and this is really, I say, the 9 key one, and I think looking at the clock, there is not 10 much point me starting it because it is not a short one. 11 What I am going to come to is we do say there is 12 a very crucial concession by the boroughs that the 13 Secretary of State was entitled to have a preference, 14 case law would describe it as a predisposition between 15 Heathrow northwest runway from October 2016, when the 16 Cabinet endorsed that preference, subject to 17 consultation, et cetera. 18 We say that is really crucial, and I'll come to why 19 in terms of both statute and the case law after lunch. 20 LORD JUSTICE HICKINBOTTOM: That is important, so we'll 21 break now. 2 o'clock. 22 (1.00 pm) 23 (Luncheon Adjournment) 24 (2.00 pm) 25 MR MAURICI: My Lords, I was about to turn to legitimacy of 100 1 a preference or a predisposition. 2 Before I do that, can I just come back to some of 3 the points that Mr Justice Holgate raised when we were 4 talking about reasons. 5 My Lords, I think the first one was about 6 West Berks, and there is a useful passage in West Berks. 7 I don't know if you want to look at it very briefly, but 8 it is in bundle 4, tab 74. So, authorities bundle 4, 9 tab 74. It is paragraph 62 and 63, but I think 10 principally 63. 11 MR JUSTICE HOLGATE: I have marked it already. 12 MR MAURICI: My Lord, yes. 13 MR JUSTICE HOLGATE: Page 3944. 14 MR MAURICI: Correct, my Lord: 15 "We do not consider it as necessary for the 16 Secretary of State to descend to that level of 17 particularity. The requirements of fair consultation do 18 not require that sort of detailed analysis of options 19 before the minister. No obligation for a party to 20 consult on each and every specific item of detail when 21 there are a series of different models available ..." 22 So, my Lord, that is a helpful passage. 23 My Lord, the second case your Lordship raised was a 24 decision of Mrs Justice Lang, which is the Bewley Homes 25 case. It is not in the bundles. We do have a copy of 101 1 that if your Lordships want it. That was a decision 2 where, as Mr Justice Holgate indicated, Mrs Justice Lang 3 indicated that South Bucks v Porter does not apply to 4 policy making. They are a neighbourhood plan. 5 My Lords, I have a reference and paragraph numbers. 6 Would you like a copy of the judgment? 7 LORD JUSTICE HICKINBOTTOM: Yes, please. 8 MR MAURICI: I will get that up. 9 (Handed) 10 My Lords, while that is coming up, paragraph 55 is 11 the key paragraph, but you will also see that 50 and 51 12 set out the particular statutory context there, what the 13 reasons duty was. But it is 55 -- sorry, just give me 14 one moment, my Lord. 15 (Pause) 16 MR PLEMING: While my learned friend is looking, I think 17 this is the third or fourth case we are going to add to 18 the end. It might be helpful to start giving them 19 numbers. 20 LORD JUSTICE HICKINBOTTOM: I think that is right. 21 MR MAURICI: The very end. It is the very end of 55, 22 my Lord: 23 "I consider an examiner examining a neighbourhood 24 plan. He is undertaking a function which is narrowly 25 proscribed by statute, subject to a limited statutory 102 1 duty to give reasons." 2 MR JUSTICE HOLGATE: This is the examiner for neighbourhood 3 planning having to give reasons for his recommendation? 4 MR MAURICI: Correct, my Lord. 5 MR JUSTICE HOLGATE: I don't think, from memory, there is 6 a duty to give reasons on the part of the body adopting 7 the plan. 8 MR MAURICI: No. 9 MR JUSTICE HOLGATE: No. 10 MR MAURICI: Not a statutory duty, no. 11 MR JUSTICE HOLGATE: This is the critical stage, isn't it? 12 MR MAURICI: My Lord, yes. My Lord, we don't have copies of 13 this. There is one other case which we can get copies 14 of if you think it would assist. But there is a case 15 called CPRE Surrey, which is [2018] EWHC 2969 (Admin), 16 decision of Nathalie Lieven QC, sitting as a deputy high 17 court judge. 2 [2018] EWHC 2969 (Admin), and it is at 18 paragraph 59, where Nathalie Lieven QC, sitting as 19 a deputy, holds that a local plan inspector is not bound 20 by South Bucks. 21 I understand that case is under appeal to the Court 22 of Appeal, although I am not sure it is on that point 23 that it is under appeal. 24 My Lords, I don't have copies here, but if you would 25 like a copy of that, we can get that for you. 103 1 MR JUSTICE HOLGATE: Yes, I think we would. 2 MR MAURICI: Thank you. 3 LORD JUSTICE HICKINBOTTOM: All of these are going at the 4 end? 5 MR MAURICI: At the end. 6 LORD JUSTICE HICKINBOTTOM: Of bundle 6? 7 MR MAURICI: My Lord, yes. My Lords, if I could return to 8 the issue of -- this was my final introductory point in 9 relation to bias and predetermination, the legitimacy of 10 having a preference or predisposition. 11 I want to approach it in two ways, (1) the statute 12 that we have here, and (2) the case law. 13 In terms of the statute, section 5, as we know, 14 specifically allows for an NPS to be location specific, 15 plus the Act requires that, before an NPS is designated 16 with a location specific policy, you must follow the 17 full process of consultation and, of course, 18 parliamentary approval for that draft NPS. 19 So, my submission, very shortly, is that it is 20 inherent in the statutory scheme and a necessary feature 21 of it that prior to consulting on the content of 22 a location specific NPS, the Secretary of State will 23 have had to have chosen one or have a preference for 24 one. 25 But it goes further than that, because as part of 104 1 the processes that you must undertake under the 2 Planning Act, the Secretary of State is going to have to 3 put forward a case for, argue for and support that 4 preference, albeit it is still subject to consultation, 5 because he has to get it through Parliament. He has to 6 make those arguments in the political arena to get that 7 policy through Parliament. 8 So, it is a preference, it is a predisposition, of 9 course, but the statute, in my submission, by necessity 10 recognises that, must recognise that. 11 That is the statutory side of it. Then can I turn 12 to the case law? 13 I hope what I can do is deal with it -- there are 14 three cases I want to look at, but what I was going to 15 do was to try and speed things up. I was going to ask 16 you to go to our summary grounds in the boroughs' case, 17 so that is core bundle 1, tab 8, page 296. It is 18 paragraph 221 onwards of our summary grounds, which 19 quotes the key passages from the three cases that I want 20 to draw to the court's attention. 21 I start with -- and the first one is most directly 22 related to the statutory point that I just made. 23 I start with CREED NZ, in 221, and you will see it says 24 in our summary of it: 25 "Concerning the application by order of statute to 105 1 the construction of aluminum smelter and associated 2 works. The effect of the statute's application [is in 3 New Zealand, of course] is to supersede normal statutory 4 procedures for development consents and replace them 5 with a fast track process." 6 Which sounds familiar: 7 "The claimant challenged the application statute 8 alleged on, amongst other things, predetermination from 9 a closed mind." 10 The closed mind was said to be demonstrated by 11 a series of public statements by the executive council 12 reported in the press. Cooke J said: 13 "Realism compels recognition that before the end 14 of July 1980 the government had decided that a smelter 15 projects by the company in South Island was likely to be 16 in the national interest, and should go ahead if 17 possible. I think, too, that it is a fair inference 18 from the various newspaper reports, which need not be 19 detailed, and from the very size and nature of the 20 project, that from an early stage the government had 21 favoured using the Act for it. Also, it is apparent 22 that Aramoana main order site favoured [so there was 23 a site favoured site] by the government and the 24 announcement of its choice by the company 25 in December 1980 was publicly welcomed by the 106 1 Prime Minister. 2 "None of this means, however, that the government 3 was irretrievably committed to advising the necessary 4 ordering council. What can probably be inferred is 5 that, when the question arose in April 1981, the 6 government was already clearly in favour of the 7 company's project and highly likely to decide in favour 8 of the ordering council. 9 "But it is fallacious to regard that as 10 a disqualification. The references in the amended 11 statement of claim to a real probability of suspicion of 12 predetermination or bias are beside the point in 13 relation to a decision of this nature, at this 14 governmental level. Projects of this kind, for which 15 the National Development Act is intended, whether 16 government works or private works, are likely to be many 17 months in evolution. They must attract significant 18 public interest. It would be naive to suppose that 19 Parliament can have meant ministers to refrain from 20 forming and expressing, even strongly, views on the 21 desirability of such projects until the stage of 22 advising and ordering council. 23 "In relation to the decisions under section 3(3), 24 I think no test of impartiality or apparent absence of 25 predetermination has to be satisfied. Any other 107 1 approach would make the legislation practically 2 unworkable. The only relevant question can be whether 3 at the time of advising the making of the order of 4 council the ministers genuinely addressed themselves to 5 the statutory criteria and were of the opinion that the 6 criteria was satisfied." 7 My Lord, a different statutory regime, but really, 8 in my submission, very similar observations, I would 9 say, to the ones I have made about -- 10 MR JUSTICE HOLGATE: So, he is saying the appearance of 11 predetermination concept is irrelevant if that is the 12 sort of statutory framework that you have, that leaves 13 open the possibility of actual predetermination, having 14 a closed mind, actually. 15 MR MAURICI: Correct, my Lord, yes. 16 MR JUSTICE HOLGATE: Yes. 17 MR MAURICI: So, absolutely right. So, if you have 18 a statutory regime like this, and I would say, in my 19 submission, the same for this Act, really there is no 20 role for the appearance of predetermination. But, 21 obviously, if there was actual predetermination proved, 22 that would be different. 23 My Lords, that is the first point. 24 The second point is even if I am wrong on that, even 25 if I am wrong on that and your Lordships consider it is 108 1 appropriate to apply a test of the appearance of 2 predetermination, that's where Lewis v Redcar comes in. 3 The relevant passages we have set out at 224 in the same 4 document. So, paragraph 224, page 297. This was the 5 Court of Appeal and, first of all, we look at 6 Lord Justice Pills' judgment. This was an allegation of 7 bias against the planning committee in relation to 8 a proposal in respect of which there was already 9 development agreement with council, and they had to 10 consider the planning permission. You will see we quote 11 first of all from 62: 12 "When taking a decision, councillors must have 13 regard to material considerations, and only to material 14 considerations, to give fair consideration to the points 15 raised, whether in an officers' report to them or in 16 representations made to them at the meeting of the 17 planning committee. They are not however required to 18 cast aside views on planning policy, which they'll have 19 formed when seeking election or when acting as 20 councillors. The test is a very different one from that 21 to be applied to those in judicial or quasi judicial 22 position." 23 Then 63: 24 "Councillors are elected to implement, amongst other 25 things, planning policies. They can properly take part 109 1 in debates which lead to planning applications made by 2 the council itself. It is common ground that in the 3 case of some applications they are likely to have, and 4 are entitled to have a disposition in favour of granting 5 permission, it is possible to infer a closed mind, or 6 the real risk that a mind was closed from the 7 circumstances and evidence. Given the role of 8 councillors, clear points are, in my view, required if 9 the state of mind is to be held to have become closed or 10 an apparently closed mind at the time of the decision." 11 Then 66: 12 "An understanding of the constitutional position of 13 councillors and ministers as shown in cases such as 14 Franklin, Alconbury, CREED NZ, et cetera, must however 15 be present. The council's position has similarities 16 with that of ministers, as the authorities show, 17 ministers, too, take decisions on planning issues on 18 which they have political views and policies." 19 In 68: 20 "The court, with its expertise, must take the 21 responsibility of deciding whether there is a real risk 22 that minds were closed." 23 69: 24 "Central to such consideration, however, must be 25 a recognition that councillors are not in a judicial or 110 1 quasi judicial position, but are elected to provide and 2 pursue policies. Members of a planning committee would 3 be entitled and, indeed, expected to have and to have 4 expressed views on planning issues." 5 71: 6 "It is for the court to assess whether committee 7 members did make the decision with closed minds or that 8 the circumstances did give rise to such a real risk of 9 closed minds the decision ought not in the public 10 interest be upheld. The importance of appearances in my 11 judgment, generally more limited in this context than in 12 a judicial context." 13 My Lord, crucially, if the case is about the 14 appearance of predetermination, appearances are less 15 important in this context than the judicial. The 16 appearance created by a member of the judicial tribunal 17 also appearing as an advocate for the tribunal may make 18 his judicial decisions unacceptable, but the appearance 19 created by a councillor voting for a planning project is 20 long supported with an analysis to be viewed in a very 21 different way." 22 Then, my Lord, Lord Justice Rix: 23 "There is no escaping from the fact that the 24 decision maker in a planning context is not acting in 25 judicial or quasi judicial role, but in a situation of 111 1 democratic accountability. He or she will be subject to 2 the full range of judicial review, but in terms of 3 concepts of independence and impartiality, which are at 4 the root of the constitutional doctrine of bias, there 5 can be no preference to such democratically elected 6 decision-makers are intended to be independent and 7 impartial ... judges and quasi judges. They will have 8 political allegiances and their politics will involve 9 policies and these will be known ..." 10 Then, my Lord, I was going to ask you to just read 11 the rest of what we have from Lord Justice Rix and also 12 from Lord Justice Longmore. 13 (Pause) my Lord, that is Lewis v Redcar, although 14 the concept of predetermination is an open concept for 15 ministers local councillors it has to be applied 16 cautiously not as if they were judges or quasi judges 17 raising that as politicians it is inevitable that 18 they'll have predispositions towards political views or 19 predeterminations to support particular schemes. 20 Then, my Lord, finally, Franklin, which we saw 21 mentioned in Lewis v Redcar, and you will know that was 22 a case about the development of Stevenage as a new town 23 after the Second World War, and the appellants allege 24 the minister had a closed mind from various statements 25 he had made at various public meetings. 112 1 At the top of 299 -- this is one of my favourite 2 cases so I can't resist going to it. He says: 3 "I have to carry out a daring exercise in town 4 planning. (Jeers) ..." 5 This is a transcript of the meeting: 6 "... it is no good you jeering, it is going to be 7 done. (Applause and boos. Cries of dictator) The 8 project will go forward. It will do so more smoothly 9 and more successfully with your help and cooperation. 10 Stevenage will be, in a short time, world famous. 11 (Laughter) People from all over the world will come to 12 Stevenage to see how we, in this country, are building a 13 new way of life. Local authorities will be consulted 14 all the way through. We have a duty to perform and I am 15 not going to be deterred from that duty. While I will 16 consult as far as possible all the local authorities, at 17 the end, if people are fractious and unreasonable I will 18 have to carry out my duty. 19 "VOICE: Gestapo." 20 Then: 21 "Lord Thankerton: In my opinion, no judicial or 22 quasi judicial duty is imposed. Are of the opinion no 23 judicial duty is laid on the respondent in charge of the 24 statutory functions, and the only question is whether he 25 has complied with the statutory directions to appoint 113 1 a person to hold the public inquiry and to consider that 2 person's report. In such a case, the only ground of 3 challenge must be either that the respondent did not in 4 fact consider the report or the objections, or -- of 5 which there is here no evidence -- that his mind was so 6 foreclosed that he gave no genuine consideration to 7 them." 8 Which is the case made by the appellants: 9 "But, in the present case, the respondent having no 10 judicial duty, the only question is what the respondent 11 did; that is whether in fact he genuinely considered the 12 report and the objections. I am clearly of the opinion 13 that nothing said by the respondent is inconsistent with 14 discharging the statute of duty when subsequently 15 objections were lodged and the local planning inquiry 16 took place followed by the report of that inquiry, 17 genuinely to consider the report and objections." 18 Then, my Lord, we make the point finally, in 229, 19 that Franklin has been expressly approved, both in 20 Lewis v Redcar, but also by the Supreme Court in HS2. 21 My Lord, that sets, in my submission, the context in 22 which we have to judge the allegations. 23 LORD JUSTICE HICKINBOTTOM: Those cases show that the 24 decision-maker has to maintain an open mind, in the 25 sense of he has to be open to persuasion by the 114 1 submissions that come in, in consultation or whatever. 2 I mean, the conception of that is fine. In 3 practice, it is not straightforward, is it? Because the 4 decision-maker's predisposition may be stronger in some 5 cases than others. I mean, obviously, in the Franklin 6 case the predisposition was very strong. 7 MR MAURICI: Yes. 8 LORD JUSTICE HICKINBOTTOM: In other cases, the 9 predisposition may not be so strong. 10 MR MAURICI: Yes. 11 LORD JUSTICE HICKINBOTTOM: But that's all the test is, is 12 it not? He has to remain open to persuasion. 13 MR MAURICI: Yes, he has to genuinely consider the 14 representations. 15 LORD JUSTICE HICKINBOTTOM: That is the other side of the 16 coin. 17 MR MAURICI: Yes, but it is the same thing, really. 18 Now, my Lord, that is the context in which we fall 19 to judge, in my submission, the allegations that are 20 made of appearance of predetermination, if that's what 21 we are dealing with here, rather than actual 22 predetermination. 23 My Lords, by the way, if what's being led is actual 24 predetermination my submission is very simple. The 25 cases say for actual predetermination one needs positive 115 1 evidence of a closed mind. It is a high test, not 2 surprisingly. I say nothing that has been referred to 3 meets that high test. 4 So, I really address this for the remainder of the 5 submissions I have on this, on the basis that we are 6 really talking about the appearance of predetermination. 7 My Lords, to try and get through this as quickly as 8 I can, what I have done is I have produced a table, just 9 running through what the allegations are that have been 10 made. 11 (Handed) 12 It is one single sheet of paper, but it is printed 13 on both sides. What we have done in this is we have set 14 out the various allegations that have been made by both 15 boroughs, and indeed also by Mr Spurrier, as well. 16 I start, you will see, at the first part of the table 17 with what boroughs have set out in their skeleton and 18 you will see number one in the table is public 19 statements by the Secretary of State; that was what 20 Mr Pleming really focused on in his oral submissions. 21 The second was the leaflet, which Mr Pleming 22 mentioned, but didn't go into any detail on. 23 Then there is a third one, which comes also from the 24 skeleton, and that is: questions in the consultation 25 document, information at local events was bias or showed 116 1 predetermination. 2 You will remember, my Lord, that is the one where 3 I said, obviously, where the role of Sir Jeremy Sullivan 4 has a particular role. 5 Then four -- this is a new one by the way, not 6 pleaded, but in the skeleton -- exclusion of Gatwick in 7 relation to hub. 8 I will deal with that one briefly, as well, and then 9 exclusion of the ENR scheme, about which nothing has 10 been said. 11 What we have done is, in relation to those five we 12 have given you the references in our evidence where we 13 respond to those. I am going to take you to key points 14 on those. 15 What we have done, at B -- it is set out the 16 evidence of the boroughs -- a huge range of other points 17 are raised as evidence of appearance of 18 predetermination. They haven't been pursued orally. 19 They are not even in the skeleton, and we have given our 20 answers to those, just in terms of where our evidence is 21 on those, just in this table. Whether your Lordships 22 need them, I am not so sure. 23 MR JUSTICE HOLGATE: This was a point raise indeed the 24 preliminary hearings because, right from the outset, 25 I was conscious of the fact that there were a large 117 1 number of points being made, sometimes on both sides, 2 which had no relationship to a pleaded point. 3 MR MAURICI: Yes, my Lord, and -- 4 MR JUSTICE HOLGATE: This has to be manageable for the 5 court. 6 MR MAURICI: The only reason I have done this is -- 7 MR JUSTICE HOLGATE: I am not criticising you. I am just 8 reminding everybody of a point that was flagged up for 9 all parties right at the beginning. 10 MR MAURICI: Obviously, because -- it is true that 11 Councillor Puddifoot did delete some of his evidence. 12 LORD JUSTICE HICKINBOTTOM: That was the legitimate 13 expectation "appearance of" argument, which went 14 nowhere. 15 MR MAURICI: My Lord, yes. What we have done here is we 16 have simply pointed out there are -- I think it is seven 17 in total, seven other allegations in the evidence which 18 are not really picked up at all in the skeleton. Not 19 picked up in the skeleton at all, and only one of them, 20 number 10, actually has any pleading basis, but we have 21 given you the evidence. Whether your Lordships need 22 them is another matter because I am going to focus on 23 the points in the skeleton. Or, more particularly, I am 24 going to focus on the points that were raised by 25 Mr Pleming orally, because it is the oral hearing. 118 1 Mr Spurrier has raised two points on appearance of 2 bias, although I think really it may also be 3 predetermination. We have given our answer to that in 4 the evidence, and I have just given you the references. 5 It is also in our skeleton. But I thought -- I hope it 6 is helpful to have in one place, the references. 7 LORD JUSTICE HICKINBOTTOM: Yes. 8 MR MAURICI: Can I just deal with the key points that have 9 been raised? 10 In terms of statements made, this is dealt with in 11 Caroline Low's first witness statement. I am not going 12 to show you all of the evidence that we have referred to 13 there. Can I show you the key paragraphs? 14 We need to go to core bundle 4, tab 1. We need to 15 go to paragraph 734, which is on page 268. 16 So, there is a section of evidence which I have 17 referred to in the table that starts back on page 265, 18 where Ms Low goes through the various speaking 19 engagements that have been raised, all of them. 20 Mr Pleming focused on, I think, three or four, but goes 21 through all of them. 22 734 and 735, she brings together our evidence, and 23 I am going to look at those: 24 "On all of the occasions cited above, the Secretary 25 of State was addressing an audience, including 119 1 influential figures in civil aviation. His speeches 2 sought, as one might expect, to convey positive messages 3 concerning the delivery of the government's aviation 4 policies. The delivery of additional capacity in South 5 East England is foremost amongst these and following the 6 preference decision of October 2016 ..." 7 Just pausing there, all the statements relied on 8 post date the preference decision in terms of the 9 Secretary of State: 10 "The government's clear choice was that this should 11 be delivered by way of the NWR scheme at Heathrow. The 12 Hillingdon claimants have acknowledged that. Given the 13 government's position, the Secretary of State was 14 entitled to be predisposed to the expansion of 15 Heathrow." 16 Then 735: 17 "The excerpts from the speeches quoted by the 18 Hillingdon claimants reflect that predisposition, but 19 they should be considered in the wider context of the 20 complete speeches given by the Secretary of State, as 21 I have shown. On each occasion, the Secretary of State 22 emphasised the importance of the public consultation 23 process to be undertaken before a final decision could 24 be taken on the policies set out in the draft ANPS. He 25 his uses language such as, "We want to hear your views", 120 1 and, "It needs to be done right. We're not interested 2 in expansion at any cost", clearly demonstrates that he 3 has not closed his mind on the issues under 4 consideration ..." 5 Then 740, because one of the things that's relied on 6 by Mr Pleming orally and I think in the skeleton and in 7 the pleadings, was an interview on Newsnight, I think it 8 was. At 740, Ms Low says -- there are various broadcast 9 interviews that are relied on. She says: 10 "I make three points in response ..." 11 This is the third line, 740: 12 "First, these are not set piece occasions. In an 13 interview context, with limited time available to 14 responds to a given question, it is often impossible to 15 place a response in context and to qualify it to the 16 extent that it may be desirable. Second, as with 17 example of the former Chancellor discussed previously, 18 these appear to be examples of a politician emphasising 19 his government's ability to take difficult decisions and 20 deliver big projects." 21 A bit further down, which brings me to my third 22 point: 23 "Behind the Secretary of State's public persona was 24 an individual who engaged diligently with the team's 25 programme of work. I was never in doubt ..." 121 1 My Lords, the admissibility of that evidence, just 2 briefly, if it is actual predetermination, you can bring 3 evidence forward about what the state of mind was of the 4 decision-maker. If it is the appearance of 5 predetermination, what Condron, in the Court of Appeal, 6 says -- which you have in the bundle -- is that evidence 7 carries limited weight because you are looking at it 8 from the perspective of the reasonable observer. So, 9 Ms Low's observations obviously only carry limited 10 weight. Nonetheless I will refer you to that. 11 The more important point is, in my submission, that 12 one has to judge those media exchanges in the context in 13 which they were given. A media interview on TV, you 14 can't expect the Secretary of State to set out the full 15 position and qualifications each time he speaks in the 16 media about the proposal. 17 My Lord, that's all I think I wanted to say about 18 statements. Your Lordships will have to judge in the 19 light of the case law and the evidence of Ms Low whether 20 the reasonable observer would regard those as going so 21 far as to show the appearance of predisposition. We 22 would say not. 23 The second one in the table is the leaflet. That 24 was just mentioned in passing by Mr Pleming. I am not 25 going to deal with it orally. I have given you the 122 1 references. It is dealt with in our skeleton. That was 2 an item that was specifically considered by Sir Jeremy 3 Sullivan, and we have given you references to his 4 interim report and what he said about that, which again 5 is not decisive. I am not saying it is, but it would be 6 something the reasonable observer would have regard to. 7 Can I then just deal with -- three I think I have 8 already dealt with, in terms of the consultation. You 9 have my point about, again, Sir Jeremy Sullivan's 10 reports. 11 I just want to deal with item 4, because what has 12 emerged in the oral submissions -- and this is in the 13 skeleton as well in all fairness -- is that the 14 exclusion of Gatwick in relation to hub issues itself is 15 evidence of the appearance of predetermination. 16 So, what's said -- and we'll come on to this in 17 a bit more detail when we turn to habitats in a moment. 18 But what is said is -- if you look at that ministerial 19 submission in September of 2017, it is said: look the 20 government at that point seems to have reached 21 a conclusion that Gatwick is not an alternative because 22 it doesn't meet the hub function. 23 Therefore from that point on you have predetermined, 24 or there is an appearance that you have predetermined. 25 LORD JUSTICE HICKINBOTTOM: I am not sure that is right, is 123 1 it? The ministerial submission says it is arguable that 2 X, Y and Z, and that is the submission to the minister. 3 MR MAURICI: What the submission actually does -- and we 4 will look at it in a moment -- it says: we have not 5 previously indicated that Gatwick is not an alternative 6 for Habitats Regulation purposes, although we have set 7 out very clearly that we don't think Gatwick could meet 8 the hub function. It recommends the Secretary of State 9 to amend the draft NPS to reflect that. 10 My Lord, the reason why there can't be the 11 appearance of predetermination in my submission there, 12 is that is not the end of the process. That was 13 amending it to go in a further draft, which was 14 published in October 2017; that further draft contained 15 the wording on both Gatwick not meeting the hub function 16 in general terms, but also specifically the text around 17 it not being an alternative for the habitats purposes. 18 My Lords, it was a consultation document and people 19 were able to respond not just to what the HRA said, but 20 what the policy was. 21 For example -- and we will see this in the evidence 22 in a moment on habitats -- Gatwick made submissions 23 saying, "You are giving too much weight to the hub 24 status point. Change your policy". That was something 25 that was open for them to make and we were required to 124 1 consider it in that second consultation. 2 At other points, Gatwick has also argued things 3 like: if it is that important, hub we could meet the hub 4 function. 5 So, they tried to meet that argument, too, and that 6 had to be considered. 7 The fact that we reached a view that the policy, the 8 draft policy should be amended to reflect the view that 9 the Secretary of State had come to. Not a final view, 10 but a view, that this is what the policy should say, 11 subject to consultation a second time, can't, in my 12 submission, be evidence of predetermination. 13 My Lords, those really -- I leave you with the note 14 that those -- 15 MR JUSTICE HOLGATE: Have we been shown the consultation 16 draft for the second version of it that came out 17 in October? You have made the submission, I am not sure 18 we have looked at that yet. There was a question which 19 might otherwise be asked. We know what the Secretary of 20 State was advised. I am not sure we have seen a formal 21 record of what he decided in response to that advice. 22 You might say there is or isn't a formal record, or you 23 might say it is reflected in the consultation draft 24 ANPS. 25 MR MAURICI: Can I check? I am not sure whether the October 125 1 version is in the bundles. 2 MR JUSTICE HOLGATE: As I understand it, your submission to 3 the court is that what is in that document accords with 4 the recommendation. 5 LORD JUSTICE HICKINBOTTOM: It is in 12/153. 6 MR MAURICI: Bundle 12. My Lord, it is, yes. So, we are 7 looking for 1.3. 8 LORD JUSTICE HICKINBOTTOM: Now may be the right time to 9 deal with this or you may want to go to habitats, but 10 we'll need to go through these documents, including, 11 obviously, the submission and any response. I am not 12 sure the ministerial response is in here. 13 MR MAURICI: It is not in the bundles. I will be corrected 14 if I am wrong, but I think we did disclose both the 15 submissions and I understand the responses to those 16 submissions, but the response hasn't made it into the 17 bundle. 18 LORD JUSTICE HICKINBOTTOM: Is now when you want to deal 19 with this? Because I think they are absolutely points 20 that you need to deal with at some point. 21 MR MAURICI: My Lord, I am coming to habitats almost right 22 now, so I will deal with it probably in a few moments, 23 if you are happy with that? 24 LORD JUSTICE HICKINBOTTOM: Yes, certainly. 25 MR MAURICI: That was all I was going to say about the 126 1 appearance of predetermination. 2 To the extent that any other points are pursued -- 3 I am not sure whether they are -- we have referred you 4 to where our evidence or answers are to those points. 5 LORD JUSTICE HICKINBOTTOM: This schedule, are we putting it 6 at the end of your skeleton argument? 7 MR MAURICI: My Lord, yes. I think that is where we should 8 put everything that I produced. 9 MR PLEMING: My Lord, I wouldn't want my learned friend to 10 be deprived of the opportunity to respond to the case, 11 and it is just the third one, at speed, I was looking up 12 to see if this is right. It is said under the heading 13 "Pleaded in ASFG", and this is a reference to the 14 evidence of Mr Paul Baker, paragraphs 6 to 36. 15 As I was quickly reminding myself of the pleadings, 16 in the amended statement of facts and grounds CB1, 17 tab 7, paragraph 160, there is specific reference to 18 Mr Baker. 19 MR MAURICI: Cross-reference to his statement? 20 MR PLEMING: Yes. 21 MR JUSTICE HOLGATE: It is CB1. 22 MR PLEMING: If your Lordship will recall, we had to 23 compress the argument somewhat. 24 MR JUSTICE HOLGATE: That is one way of putting it. 25 MR PLEMING: Paragraph 160, my Lord, on page 216. It is set 127 1 out in more detail in the witness statements of 2 Councillor Puddifoot and Paul Baker. 3 MR JUSTICE HOLGATE: That was tab? 4 MR PLEMING: It is CB3. Pages 655 to 655 is Mr Baker. 5 MR JUSTICE HOLGATE: But the pleading is CB1, tab 7, is it? 6 MR PLEMING: Tab 7, my Lord, page 216. Your Lordship does 7 have the response in the other column. It is just I was 8 querying the no, rather than the yes. 9 MR MAURICI: I think I will just leave it to your Lordships 10 about whether that is pleaded. I am not going to take 11 a point about that because I have other things to deal 12 with. If your Lordship thinks that has been properly 13 pleaded that is no problem. I have dealt with it in any 14 event. 15 Can I move on to habitats? 16 Again, I want to start by making some introductory 17 comments, hopefully briefer than some of my other 18 introductory comments on other topics. 19 First of all, just to remind your Lordships that 20 both the Airports Commission and the government have 21 undertaken detailed work in relation to biodiversity 22 issues generally, and the protection of EU habitat sites 23 specifically, including multiple reports and 24 assessments. All of which concluded that the NWR scheme 25 is capable of being delivered within the requirements of 128 1 the Habitat Directive. 2 I don't ask you to go to it, but there is more 3 detail on that in section 3 of Mr Morrison's first 4 witness statement, which is core bundle 5, tab 3, 5 page 156 and following. So, that is point 1. 6 Point 2, if I could ask your Lordships to take up 7 our skeleton argument at paragraph 81. This 8 introductory point relates principally to the ecological 9 reason for the exclusion of Gatwick, rather than the 10 objectives reason for the exclusion of Gatwick. But we 11 have cited Advocate General Kokott's opinion in 12 Commission v UK, see 604, where she recognises an 13 acceptance submission made by the UK Government, that of 14 course we accept that the Habitat Directive applies to 15 the planned stage, as at the project stage, and that was 16 held in the Commission v UK. But what the Advocate 17 General says is you can't expect the same level of 18 detail for a plan that you would have for a project. We 19 therefore emphasised some words: 20 "Rather adverse effects must be assessed at every 21 relevant stage of the procedure to the extent possible, 22 on the basis of the decision of the plan." 23 My Lords, can I just give you one reference in the 24 evidence that further supports that? 25 It is Mr Morrison's first witness statement. It is 129 1 core bundle 5, tab 3, page 155, and at paragraph 2.4 he 2 essentially makes the point that because an ANPS is 3 a strategic policy level document, there is an inherent 4 certainty in the potential impacts that will arise, both 5 from the northwest runway scheme, but also, I would say, 6 in addition from any alternative -- strategic 7 alternative that you are considering alongside it. It 8 is inevitable that there is going to be a lack of full 9 information. 10 So, what's said by Mr Morrison is you have to take 11 a precautionary approach. If because of a lack of 12 information you can't rule out the possibility of 13 effects, then you have to proceed on the basis that 14 there is a risk of adverse effects to the European site. 15 That is the approach, just in summary, that was 16 taken both for Heathrow and for Gatwick. For both of 17 them it was decided, in the end, given the strategic 18 stage we were at, that there was insufficient 19 information to be able to rule out the likelihood of 20 adverse effects, and therefore the assessment took place 21 on that basis in relation to both. 22 Thirdly, in terms of introductory points, the 23 challenge made by boroughs is principally out of the 24 content of the Habitats Regulation Assessment that 25 accompanied the ANPS. 130 1 In that regard, it is important that the HRA was 2 developed in close consultation with Natural England and 3 they commented on, and I say approved, both versions of 4 the draft that were published for consultation. 5 My Lords, can I just show you very briefly some 6 evidence in relation to that? 7 It is again in Mr Morrison's first witness 8 statement. So, that is volume 5 again, tab 3, page 159. 9 You will see at 3.13, at page 159, he says: 10 "Throughout the delivery of the HRA screening 11 assessment there was engagement with the 12 cross-government steering group." 13 Then 3.14: 14 "Natural England formed part of the cross-government 15 steering group and consultation with Natural England was 16 undertaken periodically throughout the preparation of 17 the HRA screening assessment. The importance of 18 Natural England's input to the HRA screening assessment 19 was recognised as integral to determining the scope of 20 any subsequent HRA, specifically an appropriate 21 assessment. Not only does consultation with 22 Natural England represent best practice at the screening 23 stage, it is a statutory requirement for the appropriate 24 assessment stage." 25 Natural England is the appropriate nature 131 1 conservation body under the reg and the government's 2 statutory adviser on nature conservation. 3 3.15, three lines down: 4 "Subsequent discussions with Natural England and 5 reviews of the HRA draft screening were held on various 6 dates. These latter discussions were an open dialogue 7 with Natural England, whereby they offered WSP 8 assistance to bring matters forward for discussion and 9 guidance as required. It should be noted that these 10 meetings and dialogues included discussion on the HRA 11 screening assessment, as well as the AOS biodiversity 12 chapter ..." 13 Then go to page 163. 14 MR JUSTICE HOLGATE: That is dealing with the screening? 15 MR MAURICI: Yes, and then if you go to 3.21, on 163, three 16 lines down: 17 "Natural England review draft versions of the HRA 18 screening assessment throughout its development, as per 19 the meetings and telecons referred to in paragraphs 3.14 20 above." 21 So, they continued to review drafts of the HRA 22 throughout. 23 Then, my Lord, 3.23 on page 164: 24 "Throughout the preparation of the HRA appropriate 25 assessment, we continued to consult with 132 1 Natural England, in particular on matters concerning is 2 the southwest London water bodies." 3 Then, over the page, my Lord -- actually, no, we go 4 forward to page 174. Actually, 173. 5 At 3.38, Mr Morrison quotes from Natural England's 6 response to the first consultation draft, so 7 the February version. The formal response from 8 Natural England came on 25 May 2017. You will remember 9 that both versions, both the February one and 10 the October one, said that Gatwick was being excluded 11 because they couldn't rule out adverse effects on the 12 Mole Valley SAC. 13 If you look at the quotation under 3.38, if you look 14 at five lines down: 15 "We concur with the conclusions of alternatives and 16 IROPI." 17 The conclusions and alternatives in IROPI were about 18 Gatwick. 19 Then 339, we then have the October 2017 20 consultation, which continues to say that Gatwick should 21 be ruled out, not just now because of objectives -- that 22 is the new addition -- but also because it fails on the 23 ecological test. 24 Again -- 25 MR JUSTICE HOLGATE: Forgive me, insofar as this is based on 133 1 detailed design, that wouldn't have anything to do with 2 nitrogen dioxide emissions within 200 metres of the M25, 3 would it? 4 MR MAURICI: My Lord, which -- 5 MR JUSTICE HOLGATE: Part of this is talking about the 6 detailed design stage and potential changes. 7 MR MAURICI: It might do because whatever your mitigation is 8 for your transport because. 9 MR JUSTICE HOLGATE: Okay, thank you. 10 MR MAURICI: Because that would raise the issue. You will 11 see that what is said, over the page, on 174, it starts 12 probably at the end. The end of 173: 13 "These sections identify [these sections of the HRA] 14 potential for air quality impacts from the road traffic 15 on the Mole Gap to Reigate Escarpment SAC [which is a 16 Gatwick impact] with the presence of a priority species 17 making an IROPI case challenging. The section 18 concludes, based on the information available at this 19 stage, it has not been possible to identify any 20 alternative solutions to the preferred scheme, Ie not 21 Gatwick. Whilst we recognise this position for the 22 strategic level assessment, we advise that if detailed 23 project level HRA for Heathrow also produces findings 24 that are negative or uncertain, a more detailed 25 assessment of alternatives (including Gatwick) is 134 1 needed." 2 That is just focusing on the ecological issues, not 3 looking at the objectives and what is an alternative. 4 But, in my submission, that is Natural England 5 supporting the view that there is an ecological issue 6 with Gatwick. Obviously, Natural England is not 7 commenting on the objectives point here. They are 8 commenting on the ecological issue. 9 MR JUSTICE HOLGATE: I also noticed the last sentence: 10 "For example ..." 11 MR MAURICI: Yes: 12 "If the priority features of interest do not fall 13 within the distance criteria then such impact may be 14 able to be ruled out, which may affect the view taken on 15 alternative solutions." 16 We are going to come to this in a moment on the 17 evidence. What that means, of course, is they had not 18 accepted that they could be ruled out at this stage, and 19 that is consistent with Mr Morrison's evidence. 20 Natural England had not accepted that you could say -- 21 MR JUSTICE HOLGATE: This is 19 December 2017? 22 MR MAURICI: Yes, so that is after the second consultation. 23 My Lord, the reason I go through all of that is 24 because of the submissions that I make in the skeleton 25 argument, at paragraph 86(2), about Prideaux, and that 135 1 is because it is trite law that the decision-maker in 2 planning is entitled to give great weight to the views 3 of Natural England on ecological issues. 4 The fourth point by way of introduction, the 5 boroughs' challenge is exclusively concerned with the 6 decision taken to exclude Gatwick as an alternative. Of 7 course, the party who is most affected by that decision, 8 and the party who led the representations against that 9 conclusion was Gough. We simply make the point in our 10 skeleton -- and I do repeat it, paragraph 103 -- that 11 they have not sought to challenge the decision to 12 exclude them as being unlawful. 13 Fifthly, the final introductory point, Gatwick was 14 ruled out for two reasons. It was ruled out, both on 15 ecological grounds and in the October -- 16 from October 2017 draft, and in the final version, also 17 because Gatwick was concluded not to be an alternative 18 because it didn't meet the objectives of the plan. 19 Both of those, in my submission, remain good reasons 20 and the boroughs need to win on both, in my submission, 21 to get anywhere in terms of, for example, quashing the 22 ANPS. You need to show that both of those reasons were 23 flawed. 24 Can I then turn to reason 1 for the exclusion, which 25 is Gatwick doesn't meet the objectives, so it is not an 136 1 alternative. 2 Can I just start with what I say are the legal 3 principles applicable here are. In short, under 4 Article 6(4). A decision-maker, the competent 5 authority, here the Secretary of State, is required to, 6 first of all, identify the objectives of his plan and 7 then, secondly, to come to a conclusion as to whether 8 a possible alternative is suitable to meet the 9 objectives of the plan as defined. 10 Mr Jaffey took you to some of the European case law, 11 but accepted that, really, there was nothing in that 12 case law that assists very greatly in terms of telling 13 us how a competent authority is supposed to judge those 14 questions and, indeed, he said that really each case 15 must turn on its facts, and we would agree. 16 The view reached as to what the objectives of a plan 17 are and were there any possible alternative meets those 18 objectives or is suitable to meet those objectives is 19 not a hard-edged question for the court. It can't be 20 a hard edged question for the court. It is necessarily 21 a judgment on the part of the competent authority. It 22 is a planning judgment. 23 My Lord, Lord Justice Hickinbottom, put to 24 Mr Jaffey, on Day 1, that whether an alternative was 25 suitable to meet the objective must have a wide brand of 137 1 discretion or assessment, that is what your Lordship 2 put. That is supported by some of the cases I am going 3 to come to in a moment, but our submission, in short, is 4 that conclusion about Gatwick not being alternative is 5 reviewable on Wednesbury grounds. 6 Mr Jaffey, I think, sought to resist that when it 7 your Lordship put the point that you did to him, saying 8 this is an EU case. Which of course it is, but that 9 doesn't mean for one moment that Wednesbury is not the 10 applicable test. 11 My Lord, that is where the two cases that 12 Mr Justice Holgate referred us to come into play and 13 I was going to turn -- they are at the back of the final 14 authorities bundle. Could we just briefly look at 15 Friends of the Earth, first of all. 16 My Lord, obviously, these are cases about SEA 17 alternatives, but in my submission, the principles 18 really must be the same, in terms of the approach of the 19 court. 20 My Lords, first of all, paragraph 85, about five 21 lines down: 22 "It is any event clear that member states have 23 a significant margin of discretion with regard to how 24 reasonable alternatives are identified." 25 I say the same would be applicable as to whether or 138 1 not an alternative is suitable under the Habitat 2 Directive. 3 Then, my Lord, you will see, for example in 87, 4 a number of cases referred to, including Forest Heath, 5 Heard, HS2 and Ashdown Forest. 6 Then 88, some principles are set out. Could I just 7 focus on -- I think 1 and 2 are probably relevant, but 8 I won't, given the time read them. 9 I think the really key ones, in my submission, would 10 be number 6, on page 27: 11 "The question of whether an option will achieve the 12 objectives is also essentially a matter for the 13 evaluative judgment of the authority, subject of course 14 to subject on conventional public law grounds." 15 I say that means, effectively, Wednesbury here, and 16 indeed your Lordship's judgment referred to Wednesbury 17 earlier on in the judgment. I think also we should look 18 at 7: 19 "However, as a result of the consultation which 20 forms part of that process, new information may be 21 forthcoming that might transform an option that was 22 previously judged as meeting the objectives as to one 23 which is judged not to do so and vice versa." 24 The point is made that these processes are iterative 25 and the situation can change as matters go forward, and 139 1 we would endorse that as being a relevant principle also 2 in relation to the Habitat Directive. 3 Then I want to note in passing, at paragraph 94, the 4 top of page 31, your Lordship refers to Shadwell, which 5 is one of the cases we will be coming to when we come to 6 SEA. Then 95, the third line down: 7 "Sales J [this is referring to Ashdown] stressed the 8 importance of recognising the competence of the relevant 9 authority, which has been assigned by democratically 10 body to be the primary decision-maker." 11 Then, towards the bottom of that paragraph, 95: 12 "After due SEA directive processes it is for them to 13 determine on a properly informed basis, including 14 response to the consultation whether the provisionally 15 preferred option remains the option which best meets 16 their objectives. The court is only concerned with 17 whether those decisions are legally rational." 18 Again, we would endorse that as being the relevant 19 principle here. 20 Again, Shadwell is referred to in 96 and I think 21 also in 97, and it is 97 where you see your Lordship 22 refers to, at the very bottom, four or five lines from 23 the end: 24 "My very firm view is the basis for review is 25 Wednesday. It is clear from Shadwell." 140 1 The very firm view is the basis of review is 2 Wednesbury. 3 Then, my Lords, Ashdown Forest, paragraph 42. If 4 you look at it very briefly. You see it is said by the 5 Court of Appeal in Ashdown Forest: 6 "I accept Mr Edward's submission that the 7 identification of reasonable alternatives is a matter of 8 evaluative judgment for the local planning 9 authority ..." 10 LORD JUSTICE HICKINBOTTOM: Which paragraph? 11 MR MAURICI: 42 in Ashdown Forest: 12 "I accept Mr Edward's submission, that 13 identification of a reasonable ... matter that 14 evaluative assessment for the local planning authority, 15 subject to review by the court on normal public law 16 principles, including Wednesbury." 17 My Lords, where that takes us is that the decision 18 as to what is or isn't a suitable alternative under the 19 Habitat Directive -- and I use the words "suitable 20 alternatives" because although the directive simply 21 refers to "alternatives", as we saw when we look at the 22 Commission v Portugal case and the DEFRA guidance and 23 the commission guidance that there is, what is said in 24 both the Advocate General's opinion and in those 25 guidance documents is that what one is looking for is 141 1 a suitable alternative. That is why I am using that 2 phrase. It is not the phrase in the directive directly. 3 LORD JUSTICE HICKINBOTTOM: Yes, I am not sure it adds very 4 much, does it? Because if it is not a suitable 5 alternative, it is not an alternative, is it? 6 MR MAURICI: That is true. 7 LORD JUSTICE HICKINBOTTOM: Exactly the same as if it is not 8 a reasonable alternative, it is not an alternative. 9 MR MAURICI: No, my Lord, that is true. 10 MR JUSTICE HOLGATE: Even if you only have the word 11 "alternative", it has to be an alternative for what? 12 Straight away you go to purpose. 13 MR MAURICI: That is true. 14 Of course, the standard must be Wednesbury, in my 15 submission. Because if it is not Wednesbury, what is 16 the standard review of the court's plight? It can't be 17 that the court has to reach its own judgment on whether 18 or not this is an alternative that meets the objectives 19 that the government set. That can't be the court's 20 role, in my submission. 21 Then, one final thing on the legal principles, 22 before I turn to the complaints and the evidence on 23 that. 24 Mr Jaffey made a submission that we are in 25 Article 6(4) in this case, and that's a derogation. 142 1 Article 6(4) is a derogation from the main provisions of 2 Article 6. So, it should be approached strictly. 3 Now, my Lord, as a general proposition, I don't have 4 a problem with that. It doesn't, in my submission, 5 affect the fact that the standard is Wednesbury, but 6 there is also one further point I need to draw your 7 Lordship's attention to about how one looks at 8 derogations in relation to the Habitat Directive. We 9 need to go to Prideaux, which is in volume 2 of the 10 authorities and it is tab 38. 11 If I ask your Lordships, first of all, to go to 12 page 756, paragraphs 81 and 82. This was not a case 13 about Article 6(4). This was ace case about Article 12 14 and 16 of the Habitat Directive. That is about species 15 protection, not site protection. But you will see that 16 under -- so, Article 12.1 is referred to in 17 paragraph 81. That provides for the protection of 18 animal species. In 82, Article 16.1 permits derogation 19 from the requirements of Article 12.4 imperative reasons 20 of overriding public interest, so IROPI again, as in 21 Article 6. Provided there is no satisfactory 22 alternative. Now, the directive uses the word 23 "satisfactory alternative" there, but effectively one is 24 still looking for an alternative. 25 Then, if you go forward to paragraph 114, 143 1 Mr Justice Lindblom, as he then was, says: 2 "Judging what is or may be satisfactory terms in 3 a particular case requires a focus on what is sought to 4 be achieved through the derogation and on the likely 5 effect of the works and species in question. As 6 Mr Elvin submitted, in the absence of European case law 7 and the application of the derogation tests under the 8 Habitat Directive, there is a useful parallel in the 9 cases in which similar provisions in the Birds Directive 10 were considered by the European Court in the Finland 11 case." 12 I am not going to go to that, but just pausing, it 13 is in the authorities bundle. It is in bundle 4, 14 tab 84. It goes on: 15 "... which concerned derogations to allow the 16 hunting seasons for various species of duck to be 17 extended. The court held that one species [protected 18 species], the long tailed duck, there was no other 19 satisfactory solution. This bird could not be hunted in 20 the autumn hunting season. Hunting other species of 21 duck could not be considered another satisfactory 22 solution. It would render the derogation provisions 23 nugatory. As accords with the general principle, an 24 alternative will not be satisfactory if it fails to 25 achieve the relevant aim." 144 1 So, my Lord, it is quite a stark case because people 2 wanted to shoot long tailed ducks that were protected 3 and the Commission said, "You don't have to do that 4 because you have an alternative. You can go and shoot 5 other types of duck, who are not so protected", and the 6 court said, "No, they don't want to shoot other types of 7 duck. They want to shoot long tailed ducks." 8 This is the Elmer Fudd approach to the Habitat 9 Directive, but it does make an important point. Yes, it 10 is a derogation. You can't read it so strictly that it 11 becomes nugatory. What is key is: what is your 12 objective? Is your objective met by the alternatives? 13 That is why I go to that. It is a helpful 14 illustration of how the principles work in terms of the 15 European Court and how it deals with the Habitat 16 Directive. 17 My Lords, I have to turn to the complaints that have 18 been made and take your Lordships through the evidence. 19 My Lords, I am happy to make a start on that for maybe 20 15 minutes or I can break now. 21 LORD JUSTICE HICKINBOTTOM: We are in your hands. 22 MR MAURICI: Shall I just make a start and see where we go? 23 LORD JUSTICE HICKINBOTTOM: Yes. 24 MR MAURICI: On the complaints made, my Lords, as you know, 25 much of the challenge is focused on the fact that the 145 1 first reason against Gatwick being an alternative -- 2 namely it did not meet the objectives -- was something 3 added into the draft NPS and the draft HRA 4 in October 2017 having not previously been present in 5 those drafts in those terms in February 2017. 6 My Lords, that is of course true, but we say the 7 change was made for a perfectly proper lawful reason. 8 As your Lordship noted in relation to SEA Directive in 9 Friends of the Earth case, the consultation process and 10 the review that takes place within that can lead to 11 a change of position about whether something is or isn't 12 an alternative. 13 My Lords, can I ask you to start by going to the 14 ANPS. That is core bundle 6, tab 7, page 224. 15 My Lords, at the bottom of 224, we have paragraphs 16 3.18 and 3.19, which are paragraphs your Lordships have 17 been taken to before. 18 The first paragraph, of course, refers to the fact 19 that it is Heathrow that is best placed to address need 20 by providing the biggest boost to connectivity, 21 et cetera, and various other points are made, 22 effectively, about how Heathrow would fulfil the 23 objective of maintaining the UK's hub status. 24 My Lord, you will remember paragraph 1.3, back on 25 page 208, that maintaining the UK's position as Europe's 146 1 most important aviation hub was one of the objectives 2 the Airports Commission was set. 3 So, really, what is being said in 3.18 are the 4 reasons why Heathrow meets that objective. 5 Then 3.19, which again you have seen before: 6 "By contrast expansion of Gatwick would not enhance 7 and would consequently threaten the UK's global aviation 8 hub status." 9 And some further points are made. What is being 10 said there, very clearly, it is not expressly directed 11 to habitats at that point, but what is being said very 12 clearly is Heathrow would meet this key objective, but 13 Gatwick, not only wouldn't enhance that objective, but 14 actually it would threaten that objective. It would 15 risk threatening that objective, ie in my submission, in 16 no uncertain terms, Gatwick doesn't meet that key 17 objective of maintaining the UK's premier hub status in 18 Europe. 19 My Lords, there is no direct challenge in these 20 proceedings to those paragraphs on any basis, in my 21 submission. These paragraphs in effectively 22 substantialist form were also present in the February 23 version and the October versions of the draft. 24 What was new, of course, and your Lordships have 25 seen this before, is 1.32, paragraph 1.32, on page 213 147 1 where under the heading of "Habitats Regulation 2 Assessment", just over halfway down, new text has been 3 added to reflect that, in terms of the Habitats 4 Regulation Assessment conclusion, you will see halfway 5 down: 6 "Considerations being given to alternative solutions 7 to the preferred scheme, and the conclusion has been 8 reached that there are no alternatives that would 9 deliver the objectives of the airports NPS in relation 10 to increasing airport capacity in the southeast and 11 maintaining the UK's hub status." 12 That was not in the February 2017 version, but was 13 in the October 2017. 14 MR JUSTICE HOLGATE: It was, you say? 15 MR MAURICI: My Lord, it was. 16 LORD JUSTICE HICKINBOTTOM: Right, not in the February, but 17 in the October? 18 MR MAURICI: Not in February. 19 LORD JUSTICE HICKINBOTTOM: Yes, I am sorry. I am sort of 20 just a couple of steps behind. You said that 3.19, that 21 features both in working backwards October and February 22 of 2017? 23 MR MAURICI: 3.19, my Lord, yes. 24 LORD JUSTICE HICKINBOTTOM: That makes it clear that Gatwick 25 is not a runner. 148 1 MR MAURICI: Yes. I am going to show you that through our 2 evidence, if I may? 3 LORD JUSTICE HICKINBOTTOM: Yes. 4 MR MAURICI: My Lords, just to give you the reference for 5 what was said in the October version. As your Lordship 6 pointed out to me, bundle 12, tab 8, and it is page 164. 7 In that version, it was paragraph 1.30, rather than 8 1.32. This is the October version. 9 LORD JUSTICE HICKINBOTTOM: I know you are going to do this, 10 but 3.19 was 3.19. 11 MR MAURICI: Yes, we should just ... 12 LORD JUSTICE HICKINBOTTOM: That looks to have been the 13 same. 14 MR MAURICI: It is the same and, indeed, we will see in 15 a moment, when we go to our evidence, the February 16 version is set out, extracted in Ms Low's first witness 17 statement. 18 LORD JUSTICE HICKINBOTTOM: Thank you. 19 MR MAURICI: My Lord, I was going to turn then, if I may, to 20 Ms Low's first witness statement, which is in core 21 bundle 4, tab 1, and it is page 179. My Lords, we 22 probably should actually start on 177, just to get the 23 context for this evidence. So, you will see, at 435, 24 Ms Low sets out that there were two reasons, ultimately, 25 why. She is talking about the October version of the 149 1 documents, why Gatwick was ruled out. (a) and (b). 2 In 437, at the bottom of the page: 3 "The alternative assessment I have just summarised 4 is that which was set out in the revised draft HRA 5 published for consultation October 2017." 6 That is what we have just looked at: 7 "The version of the draft HRA published in did not 8 consider the first for why the Gatwick runway has been 9 this change in approach resulted from my team's 10 consideration of the interaction between the assessment 11 of alternatives for the plan containing the ANPS and the 12 objectives set out in the needs case within the draft 13 ANPS between the first and second consultations, and 14 this accounts for the difference between the February 15 and the October versions of the documents. 16 Then 441: 17 "My team considered if the alternative solutions had 18 that had been identified could deliver the objectives of 19 the plan, which in this case was the policy set out in 20 the draft ANPS to increase their capacity in the South 21 East and maintain the UK's hub status, the alternative 22 solutions in the draft HRA by WSP had been determined 23 from the short listing process that the AC had 24 conducted. This had considered 58 schemes ..." 25 Then, picking it up a little bit further down: 150 1 "Therefore WSP in the draft HRA consulted on 2 in February 2017 had proceeded to assess both Gatwick's 3 second runway and Heathrow ENR schemes, alongside 4 Heathrow NWR scheme, on the basis that they were 5 potential alternatives. Having assessed the ecological 6 impacts of each scheme, however WSP concluded that, like 7 the Heathrow NWR scheme, it could not be ruled out that 8 either Gatwick or the ENR scheme would have an adverse 9 effect of the integrity of protected sites, or that 10 sufficient uncertainty remained to the establish the 11 absence of certain adverse effects." 12 Then 4.42: 13 "At the same time, the draft ANPS published in 14 February 2017 was clear that government had reached the 15 view that the Gatwick runway scheme could not deliver 16 the same objectives as NWR scheme as it would not 17 maintain the UK's hub status. The draft ANPS published 18 in February 2017, at the same time as the draft HRA, 19 explaining the needs case that there were challenges and 20 risks to the UK's hub status and the UK economy would 21 without airport expansion. In chapter 3, the government 22 draft policy stated, at paragraph 3.11: 23 "The Heathrow runway scheme, of all the three 24 schemes, is the most effective and appropriate way of 25 meeting the needs." 151 1 Then it stated: 2 "Expansion of Gatwick would not enhance and would 3 consequently threaten." 4 You then have the text that we very recently saw was 5 in both the October version and the final version, about 6 the fact that Gatwick wouldn't enhance that objective 7 and indeed it would undermine it. 8 Then, at 444: 9 "My team's review determined that the position set 10 out in the draft ANPS was not adequately reflected in 11 the draft HRA. Following this review, we amended 12 chapter 9 of the draft HRA to clarify, given what was 13 said in the draft NPS and had already been published for 14 consultation, that we did not consider that the Gatwick 15 second runway scheme could in fact be said to meet plan 16 objectives as now developed and defined in the draft 17 NPS. Whilst the Gatwick scheme could increase airport 18 capacity in the South East, it could not maintain the 19 UK's hub status and, as such, it cannot be considered as 20 an alternative solution to the Habitat Directive. With 21 regard to Heathrow in our scheme ..." 22 I probably don't need to read that bit. Then, 23 finally in terms of this witness statement, 447: 24 "The Hillingdon claimants have argued it was wrong t 25 dismiss Gatwick as an alternative solution for the 152 1 purposes of the directive. I set out above, however, 2 the ANPS and HRA itself explain why Gatwick was 3 ultimately determined not to be an alternative for the 4 purposes of the directive, specifically in relation to 5 HRA. This was because we did not consider it met the 6 overall plan objectives as now set out in the ANPS, of 7 both increasing capacity and maintaining the hub status, 8 and because it didn't present an alternative solution on 9 the basis of ecological grounds." 10 Then, my Lord, before we break, could I then show 11 you Ms Low's second witness statement in relation to 12 this. So, it is the next tab, tab 2 in the same bundle, 13 page 333. 14 MR JAFFEY: Just before you go on to the second witness 15 statement could I invite the court to read 448 as well. 16 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 17 MR MAURICI: Then, my Lord, if you go to page 333 in the 18 same bundle, just two paragraphs I think I need to show 19 your Lordships. 67, three lines down, discussing the 20 consultation in October 2017: 21 "There were essentially two elements to the 22 consultation; the consultation on the draft policy and 23 consultation on the documents supporting that policy. 24 In February 2017, the Secretary of State published for 25 consultation the draft ANPS, along with documents 153 1 including a draft SEA and a draft HRA. All these 2 documents were in draft form, and it was open to parties 3 to comment on the policy itself, as well as supporting 4 assessments. The Secretary of State's mind was open in 5 respect of either, so the conclusion in the amended HRA, 6 published alongside the further consultation 7 in October 2017, was that GAL 2R was not an alternative 8 under the Habitat Directive by reference to the content 9 of the ANPS." 10 Then miss out a few lines where that quotation is. 11 It carries on: 12 "Throughout 2017, the government was consulting not 13 just on the draft HRA, but also on the content of the 14 draft ANPS. It was open, as I explain further below, 15 for respondents to contend that this aspect of the draft 16 policy should be amended, or to argue that GAL 2R could 17 meet any hub objectives." 18 If this had been accepted, the draft HRA would have 19 needed to be revised again. Because all this stuff was 20 all in draft and all being considered, Gatwick was 21 maintained, for example in the AOS, as a reasonable 22 alternative. The assessment wasn't removed from the 23 AOS. It had always been there previously and it was 24 kept there and, of course, if the view had changed, it 25 would have been relevant to consider all the details 154 1 again around Gatwick. 2 Then, in 69: 3 "The consultation response submitted by GAL 4 demonstrates it was possible to make representations to 5 the February consultation upon the content of the 6 policy, as well as the assessment, as does the 7 consideration my team gave to the representations as set 8 out in government response to the consultations on the 9 draft ANPS. 10 "The representations are referenced in the 11 submission to ministers appended to Councillor 12 Puddifoot's statement. GAL made submissions that the 13 policy placed undue weight on the role and value of 14 Heathrow's hub status, and as a result, the draft HRA 15 had not reached the correct conclusion. This also 16 demonstrates it was appropriate to have consulted on the 17 assessments as well as upon the policy, because GAL, for 18 example, was then afforded the opportunity to make such 19 representations and my team was able to take their views 20 into account." 21 All of those things were in issue. 22 Then just to finish the objectives, we can then just 23 to deal with the ecological issue after the break. Just 24 really three short submissions remain. 25 First, as I have said, whether Gatwick met the 155 1 objectives of the plan under the directive was 2 a question of judgment for the Secretary of State, 3 challengeable only on Wednesbury. 4 Secondly, the conclusion that was reached, both 5 first of all provisionally and then finally, that it did 6 not meet the objectives, is consistent with what was 7 said in the needs section of the ANPS. 8 The only thing that was inconsistent, my Lords, was 9 that we had failed, in the HRA in February 2017, to pick 10 up the fact that the policy that we were consulting on, 11 about Heathrow Hub status, et cetera, had the effect 12 that really Gatwick should have been ruled out as an 13 alternative in the HRA. That was what was inconsistent 14 with what we were doing. 15 Then, my Lords, finally -- third submission, and 16 maybe it is really the same submission -- all we were 17 doing was bringing into line our conclusions on the HRA 18 with the conclusions -- and I mean provisional 19 conclusions -- that we had already reached in policy 20 terms, about Gatwick not meeting the hub objective. We 21 were just bringing those things together. There is 22 nothing irrational, in my submission, about that. 23 My Lord, that's a convenient moment. I will then 24 turn to the ecological reason. 25 LORD JUSTICE HICKINBOTTOM: So, on that basis, are you 156 1 saying that Gatwick was still an alternative until the 2 final ANPS? 3 MR MAURICI: My Lord, the view that had been reached by 4 government in the draft policy -- so it is a provisional 5 view -- was that it was not an alternative. 6 LORD JUSTICE HICKINBOTTOM: Yes, and that was 7 from February 2017. 8 MR MAURICI: Yes. My Lord, throughout both consultations 9 the government was open to persuasion because we were 10 consulting on the terms of the policy, which includes 11 the objectives, and also the HRA. So, at any point up 12 until the final decision that we made and the final 13 ANPS, we could have been persuaded that, first of all, 14 let's not make hub status such an important objective, 15 which Gatwick argued. Or, as Gatwick also tried to 16 argue, that they could preserve the UK's hub status. 17 MR JUSTICE HOLGATE: It is really the first point which is 18 germane here. 19 MR MAURICI: Really it is. 20 MR JUSTICE HOLGATE: Because the policy was still in draft. 21 MR MAURICI: It was all in draft, yes. 22 MR JUSTICE HOLGATE: Including the objectives. 23 MR MAURICI: Including the objectives, yes. 24 My Lords, that is all I have to say on the 25 objectives. I will turn to the ecological side after 157 1 the break. 2 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 3.30. 3 (3.20 pm) 4 (A short break) 5 (3.30 pm) 6 MR MAURICI: My Lords, just turning to the second reason why 7 Gatwick was ruled out, the ecological reason. The HRA, 8 in October 2017, having expressed the view that Gatwick 9 didn't meet its objectives, could have stopped there, 10 but it didn't. It also went on to consider the 11 ecological impacts of Gatwick, and the position is thus 12 that both versions of the HRA, February and October, 13 took the view that you could not rule out adverse 14 consequences from the Gatwick scheme on the Mole Valley 15 SAC. 16 My Lords, the first point I would make is that 17 conclusion that's expressed in the HRA, that the impacts 18 on the Mole Valley SAC could not be ruled out, were 19 based upon the views of the Secretary of State's expert 20 ecological advisers, WSP. 21 My Lords, you will have seen in Mr Morrison's 22 evidence, the HRA was prepared by two expert ecologists. 23 It was done in accordance with best practice, and at 24 looking at impacts from both northwest runway and 25 Gatwick, they took a precautionary approach. I showed 158 1 you a reference to that earlier. Moreover, if I give 2 you this reference -- I don't ask you to go to it -- but 3 in Caroline Low's first witness statement, paragraph 4 449, which is core bundle 4, tab 1, page 181 to 182, she 5 makes the point that both Gatwick and Heathrow, in 6 ecological terms, were assessed to the same standard and 7 on the same methodology, employing the precautionary 8 approach. 9 That view, that you couldn't rule out the adverse 10 impacts, was carried through into the final HRA that was 11 published alongside the NPS. 12 Can I then deal with the ministerial submission on 13 which Mr Jaffey focused his submissions. Before I turn 14 to our evidence on this, which Mr Jaffey didn't take you 15 to. 16 It is SB12, so bundle 12, tab 5, and the submission 17 starts at page 123, but I would ask if you could go to 18 page 125. So, that is bundle 12, tab 5, page 125. 19 My Lords, paragraph 13, you will see is the 20 paragraph which I think Lord Justice Hickinbottom put to 21 me earlier, where the it is said there is a heading 22 interpretation of the directive. In 13 it says: 23 "It is reasonable to argue the assessment of 24 alternative solutions needs to be made not only against 25 the objective of increasing airport capacity in the 159 1 South East, but also the objective of maintaining the 2 UK's hub status. This is also an important objective 3 and one which has been included a number of times in the 4 draft policy and other government announcements." 5 That is the passage Mr Jaffey took you to. 6 There is also paragraph 14, there is a heading: 7 "Are the Gatwick runway and ENR schemes alternative 8 solutions under this interpretation?" 9 14: 10 "The government has already stated that only 11 expansion at Heathrow will maintain the UK's hub status. 12 We do not therefore consider that expansion at Gatwick 13 is an alternative solution to the government's preferred 14 scheme because it cannot meet this objective; as already 15 stated in the draft airports NPS, expansion at Gatwick 16 would not enhance, but consequently threaten the UK's 17 global aviation hub status." 18 That is the advice from officials, that the view 19 they have taken was it doesn't meet the objectives. 20 Then you will see, at 16, they ask the Secretary of 21 State to agree to some changes to the text. 22 My Lords, that's what one then sees, and I have 23 shown you the outcome of that, which is the October 2017 24 consultation, which makes those changes. 25 My Lords, we did disclose -- it is not in the 160 1 bundle -- the ministerial response approving this 2 submission. It is in the normal form. It is a short 3 email. I don't think your Lordships need to see it, but 4 if you want to see it, it is amongst the documents we 5 disclosed, but have not come into the bundles. 6 MR JUSTICE HOLGATE: Does it say it is approved? I mean 7 literally that. 8 MR MAURICI: Literally, that, yes. So, that is what it says 9 about the main issue, which is the objects issue. 10 The reason that I go to it was because you were 11 taken to annex D, which is page 133, and you will recall 12 that what Mr Jaffey said was that this annex contains 13 a conclusion that our consultants, WSP, had looked at 14 GAL's objection to our HRA and concluded that GAL's 15 objection to our HRA was valid, ie they thought GAL was 16 right and the HRA was wrong. 17 My Lord, that is not what this says. It was misread 18 by Mr Jaffey. 19 Paragraph 6: 20 "Our own consultants [WSP] have concluded a review 21 of GAL's critique of our draft HRA and determined that 22 the conclusions made in the draft HRA [that is in our 23 own document] are valid and in accordance with the data 24 available at the time of the assessment." 25 Quite contrary to what Mr Jaffey put to the court, 161 1 that this was our consultant saying that GAL was 2 correct, that there was no ecological objection to 3 Gatwick. It is quite the contrary. It is actually WSP 4 expressing the view that Gatwick are not correct and 5 that there is still an ecological objection. The draft 6 HRA is correct. 7 My Lords, I know attention was drawn to the 8 paragraph above as well, 5, but if you actually look at 9 the wording of that, it is said: 10 "Whilst it is likely that air quality projections 11 for these schemes will improve following implementation 12 of the Air Quality Plan, given the Gatwick second runway 13 scheme only affects two sites and only on air quality 14 grounds, it is possible that GAL would be able to [not 15 that they have] demonstrate no likely impacts on these 16 sites." 17 So, not saying that they have demonstrated it, but 18 it is possible in the future, with air quality 19 improvements, that they could do it. 20 That of course fits with 6, because the actual 21 conclusion in 6 is not that they have resolved this 22 issue, but that it remains an issue. 23 My Lords, that is entirely consistent with our 24 evidence, which you were not taken to, the evidence of 25 Mr Morrison. If we could go to Mr Morrison's evidence. 162 1 That is back in volume 5 of the core bundle, tab 3, 2 page 165. My Lords, in volume 5, tab 3, page 165, first 3 of all, paragraph 3.29: 4 "The HRA ..." 5 I should also make the point, of course, that you 6 will know that after that ministerial submission, 7 in October 2017, HRA was published, and that of course 8 maintained the ecological issue as being an issue on 9 Gatwick. It didn't remove that. Again, that is 10 consistent with what the ministerial submission actually 11 says, and also consistent with this evidence I am going 12 to show you. 13 So, 3.29: 14 "The HRA produced for the shortlisted options 15 identified that Gatwick resulted in few irrelevant types 16 of impact at fewer European sites. However, the impacts 17 from Gatwick, as a result of changes to air quality, 18 could not be discounted at Mole Gap and, as such, it was 19 concluded that adverse effects could arise at this SAC. 20 Unlike the other European sites considered for Heathrow, 21 Mole Gap to Reigate SAC contains a priority natural 22 habitat type, which is defined as one in danger of 23 disappearance and for the conservation of which the 24 European community has particular responsibility (see 25 Article 1(d) of the Habitat Directive)." 163 1 Then 3.30 describes what the consequences are of 2 a priority natural habitat type designation, including 3 that to take a scheme forward you need to have 4 commission -- not approval, but you need a commission 5 opinion to take that scheme forward. 6 Then, my Lords, if you go forward to page 169, first 7 of all, 3.33.9 -- 8 MR JUSTICE HOLGATE: What about the last sentence of these, 9 at 3.30, which is a point that Mr Jaffey advances: 10 "In the absence of such an opinion, it was not 11 possible to conclude ..." 12 I think he is submitting: well, your client should 13 have gone off to get it. 14 MR MAURICI: My Lord, actually, he wasn't submitting that 15 because what Mr Jaffey accepted was that there is no 16 requirement to go off and get an opinion for something 17 that's an alternative. 18 MR JUSTICE HOLGATE: Not as a legal requirement, but from 19 a practical point of view that was the solution, rather 20 than just simply to say, "That's what we need", and then 21 treat that as a problem, why not test the point by 22 seeking an opinion? 23 MR MAURICI: My Lord, it is dealt with by Mr Morrison in his 24 second witness statement. If you give me one moment. 25 If you go forward to page 187, the problem, my Lord, 164 1 is the stage we were at. If you look at 187, 2.12: 2 "The potential for an adverse effect on a priority 3 habitat species is specifically referenced as it is for 4 this reason that the requirement to seek an opinion from 5 the Commission would be required. There is no reason to 6 assume a favourable response would have been received 7 from the European Commission. It is evident from 8 opinions previously sought that a favourable response 9 will be linked to detailed conditions surrounding 10 assured and secured compensation. It is not apparent 11 how effective, proportionate or appropriate compensation 12 could have been secured for potential air quality 13 related effects in a strategic level assessment, which 14 are further compounded by the uncertainties of in 15 combination effects." 16 What he is saying is: yes, if you were taking 17 Gatwick forward, if that was your proposal, once you 18 were at scheme level, you would be able to go to the 19 Commission with a package of compensation measures, et 20 cetera, in order to get a positive opinion. 21 Although you don't have to -- it is not that they 22 have to approve it, it is not a veto. Nonetheless, if 23 the commission says no, that is a very strong indication 24 against the scheme. 25 What is being said by Mr Morrison is that, because 165 1 of the stage we were at, it would have been very 2 difficult to get anything like a positive opinion from 3 the Commission because the scheme wasn't developed. 4 MR JUSTICE HOLGATE: Which would have altered the analysis 5 he was adopting. 6 MR MAURICI: My Lord, yes. 7 If we could then go to page 169 in the first witness 8 statement, 3.33.9. He refers to the fact that GAL 9 objected to the HRA of significant impacts, and then he 10 says in the same paragraph, three lines down: 11 "GAL referenced a survey completed on their behalf. 12 GAL stated the results of this survey had been presented 13 to Natural England and it was agreed that the survey 14 demonstrated that there was there were no priority 15 habitats in the area that might be affected by traffic." 16 So, that is within 200 metres of the motorway. 17 This is the response of Mr Morrison, which is wholly 18 consistent with the submission read properly, and not 19 misread, 3.33.10: 20 "WSP responded that the GAL survey was undertaken 21 in June 2017 and included the area of the SAC falling 22 within 200 metres of the M25. The survey identified 23 that no orchid species that would meet the criteria for 24 priority habitat were identified in this 200-metre zone 25 during the survey, despite suitable grass and habitat 166 1 being present. 2 "WSP noted that GAL concluded that the grassland 3 within 200 metres of the motorway was in a condition 4 unlikely to support rare orchid species due to the 5 current management regime necessary to balance the 6 requirements of open public access with biodiversity 7 interest. 8 "GAL also concluded there were no plans to change 9 the management of the area in the foreseeable future. 10 Therefore there is no potential for an increase in 11 traffic on the M25 as a result of Gatwick, to have 12 a significant effect on priority habitat (important 13 orchid sites). 14 "WSP responded that this assessment did not provide 15 sufficient regard to the precautionary principle. As 16 acknowledged by GAL, orchids are notoriously sporadic in 17 their appearance, and 2017 has been poor for some 18 species due to the relatively dry winter. In addition, 19 Natural England had clarified, through consultation 20 response in November 2017, that it has already been 21 stated that a lack of orchids recorded in 2017 does not 22 mean they have not been or could not be present. 23 Further to this, Natural England requested that GAL 24 caveat that there is currently very little potential for 25 orchids to occur in this area. This is opposed to the 167 1 site having no potential. It is acknowledged in the GAL 2 report (and it is agreed through consultation with 3 Natural England, which is also cited in the report) that 4 orchids are unlikely to be present despite annex 1 5 habitat being present. However, this is quite clearly 6 caveated as being due to the current conditions, 7 including visitor pressures, cattle grazing and rabbit 8 grazing. 9 WSP concluded that, on the basis of the evidence 10 presented, that under current conditions there is some 11 potential for orchids to be present (and missed due to 12 survey limitations and due to their sporadic nature). 13 It is recognised that this potential is limited on the 14 basis of the advice provided by Natural England and the 15 Trust (as land managers). However, it is clear from the 16 report and the consultation response that the absence of 17 the priority habitat is likely to be attributable to the 18 current management regime. With more favourable 19 management [and this is crucial, my Lords] required 20 under Article 6.2 of the Habitat Directive. It is 21 considered possible that the future baseline could 22 change and support relevant orchid species/populations. 23 "The GAL report appears to suggest that the current 24 management regime is effective and sensitive. However, 25 WSP queried this assertion, given that it was also 168 1 reported that the land is CROW Act. Therefore, the 2 public have a right to roam across it on foot. However, 3 horses, bikes and fitness groups all use the area of 4 interest, and rabbit control is difficult in an area 5 that is so heavily used by the public." 6 My Lord, you often have this contention in planning 7 enquiries in relation to traffic being increased on 8 roads. People say there isn't any priority habitat 9 within 200 metres. Although it is within a European 10 site, there is none of the actual priority species 11 within 200 metres, but that is often because the land is 12 not being managed as it should be, and there is a legal 13 duty to manage that land. 14 It is not just about whether things are present, and 15 of course orchids might be present because they might 16 not have been spotted on the survey. It is also about 17 whether the land has the potential in the future to have 18 orchids if it is managed properly. 19 Those are all perfectly valid and proper 20 precautionary principle reasons for concluding that, at 21 this stage, it can't be ruled out that Gatwick would 22 have an adverse impact. 23 My Lords, finally on this, as I have already shown 24 you, Natural England recognised that conclusion as being 25 appropriate at the strategic level. 169 1 My Lords, in my submission there is no basis for 2 suggesting there is anything unlawful about the second 3 reason that we gave for rejecting Gatwick. 4 LORD JUSTICE HICKINBOTTOM: Just help me with this: why does 5 that lead to the rejection of Gatwick? Even if 6 everything you say is right so far, what you have is you 7 have potential habitat difficulties, risks, both at 8 Gatwick and Heathrow. 9 MR MAURICI: My Lord, yes, because what you are looking for 10 in alternative is an alternative that will have a lesser 11 impact in terms of protecting European sites, and here 12 what was being said was -- and I think this is covered 13 in the submission that we were in a moment ago. 14 The basic point, my Lord, is this: yes, Heathrow 15 would have more impacts on more sites, but none of them 16 would be potentially on priority species. 17 LORD JUSTICE HICKINBOTTOM: At this stage, so far as Gatwick 18 is concerned, you have identified a risk. 19 MR MAURICI: Yes. 20 LORD JUSTICE HICKINBOTTOM: But you haven't investigated 21 that risk. 22 MR MAURICI: No. 23 LORD JUSTICE HICKINBOTTOM: Why knockout Gatwick at this 24 stage on the basis of a risk? 25 MR MAURICI: My Lord, the way I put it is not that we 170 1 haven't investigated the risk. We have carried out, in 2 my submission, the correct level of investigation for 3 a strategic level plan and its alternatives. So, a lot 4 of this is desk based, and that is always the case for 5 SEA and HRA at this level. In fact, that is covered in 6 Ms Stevenson's witness statement. She makes that 7 statement that it is very usual for it to be desk based. 8 So we've carried out the right level of investigation. 9 The conclusion we have reached is a conclusion that 10 we can't rule out adverse impacts at this stage. 11 LORD JUSTICE HICKINBOTTOM: Correct. 12 MR MAURICI: From Gatwick. Going forward, if Gatwick, on 13 other bases, was to be taken forward, further work could 14 be done by them, mitigation scheme, further surveys, et 15 cetera, they might be able to be able to prove that the 16 survey doesn't have the effect. 17 At the strategic stage, we were entitled to reach 18 the conclusion that you couldn't rule out impact on Mole 19 Valley. 20 LORD JUSTICE HICKINBOTTOM: Does the ecological reason just 21 go to some sort of general balance, as opposed to the 22 objectives issue, which is a knockout blow? 23 MR MAURICI: My Lord, no. The reason we say it is 24 a knockout blow as well, in addition to the objectives 25 point, my Lord, is because the way the case law is set 171 1 up is that when you are looking for an alternative you 2 are looking for an alternative. By definition, to be an 3 alternative it has to be something that you can regard 4 as being less harmful than your main proposal. If it is 5 equally harmful or more harmful, it is not an 6 alternative under the case law. You are looking for 7 something that is less harmful. That is the whole 8 purpose of this. 9 LORD JUSTICE HICKINBOTTOM: Sorry, I appreciate that. Given 10 that this is an iterative process, why do we exclude 11 Gatwick? Just on this one issue, why do we exclude 12 Gatwick at this stage? Why don't we take both forward 13 to identify whether there is in fact harm so far as the 14 Habitat Directive is concerned? 15 MR MAURICI: It is because we have a preferred scheme, which 16 we are entitled to have, and the legal requirement then 17 becomes to consider an alternative to that. 18 The alternative is Gatwick, but to be an 19 alternative -- I say, under the case law, to be an 20 alternative you have to conclude that it is something 21 that's going to lead to less ecological impact. 22 Otherwise, by definition under the case law it is not an 23 alternative to your main scheme. You don't have to 24 consider it as an alternative. 25 Then the question is one of judgment. There is 172 1 a question of judgment. The question of judgment is: 2 Heathrow affects more European sites and has a wider 3 range of impacts, but not on priority habitat species. 4 So, the conclusion that has been reached is -- it is 5 a matter of judgment -- you can't say, at this stage, 6 that Gatwick is a less harmful option than Heathrow, and 7 on the case law, in my submission, that means it is not 8 an alternative at all. 9 That is what Natural England are accepting in those 10 submissions, that that is the position that has been 11 reached. 12 My Lord, I derive that -- it is dealt with in my 13 skeleton. If you just give me one moment. I only deal 14 with it in quite a summary way, but I have given the 15 references. 16 In our skeleton it is paragraph 85(3). It is stated 17 in quite a summary form, but we have given you the 18 references in this footnotes to where we support that. 19 I think it is from guidance. Guidance and the Advocate 20 General's opinion in Portugal. 21 My Lord, you will see what the Advocate General said 22 is that you are looking at something that will have less 23 of an adverse effect. To be an alternative, it must be 24 an alternative that has let effect. The conclusion that 25 has been reached by the consultants, as a matter of 173 1 judgment, is you can't say Gatwick will have less effect 2 because there is still a risk of impact and it is an 3 impact on priority species. 4 LORD JUSTICE HICKINBOTTOM: So, by "less adverse harm" that 5 is risk, is it? It is a combination. 6 MR MAURICI: It is a combination of risk and also the nature 7 of the harm. 8 LORD JUSTICE HICKINBOTTOM: I see. 9 MR MAURICI: It is clearly recorded that, in terms of 10 impacts, Heathrow is likely to have more impacts across 11 more sites, but not on priority species, which are 12 particularly protected. So, there is a judgment there, 13 I accept. But if your judgment is you can't say that 14 the alternative is less harmful, then it is not an 15 alternative at all. That is the way I put it, my Lord. 16 LORD JUSTICE HICKINBOTTOM: Yes. 17 MR JUSTICE HOLGATE: So far as the Habitat Directive is 18 concerned, the extra protection it gives to a site with 19 a priority species, is that just articulated through 20 Article 6(4) and the more limited range of overriding 21 reasons to which regard can be had or is there something 22 additional to that, as well? 23 MR MAURICI: Principally, my Lord, that is the additional 24 protection. That's principally the protection that is 25 given. 174 1 As I said, obviously I accept the Commission opinion 2 is not a veto, but it is a very important part of the 3 process. You are getting an independent view from the 4 Commission and if they say no, it doesn't stop you 5 proceeding, but you are going to have to make a very 6 Cogent case for why you have proceeded with a contrary 7 opinion. 8 My Lords, can I turn to SEA? 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR MAURICI: In terms of the structure of this, as 11 I predicted, I am not going to get this finished today, 12 but what I am going to do is three things. I have some 13 preliminary matters -- I always have, goes without 14 saying. 15 I then need to deal with what the proper test is for 16 the court to be applying to these allegations, that the 17 AOS is defective, ie does the Blewett test apply? That 18 is the second subject. 19 Then, thirdly, I am going to deal with the specific 20 complaints made insofar as they have been pursued orally 21 and, of course, they were limited to only two of the 22 five sub-issues in terms of the oral submissions. It 23 was issues 8.1 and 8.2. 24 In relation to the other issues, 8.3 and 8.5, you 25 have our written submissions in the skeleton and we have 175 1 given you references to our answers to those points. 2 So, first topic, preliminary matters. 3 First, the AOS followed on from and built upon 4 detailed environmental assessment work undertaken for 5 the Airports Commission. I will just give you the 6 references. It is Ms Stevenson's witness statement 7 section 2, which is CB4, tab 3, page 367 onwards. It is 8 paragraphs 2.1 to 2.24. 9 It is also Mr Graham's witness statement at 10 paragraph 91, which is core bundle 5, tab 5, page 91. 11 So, that is the first point built on extensive 12 environmental assessment work undertaken by the 13 commission. 14 Secondly, throughout the process undertaken for the 15 ANPS, input was provided again on the AOS by the 16 cross-government steering group, which included all the 17 relevant departments, but also Natural England, the 18 Environment Agency, et cetera. 19 That's Ms Stevenson's witness statement again, first 20 witness statement, paragraph 2.25, which is CB4, tab 3, 21 page 372. 22 Thirdly, the AOS was commissioned by the DfT and 23 produced by independent expert consultants, WSP, and 24 there were specialist expert authors for each chapter. 25 Again, that is Ms Stevenson's first witness statement. 176 1 Paragraph 1.6. CB4, tab 3, page 367. 2 Then, my Lords, fourthly, those consultants -- and 3 this is paragraph 2.26 of Ms Stevenson's first witness 4 statement, which is CB4, tab 3, page 372. Those 5 consultants looked carefully at what was done for other 6 NPSs in terms of preparing an AOS, and they checked 7 against what had been done previously for both 8 consistency and good practice. 9 Fifthly, there was plainly a very thorough and 10 careful assessment undertaken in the AOS. 11 Can I ask you to take up one reference in 12 Ms Stevenson's witness statement? 13 That is volume 4 of the core bundle, tab 3, 14 page 391. This really just gives us an overview of the 15 work that was done. If you look at 3.14, the starting 16 point was the work done by the Airports Commission and 17 then, in the subparagraphs, you have a very brief 18 summary of what was done. So, first of all, a gap 19 analysis; are there any gaps in the 20 Airports Commissions' work? 21 The reason for that is the Airports Commission 22 weren't required to do an SEA because it wasn't a plan 23 or programme, it was a report recommending a course of 24 action. But they did do an assessment which they said 25 was like an SEA, in order to help the Secretary of State 177 1 to have an evidence base if he was going to take this 2 forward. 3 So, the gap analysis; is there anything missing? 4 Secondly, an assurance process was undertaken to 5 ensure the information was suitable to use in an AOS. 6 That is the second point. 7 The third point is scoping. So, there is 8 a requirement to scope an SEA. You have to set out in 9 a report what you are going to cover and you send it to 10 the relevant statutory environmental body, so 11 Natural England, the Environment Agency, Historic 12 England, and they respond telling you whether you have 13 it right or wrong, or what you should include or not 14 include. So, that was done fully. 15 My Lords, Mr Justice Holgate may remember that there 16 was originally in the boroughs' claim an attempt to 17 argue the scoping was unlawful, and that was abandoned 18 between the original grounds and the further grounds. 19 So, there is no dispute that scoping was done lawfully 20 in this case. 21 Then, finally, starting in 8.5, WSP engaged a 22 subconsultant clearly consulting, with considerable 23 experience in SEA, to provide reviews throughout the 24 process documented under the chronology. Clearly, it 25 also undertook reviews of case law to inform their 178 1 review. So, effectively, you had a quality assurance, 2 a peer review process by another consultancy of the AOS, 3 checking whether what's being done is correct. Checking 4 the quality, you might say, of what's being done and 5 whether it's being done properly. 6 My Lords, the reason I mention that is the test that 7 the boroughs are asking you to take to abandon Blewett 8 and for the court to look at the quality of the AOS, to 9 look at the fine detail of whether the AOS contains the 10 right things, really what is being asked is that the 11 court take on a role not dissimilar to the one that 12 clearly consulting had; a kind of peer review, detailed 13 check of the AOS to see what was in it and what should 14 have been in it. I will be saying -- and I will come to 15 it right now in terms of the test -- that clearly is not 16 the right test to apply. 17 My Lords, on the test, I say the correct test comes 18 from Blewett. There are two key aspects to Blewett. 19 One is to establish unlawfulness, so a breach of the 20 directive or the regulations by reference to the content 21 of the report, you have to show the deficiencies were so 22 serious that the document cannot be described in 23 substance as an environmental report for the purposes of 24 the directive. That is the test that the courts have 25 imposed. That's the first aspect of Blewett. 179 1 The second aspect of Blewett is that beyond that any 2 question about whether the report is adequate in terms 3 of its content is a matter for the Secretary of State as 4 decision-maker, subject to Wednesbury. Those are what 5 I say are the two key aspects of Blewett. 6 These propositions are very well established. 7 MR JUSTICE HOLGATE: In fact Mr Justice Beatson in one case 8 says that the first test you put forward is a way of 9 expressing the rationality test. 10 MR MAURICI: My Lord, yes, that was -- 11 MR JUSTICE HOLGATE: Shadwell. 12 MR MAURICI: In a way -- 13 MR JUSTICE HOLGATE: He says at one stage, let's see what 14 rationality means in this context. 15 MR MAURICI: That is a very neat way -- 16 MR JUSTICE HOLGATE: That is the real principle, is it not, 17 rationality? 18 MR MAURICI: It is. 19 LORD JUSTICE HICKINBOTTOM: Speaking entirely for myself, 20 I find the first way that it is put that so serious that 21 the document isn't really a report. I mean, you know, 22 it is very difficult to know what that really means. It 23 suggests a particular level of test. 24 MR MAURICI: It suggests -- 25 MR JUSTICE HOLGATE: In fact I think there is a gloss -- if 180 1 we go to it, I think the word "reasonably" is included 2 in that sentence and once you put the word reasonably in 3 it is just rationality by another name. It is all going 4 round in circles and not very helpful to argue about 5 whether Blewett, that paragraph is ... 6 Also what I find a little difficult is I am not sure 7 that that formulation explains some of the SEA 8 decisions. I mean, for his part -- for Hillingdon's 9 part emphasis is placed upon Forest Heath and 10 Mr Justice Ouseley's decision in Heard. These are cases 11 where the subject of alternatives was not properly dealt 12 with and alternatives are dealt with rather more 13 rigorously in the SEA Directives compared to the 14 EIA Directive. It is a requirement embedded into 5(1). 15 You don't even have to get as far as annex 1. 16 MR MAURICI: It is in the annex but it is also in the main 17 body. It is a particularly important aspect of SEA. 18 MR JUSTICE HOLGATE: Yes. So in fact if that requirement is 19 not met -- in some of these cases like Ashdown Forest 20 I think Lord Justice Richards says that the local 21 authority didn't even consider whether to examine -- 22 these are very fundamental legal errors. 23 MR MAURICI: Yes, my Lord. I mean, I don't know whether it 24 is all resolved by the fact that if we say this is 25 effectively a Wednesbury test. Those cases are 181 1 explicable by reason of the fact that the courts reached 2 the view that it was just Wednesbury unreasonable, given 3 the importance of alternatives in particular in SEA. 4 MR JUSTICE HOLGATE: I think it might be a little bit harder 5 edged if you have a local authority, for example, 6 putting up a core strategy they don't look at 7 alternatives at all, for example. That is a straight -- 8 there is a hole, which I regret using that expression. 9 MR MAURICI: It is now in the transcript twice. 10 MR JUSTICE HOLGATE: One wouldn't want the hole to be too 11 big. But it is a direct application of Article 5(1). 12 MR MAURICI: My Lord, yes, it is. 13 MR JUSTICE HOLGATE: For that purpose you don't have to say, 14 well does this look, taken as a whole, as if it is an 15 environmental report, whatever that means. 16 MR MAURICI: You could approach it in that way. You could 17 say given the importance of alternatives within the 18 SEA Directive that if your report wholly fails to 19 consider alternatives, wholly fails to consider it at 20 all, that that is not something that looks like 21 a report, because it is missing the most fundamental 22 requirement of a report. 23 MR JUSTICE HOLGATE: My impression of the case law is that 24 that phraseology has been introduced in cases, for 25 example, in the EIA cases where the complaint has 182 1 related to a number of aspects or deficiencies and a lot 2 of them were qualitative. It is not said you didn't 3 look at the effect on contaminated land at all; it is 4 the way you did it. And that's rationality really. 5 MR MAURICI: My Lord, that is exactly this case. Because if 6 you think about the two points that have actually been 7 pursued orally by Mr Pleming, the first one, which 8 I will obviously come to in a bit more detail, but the 9 first one is that we failed to identify areas likely to 10 be significantly affected by noise. What does that 11 mean? Did we not include any information about areas 12 affected by noise? No, we made a judgment about how we 13 would map and show that in the AOS, which we did. 14 What's being said on the other side is, that was the 15 wrong judgment. We should have done something 16 differently. So it is a qualitative complaint. You 17 have made a judgment this is the right way to show noise 18 impacts. You should have done it a different way. 19 Frankly, the local plans point is similar. Because 20 local plans were not wholly ignored. They were 21 considered on a collective basis as a group of local 22 plans but they were not looked at individually in terms 23 of, taking the AOS forward. There are aspects that are 24 brought in. I am going to show you that later. But it 25 is not that you have wholly failed, but you haven't done 183 1 it in the right way. You should have covered them in 2 more detail. You should have approached them in 3 a different way. 4 So the complaints are qualitative. I accept what 5 Mr Justice Holgate said to me about the way in which 6 this test has developed in those cases but I would say 7 this is one of those cases, very clearly one of those 8 cases. 9 LORD JUSTICE HICKINBOTTOM: But you accept that we are 10 really in rationality here. 11 MR MAURICI: It is rationality. Effectively you are being 12 asked to conclude that our judgment on what was the 13 proper noise contour to use and the proper noise metric 14 to use and our approach on how detailed we should look 15 at local plans was irrational in effect. 16 MR JUSTICE HOLGATE: In case it may save time, Mr Pleming 17 also submits that the recent Court of Appeal decision, 18 No Adastral, does not actually decide -- it is not part 19 of the ratio in that case that the so-called Blewett 20 test is one to be applied generally. 21 MR MAURICI: I don't accept that. I say it does. 22 MR JUSTICE HOLGATE: Okay. 23 MR MAURICI: I am not sure whether that does save time. 24 MR JUSTICE HOLGATE: You don't need the point on your 25 argument. Still, if -- I find it difficult to see 184 1 how -- I thought he was making quite a strong point on 2 that so if you disagree with that you'll have to -- 3 MR MAURICI: I am going to develop that. I will try and do 4 it very briefly. Even without No Adastral I obviously 5 have three high court decisions which do apply it which 6 you have been asked to depart from. So you have been 7 asked by the Boroughs to depart from Shadwell, Cogent 8 and Gladman. 9 MR JUSTICE HOLGATE: Sorry, I didn't express myself very 10 carefully. I don't see the Court of Appeal as laying 11 down Blewett as a test to apply in all SEA cases. But 12 on the other hand, I can see how an analogy has been 13 drawn with the EIA cases where a qualitative attack is 14 being made on the level of detail. 15 MR MAURICI: Yes, okay I see, my Lord. 16 MR JUSTICE HOLGATE: Sorry, I didn't express myself very 17 well. 18 MR MAURICI: Can I try and deal with it as quickly as I can 19 because what I want to do is -- one point I have made in 20 the skeleton I would just draw your attention to, 21 paragraph 115. I don't think we need to go to it. What 22 I have said there is that if you don't apply Blewett to 23 the kind of complaints that we are dealing with in this 24 case, what you get is unfortunately what we have in this 25 case, which is 250 pages of our witness statements are 185 1 directed to dealing point by point with all of the 2 qualitative complaints made by the Boroughs, some of 3 which have been pursued orally, some of which have not 4 been pursued orally. 5 Although we are very clear that Blewett does apply, 6 this case may go higher, it may go to the Supreme Court, 7 we needed to cover all those things off. 8 If you say it is not a test like Blewett that 9 applies to these kind of complaints then a defendant is 10 going to have to do, what you remember in Shadwell, 11 Mr Justice Beatson said a court shouldn't do, which is 12 examine the fine detail of the reports. And that is 13 what we have ended up with in this case. We have ended 14 up with competing evidence going through the fine detail 15 the content of these reports, making hugely detailed 16 criticism and critiques which we have had to answer. 17 My Lord, that is in my submission really not what 18 the planning court, the administrative court should be 19 encouraging in these type of proceedings. 20 My Lords, what I was going to do, if you will let me 21 is, I was actually going to return, just to look briefly 22 at Blewett itself and then, my Lords, may simply look at 23 No Adastral very briefly. 24 Could we look at Blewett itself which is in 25 bundle 4, tab 91, authorities bundle 4, tab 91. 186 1 My Lords, if you go to page 579, paragraph 32 in the 2 judgment of Mr Justice Sullivan, you will see 32: 3 "Where there is a document purporting to be an 4 environmental statement the starting point must be it is 5 nor the local planning authority to decide whether the 6 information contained in the document is sufficient ..." 7 My Lord, I say the same principle applies in SEA but 8 that is what it says. 9 33: 10 "The local planning authority's decision is of 11 course subject to review on normal Wednesbury 12 principles." 13 And then 35: 14 "Paragraph 1 of schedule 4 requires the 15 environmental statement to provide a description of the 16 likely significant effects on the environment and 17 a description of the measures envisaged to prevent, 18 reduce or where possible offset any significant adverse 19 effects on the environment." 20 Them there is a list of what was required in 21 schedule 4. 22 The reason I show you that is that some of the 23 submissions that Mr Pleming made suggest -- and this is 24 in their skeleton too -- that the requirements of EIA 25 are less prescriptive than the requirements of SEA. 187 1 But, my Lord, there is no merit in that suggestion at 2 all because the key requirements of EIA are to describe 3 likely significant effects and their mitigation and that 4 is equally as prescriptive in EIA as in SEA. There is 5 no difference between the prescriptive -- the only thing 6 that is different about the EIA Directive is it is more 7 discretionary on when you do an EIA. The SEA is much 8 more mandatory about when you do it. But the actual 9 requirements, my Lord, are no less mandatory. 10 So you have these mandatory requirements in the 11 EIA Directive to describe significant effects and also 12 describe mitigation. 13 If you go over to page 580, three lines down, you 14 will see the judge says: 15 "If an application for planning permission has been 16 accompanied by a document purporting to be an 17 environmental statement can it be said that the document 18 falls outside the definition of an environmental 19 statement so that the local planning authority is unable 20 to grant planning permission because it has failed to 21 describe a likely significant effect on the environment 22 subsequently identified by the local planning authority, 23 or a particular mitigation measure thought necessary by 24 the local planning authority?" 25 The question that has been posed is: if you fail to 188 1 comply with the mandatory requirements of the EIA can 2 that mean that the ES is no longer to be considered in 3 the ES? It is not that their discretionary 4 requirements, they are mandatory requirements. 5 37: 6 "In my judgment, the fact that the local planning 7 authority's consideration of the application leads it to 8 conclude there has been such an omission does not mean 9 that the document is not capable of being regarded by 10 the local planning authority as an environmental 11 statement for the purposes of the regulations." 12 Then, my Lord, 39, a point I don't need to read out, 13 but what is said there, environmental information under 14 the EIA Directive is not just the report, it is the 15 consultation responses and any further information. 16 My Lord, again Mr Pleming says it is different in 17 SEA. But it is not different in SEA because in the 18 SEA Directive environmental assessment is defined as 19 only -- it is not just including the report but also the 20 consultation responses and of course it can be 21 supplemented by addendums or further information if the 22 decision-maker wants there to be such. So in my 23 submission there is no real difference on that point. 24 MR JUSTICE HOLGATE: I was looking to see, it doesn't matter 25 particularly, but is there an express provision dealing 189 1 with addenda or supplementary information? But it is 2 implicit that you can have more than one environmental 3 report? 4 MR MAURICI: My Lord, yes, and that is obviously what was 5 going on in cases like -- 6 MR JUSTICE HOLGATE: Or core strategies where you go through 7 a staged process. 8 MR MAURICI: My Lord, yes. 9 MR JUSTICE HOLGATE: You do SEA at each stage. 10 MR MAURICI: Yes, and that was what was going on at 11 No Adastral because there was an addenda in that case. 12 Then at the bottom of the page, page 580, you will 13 see 40: 14 "In the light of the environmental information the 15 local planning authority may conclude the statement has 16 failed to identify a particular impact, or has wrongly 17 dismissed or not significant or might be persuaded 18 mitigation measures proposed are inadequate or 19 insufficiently detailed." 20 That doesn't mean that the document is not described 21 as an environmental statement or falls outside the 22 definition so as to deprive the authority of 23 jurisdiction. The authority may conclude that planning 24 permission should be refused on the merits because the 25 environmental is inadequate, but that is a different 190 1 matter altogether. 2 And then there is a point about jurisdiction again, 3 and then 41: 4 "Ground 1 is an example of an unduly legalistic 5 approach to the requirements of the regulations that has 6 been adopted on behalf of the claimants in a number of 7 applications for JR seeking to prevent the 8 implementation of development proposals. The 9 regulations should be interpreted as a whole and in 10 a commonsense way. The requirement that an EIA 11 application must be accompanied by an environmental 12 statement is not intended to obstruct such development." 13 Then you have the classic quotation about the 14 imperfect world. 15 Then 42: 16 "It would be of no advantage to anyone concerned 17 with development." 18 LORD JUSTICE HICKINBOTTOM: It is the sentence at the end of 19 41. 20 MR MAURICI: Yes: 21 "There may well be cases where the document 22 purporting to be an environmental ... is so deficient it 23 could not reasonably be described." 24 So, my Lord, yes, it basically is Wednesbury. It 25 basically is Wednesbury test. 191 1 That is Blewett and you will know that Blewett was 2 approved by the House of Lords in Edwards. 3 My Lords, just one tiny footnote on that. I think it is 4 said by the Boroughs that Edwards was an EIA case. Now, 5 Edwards did raise an issue of EIA so there was an 6 argument that the scheme in that case, which was an 7 Environment Agency permit should have been subject to 8 EIA but that was rejected by the House of Lords. The 9 consideration of Blewett was in the context of not the 10 EIA Directive but the IPPC Directive, the Integrated 11 Prevention Pollution Control Directive, now, the 12 Industrial Emissions Directive. 13 My Lord, what Edwards is is an application of 14 Blewett going beyond EIA into another directive where 15 you have similar provisions, similar to both those in 16 the EIA Directive and the SEA Directive to produce 17 a report. 18 Then, my Lords, can we then just turn to the 19 No Adastral case which is in the same bundle of 20 authorities, bundle 4, 101. My Lords, if you go to 21 page 566 -- perhaps we should pick it up at paragraph 46 22 on page 565, issues on the appeal. The council doesn't 23 challenge the judge's findings that there were two 24 deficiencies in the process. Failure to carry out an 25 SEA at the early stages of preparation of the court and 192 1 a failure to consult on alternative options to area 4 at 2 a particular time in the process. 3 Then 48, you will see there is reference to 4 Cogent Land case which is the decision of 5 Mr Justice Singh. 6 Over the page at paragraph 50, a number of 7 authorities referred to including Forest Heath. 8 At 52, is set out what Mr Justice Singh said at 9 paragraph 126 which was effectively to adopt and apply 10 Blewett and the Blewett approach in an SEA context. 11 At 53 there is an endorsement of Mr Justice Singh's 12 approach that the issue of principle with the Court of 13 Appeal saying that that was correct for the reasons he 14 gave and also saying a similar view of the law was 15 expressed by Mr Justice Sales in Ashdown Forest. 16 Then in 54 Mr Buxton sought to distinguish Cogent as 17 dealing with a different issue from that in the present 18 case. He said the defect in Cogent concerned the giving 19 of reasons. It was a failure to explain why the council 20 had made its choices, whereas the deficiencies in the 21 present case were defects of process. 22 So Cogent was about defects effectively in the 23 report, not describing the reasons for choices: 24 "I do not accept there is any relevant distinction 25 between the two cases. The failure in Cogent to give 193 1 adequate reasons for preferring the selected locations 2 over alternatives was just as much a defect of the 3 process as were the deficiencies in the present case." 4 So the endorsement of the Blewett principle is an 5 endorsement not just on the facts of No Adastral but it 6 is also an endorsement of its application in Cogent 7 where it was about a defect in the level of information 8 provided in the report. 9 MR JUSTICE HOLGATE: As I say, you can analyse it 10 differently, that the defect was rather more fundamental 11 for the purposes of SEA, namely a failure to address 12 alternatives. 13 MR MAURICI: My Lord, yes, in terms of the Forest Heath. 14 MR JUSTICE HOLGATE: In domestic terms that is regulation 12 15 which I think you see set out in paragraph 12 of the 16 decisions, the equivalent of Article 5(1). 17 MR MAURICI: But of course in Cogent the Blewett approach 18 was taken to that failure. 19 MR JUSTICE HOLGATE: I think it is mentioned from 20 recollection at the very end of Mr Justice Singh's 21 judgment, paragraph 126. 22 MR MAURICI: 126, yes, which we just quoted in 52 of 23 No Adastral. And indeed, my Lord -- 24 MR JUSTICE HOLGATE: As I understand it, what Mr Pleming is 25 saying is that these two cases are essentially cases 194 1 where the fundamental requirement to address 2 alternatives was not dealt with and the question was 3 whether that defect could be cured by a subsequent 4 stage. You don't need Blewett really to determine that 5 that's legally permissible. That is really what was in 6 issue in these cases. 7 MR MAURICI: My Lord, I maintain that what is being said 8 here by the Court of Appeal, particularly because of 9 paragraph 54, applying it both back to Cogent and to the 10 facts of this case, is that they were seeking to apply 11 it more generally to cover any potential defect in an 12 AOS process. 13 MR JUSTICE HOLGATE: That wasn't the issue in the case for 14 them to decide, so it is not ratio, is it? If that is 15 the way you are trying to read it. 16 MR MAURICI: It is certainly being -- my Lord, the 17 submission was made in that paragraph that it is 18 distinguishable and the court rejects that on the basis, 19 no, the principle applies across the board. So I am not 20 sure I would accept it isn't part of the ratio. 21 MR JUSTICE HOLGATE: I don't want to take up too much time 22 on this but 53 needs to be read in context. If you go 23 back to 50. The reason Court of Appeal reviews earlier 24 cases such as Seaport, Heard and so on, even the Forest 25 Heath case, is to see whether they support or otherwise 195 1 the proposition that a defect at an earlier stage can be 2 cured by something subsequent in the process. That is 3 why they were looking at these cases. That was the 4 issue. See, for example, 51. 5 MR MAURICI: My Lord, yes. I do say that the Court of 6 Appeal was setting out a more general principle there 7 but whether they were or they weren't we have three high 8 court cases, in particular I would say Shadwell, which 9 I am not going to go to, where the Blewett approach has 10 been applied to SEA in a sense. Your Lordship, I know, 11 is not disputing that with me. 12 My Lords, I have got some submissions if your 13 Lordships want to hear -- there were various points made 14 by Mr Pleming about the differences between the SEA 15 regime and the EIA regime, the quality requirement as 16 such. They won't take long but I won't have time to 17 deal with them now, looking at the time. 18 MR JUSTICE HOLGATE: The quality requirement comes from 19 Article 12(2). 20 MR MAURICI: Yes, in short, actually if you look at the 21 language reports it is a systematic obligation and that 22 is backed up by the fact that what you are required to 23 do is report to the commission about what you are doing, 24 and it is not transposed into the regulation -- 25 MR JUSTICE HOLGATE: I noticed that. 196 1 MR MAURICI: -- because there is no need to because it is an 2 international obligation. It is something the member 3 states must report to the commission. 4 MR JUSTICE HOLGATE: And you read it alongside 12(1) and 5 12(2) as well. 6 MR MAURICI: Exactly, my Lord. 7 I think I have made the other submissions I have 8 about the differences between the regime. Is SEA more 9 mandatory? No, I say. And is there any question about 10 environmental reports being a more central feature in 11 SEA than EIA compared to other information? Again 12 answer no. 13 Before I turn tomorrow to the individual breaches 14 alleged, we have done a note of references for those 15 specific points, and the reason I have done it is that 16 again, I am unfortunately at this point meeting detail 17 with detail and meeting point with point complaints that 18 we didn't consider local plans. Although I would hope 19 to emphasise a few of the key points of this tomorrow, 20 I have mainly down this because otherwise I am just 21 going to be reading out a huge long list of references 22 ad nauseam. I will make the key points tomorrow, 23 but ... I will give this to you now. (Handed) I am not 24 inviting, nor dare I, judicial homework but I am giving 25 it to you now so that you have this and I will run 197 1 through the key points tomorrow. 2 You will see on the first page we deal with the 3 first breach which is the local plans breach and we make 4 some general points to where we cover this in our 5 evidence. Then the table which follows with immense 6 detail which runs through pages 1, 2, 3 and 4 picks up 7 all the references. Actually they are in Ursula 8 Stevenson's witness statement about where we cover these 9 in the AOS and appendices. It only goes to illustrate 10 why your Lordships shouldn't accept the approach that 11 you do have to examine the fine detail. 12 Finally, on the final page on page 5 we have picked 13 up the other issue which is about the environmental 14 characteristics of areas likely to be significantly 15 affected. I will spend a little bit more time on that 16 one just to tell you what our case is, but again you 17 have the references so that I hope to save some time. 18 My Lords, I am slightly behind schedule but not 19 massively behind schedule. 20 MR JUSTICE HOLGATE: On surface access and air quality, are 21 you proposing to do something similar because otherwise 22 you were going to take a whole day on those two topics? 23 MR MAURICI: Yes. My Lord, we actually have one for surface 24 access. I haven't got one for air quality. I am very 25 happy to give that in now. 198 1 MR JUSTICE HOLGATE: Only a tentative inquiry. 2 MR MAURICI: I hand those in too. (Handed) 3 My Lords, can I just tell you what's in that one. 4 My Lords, there are two tables. The first one starts on 5 page 1 and runs to the top of page 3. This is really 6 setting out ten different places in the evidence where 7 you can see the engagement with points raised by TfL. 8 I am not going to run through all of those tomorrow but 9 I am going to highlight some of the key ones. 10 Then the second table is in relation to what TfL 11 said in Mr Williams' second witness, the key points that 12 they raise in the consultation. 13 MR JUSTICE HOLGATE: These are the points in your skeleton. 14 MR MAURICI: Yes, in the boroughs' skeleton, yes. 15 MR JUSTICE HOLGATE: Yes. 16 MR MAURICI: We basically have given you all the references 17 to where we say in that same material we have engaged 18 with those points and again, I would seek to emphasise 19 some of the key ones, and I am not going to go through 20 all of them, but that's what we have sought to do and 21 I hope that will save some time. 22 On the other hand, there is still quite a lot to 23 cover on surface access and air quality tomorrow so my 24 thinking is still that I am going to be a day dealing 25 with those two issues and that climate change will be 199 1 Monday morning. 2 I have also indicated to, I think, Mr Wolfe 3 yesterday that that was very likely to be the position. 4 I know Mr Wolfe is not here today. I have indicated to 5 him that I'll be dealing with climate change on Monday 6 and I still think that is realistic. If I did finish 7 short, I don't know what your Lordships would want me to 8 do. 9 LORD JUSTICE HICKINBOTTOM: I would be surprised but 10 speaking for myself, what I think would be helpful if is 11 if we started at 10 o'clock tomorrow and you left 12 climate change until Monday. 13 MR MAURICI: I am very happy to do that. 14 LORD JUSTICE HICKINBOTTOM: That will make it easier for 15 people to know what's happening and then we will finish 16 tomorrow when we finish. It is not an invitation to 17 spend more time than you need. 18 MR MAURICI: No, I will try and finish earlier. 19 LORD JUSTICE HICKINBOTTOM: Is that sensible? 20 MR MAURICI: My Lord, very happy with that, yes. 21 LORD JUSTICE HICKINBOTTOM: We'll start at 10 o'clock 22 tomorrow. 23 MR MAURICI: Grateful, my Lord. 24 (4.35 pm) 25 (The court adjourned until the following day at 10.00 am) 200 1 INDEX 2 Submissions by MR SPURRIER ...........................1 3 Submissions by MR MAURICI ...........................34 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 201