1 Friday, 15 March 2019 2 (10.00 am) 3 Submissions by MR MAURICI (continued) 4 LORD JUSTICE HICKINBOTTOM: Yes, Mr Maurici. 5 MR MAURICI: My Lords, I am going to finish SEA and then 6 move on to surface access and air quality. 7 LORD JUSTICE HICKINBOTTOM: Just before you begin, can I 8 just raise two points. This is something where somebody 9 may be able to do some work over the weekend. You 10 raised CREED NZ and identified that appears to take, as 11 it were, an extreme view on predetermination, ie actual, 12 not apparent. That is a New Zealand case. Are we sure 13 that there are no cases in this jurisdiction that refer 14 to that or consider it or follow it? 15 You may say, "We have done that", but we'd quite 16 like to make sure that we have all the authorities on 17 that point. 18 MR MAURICI: My Lord, yes, and on the point that your 19 Lordships has just referred to, which is effectively 20 whether the appearance of predetermination is excluded 21 by the statutory scheme and you can only rely on actual 22 predetermination. 23 LORD JUSTICE HICKINBOTTOM: Yes. 24 MR MAURICI: Because obviously CREED NZ, the difficulty is 25 it is cited hundreds of time on the other issue 1 1 around -- 2 LORD JUSTICE HICKINBOTTOM: It is quite a difficult search 3 because you have masses of cases, but not on this point. 4 MR MAURICI: We can do it because we can use bias and 5 predetermination as well, in the search. So, we can 6 certainly do that. 7 LORD JUSTICE HICKINBOTTOM: If we can have, preferably, 8 a written answer, if there are any other authorities, on 9 Monday, with the replies on Tuesday, that gives everyone 10 at least a chance to think about that. 11 MR MAURICI: Yes, just one thought, what it has 12 a relationship to is in cases on the appearance of bias 13 there is a doctrine of necessity. So, sometimes the 14 courts say: actually there is an appearance of bias 15 here, but by necessity that has to happen because of the 16 statutory duty. 17 So, there is an example in the planning context of 18 local planning authorities determining their own 19 planning applications. 20 MR JUSTICE HOLGATE: I was thinking about that. 21 MR MAURICI: And there is a case back in, I think, 1980s -- 22 MR JUSTICE HOLGATE: Edmonsbury(?) 23 MR MAURICI: Yes, my Lord, exactly, I think it is. 24 In that case, what was said was: if you look at 25 this, the local authority deciding it own planning 2 1 application does give the appearance of 2 predetermination, but the statutory scheme requires them 3 to determine all planning applications. 4 LORD JUSTICE HICKINBOTTOM: There are sort of shades of that 5 here. 6 MR MAURICI: Yes, there are. 7 LORD JUSTICE HICKINBOTTOM: So, any further authorities on 8 that would be helpful. 9 MR MAURICI: Yes, my Lord. 10 LORD JUSTICE HICKINBOTTOM: The second area, and similarly 11 in terms of reasons and the extent to which reasons are 12 appropriate and required, again, if there are any 13 further authorities in relation to that, it would 14 I think help us. 15 The answer to this may be -- without predetermining 16 the searches -- that as a matter of principle things 17 like reasons are now being sort of incorporated into 18 procedural fairness, either to an extent or wholly; that 19 of course is fact specific. 20 MR MAURICI: Yes. 21 LORD JUSTICE HICKINBOTTOM: But we are dealing with 22 a particular context or a particular range of contexts 23 here, so the authorities may be able to help. 24 MR MAURICI: We will look for that. 25 My Lords, you should have had on your desk the case 3 1 I said I would hand in yesterday, which was the decision 2 of Nathalie Lieven QC sitting as deputy high court judge 3 in the CPRE case. 4 LORD JUSTICE HICKINBOTTOM: Yes. 5 MR MAURICI: Just for your Lordship's note, I am not going 6 to spend time going through it, but you will see the 7 nature of the challenges described in paragraph 1. It 8 was a section 113 of the 2004 Act challenge, so 9 a challenge to the adoption of a plan. 10 Paragraph 5(iii), you will see there was a reasons 11 challenge in respect of the adoption of the policies. 12 Then, paragraph 59 is the relevant paragraph which 13 sets out the conclusions of the deputy judge that South 14 Bucks doesn't apply in that -- 15 MR JUSTICE HOLGATE: Which paragraph? 16 MR MAURICI: Sorry, my Lord, paragraph 59: 17 "In respect of the reasons challenge I think the 18 inspector's reasons were perfectly adequate." 19 And: 20 "... certainly in respect of claimants it was also 21 relevant ..." 22 I thought there was another reference, which I can't 23 see now. It looks like it is applied there, my Lord. 24 MR JUSTICE HOLGATE: It may be. 25 MR MAURICI: Sorry, my Lord. It is further down, my Lord, 4 1 I knew it was there. If you look about 7 or 8 lines 2 down, you will see: 3 "It is also relevant ... it is a written report for 4 a local planning ... this is virtually always the case 5 and can be seen in contrast between the inspector's 6 report and the ... to place a requirement on local 7 planning inspector set out a level of detail which 8 normally in a section 78 decision would be to impose an 9 unreasonable and untimely, and ultimately unnecessary 10 burden." 11 So, effectively, the reasons can't be the same as 12 for a section 78, which of course is what South Bucks 13 was. So, that is the point. 14 MR JUSTICE HOLGATE: This may be simply another example of 15 what we were looking at right at the beginning of this 16 hearing. The principles, the broad principles are the 17 same; it is their application which varies according to 18 context. Because if you look, for example, at this 19 particular context, the statutory regime has changed 20 over the years. Now, local authorities can be bound by 21 examiners' recommendations for local plans. Previously, 22 they could disagree with those recommendations, and 23 previously the procedure at an examination was more 24 objection orientated, and the examiners report would be 25 set out that way. It was more akin to a section 78 5 1 appeal. That is reflected in some Court of Appeal 2 decisions which are now historic. 3 But maybe the approach or the principles are the 4 same, but it is the application which varies because 5 a key point in South Bucks is whether the reasoning may 6 conceal, arguably, a public law error. 7 MR MAURICI: Yes, my Lord. 8 MR JUSTICE HOLGATE: As opposed enabling developers to know 9 what to do with their land in the light of that, that is 10 not really in play here. 11 MR MAURICI: No. 12 LORD JUSTICE HICKINBOTTOM: All that fits in with the duty 13 of procedural fairness. 14 MR MAURICI: My Lord, yes. It is context specific. In 15 a way, it doesn't much matter whether one analyses it in 16 the way Mrs Justice Lang did, which is to say South 17 Bucks v Porter doesn't apply. It is a different 18 standard, or to say what the deputy judge said in this 19 case, which appears to be that South Bucks does apply, 20 but to a lesser standard than you would expect in 21 section 78. 22 MR JUSTICE HOLGATE: A different application. 23 MR MAURICI: Yes, a different application, yes. 24 LORD JUSTICE HICKINBOTTOM: So, it may be that the whole of 25 this area of public law has moved on, really. In the 6 1 sense now procedural fairness is clearly very context 2 specific. 3 MR MAURICI: Yes. 4 MR JUSTICE HOLGATE: The other dimension to this is, in any 5 event, we are looking at consultation. 6 MR MAURICI: Exactly, my Lord. That is the case we looked 7 at yesterday, the West Berks case, which was obviously 8 on point on -- because the key reasons complaint -- 9 which I am coming to in a moment -- is under surface 10 access, which is that we didn't give sufficient reasons. 11 MR JUSTICE HOLGATE: I have a feeling I lost a case against 12 Mr Justice Sullivan, Baird, which was to do withdrawing 13 up plans to do with erosion of the coast in Sussex, and 14 he might have dealt with this as well. 15 It can't be just West Berks. There must be more 16 case law on what you expect by way of reasoning in 17 a consultation process. 18 MR MAURICI: My Lord, that's within the second task you have 19 given us, so we will look at that. 20 LORD JUSTICE HICKINBOTTOM: CPRE, that is going at the end? 21 MR MAURICI: At the end. I think Mr Pleming was saying we 22 had reached 201. 23 MR JUSTICE HOLGATE: Is that all? 24 MR MAURICI: Probably not a cause for celebration. 25 MR PLEMING: It is whether or not you need another bundle is 7 1 the question because the bundle 8 is competing to be the 2 heaviest bundle. 3 LORD JUSTICE HICKINBOTTOM: I am putting. 4 MR PLEMING: I have been adding them to 6, but I had 5 forgotten there were two other bundles; 7 and 8. 6 LORD JUSTICE HICKINBOTTOM: We should put them in the same 7 place. I have put them at the end of 6, but where are 8 these going to go? I put them, so far, at the end 6, 9 which means this is a mere 161. 10 MR MAURICI: Yes. 11 MR PLEMING: Exactly, and I was encouraged by that number, 12 but I was pointing out that there were other bundles 13 that -- 14 MR MAURICI: I am happy to move them to 6. I won't do it 15 now. I will try and remember. I don't think we'll be 16 going back to those today. 17 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. 18 MR MAURICI: Can I try and finish off reasonably quickly 19 SEA, because I handed in that note yesterday evening and 20 I just want to run through what would be the key points 21 from that. 22 My Lords, obviously, in approaching this we say, as 23 per the discussion yesterday, the test is Wednesbury in 24 relation to this. 25 But, my Lords, even if the test wasn't Wednesbury -- 8 1 which it clearly is, but if it wasn't Wednesbury -- if 2 the court was to look at the fine detail of the SEA, 3 which is of course what was said in Shadwell, the court 4 shouldn't have to do, even if one does look at the fine 5 detail we say there is no error disclosed in relation to 6 these two issues that have been pursued orally, issue 7 8.1 and issue 8.2 -- 8 If I could start with issue 8.1, that alleges 9 a breach of Article 5, read with annex 1A, by reason of 10 the requirement to have an outline of the relationship 11 with other plans and programmes. 12 In the oral submissions the focus was on local plans 13 and especially Hillingdon. 14 My Lords, I should say in the skeleton there was 15 raised by boroughs some other plans and programmes which 16 it was said regard wasn't had to. My Lords, those 17 were -- just give me one moment -- the Air Quality Plan 18 and the ULEZ, which is the ultra low emission zone in 19 London, and the LES, which is the London Environment 20 Strategy and its carbon budgets. Those weren't pursued 21 in oral submissions, what -- 22 MR JUSTICE HOLGATE: Can you give us the reference in the 23 skeleton, please? 24 MR MAURICI: Yes, if you just give me one moment, I will. 25 (Pause) 9 1 It is on page 31. 2 MR JUSTICE HOLGATE: Thank you. 3 MR MAURICI: It is paragraphs 80.2 and 80.3 of the boroughs' 4 skeleton. So, 80.2 is Air Quality Plan, and 80.3 -- 5 MR JUSTICE HOLGATE: Forgive me for asking, when it says 6 "AQP", that is the national AQP? 7 MR MAURICI: That is the national plan, yes. 8 We did answer these points -- I am not going to deal 9 with this orally, but we did answer these points in our 10 skeleton. I will just give your Lordships a reference 11 to that, if I may. Give me one moment. 12 (Pause) 13 So, my Lord, this is dealt with by our skeleton. It 14 is dealt very briefly at the end of paragraph 116 of our 15 skeleton. We literally deal with it in the last line, 16 where we say: 17 "Particularly in relation to the ULEZ and the Air 18 Quality Plan, these matters were dealt with in the 19 WSP October 2017 re-analysis, which is expressly 20 referenced and cross-referred to in the AOS." 21 MR JUSTICE HOLGATE: It would be useful to have a reference, 22 please. 23 MR MAURICI: Where it is dealt with in the -- 24 MR JUSTICE HOLGATE: Yes, it might take us a little while to 25 find it. 10 1 MR MAURICI: We are actually going to go to that document, 2 and I will pick it up when I deal with air quality, if 3 I may. 4 Can I also give you a reference to the fact that the 5 ULEZ is also dealt with in the appendices to the AOS 6 itself. So, I will give you one reference, my Lord, to 7 that, CB8. So, CB, volume 8, tab 1, page 117. 8 My Lords, it is also referred to in another appendix 9 to the main report, at CB volume 9, tab 7, page 428. 10 MR JUSTICE HOLGATE: That is the AOS plus an AOS appendix? 11 MR MAURICI: Yes. Actually, my Lord -- sorry, my Lord, that 12 first reference, CB8/1/117, is actually to the scoping 13 report. I apologise. 14 The second one I gave you, 9/7/428, is the 15 appendices to the main report. So, that is where we 16 specifically deal with Air Quality Plan and ULEZ, but in 17 more detail they are dealt with -- as we shall see a 18 little bit later on -- in the air quality re-analysis. 19 As I'll show you a bit later on, that is expressly 20 cross-referred to a number of times in the AOS. 21 So, my Lords, I am going to focus on -- if you look 22 at the note I handed in yesterday -- local plans. The 23 basic point, on the second bullet point on that first 24 page: 25 "Other plans and programmes were considered at 11 1 a national scale because this is a national planning 2 policy." 3 In doing that we follow the practice of other NPSs. 4 The reference I have given in that third bullet is to 5 Ms Stevenson's evidence. She talks about what happened 6 with Hinkley Point C, which was specifically identified 7 as a location in the nuclear NPS. She looks at the 8 extent to which local plans were looked at in the SEA, 9 and then the extent to which they were left over to be 10 dealt with at the EIA stage. 11 So, we have followed what has been done on other 12 NPSs. 13 Then I have posed a question in the fourth bullet: 14 "Did we actually look at local plans, including 15 Hillingdon, at all?" 16 The answer is: yes, we did. 17 Because, first of all, the scoping report did 18 consider local plans collectively, as a group of plans 19 and programmes, including Hillingdon. The reference 20 I have given you in that first subbullet, under bullet 21 4. Then they are also dealt with, again in a collective 22 way, in the other references I have given you in 23 appendix A of the scoping report. 24 This point was raised in scoping responses and 25 the response given to the environmental authorities 12 1 about how we were dealing with local plans. Then, in 2 the AOS itself, there is a table I have referred you to, 3 6.5, where cumulative effects of other local plans are 4 considered, and Hillingdon is mentioned specifically, 5 but it is said: 6 "Consistently with the practice of other NPSs, the 7 detailed consideration has to go to the EIA stage." 8 The summary of our approach, in the next bullet, 9 3.62 of Ms Stevenson's evidence, was that while the 10 review of plans and programmes concentrated on national 11 level policy, the scoping stage, a local scale was 12 applied in identifying based on information and effects. 13 Then I have given you a reference to the evidence, 14 again of Ms Stevenson, which explains why it wasn't 15 feasible to consider local plans individually. 16 Then, the final bullet, before we get to the table, 17 is some references, again, to Ms Stevenson's evidence 18 principally, also looking at some of the source 19 documents like the AOS. The point we make there is 20 Ms Stevenson said, "Look, the main reason you look at 21 other plans and programmes is to inform the appraisal 22 programme for your AOS". 23 She says even if we looked at the local plans 24 individually they wouldn't have actually altered the 25 framework. The reason being that the kind of issues 13 1 that the Boroughs take from the local plans, things like 2 housing supply, housing loss and housing supply, open 3 space and educational provision, these things are picked 4 up in the objectives. They are already part of the 5 objectives that the AOS will look at. 6 Then she also identifies, finally, right at the end 7 of that bullet, how the AOS identified the likely 8 significant effects that are directly related to the 9 kind of issues that arise in these local plans including 10 Hillingdon's. 11 Then the table, which I will only refer to very 12 briefly, deals with the three points that are pursued by 13 boroughs about policies in the Hillingdon plan, in 14 particular, that were not, it was said, had regard to. 15 So, housing policies, local open space and education. 16 Just on housing I have given you a number of 17 references, but really I am going to illustrate just two 18 of them. 19 The first one is, again a point I made yesterday, 20 the AOS was done by work done by the Airports 21 Commission. There are two reports referred to at the 22 bottom of the table, the local economy impact assessment 23 and the local economy impact assessment 24 post-consultation update. They looked at detail at what 25 the housing demand would be that would be driven by an 14 1 expanded airport. 2 Mr Graham's evidence -- that I've given you the 3 reference for there -- is that this work beyond what was 4 required for an SEA, in terms of looking at housing 5 demand. 6 Over the page, on page 2 of the note, my Lord, 7 a number of references to the main report and then some 8 of the appendices. But just focusing on number 2, the 9 main report, A, if you look at those paragraphs -- 10 I don't ask you to turn them up -- 6.3.1 and 6.3.2, look 11 at what is the housing loss impact, so how many houses 12 would be lost by this development through acquisition, 13 et cetera. Crucially, at 6.3.2, what's the drive for 14 housing going to be? What is the demand for housing 15 going to be on top if you have an expanded airport? 16 Then that is explored in more detail in the 17 appendices, and we have given you the references. 18 So, there is no question -- 19 MR JUSTICE HOLGATE: Sorry, which particularly, which would 20 be the best one? 21 MR MAURICI: My Lords, you will see, I think probably the 22 best ones would be -- 23 MR JUSTICE HOLGATE: Is it table 6.5, "Cumulative effects"? 24 So, we don't have to trawl through. 25 MR MAURICI: The best reference is 6.3.1 and 6.3.2 and in 15 1 terms of the appendices, probably the best one is my 2 (3)(a). Increase demand for community and housing 3 facilities dealt with in paragraph 1.933 and 1.935 of 4 the relevant appendix, which I have given you the 5 reference to. 6 Those are probably the two best ones. The others 7 probably don't add much in terms of the substance, 8 frankly, of the point, but they are other places where 9 these things are considered. 10 Then, my Lords, open space, again, probably in the 11 main report. It is probably items 1, A, B, C, which 12 will give you the best sense of the broad consideration 13 of open space, but there are a number of other 14 references in the main report. 15 Can I just draw your attention to -- if you look at 16 page 3 of the note, at the very top of the page, the 17 first row, G and H, I will just ask you to look at those 18 in due course because these are dealing with specific 19 open spaces in Hillingdon, and looking at specific 20 impacts around noise impacts or loss of open spaces on 21 sites like Sipson recreation ground, Colne Valley 22 Regional Park and Harmondsworth Moor. So, G and H are 23 examples of specific sites which have a status in the 24 local plan in Hillingdon, and which have been considered 25 in the AOS. 16 1 Then, my Lords, the only other reference, really, 2 that I would emphasise on open space is 2D, which is in 3 the appendix A1 on community. I have given you 4 references to two paragraphs, 1.12.1 and 1.12.6, and 5 they reference open space within Harmondsworth Moor and 6 the Colne Valley Regional Park. Ms Stevenson's 7 evidence, paragraph 2.72, is that changes were made to 8 this to reflect Hillingdon's consultation responses. 9 Then, my Lords, education. 10 MR JUSTICE HOLGATE: Sorry, just so I don't get confused in 11 due course: 12 "(Reference wrongly given)." 13 Can we just ignore that? 14 MR MAURICI: You can just ignore that. All I mean in 15 Ms Stevenson's evidence, she has cross-referred to 16 1.12.8, and it should have been to 1.12.6. We have 17 given you the correct reference. 18 MR JUSTICE HOLGATE: Thank you. 19 MR MAURICI: Then, education. Again, frankly, 1A, are the 20 two sort of headline references in the main report. 21 Then throughout the main report and the appendices are 22 numerous other references to the impact on schools, both 23 by loss of schools, because there will be one school 24 which will be lost certainly by acquisition, but also 25 the impact on schools from things like noise and the 17 1 impact of that on learning. 2 Then, the only other reference I just draw specific 3 attention to, 1F, for example. There's a specific 4 reference to a specific school, Harmondsworth Primary 5 School, which would be lost, but also a wider reference 6 to noise and learning. 7 My Lords, again, I have given you many more 8 references, but the ones I have drawn attention to are 9 the key ones. 10 Really, my point is very straightforward. These 11 things have been considered, we say, at the appropriate 12 level. That is the expert judgment of WSP and 13 Ms Stevenson, who were commissioned to do this work. It 14 is not something that's missing from the AOS. The only 15 complaint can be that we should have done it differently 16 and in more detail. 17 My Lords, in my submission, that is a submission 18 that has no prospect of success under Wednesbury. But, 19 frankly, my Lords, even if you were going to examine the 20 fine detail of this, we say the fine detail is there. 21 We have gone through these points to the 22 appropriate degree and level. 23 That is all I wanted to say on that first issue. If 24 you turn to the last page of the note, the only other 25 issue that was pursued orally was 8.2 and the allegation 18 1 there is a breach of annex 1C. 2 My Lords, just noting from the title at the top of 3 this page -- 4 MR JUSTICE HOLGATE: I am sorry, the last page in the note? 5 MR MAURICI: Page 5 of the note; do you have that? 6 MR JUSTICE HOLGATE: Yes, I beg your pardon, sorry. 7 MR MAURICI: 8.2: 8 "Breach of 1C environmental characteristics of areas 9 likely to be significantly affected." 10 My Lord, I would ask you just to note the wording. 11 You are looking to identify areas likely to be 12 significantly affected. That's really the key here 13 because what we have are two complaints. So, it is 14 accepted now -- and made very clear by Mr Pleming, I am 15 grateful to him for doing this -- that there is no 16 challenge directly, or at all I think, to the fact that 17 we used indicative flight paths. We have given you 18 evidence on why we have done that and why we had to do 19 that, and that is not challenged. 20 The two points that were pursued were we have used 21 a 54 dB contour and we should have used a 51 dB contour. 22 Secondly, that the AOS did not identify an area for 23 likely significant effects -- or didn't identify as an 24 area for likely significant effects. The much wider 25 area derived from those HAL consultation documents. So, 19 1 that was really the way it was put because you 2 remember -- we don't need to go back to them, but we had 3 this plan, my Lords, the yellow plans, and really the 4 point was made that, really, that's the area we should 5 have been identifying; that much wider area, rather than 6 the areas we did identify. 7 We have dealt with this very shortly and I have 8 given you the references. I am going to run through it 9 again, very briefly. 10 Again, the test is Wednesbury. Yes, we used a 54 dB 11 contour rather than a 51 dB contour. Why did we do 12 that? 13 We have given you, first of all, a reference to 14 Caroline Low's first witness statement at 521 to 522. 15 Two points she makes. The first is the CAA, who have 16 a specialist environmental noise team, advised the 17 department not to use contours below 54 for the purposes 18 of the AOS. They gave specific reasons -- which are set 19 out in her evidence -- about why we shouldn't. 20 Frankly, we were entitled to follow that expert 21 advice. 22 But, secondly, although we didn't use contours below 23 54 dB, there are other parts of our assessment using the 24 WebTAG methodology that did look below 54 dB, and that 25 is the point Ms Low makes at 522. 20 1 Now, what you then have in Mr Lotinga's evidence, 2 first and second, is a very much more detailed account 3 of those two points, ie why, in technical terms and also 4 in policy terms, we were correct to use 54 dB for the 5 contours, not 51 dB. 6 So, really, that just goes into a more detailed 7 explanation of the summary explanation that has been 8 given by Ms Low. 9 My Lords, there are a couple of other points just at 10 the end of that first point, the very last bullet, so 11 two other points. 12 51 dB contours are the new policy for airspace 13 change, but they are not applicable policy for doing an 14 AOS. Now, my Lords, the reasons for that are given in 15 Mr Lotinga's second witness statement, and we have given 16 you the references, but there are a number of policy 17 reasons why that is so. Again, that is a technical 18 judgment which has been reached by those who have been 19 commissioned to do this work. 20 The question is: is it Wednesbury unreasonable? 21 Answer: clearly not. 22 Then 51 dB in the new airspace change policy, even 23 if you did adopt that, is not a marker of significant 24 effect. It is the lowest observed adverse effect, 25 LOAEL. LOAEL does not equal likely significant effect. 21 1 That is what we are looking for here; areas likely to be 2 significantly affected. 3 My Lords, the question then is: is there any 4 possible basis on which boroughs can say that any of 5 those technical expert judgments are Wednesbury 6 unreasonable? 7 Frankly, the answer is no. 8 My Lords, beyond that, I would rely on Mott. It 9 really is isn't appropriate in a judicial review to be 10 pursuing these kind of technical points. You have 11 evidence from Mr Lotinga on one side, and you have 12 evidence from Mr Stanbury for the Boroughs, but the 13 court can't resolve the rights and wrongs of these 14 technical policy issues. The question is: is it 15 a reasonable approach we have taken? 16 For all the reasons we have given in our evidence, 17 the answer is yes. 18 My Lords, the second -- 19 MR JUSTICE HOLGATE: Could you help me on one thing? 20 MR MAURICI: Yes. 21 MR JUSTICE HOLGATE: I think this has been covered already. 22 LOAEL, where is that defined? We have been shown 23 a reference to it somewhere? 24 MR MAURICI: Yes, it is defined in quite a few places. Just 25 give me one moment. 22 1 MR JUSTICE HOLGATE: I apologise, but I am sure I have been 2 shown, or you could perhaps come back to it. 3 MR MAURICI: It is set out in Mr Lotinga's evidence, so ... 4 My Lord, can we come back to it? 5 MR JUSTICE HOLGATE: You can come back to it. I think we 6 have been shown a source document which defines it, 7 rather than a witness statement. 8 MR MAURICI: Thank you, my Lord. 9 MR JUSTICE HOLGATE: Sorry. 10 MR MAURICI: Can I then move to the second of the issues? 11 This is the bottom half of this final page of the note. 12 This is the complaint that we didn't use the same 13 approach that HAL did in defining area likely to be 14 significantly affected. 15 The problem with this submission is that what HAL's 16 plan shows -- as Mr Humphries explained when he got to 17 his feet when this was raised, and no doubt he will may 18 well deal with in his own submissions -- is that it was 19 showing everywhere or anywhere that might be overflown 20 by an aircraft at less than 7,000 feet. So, depending 21 on where the flight paths are set. The reference that 22 is given to you there, is that there is a reference to 23 the view of the CAA. That: 24 "At above 4,000 feet, aircraft are unlikely to 25 result in noise exposure above 51 dB LEQ 16-hour for 23 1 daytime noise." 2 Or indeed for the relevant night time noise. 3 Mr Lotinga has given you a much more detailed 4 explanation of this and rebutted, in particular, the 5 idea that we have used -- I think the suggestion was the 6 best case. He said not at all. It is actually quite 7 complex in noise what is best case and what's worst 8 case. But we've not used the best case, and he explains 9 that in quite a lot of detail in the references we have 10 given you. 11 But, really, stepping back from it, the key points 12 are we are looking to identify areas likely to be 13 significantly affected. My Lords, it can't possibly be 14 suggested that means anywhere that might be overflown. 15 Because one of the Mr Lotinga's key points is that you 16 have to think about what are the likely flight paths. 17 So, some of the evidence I have given you there, some of 18 the references, particularly if you look at the second 19 bullet, the one that says "more detailed explanation", 20 then there are subbullets, what's explained in those 21 paragraphs of Mr Lotinga's evidence is that there are 22 actually some flight paths that are much more likely to 23 be adopted than others because of government policy on 24 how you should deal with flight paths. 25 So, what he looked for was to do an assessment of 24 1 what he considered to be the likely flight path; not any 2 possible flight path, but likely flight paths. 3 Then -- 4 MR JUSTICE HOLGATE: Can you just give me the reference for 5 that, the best one? 6 MR MAURICI: The best one is you start -- my Lord, if you 7 look under that second bullet point there are three 8 subbullets, he introduces the issue at 3.32 and then it 9 is really all the references in that next, next bullet. 10 MR JUSTICE HOLGATE: 3.11, 13 and 15. 11 MR MAURICI: Yes. 12 MR JUSTICE HOLGATE: So, if I have understood what you are 13 saying correctly, the approach in drawing up indicative 14 flight paths has been to assess the most likely flight 15 paths? 16 MR MAURICI: Yes, my Lord, most likely flight paths. 17 MR JUSTICE HOLGATE: On the information currently available. 18 MR MAURICI: On the information available. 19 MR JUSTICE HOLGATE: Okay. 20 MR MAURICI: Also, what he also explains in those paragraphs 21 I have given you the reference for is that in no way is 22 that a case. He looks at the modelling of the different 23 scenarios. That is 3.3.15 that you have a reference to 24 there. He says it is not the best case at all what he 25 has done. There are actually cases that are much better 25 1 if you are trying to -- as the suggestion is, if you are 2 trying to play down noise you could have used other 3 scenarios, and we didn't use those. 4 Then the other point is we are not just looking at 5 any effect, but significant effects. The HAL plan is 6 showing overflying below 7,000 feet out as far as 7 Wallingford in Oxfordshire. The idea that, in those 8 kind of locations, we are looking at significant effects 9 is obviously not realistic. 10 So, HAL have a purpose for what they were doing, but 11 what we were doing in an AOS is looking for likely 12 significant effects. 13 Really, in short, my submission is that Mr Pleming's 14 case has just failed to appreciate that the key thing 15 here is we are looking for likely significant effects. 16 What is a likely significant effect is a question of 17 expert judgment, subject to Wednesbury. 18 My Lord, there is no basis for impugning the 19 judgements that have been reached by the experts who 20 have been employed by the department. 21 My Lord, in your Lordship's question about the 22 definition of LOAEL, NOAEL and SOAEL. I think there are 23 three of them. My Lords, we haven't the -- what they 24 come from is they come from the Noise Policy Statement 25 for England. We don't have that in the bundle, but in 26 1 the AOS itself -- so I will give you the reference, 2 which is volume 9, tab 5, page 283, there is 3 a paragraph 4.54, which sets out the definitions of -- 4 MR JUSTICE HOLGATE: This is what we looked at before and 5 that was why I was trying to find. 6 MR PLEMING: I was showing you the Jacobs report from 2014. 7 MR MAURICI: I think it is probably the same content, 8 my Lord. 9 MR JUSTICE HOLGATE: Jacobs. 10 MR MAURICI: If you wanted the Noise Policy Statement for 11 England, it is a policy document that's only ten pages 12 long. So, if you wanted that, we can certainly provide 13 it in due course. I don't think there is any dispute 14 between the parties that the definitions there are also 15 in the Jacobs report. 16 MR PLEMING: Also in the SoNA report. 17 MR JUSTICE HOLGATE: Thank you. 18 MR MAURICI: My Lords, I was going to move on to surface 19 access, if I may. My Lords, there are three subgrounds 20 or three issues that arise under surface access. It is 21 worth recalling at the outset what the agreed issues 22 actually are on surface access. You have them, 23 obviously, in the agreed statement of issues. I don't 24 ask you to get it out, but the three issues are, 25 firstly, issue 3(1), whether the defendant acted 27 1 unlawfully in relying on the Airports Commission 2 analysis without updating it to take account of new 3 information from the Mayor and TfL. 4 Secondly, issue 3(2), whether the defendant acted 5 unlawfully in failing to take any or any adequate 6 account of evidence from the Mayor and TfL on the 7 deliverability of mode share targets, and issue 3.3, 8 whether the defendant acted unlawfully in adopting mode 9 share targets that were not, it is said, realistically 10 capable of being delivered. 11 In the boroughs' skeleton, at 15 to 16, a number of 12 legal flaws are said to arise under those three issues. 13 The way it was put by Mr Jaffey orally is that this was 14 a consultation challenge and a rationality challenge. 15 The consultation challenge involves, obviously, 16 a reasons point, which we have been discussing 17 previously. 18 However the Boroughs seek to characterise their case 19 on all three issues, we say there is no merit to any of 20 them because what the evidence clearly demonstrates is 21 that, first, material from TfL and the Mayor was 22 carefully considered and taken into account. 23 Secondly, so was the material put forward by TfL on 24 mode share targets. 25 And, thirdly, there was nothing irrational in the 28 1 approach to setting mode share targets in the NPS. 2 My Lords, what I want to begin with, if I may, is 3 the ANPS itself and the test that it actually sets for 4 surface access. Can I ask you to go to core bundle 6, 5 tab 7, page 250. 6 My Lords, at page 250, you should see the beginning 7 of chapter 5: 8 "Assessment at impacts." 9 You have the heading, towards the bottom of the 10 page: 11 "Surface access." 12 What I want to do is to highlight to your Lordships 13 quite briefly what the key paragraphs are in terms of 14 the key tests that have been set in the ANPS. 15 My Lords, I start with 5.5, and it is the second 16 sentence. So, three lines in: 17 "The government wishes to see the number of journeys 18 made to airports by sustainable modes of transport 19 maximised as much as possible. This should be delivered 20 in a way that minimises congestion and environmental 21 impacts, for example, on air quality." 22 So, that's the expectation that's been set to start 23 with: maximise sustainable modes of transport and 24 minimise congestion, environmental issues, including air 25 quality. 29 1 Then, 5.6 expressly recognises that there are 2 a range of impacts, local and national, that arise from 3 the proposal. 4 If you go over the page, the last sentence of 5.6: 5 "Without effective mitigation, expansion is likely 6 to increase congestion on existing routes and have 7 environmental impacts, such as increased noise and 8 emissions." 9 Then, my Lord, 5.7 deals with western rail and 10 southern rail. This is one of the points that boroughs 11 emphasise as a key point they put forward in their 12 consultation responses. This paragraph was actually 13 changed, and the evidence says in response to TfL 14 representations. I will show you the reference to that 15 later on. It is in the table I have given you. We'll 16 come to that later on, but you will see it says: 17 "The Airports Commission identified three major rail 18 improvements, which would support the runway, Crossrail, 19 western rail link to Heathrow and southern rail access 20 to the airport." 21 It says: 22 "Notwithstanding the requirements for the 23 applicant's assessment set out below, government has 24 supported, or is supporting, all three of these 25 schemes ..." 30 1 Then some details given about those schemes. I don't 2 think we need to trouble ourselves with that. 3 Then there is a heading: 4 "Applicant's assessment." 5 You have 5.9. This is one of the key paragraphs: 6 "The applicant must prepare an airport surface 7 access strategy in conjunction with its airport 8 transport forum." 9 Just to help you on what that means, the definition 10 of surface access strategy is in the APF. So, the 11 aviation policy framework. The reference is core 12 bundle volume 7, tab 2, pages 108 to 109. 13 My Lord, there is there a definition which is 14 continued in the annex to the document, annex B, of what 15 is required for an airport surface access strategy. 16 There are quite a lot of detailed requirements contained 17 in that. 18 It also explains, in that same document, what the 19 airport transport forum for an airport is, and it is 20 made up of the airport operator, transport authorities 21 and local authorities. 22 So, that's what the requirement is. You have to 23 prepare one of these strategies in conjunction with the 24 forum, which involves also local authorities. Then, in 25 5.9, you will see, third line: 31 1 "The airport surface access strategy must reflect 2 the needs of the scheme contained in the application to 3 develop consent, including any [and I ask you to note] 4 phasing over its development, implementation and 5 operational stages, reflecting the changing number of 6 passengers, freight, workers attributable to the number 7 of air traffic movements. The strategy should reference 8 the role of surface transport in relation to air quality 9 and carbon." 10 The next sentence: 11 "Must also contain specific targets for maximising 12 the proportion of journeys made to the airport by public 13 transport, cycling or walking. The strategy should also 14 contain actions, policies and defined performance 15 indicators for delivering against targets and it should 16 include a mechanism whereby the airport transport forum 17 [which includes the local authorities] can oversee 18 implementation of strategy and monitor progress against 19 targets, alongside implementation and operation of the 20 preferred scheme." 21 Then, my Lords, 5.10, third line: 22 "The applicant should consult Highways England, 23 Network Rail and highway and transport authorities ..." 24 So, that would include TfL, and potentially relevant 25 local authorities too: 32 1 "... as appropriate, on the assessment and proposed 2 mitigation measures." 3 So, there is a specific requirement at the DCO stage 4 to consult with those authorities in relation to your 5 assessment of and your proposed mitigation measures. 6 Then 5.11, which we say is an important paragraph: 7 "The applicant should consult with, again, 8 Highways England, Network Rail and the relevant highway 9 and transport authorities, including TfL, to understand 10 the target completion dates of any third party or 11 external schemes included in existing rail, road or 12 other transport investment plans." 13 Then this: 14 "It will need to assess the effects of the preferred 15 scheme as against those schemes and plans." 16 Then 5.12: 17 "The applicant will need to demonstrate that these 18 authorities [including TfL] have been consulted and are 19 content with the deliverability of any new transport 20 schemes or other changes required to existing links to 21 allow expansion within the timescales required for the 22 preferred scheme as a whole, the requirements of the 23 ANPS and other statutory requirements. This includes 24 [but not limited to] changes to the M25." 25 So, there is a specific requirement for consultation 33 1 with these authorities and for a demonstration, as it is 2 said there, that these authorities are content with the 3 deliverability. So, it is an important set of measures 4 that have been put in place to allow these authorities 5 to have influence over the way the surface strategy is 6 developed at the DCO stage. 7 Then, my Lords, you have the heading towards the 8 bottom of the page: 9 "Mitigation." 10 You will see, 5.16: 11 "The applicant should demonstrate in its assessment 12 that the proposed surface access strategy will support 13 the additional transport demands generated by airport 14 expansion. This should be appropriately secured." 15 Before we get to the mode share requirement, which 16 is the next paragraph -- and I don't read that because 17 you have seen it before -- there is a more general 18 obligation there, you have to demonstrate that the 19 surface access strategy will support the additional 20 demand. That is a separate requirement. You can't just 21 say: we can show we satisfy the mode share. End of 22 story. 23 My Lord, that deals with the point that TfL make, 24 which is even if you deliver the mode shares that have 25 been set, if you are increasing the amount of vehicles 34 1 on the road still, you are going to have other impacts. 2 So, the policy is telling you: you have to look not just 3 at setting the mode share, you have to look at the other 4 impacts, too. 5 Then 5.18, which Mr Jaffey did show you. I think he 6 showed you 5.17 and 5.18. I don't think he showed you 7 any of the rest of these: 8 "The applicant should commit to annual public 9 reporting of performance of these specific targets, and 10 the strategy should consider measures and incentives 11 that would manage demand by car from the airport, as 12 well as physical infrastructure interventions." 13 Then it goes on, three lines down: 14 "You also have to include an assessment of 15 feasibility of the measures proposed, the benefits and 16 disbenefits, including the implications for any relevant 17 transport authorities, and these measures could be used 18 to help achieve mode share targets and should be 19 considered in conjunction with measures to mitigate air 20 quality impacts." 21 Then, on decision making finally, 5.21 and 5.22, 22 second line, in 5.21: 23 "The Secretary of State will consider whether the 24 applicant has taken all reasonable steps to mitigate 25 these impacts during both the development and 35 1 construction phase and the operational phase. Where the 2 proposed mitigation measures are insufficient to 3 effectively offset or reduce the impact on the network 4 arising from the expansion, of additional passengers, 5 freight and airport workers, the Secretary of State will 6 impose requirements, [which my Lords you will know is 7 the equivalent of conditions in the 2008 Act] on the 8 applicant to accept requirements and/or obligations to 9 fund infrastructure or implement measures to mitigate 10 the adverse impacts, including air quality." 11 Then 5.22. Provided that there is satisfactory 12 mitigation of transport impacts identified in the 13 assessment, with costs being considered in accordance 14 with the policy, ie there may need to be contributions 15 by an application to major surface access projects, 16 western rail, or whatever it may be. Subject to that 17 the development consent should not be withheld on 18 surface access grounds. 19 My Lord, where does that get us? 20 First of all, it shows, in my submission, a very 21 clear and careful consideration of impacts and what 22 policy tests should be applied to seek to ensure that 23 the airport mitigates and deals with those impacts. 24 Of course, what we have seen are very strong 25 consultation requirements in relation to relevant 36 1 transport authorities, including TfL. 2 My Lords, can I just add this as a footnote? I will 3 give you the relevant references. There was very 4 little, indeed pretty much no objection to the content 5 of these policies by TfL and the boroughs in their 6 various representations that they made. Obviously, they 7 did challenge 5.17 on the mode share target, but many of 8 the rest of these policies they did not comment on and 9 say that they were inadequate in the way they were 10 worded or anything else until, my Lords -- I will give 11 you the reference, Mr Williams's second witness 12 statement core bundle 3, tab 12, page 221 -- for the 13 first time he started raising issues about the wording 14 of 5.21 and 5.22. 15 In response, Mr Jones' second witness statement, 16 paragraph 35, which is core bundle 5, tab 2, page 133 17 makes the point that these points had never been raised 18 in the consultation process. 19 My Lords, before I move to the individual grounds 20 I need to just set the context with some background 21 points that apply to all of these surface access 22 complaints. If you still have the ANPS open, my first 23 background point is about the strategic choice of 24 Heathrow in relation to surface access. Can I ask you, 25 if you go in the ANPS to paragraph 3.36, there is 37 1 a heading: 2 "Surface access links." 3 At 3.36, it is said: 4 "Heathrow Airport already has good surface transport 5 links to the rest of the UK. It enjoys road links via 6 a number of motorways, and rail links via the Piccadilly 7 Line, Heathrow Connect and Heathrow Express. In the 8 future, it will connect to Crossrail and link to HS2 at 9 Old Oak Common. Plans are being developed for improved 10 rail access. The southern and western rail access could 11 link the airport to the Great Western main line and then 12 southern rail access could join routes to the southwest 13 railway network and London Waterloo station. The varied 14 choice of road and rail connections makes Heathrow 15 accessible to both passengers and freight operators in 16 much of the UK and provides a significant resilience to 17 disruption. 18 "Access to Gatwick relies on the M23 and the 19 Brighton main line, which means it serves London well, 20 but makes it less convenient for onward travel to the 21 rest of the UK. It is also less resilient than 22 Heathrow. Heathrow has advantages over Gatwick with its 23 greater integration into the national transport network, 24 benefitting both passengers and freight operators. It 25 also currently has significantly larger freight 38 1 operations than Gatwick." 2 The strategic choice for Heathrow, on sufficient 3 grounds, was really based on the fact that Heathrow is 4 really more accessible because it has a far greater 5 number of road options and rail options to get to it. 6 Gatwick is reliant on a single rail route and a single 7 road, a single motorway. 8 Can we just pick up Mr Jones's evidence in volume 5. 9 I just want to show you two other references on this and 10 then we'll move on to another background point. But it 11 is Mr Jones's first witness statement, so it is core 12 bundle 5, tab 1, page 8, to start with. 13 You will see, at paragraph 20, he makes some 14 comments which are similar to what we have just seen in 15 the ANPS about the number of roads and rail options that 16 are available to Heathrow. 17 Just picking it up at the bottom of 20, he says: 18 "This surface transport network provides many 19 alternative travel options to suit individual needs as 20 well as inbuilt resilience through the alternatives 21 available. No other airport location achieves this. 22 Gatwick is much more reliant on a single motorway ..." 23 Then, if you go back in his evidence to 24 paragraph 11, on page 6, you will see it says: 25 "In reviewing the evidence from the Airports 39 1 Commission the department concluded ..." 2 Heathrow has advantages because of its 3 accessibility. None of the surface access challenges 4 identified for any of the schemes were insurmountable. 5 Then C: 6 "While surface access may not therefore be the 7 deciding factor for runway location, it would clearly be 8 an important issue to be addressed in an application for 9 development consent." 10 Then, the final reference on this, same witness 11 statement, paragraph 45 ... 12 My Lord, really, I am not sure we do need to -- it 13 is more of the same, really, because it is just talking 14 about the wide variety of links that are enjoyed. 15 I think maybe the reference -- if you go back to 16 35 -- it's is probably the one I should have shown you. 17 You will see that the department -- again, this really 18 does reflect the ANPS -- in line with the Airports 19 Commission looked at Heathrow and, indeed, Gatwick in 20 terms of committed transport improvements. So, things 21 that are already committed, so Crossrail for Heathrow, 22 Brighton main line improvements for Gatwick: 23 "Works required only as a result of expansion." 24 Then C: 25 "Schemes which would benefit both the airport and 40 1 non-airport users, and which might be considered in 2 the non-expansion world, but would have a greater 3 priority with expansion (for example the plans new rail 4 links to Heathrow)." 5 So, that's western and southern rail, so all of 6 those things were looked at. 7 My first point is that the strategic reason in 8 surface access terms for the choice of Heathrow was 9 about its inbuilt resilience and its accessibility 10 through different routes, and a view that there was no 11 insurmountable surface access issue, albeit it would 12 have to be something very carefully considered at the 13 DCO stage. 14 The second background point, my Lord, very briefly. 15 No question -- it is recognised throughout the ANPS and 16 all our documents -- that expanding Heathrow would have 17 impacts on surface access network and they would have to 18 be mitigated. That is what the ANPS says. That is key. 19 That is the second point. No hiding that there will 20 be impacts and no hiding from the fact that -- how 21 they're going to have to come up with a scheme to 22 mitigate those. 23 Thirdly, I shouldn't have asked you to put away that 24 witness statement, sorry. But the third point is: our 25 consideration of surface access was based on the 41 1 Airports Commission work. I just want to give you 2 a sense of that work. If you go to Mr Jones' witness 3 statement again. It is volume 5, tab 1, and this time 4 paragraph 32, which you will find on page 12. There is 5 a section of his evidence which runs for several pages 6 looking at what's done by the Airports Commission, but 7 32 is quite a useful summary. Five lines down: 8 "The AC considered a wide range of issues, including 9 surface access, which informed the decision to support 10 the additional runway at Heathrow. Their work was 11 underpinned by substantial programme of detailed 12 analysis and modelling, as well as consultation 13 exercises. It was also carefully reviewed by the 14 department. This is set out in more detail below. This 15 considerable scale and depth of the AC's work was 16 sufficient for the government to rely upon it in making 17 decisions in respect of additional airport capacity." 18 My Lord, that is what 32 says. If you go forward to 19 127, paragraph 127, on page 44. This comes at the end 20 of a sentence which starts back on page 31, describing 21 the Airports Commission's work. On 127, the conclusion 22 is: 23 "The AC's work on surface access was one of the most 24 extensive and thorough strategic analysis of recent 25 times. It was supported by a substantial body of 42 1 evidence which was published alongside its reports, and 2 the Secretary of State was entitled to rely on this 3 detailed work." 4 If you just flick back to page 31, I don't ask you 5 to look at the detail of this for now, but page 31, 32, 6 33, 34, 35, 36, 37 and 38, is a list of all the surface 7 access reports that were published by the Airports 8 Commission during the whole of their process. Only, 9 I think, two of which are even in the bundles before 10 this court, but it simply illustrates the vast extent of 11 the work that was done and which the department says it 12 was entitled to rely on. 13 That is a point I'd make about my third point, which 14 is the vast extent of the work done by the Airports 15 Commission. 16 Can I add one footnote on that. If I could ask you 17 to take out -- you might as well leave out Mr Jones's 18 witness statement because we will come back to it, but 19 if you go to bundle 11, tab 3, page 19. My Lord, this 20 is the expert advisory panel that the Airports 21 Commission set up. If you go to page 22, you will see 22 in the middle of the page, Dr David Quarmby, one of the 23 members of the expert panel. In the second paragraph 24 about him, the one that starts: 25 "Since 1996 ..." 43 1 In the fourth line, you will see he was a board 2 member of TfL. 3 Similarly, page 24, Mr Ian Brown, he was MD of 4 London Rail, Transport for London previously, up until 5 2010. At TfL he was responsible for various railway 6 projects. 7 So, not only, as we will see in a moment, did the 8 Airports Commission consult heavily with Transport for 9 London throughout this process, its own expert panel had 10 people who either still were board members or have been 11 employed by TfL. 12 My Lords, it didn't stop there because once we had 13 the Airports Commission report, various reviews were 14 undertaken. 15 Again, if we go to Mr Jones' witness statement, he 16 sets this out, starting at paragraph 129. Could I ask 17 you, in fact, to go to paragraph 142, on page 48, where 18 he gets to his conclusion. Having set out an account of 19 the review process that was undertaken in relation to 20 the Airports Commission work, which starts back on 21 page 44, he says, at 142, the department were satisfied 22 that the work was sound and robust. 23 But it didn't stop there because what we then see, 24 in 143, the department, in November 2014, commissioned 25 Atkins to provide technical support. So, an expert 44 1 consultancy to provide expert support. 2 What they did, if you go to page 53, Atkins were 3 asked to do a piece of work to effectively say: can you 4 give us assurance that the Airports Commission's work is 5 something that we can rely on, it is in the right kind 6 of place? 7 Atkins' work, which is described in the paragraphs 8 before that, but 162, you will see it is said: 9 "Atkins work broadly supported the findings of 10 the Commission, supported the conclusion that none of 11 the surface access challenges for any of the three 12 schemes were insurmountable. The methodology 13 underpinning the analysis was considered through the 14 department's usual analytical assurance framework. The 15 analysis was deemed appropriate for a piece of work to 16 provide assurance of the AC's conclusions, but not 17 sufficiently robust to be relied in itself, effectively, 18 for decision making because there were some caveats to 19 the work." 20 Because of the stage we were at, we didn't have 21 a detailed scheme. 22 Then 163, that work that was done by Atkins was 23 commissioned by the department, conscious of TfL's 24 earlier criticisms of the Airports Commission's work. 25 Then, my Lord, 166, on page 55: 45 1 "We shared that work with TfL in September 2016." 2 There is a dispute of fact, which I am not going to 3 trouble the court with, about whether TfL broadly 4 accepted or didn't what was said in it. What there 5 isn't a dispute about was that we shared this work with 6 them as part of the consultation process. 7 Then, finally on this topic of detailed review of 8 the Airports Commission work, if you go to page 62, 9 paragraph 200: 10 "In March 2017, we commissioned another set of 11 consultants, SDG, to do a study around public 12 transport." 13 You may remember SDG are actually TfL's consultants, 14 so we had to have an agreement with TfL that we could 15 use the same consultants for this piece of work. So, we 16 were actually using the same consultants to do 17 a slightly different piece of work for us, but again it 18 was focused on the public transport issues. 19 That is the extent of the review that we undertook. 20 That was, I think, my fourth point in relation to the 21 background. 22 My Lords, the next point on the background, TfL's 23 position. 24 You will see in a moment, from the note I handed in, 25 the extent to which we engaged with TfL. I am going to 46 1 say this: it has not been easy for us to work with TfL 2 for two reasons. The first one -- again, I am afraid we 3 need to go to Roger Jones' first witness statement, 4 which is in bundle 5, tab 1, page 78, paragraph 219: 5 "In respect of the purpose of the ANPS, TfL's 6 representations appeared to be seeking a level of 7 detailed design more appropriate to the application for 8 development consent, such as detailed specification of 9 or commitment to all of the transport interventions, 10 such as rail schemes, likely to be required to mitigate 11 the impacts of airport expansion." 12 My Lord, basically, my first point is that we say 13 TfL have carried an unrealistic expectation about the 14 amount of work that needed to be done at the ANPS stage. 15 That's Mr Jones' evidence. He says something similar in 16 his second witness statement. I don't think I need 17 trouble you with the reference, but two subpoints on 18 that. 19 First of all, one has to think for a moment about 20 the context. This is an ANPS, or an NPS I should say, 21 for setting a planning policy for a major infrastructure 22 project not to be delivered by government, but to be 23 delivered by a private operator. So, to be designed, 24 applied for and, if granted, built and operated by 25 a private operator, not by government. 47 1 So, what the ANPS has done, rightly, is focus on the 2 issues to be addressed, the policy test you have to 3 meet; mode share; mitigating your transport impacts. It 4 has not tried to -- and it would have been wrong for it 5 to try to -- specify the absolute details of the scheme 6 because that is for the private operator to bring 7 forward. It is not government's role to design the 8 scheme, and design the surface access scheme and the 9 mitigation. 10 My Lord, that's the first subpoint about TfL's 11 unrealistic expectations. 12 The second one is -- again, I ask you to leave Roger 13 Jones open because we are coming back to it, but can 14 I ask you to go back to the Hillingdon case in 2010. 15 This time it is the authority's bundle, bundle 2, 16 tab 37. 17 My Lords, paragraph 92 of the judgment. My Lord, 18 paragraph 92 was a paragraph you were taken to by both 19 Mr Pleming and Mr Jaffey, and they read to you the first 20 few lines, but both of them assiduously avoided the last 21 sentence, and it is the same in the written pleadings 22 all the way through, this is the paragraph -- this is 23 the sort of part of the paragraph that dare not be 24 spoken. Because what Lord Carnwath -- having accepted 25 some criticisms that were made of the surface access 48 1 position in 2009 -- and, by the way, Roger Jones' 2 witness statement is full of references to comparing the 3 amount of work done back in 2009 compared to now. I can 4 give you some references if you need them, but I am not 5 sure you do. But this is what Lord Carnwath then says, 6 so: 7 "The most likely interpretation, as it seems to me, 8 is that he [the Secretary of State] has decided nothing 9 of significance [that is about surface access]. He has 10 implicitly recognised that this is an issue which can 11 only be resolved at a later stage, in the context of 12 a detailed strategy prepared by the operator as part of 13 a planning proposal, including a commitment to 14 expenditure (several hundred million pounds of new rail 15 infrastructure) as described in the ATWP. 16 That is the section that the Boroughs refused to 17 acknowledge, frankly, because it is a very clear 18 indication by Lord Justice Carnwath that, in reality, 19 the details of surface access on a scheme like the 20 expansion of Heathrow can only be resolved at the DCO 21 stage, when you have the detailed scheme. 22 That is, in my submission, a crucial, crucial aspect 23 of this case which the Boroughs and TfL have not 24 appreciated. 25 Then, my Lords, the second reason why we have had 49 1 difficulties with TfL I will deal with very briefly. 2 Roger Jones' witness statement again, which is volume 5, 3 tab 1, page 65. It is paragraph 214, at the bottom of 4 page 65: 5 "The previous and current Mayor have been clear 6 about their opposition to expansion of Heathrow Airport 7 under any circumstances. They have directed [that is 8 given a statutory direction] to the bodies under their 9 control [which includes TfL] to oppose expansion and to 10 give support to others who oppose expansion. 11 Since November 16 [after we made the preference 12 decision] they have been acting under a direction from 13 the Mayor to support legal challenges against expansion 14 of Heathrow Airport." 15 That has made it difficult and Mr Jones gives some 16 more detail about that. For example, there is one group 17 that haven't been allowed to join because, effectively, 18 of this direction to oppose us, to oppose Heathrow in 19 all circumstances, effectively. 20 So, my Lord, that is another thing that has made it 21 difficult. 22 That is the fifth point, my Lords, the difficulties 23 we have had with TfL. 24 But notwithstanding those difficulties, sixthly, 25 I simply say this: we have engaged very heavily with 50 1 TfL. You have seen that again in Mr Jones's first 2 witness statement, volume 5, tab 1, page 66, he sets out 3 a table which runs for four pages of all the meetings 4 that there have been over a period since 2015, with TfL, 5 and topics discussed. A number of them, quite technical 6 meetings, at the bottom of page 66, technical discussion 7 on models. There's discussion on surface access 8 modelling work. There is discussion of western rail and 9 southern rail. Various meetings, bus modelling. So, 10 my Lords, a really huge number of meetings over a very 11 long period of time, discussing a number of technical 12 subjects. 13 That is the sixth point. Despite those difficulties 14 with TfL, we have engaged very fully with them, to the 15 full extent that we can. 16 Then, finally, I think, in terms of the background, 17 this is all, in any event, worse case, for one other 18 reason, which I think I am going to principally leave 19 for Mr Humphries to deal with because it is covered in 20 HAL's evidence, principally. That is you saw in the 21 ANPS that one of the things the surface access scheme 22 has to do is to provide the phasing, so if there is an 23 issue about impacts and levels of congestion based on 24 the time frame for delivery, one of the things that the 25 scheme has to talk about is how you phase the expansion 51 1 of Heathrow. 2 MR JUSTICE HOLGATE: Could that include limits on the number 3 of ATMs? 4 MR MAURICI: My Lord, it could do, yes. Yes, it could do. 5 MR JUSTICE HOLGATE: Because existing airport infrastructure 6 in this country, some of the planning permissions are 7 subject to limits on ATMs and, over time, sometimes they 8 are lifted. 9 MR MAURICI: Yes, my Lord, so it could be phased in that 10 way. Indeed, HAL's evidence goes into that in a bit 11 more detail. 12 My Lord, let me put this point forward now by giving 13 you a reference. If it is then said by boroughs -- as 14 I think it is in writing in various places. So, if you 15 phase the development, so you slow the progress of 16 Heathrow coming forward, you damage the economic. 17 MR JUSTICE HOLGATE: Unless the supposition is that it is 18 going to be operating at full capacity from day one. 19 There aren't many schemes like that. 20 MR MAURICI: In fact, the reality is a lot of the work we 21 have looked at to date has assumed the airport will be 22 full by 2030. 23 MR JUSTICE HOLGATE: I did wonder that. 24 MR MAURICI: Yes, my Lord, that is what it assumes. It 25 assumes that it starts operation in 2026 -- 52 1 MR JUSTICE HOLGATE: I am not sure I have yet found a clear 2 reference to that. 3 MR MAURICI: I will leave it to Mr Humphries because he has 4 covered that in his evidence that HAL have put in. But, 5 effectively, what is assumed is that it opens in 2026 6 and is full, so I think 132 million passengers by 2030. 7 What HAL are saying is: well, actually, never mind 8 phasing conditions. In reality, it's not going to be at 9 all likely -- 10 MR JUSTICE HOLGATE: If it is full by 2030, the next 11 argument is going to be: where's the next capacity going 12 to be provided? 13 MR MAURICI: Exactly, my Lord. 14 MR JUSTICE HOLGATE: But you are saying it is a way of 15 testing. 16 MR MAURICI: It is, my Lord, it's a way testing that -- what 17 it is saying is the assumptions that have been used in 18 all this work are robust assumptions because they have 19 assumed the airport will fill very quickly, and either 20 it might not or might not be allowed to because there 21 may be phasing restrictions. 22 In terms of the economic case, can I just give you 23 this reference -- we don't need to go to it -- in Roger 24 Jones's second witness statement? Paragraphs 30 to 31. 25 That is core bundle 5, tab 2, pages 131 to 132. He 53 1 gives a reference to an appraisal document that was 2 published by the government, which looked at a 3 sensitivity analysis of what would be the economic 4 impact of slowing up the delivery of Heathrow. So, 5 looking at, say, a ten year period to fill it up, rather 6 than a four year period. 7 The result of that in economic terms was it made 8 only a marginal difference to the economic case. 9 My Lords, can I then turn to -- hopefully quite 10 briefly now -- the three issues that we have to deal 11 with here. 12 The first one is about the failure to consider TfL 13 and the Mayor's material that they submitted. I do it 14 in three stages. Firstly, I am going to identify where 15 we considered TfL's material. Second, I am going to 16 deal with the specific issues it is said we didn't 17 consider and, on both of those, I am going to do it by 18 reference to the table we put in. Then, thirdly, I will 19 say something very briefly, if I need to, about the 20 legal position in relation to that. 21 Could we go to the table that we put in yesterday? 22 This is the table which is headed: 23 "Consideration of TfL case." 24 My Lord, there are two tables, effectively, here. 25 One that runs pages 1, 2 to the top of page 3, and then 54 1 a shorter table at page 3. 2 The first table looks at all the different ways in 3 which TfL's case has been considered and engaged with, 4 and gives you the references. 5 The first stage is the consideration given by the 6 Airports Commission to TfL, and we record the commission 7 consulted and engaged heavily with TfL. It had TfL 8 people on its expert panel, and it fed this into its 9 work. Then we have given you, a number of references to 10 Airports Commission, Jacobs reports, both on freight and 11 more generally, which reference TfL input, both 12 consultation response, but also technical input about 13 the modelling. 14 Then, my Lords, we have also given you, at the 15 bottom, references to various places in the evidence, 16 which -- and I have shown you some of these already in 17 Mr Jones's first witness statement. The extent of the 18 consideration given by the Airports Commission to TfL's 19 case. 20 Then, my Lord, the second stage, December 2015, 21 Cabinet subcommittee. The relevant documents are in the 22 bundle. There was an annex dealing with representations 23 that had been made at that stage by the Mayor on 24 employment projections and their impact on surface 25 access and a response was given to that, in that 55 1 document. 2 Thirdly, there is a ministerial submission in the 3 bundle, 21 January. We refer to it in our skeleton as 4 well. One of the things that it recommended was that 5 the Secretary of State confirmed you are content for us 6 to engage at an official level with TfL on surface 7 access with the aim of getting a much better 8 understanding of their concerns and position. 9 We have given you the references to that, and there 10 is a further submission which we reference as well in 11 that same box, which was in June -- yes, I think June of 12 2016, which updates the Secretary of State on that 13 official engagement. So, it happened. We specifically 14 went out to engage with them at an official level to 15 understand their concerns. 16 Then the next staging post is 25 October 2016 17 Cabinet subcommittee paper. There were some annexes to 18 that, which we have given you in the bundles, where 19 again there was a thematic summary that looked at some 20 of the issues raised by TfL, but also a specific paper 21 looking at the Mayor's representations, which included 22 issues like freight. 23 There were then further meetings and discussions, 24 and that is what I showed you in Roger Jones's 25 statement, that table, and you will see 42 meetings over 56 1 a period of 2 years, 11 months. 2 Then 6, following consultations on the ANPS, the OPM 3 Group, those were our consultants who looked at the 4 consultation responses, they drew up a document -- which 5 we have given you only extracts from because it's a very 6 large document -- summarising TfL's concerns. So far 7 I have not heard a complaint about that, for not 8 summarising their position. 9 That document went to cabinet subcommittee 10 in June 2018, and I have given you the reference to 11 Caroline Low's witness statement, where she explains 12 that's what happened. 13 Then, how did we deal with the consultation 14 responses from TfL? 15 That is Roger Jones's witness statement, 195 to 196. 16 They had a special procedure for complex responses and 17 TfL were considered amongst them, and that led to 18 changes to parts of the ANPS. 19 I have given you the references there to the 20 paragraphs that were changed, and also to where that is 21 explained by Mr Jones. 22 Then, eighth, the government responded in the 23 response to the consultations on the ANPS. We have 24 given you a number of references. Can I ask just 25 briefly to go to that? That is bundle 8, tab 10, 57 1 page 463. My Lord, can I ask you to go to 2 paragraph 5.48, which -- my bundle has collapsed. I am 3 struggling to ... 4 (Pause) 5 It's core bundle 8, tab 10. Page 463 is where it 6 starts. My Lord, can you go to 5.48? You will see 7 there is a heading towards the top of page 501, 8 paragraph 5.48: 9 "Public transport and public transport mode share." 10 You will see it says: 11 "Respondents' views to the government's mode share 12 ranged ..." 13 Then you will see, three lines from the end, 14 reference to TfL having raised issues. 15 In 5.51 -- don't read it, but 5.52, you will see the 16 government gives a response and engages with TfL's 17 comments around mode share. Then, similarly, my Lords, 18 you will see, also, if you go to paragraph 5.79 and 19 5.80 -- 20 MR JUSTICE HOLGATE: What about 5.51? Isn't that dealing 21 with mode share as well? 22 MR MAURICI: My Lord, it does. 5.51. 23 MR JUSTICE HOLGATE: Refers to -- 24 MR MAURICI: My Lord, it does. 25 MR JUSTICE HOLGATE: It repeats, in the third sentence, the 58 1 point previously made, but you have some additional 2 points in the first two sentences. 3 MR MAURICI: My Lord, yes. I don't run through the detail 4 of this, but really the point I make is this is just an 5 example of response to TfL through that published 6 consultation. 7 MR JUSTICE HOLGATE: So, it is 5.51 and then 5.6. 8 MR MAURICI: Then I went to 5.79 and 5.80 were other 9 examples dealing with this particular -- this mode share 10 point. 11 There are other responses dealing with other points 12 raised by TfL, and I have actually given you the full 13 list of references there, things like western rail. 14 My Lords, it wasn't just that document. Point 9 in 15 our table was we also published, as your Lordships know, 16 a response to the Transport Committee's report, and that 17 is the document the speaker has agreed everyone can 18 refer to because it is our own document and we published 19 it on our own website. I don't ask you to go to it, but 20 you will see again, in dealing with some of the 21 recommendations -- so, 5 was about mode share. 7 was 22 about southern rail and western rail. Recommendation 9, 23 again was about mode share targets. Then there is also 24 an annex to that document, which you have separately in 25 a different part of the bundle -- I have given you the 59 1 reference there -- where again we picked up some 2 detailed surface access points, including around western 3 rail and southern rail. 4 Again, another document showing engagement with TfL. 5 Then, finally, the government's response to the 6 Transport Committee, the evidence that was given to the 7 Transport Committee. If you go to Mr Jones's witness 8 statement again, so that's bundle 5, tab 1. If you go 9 to paragraph 222, which you will find towards the end, 10 it starts on page 78. So, core bundle 5, tab 1, 11 page 78, there is a heading "Aviation forecast 12 scenarios": 13 "At the request of the Transport Committee, the 14 department provided its views on TfL's evidence to the 15 inquiry." 16 Then it says: 17 "TfL's analysis as set out in their responses to the 18 consultation on the draft ANPS and their evidence to the 19 Select Committee was underpinned by their assumption 20 that Heathrow would be full by 2030 and they appear to 21 have defined this using the AC's highest growth forecast 22 of demand in 2050 as their central case, without any 23 further sensitivities being presented, rather than DfT's 24 latest forecast estimates. This means that TfL's demand 25 estimates were significantly higher than DfT's with 60 1 a difference of up to 16 million passengers per year 2 identified in the evidence they submitted to the 3 Committee. It should be noted, though, that TfL did run 4 a minus 10 per cent demand scenario, which was closer to 5 DfT's forecast." 6 You may have seen in Mr Jaffey's note he put on 7 surface accesses, he explained that the Steer Davies 8 Gleave document that he showed your Lordships the reason 9 it took into account the outward passenger forecast was 10 because it came to a figure close to our figure. 11 MR JUSTICE HOLGATE: Can you say that again? 12 MR MAURICI: You asked Mr Jaffey: where do you see, in the 13 Steer Davies Gleave document, that they have taken into 14 account the government's updated forecast? 15 MR JUSTICE HOLGATE: The October 2017? 16 MR MAURICI: Yes. The answer is: it didn't directly, but 17 they used this minus 10 per cent demand scenario, the 18 figure for which comes out almost the same as ours. 19 That is what has been explained in Mr Jaffey's note, and 20 it is actually said here as well, so we agree on that 21 point. 22 What then happens is Mr Jones gives a number of 23 reasons why we didn't agree with the modelling work that 24 had been done by TfL. So, you will see 2.23, another 25 key difference was what was being compared. TfL 61 1 compared demand today with demand at an expanded airport 2 in 2030. However, that doesn't reflect the fact that, 3 even for a two runway Heathrow, the situation would 4 develop between now and 2030. DfT's approach was to 5 compare a three runway Heathrow in 2030 with a two 6 runway Heathrow in 2030. 7 So, we say they have done a comparison which 8 unfairly exposes the difference because they are not 9 taking into account that, even if you don't expand the 10 airport, there will be a traffic growth by 2030. 11 Then, my Lord, 224: 12 "TfL's representations failed to take into account 13 the fact that Crossrail services in the future are 14 committed to go from 4 trains an hour to 6 trains an 15 hour." 16 Which clearly as has an impact on passenger demand 17 and the modelling around public transport. 18 He then talks about things that were said in 225 and 19 226 on western rail and southern rail, which I don't 20 think I need to trouble you with at this stage. 21 Then, at 227: 22 "In addition, TfL's analysis has assumed a lower 23 percentage of transfer passengers." 24 Of course, that has an impact for the reason 25 Mr Jaffey alluded to, which is that transfer passengers 62 1 don't access the surface access network. They just go 2 into the airport, change planes and fly off again. 3 So, there are a number of reasons that we gave and 4 they are not ex post facto reasons because, to avoid 5 Article IX issues, we repeated our evidence to the 6 Committee and that has been agreed to be an appropriate 7 thing to do, but it is another way in which we responded 8 to and engaged with TfL. 9 My Lord, that deals with the first table in my note. 10 Have we engaged and responded with TfL's points? 11 Then, very briefly -- probably I shouldn't put 12 Roger Jones 1 away because I think we have to go back to 13 it. 14 The second table on page 3 -- and I will try and 15 finish that and then I think it is time -- 16 MR JUSTICE HOLGATE: These include the references I suspect 17 we will need to see because they go directly to the 18 complaints which are being raised. 19 MR MAURICI: They do, although -- 20 MR JUSTICE HOLGATE: Speaking for myself, when I tried to 21 follow in the skeletons, the sources which were said to 22 bear on these points, I found it, to some extent, 23 a waste of time, so -- 24 MR MAURICI: My Lord, we can -- the difficulty -- 25 MR JUSTICE HOLGATE: There is a lot of background, but these 63 1 are the -- 2 MR MAURICI: Let us take the first one as an example, 3 my Lord. The revised passenger demand. So, key 4 issue 1, revised passenger demand. 5 What is our answer to that? Because it is accepted 6 that we did not update the surface access modelling to 7 reflect the updated passenger -- 8 MR JUSTICE HOLGATE: Is that the GLD letter? 9 MR MAURICI: My Lord, yes, but it is also in our witness 10 statement, as well. 11 My Lord, if I just take you to Mr Jones again, core 12 bundle 5, volume 1, paragraph 38, at page 14. We start 13 with 38: 14 "We considered the 2017 revisions to the 15 government's forecasts for aviation passenger volumes 16 across the UK, including at Heathrow. These revised 17 passenger forecasts do not, however, change the scale of 18 the forecast growth in passenger numbers as a result of 19 increased capacity at Heathrow, only the time period in 20 which this might be achieved. Therefore, this did not 21 change the overall surface access approach proposed. 22 While some interventions may have to be brought forward 23 in time, the scope and scale of such interventions would 24 not be significantly affected." 25 So, my Lord, the response is it didn't affect the 64 1 overall position because we see it not as changing the 2 overall case that needs to be dealt with, but simply 3 going to the timing in which you have to deliver 4 interventions. 5 MR JUSTICE HOLGATE: The implication in 38 is if you look at 6 the DfT forecasts in October 2017, the growth in 7 passenger numbers is accelerated, as compared to what 8 had been assumed before. 9 MR MAURICI: Yes, my Lord. 10 MR JUSTICE HOLGATE: Then, the second question might be -- 11 which you touched on already -- what did you test in any 12 event in the modelling? 13 If you tested as a worse case maximum capacity -- 14 MR MAURICI: There were sensitivities done around maximum 15 capacity. There were sensitive tests done around 16 maximum capacity by 2030. That is the point we were 17 looking at a moment ago. I can't remember which 18 paragraph it was now. It was actually Mr Jones's 19 witness statement. I will come back to it in a moment 20 if I remember where we were. But it doesn't quite 21 finish there because, in paragraph 40, you will see what 22 we did do -- we will come to this later on -- for air 23 quality we did take into account the passenger 24 forecasts. We did -- 25 MR JUSTICE HOLGATE: DfT ones? 65 1 MR MAURICI: DfT ones. We didn't remodel, but we scaled up, 2 and I'll show you how that worked. My Lords, the reason 3 that was done is explained in 41. That it was felt that 4 there was an air quality because, obviously, in air 5 quality terms, it is essential to look at what the 6 impact might be of more vehicles being on the road in 7 a short period of time, and to look at what we said was 8 the worst case. So, we did do some scaling up for the 9 air quality. 10 Then, 42, you will see what is said is we relied on 11 the Airports Commission's work, and: 12 "Whilst, in the intervening period, revised 13 forecasts for the future use of the surface access 14 transport have been made by TfL and others, along with 15 revisions to forecast for air traffic growth, none of 16 these materially change the strategic case and 17 underpinning analysis for selecting Heathrow as the 18 location for expanding airport capacity." 19 Clearly these factors will have to be taken into 20 account in any surface access strategy, but the overall 21 decision that was taken -- and again it must be a matter 22 of judgment -- for the department was it didn't affect 23 the strategic case. It would affect timing, but it 24 doesn't mean that Heathrow would be undeliverable. It 25 wouldn't change the fundamentals of the strategic 66 1 assessment. 2 My Lords, that is either right or wrong, but of 3 course the court is not deciding whether it is right or 4 wrong. The court is deciding whether that is a judgment 5 that the department was entitled to reach. 6 MR JUSTICE HOLGATE: Can I try and see if I have understood? 7 We are talking about modelling? 8 MR MAURICI: Yes. 9 MR JUSTICE HOLGATE: Surface access modelling at this stage. 10 Air quality you will come to later. 11 MR MAURICI: Later, yes. 12 MR JUSTICE HOLGATE: In terms of prediction of passenger 13 demand, SDG used DfT October 2017 forecasts. 14 MR MAURICI: Or something very similar. 15 MR JUSTICE HOLGATE: Yes, I had that wrong. 16 MR MAURICI: Something similar to them. 17 MR JUSTICE HOLGATE: They used something higher than that, 18 but when they deducted 10 per cent, the level they 19 arrived was similar to the DfT October 2017 forecast; do 20 you accept they plugged that into their model to see 21 what would happen on the system? 22 MR MAURICI: They did, yes. 23 MR JUSTICE HOLGATE: By contrast, what was done on the 24 government's side, or for the government, was to take, 25 what, the same forecast that had been used by the 67 1 Airports Commission? Which is the complaint made 2 against you. 3 MR MAURICI: Yes. 4 MR JUSTICE HOLGATE: How did those forecasts -- leave aside 5 the timing point for the moment, how do they compare 6 with the DfT forecast? 7 MR MAURICI: How do they compare in terms of numbers? 8 MR JUSTICE HOLGATE: In terms of the demand, yes. Is it 9 just a timing point? Am I putting my question clearly? 10 MR MAURICI: I understand what your Lordship is saying. 11 MR JUSTICE HOLGATE: Because I think what you said up until 12 now is that the difference was one simply in relation to 13 the date at which you would arrive at that level. 14 MR MAURICI: Yes, because the forecasts don't mean in the 15 end you are going to have more passengers at Heathrow 16 because there is a constraint on that based on the 17 number of ATMs that would be allowed. 18 MR JUSTICE HOLGATE: That is a different point. 19 MR MAURICI: It is a different point, my Lord, but in this 20 sense, that at some point Heathrow will become full. It 21 will be operating at capacity. When it is operating at 22 capacity, that's obviously the maximum potential surface 23 traffic impact. 24 MR JUSTICE HOLGATE: I see. So, you tested that capacity 25 anyway? 68 1 MR MAURICI: My Lord, yes. 2 MR JUSTICE HOLGATE: Therefore this is simply an issue as to 3 the date. 4 MR MAURICI: It is about date. 5 MR JUSTICE HOLGATE: The rate -- how fast you get to 6 capacity -- 7 MR MAURICI: That was how it was judged. Effectively, all 8 this will mean is it could end up being that the airport 9 fills up more quickly. If it fills up more quickly, two 10 things, one is you may have to make your interventions 11 earlier. But, secondly, you may have to stop it filling 12 up earlier and phase it. 13 My Lord, that's why it is said we didn't think this 14 affected the strategic case because that is the only 15 effect this would have -- is effectively a timing issue. 16 My Lord, that is the judgment that we took. 17 MR JUSTICE HOLGATE: When we go back to the key references, 18 no doubt you will be doubly clear what you are saying, 19 but when you tested full capacity, at which year was 20 that done? Just to get a feel for the measure of the 21 difference. 22 MR MAURICI: My Lord, can I check that and come back to you? 23 So, my Lord, your Lordship's question was -- I probably 24 have it on the transcript. 25 MR JUSTICE HOLGATE: You are telling the court that the 69 1 difference in approach goes to the date at which you 2 arrive at full capacity. 3 MR MAURICI: I will see if I can -- 4 MR JUSTICE HOLGATE: You have covered this already, but I am 5 just trying to pull the strings together. 6 (Pause) 7 MR MAURICI: Can I just check that? Because I am just 8 looking, there is a central case referred to, but I need 9 to find the higher case. It's not the central case, 10 it's the higher case. I will try and find that 11 reference for you. I don't know whether that is 12 a convenient moment for a break? 13 LORD JUSTICE HICKINBOTTOM: Yes, certainly. Thank you very 14 much. 15 (11.35 pm) 16 (A short break) 17 (11.50 am) 18 MR MAURICI: My Lords, first of all, I apologise, I have 19 tried to trace down the reference in the time I have had 20 and I have failed. I apologise for that. 21 I will find it as soon as I can and come back to it. 22 It may be over lunch now, but I'll try and find that 23 reference. I apologise. I should have it to hand. 24 Can I deal with the other issues in the table, and 25 I will obviously have to come back to that other one in 70 1 due course? 2 My Lord, 2 was population and employment forecast 3 updates. I don't think we need to spend time on that 4 because Mr Williams accepted, in his second witness 5 statement, that this in on its own wouldn't make 6 a material difference. It isn't actually pursued in the 7 Boroughs' skeleton, this point. 8 The third issue, western rail/southern rail. 9 My Lord, we really need to understand what the dispute 10 is between TfL and the department in relation to that, 11 and the dispute is essentially that TfL were very keen 12 that we should have a much stronger requirement in the 13 ANPS, that western rail and southern rail must happen 14 before Heathrow is allowed to operate. That was the 15 essence of the dispute. 16 Obviously, a lot of the points that were being made 17 by TfL were technical points around the fact that they 18 were saying without those schemes, in their view, it is 19 going to be very difficult to see how you can make this 20 scheme acceptable. 21 MR JUSTICE HOLGATE: Sorry, do you mean when you say "the 22 dispute", the points which were being raised in the 23 consultation? 24 MR MAURICI: Exactly, my Lord, yes. Because what they were 25 saying was you need to -- the Airports Commission 71 1 effectively assumed these schemes -- this is the way 2 they put it: effectively assume those schemes would need 3 to happen to facilitate Heathrow. 4 It is correct to say that the modelling done by 5 Jacobs, for example, for the Airports Commission, they 6 had a baseline, future baseline, which certainly 7 included western rail and they had an extended baseline 8 that included southern rail. So, their point is, given 9 that the assumption has been made that these schemes 10 will happen, you should have it as an absolute 11 requirement in the ANPS that these schemes will happen 12 before Heathrow does. 13 Now, although the department -- and we saw, we have 14 a reference to -- very clearly in the ANPS. I showed 15 you the reference -- government support for those 16 schemes, and the fact that they would be schemes which 17 could well assist the delivery of Heathrow. The 18 decision was made in the ANPS not to specifically 19 require them. 20 The reason for that, my Lord, is back to the 21 background points I was making earlier; that the way we 22 approach this was we were going to set outputs, ie you 23 have to mitigate your impact, you have to reach 24 a certain mode share, rather than specify how this 25 should be done. 72 1 It may be, for example take the western rail, it may 2 be that, ultimately, to meet these targets Heathrow has 3 to accept that it needs to make a contribution to 4 western rail and/or tie its delivery to western rail, 5 maybe. 6 Or Heathrow could come up with other options, and 7 they have in their evidence looked at other things 8 like -- we will come to this in a moment -- but access 9 charging, improved coach access. There are other ways 10 in which you could do it. 11 But the strategic choice that was made was not to 12 specify the schemes and interventions that would be 13 needed, in the sense of saying these must happen, they 14 are certainly in the ANPS, and indeed one of the points 15 we have made is that they were actually strengthened in 16 terms of the references in response to issues raised by 17 TfL and, indeed, by the Transport Committee, as our 18 response to the Transport Committee records, we 19 strengthen the references and the detail around those 20 schemes in the ANPS. 21 But, in reality, this is what the dispute is about, 22 and the choice that was made -- that we've made -- is 23 not to specify the inputs, but to specify the outputs. 24 You have to achieve a certain mode share and not to say 25 how that's done. 73 1 My Lord, the only question then is: is that an 2 irrational choice for the department to have made? 3 My Lord, I say it is not. 4 My Lord, there isn't really -- one can chase down 5 the references, but in terms of the detail that's the 6 issue between us and that is the way we responded to it. 7 Then, my Lords, in relation to freight, this issue 8 has moved around a bit. There was a complaint 9 previously about there being no analysis of freight. 10 I think it is now accepted there was an analysis of 11 freight. Indeed, Jacobs with the Airports Commission, 12 in response to issues raised by TfL, produced a separate 13 freight analysis, which we do have in the bundle. 14 The way it was pursued orally, you may recall, was 15 that Mr Jaffey pursued a complaint that when we looked 16 at freight, we only looked at freight in the period 17 7.00 am until -- I think it was -- 18 MR JUSTICE HOLGATE: 7.00 pm. 19 MR MAURICI: 7.00 pm. 20 MR JUSTICE HOLGATE: This is also in the skeleton, at 18.2. 21 MR MAURICI: Yes. That is the complaint that's made. But, 22 my Lord, just think about what we are testing. We are 23 testing surface access impacts, so road capacity, 24 congestion. So, what do you do? 25 You test those issues at the busiest times, which of 74 1 course is during that period, 7.00 am to 7.00 pm. 2 It is of course true that freight often operates 3 24 hours, but it is operating on the road network at the 4 least busy times if it is operating outside that 7.00 am 5 to 7.00 pm period. So, is it unreasonable to test 6 surface access impacts only against the busiest times 7 and not the quiet times. My Lord, not at all. Indeed, 8 that would very commonly be what one would do in surface 9 access transport analysis. You look at the busy times. 10 You don't look at 4.00 o'clock in the morning because at 11 4.00 o'clock in the morning there isn't a congestion or 12 a road capacity issue. 13 MR JUSTICE HOLGATE: So, is the point you are making, 14 factually, you tested for the freight contribution 15 between 7.00 am to 7.00 pm, but your submission is you 16 didn't need to do any more than that because that 17 included the peak period? 18 MR MAURICI: Yes, my Lord. 19 Then, the final issue, catalytic activity. 20 Essentially, it comes down to the evidence that we have 21 summarised in that table because Mr Graham explains that 22 the view the Airports Commission took -- they considered 23 catalytic activity, but they took the view it would be 24 widely disbursed, and wide disbursal means it would have 25 been impossible to predict where those impacts would be 75 1 felt with enough certainty to assess their impacts on 2 the transport network at a granular level, but that the 3 same dispersal would also suggest that the impacts would 4 be small at any given location. 5 So, the Airports Commission, our independent expert 6 advisers, looked at this issue, and the view they took 7 was that any modelling you did around this would not be 8 sufficiently certain or detailed enough to actually 9 allow a granular level analysis. 10 Now, I accept that TfL attempted to do an exercise 11 of modelling this themselves. They attempted to do that 12 and put it to us, but the view that we took, following 13 the view of our independent expert advisers, was that 14 you can't do this to a sufficient degree of certainty to 15 make it a worthwhile exercise. That again is a question 16 of judgment, and I say not an unreasonable one for the 17 department to have taken. 18 My Lord, that is the table, I think covered, in 19 terms of the issues that are in there. 20 What I need to deal with on issue 3.1 -- I said 21 I would say something at the end, just briefly, about 22 the law. My Lords, there is not much to say, really. 23 First of all, totally different situation to 24 Hillingdon 2010. Considerably greater work done, 25 incomparable to the degree of work done with all the 76 1 Airports Commission work. But, in any event, as we've 2 seen Lord Carnwath recognised that the detailed 3 assessment of surface access can only really take place 4 once you have a detailed scheme at the DCO stage. 5 Secondly, to the extent that the challenges on 6 rationality to these assessments, which are effectively 7 expert assessments and judges, we say there is no 8 sensible basis on which a Wednesbury claim could 9 succeed. This is where Newsmith certainly does apply, 10 these kind of judgments about how does one deal with 11 catalytic demand? When does one model freight impacts? 12 Those kind of judgments are the kind of judgments, which 13 this court see Mott will take a non-interventionist 14 approach to. 15 In terms of reasons, we have already looked at the 16 case law on reasons in consultation. We were not 17 required to give detailed responses to all of TfL's 18 points. We were not required to do that. 19 On the other hand, through a series of documents, we 20 have in a number of places given responses to TfL's 21 points. But, even if we haven't covered them all, we 22 are not required to cover them all. That is not the 23 duty that falls upon us either under section 5 or under 24 the common law cases that we have seen. 25 My Lords, what that leaves is issues 3.2 and 3.3 on 77 1 mode share. Mr Jaffey took them together and, again, 2 I will take them together as well. 3 Can I ask you to go just to frame this issue to two 4 pieces of evidence. It's in the witness statements, 5 volume 5 again. Starting, please, at Mr Jones's second 6 witness statement, which is tab 2, paragraph 10. It is 7 page 125 in core bundle 5, tab 2, page 125, paragraph 8 10. About five lines down, he says: 9 "Therefore, the selection and inclusion of mode 10 share targets in the ANPS was designed to achieve 11 a balance of the impacts on all surface access modes on 12 an expanded Heathrow Airport, including the use of 13 existing and potentially expanded infrastructure and 14 service provision. These are described as the outcomes 15 that have to be achieved by the applicant of any 16 subsequent application for development consent. Such an 17 approach is designed to give flexibility as to how these 18 outcomes are most appropriately and efficiently 19 delivered within the commercial and regulatory framework 20 that exists for surface access transport provision and 21 operation of the airport. They do not assume the impact 22 on any particular mode, nor mandate how this is to be 23 accommodated, such as [and this is the point I was 24 making before the break] implementing the proposed 25 western rail or southern rail schemes." 78 1 It then says: 2 "The Airports Commission looked at a number of 3 options of how you could achieve this." 4 As indeed has HAL's evidence before this court. 5 So, the mode shares were a form of output that we 6 put in, in order to allow some flexibility, but to try 7 to achieve the outcomes we wanted, in terms of 8 mitigating the impact. That is one piece of evidence 9 that frames this debate. 10 The other piece of evidence that frames this debate 11 is back in Mr Jones's first witness statement, at 12 paragraph 243. That is page 83 in the same bundle. You 13 will see it is said, in 243: 14 "The department were entitled to adopt the mode 15 share targets in the ANPS because [and he gives a number 16 of reasons] (1) Establishment of targets as part of an 17 airports surface access strategy has been a longstanding 18 government policy." 19 Secondly: 20 "The shortlisted airports provided detailed analysis 21 to underpin the consideration of the Airports 22 Commission's specific surface access evaluation 23 criteria." 24 (c): 25 "The Airports Commission themselves undertook 79 1 a rigorous detailed analysis to underpin their 2 assessment of the airports performance against this 3 criteria. The Commission identified that a mode share 4 of 53 per cent was achievable [this is at Heathrow] 5 within the outline package of interventions and 6 60 per cent in some form access charging." 7 (d): 8 "Its view was that both shortlisted airports were 9 capable of exceeding the mode shares." 10 And then (e): 11 "The fact we have set a different one for passengers 12 and employees." 13 (f), the at least point. So, they are minima, not 14 maxima. 15 Then (i), (h) talks about TfL's technical papers. 16 I will come to those in a moment, if I may. (i): 17 "TfL's analysis indicates circumstances in which the 18 mode share could virtually be achieved, even before 19 further mitigations of enhancements in the required ... 20 had been considered. For example, in the SDG report." 21 I will look at that in a moment. 22 But, effectively, just to summarise where we are 23 going, when you look at the SDG report, there is a case 24 in that called "TfL case", and what that does is it 25 assumes western rail and southern rail, and some other 80 1 TfL suggested interventions, and it suggests you could 2 get to nearly 50 per cent by 2030, which is of course 3 what is actually required by the ANPS. 4 Now, it is true that southern rail and western rail 5 haven't been specified, but of course one could use 6 other methods to get there or you could use western rail 7 and southern rail to get there. But TfL's analysis is 8 that those schemes and some additional suggestions it 9 made shows a route to reaching that 50 per cent mode 10 share target. We will come to the fact that what they 11 then say is: yes, you have to get -- ten years after 12 that, in 2040 -- to get to 55 per cent. 13 TfL say the only way you are going to do that is by 14 access charging. So, some kind of congestion charge, 15 access charging scheme. 16 My Lord, that is recognised and, indeed, HAL's 17 evidence before this court says that is one of the 18 things they are looking at. Indeed, the Airports 19 Commission looked at it. By the way, if you look at the 20 ANPS under list of mitigations, that also includes 21 surface access charging. 22 Then, my Lord, (j): 23 "It should also be noted that mode shares are just 24 part of the surface access requirements in the ANPS." 25 So, the way this ground is often put by the boroughs 81 1 is it seems as if this was the only requirement imposed 2 on Heathrow. But, in addition to mode share, we saw you 3 have also a general requirement to mitigate your impacts 4 on the surface access network. 5 So, it is not just about reaching these mode share 6 targets. You have a further obligation to set out to 7 mitigate your impacts. 8 That sets the framework. My Lord, if we then turn 9 to SDG's report, so that is in volume 12, tab 1. If we 10 go to page 11 first of all, you will see there is 11 a table ES2 looking at different scenarios and the last 12 scenario is the very bottom you will see in the final 13 column, "TfL package", and the TfL package is assuming 14 various schemes like western rail and southern rail but 15 also some other interventions that TfL have suggested 16 like southern rail access proposal and bus and cycle 17 access enhancements. That is the TfL case, as it were. 18 Then if you go to page 13, you will see there is 19 a table ES3, at the very last item is "TfL case". So 20 this is TfL's suggested way in which you could meet the 21 targets. You will see for passengers, which are dealt 22 with in the first section -- 23 MR JUSTICE HOLGATE: Sorry, could you give me the page 24 again? 25 MR MAURICI: Sorry, page 13. If you look at the bottom of 82 1 the table, my Lord, you will see "TfL case" and the 2 first heading is "Passengers". So on the TfL case they 3 are suggesting that with their interventions, their 4 route as to how you'd achieve this, you could achieve 5 49.8 per cent passengers, so nearly 50 per cent for 6 passengers. And obviously that's the requirement in the 7 ANPS because it splits it between passengers and staff. 8 The staff requirement is actually lower in the ANPS and 9 can be achieved. 10 Overall you will see if you combine them they say 11 you could achieve just over 50 per cent. 12 My Lords, it is not disputed that that 50 per cent 13 target could be met, and indeed I will give you the 14 reference, Mr Williams' first witness statement, 15 paragraph 10, core bundle 3, tab 11, page 182. He 16 accepts that TfL's evidence shows that public mode share 17 of 50 per cent could be achieved. He says that in 18 terms. Obviously it depends on the interventions, the 19 inputs, but it could be achieved. 20 But what he then says is, and what the SDG report 21 then goes on to say is: yes, but you then actually need 22 ten years after that to get up to 55 per cent. 23 What is said by SDG, if you look at page 14, you 24 will see the third paragraph: 25 "TfL have identified a number of potential surface 83 1 access interventions." 2 At the end of that paragraph: 3 "However, a further significant mode share shift to 4 public transport will be required to achieve the second 5 NPS target of 55 per cent." 6 How will that be achieved? 7 The next heading comes, "Road access charging 8 sensitivities". So the suggestion that SDG make is, and 9 this was Mr Jaffey's case, is that they are saying 10 really the only way you would be able to meet that is by 11 having some kind of access charging scheme. 12 If that is the case, so be it. The ANPS recognises 13 that as a possible mitigation route. It is said by TfL 14 that there are difficulties around delivering that and 15 about what the level of charging would be. My Lord, 16 that is going to have to be part of the access strategy 17 and HAL's evidence -- I am sure Mr Humphries will deal 18 with this -- HAL's evidence before this court says in 19 terms that this is something that they are looking at. 20 They are looking at access charging schemes as 21 a possible way forward. 22 My Lord, the idea that these -- the challenges that 23 the Secretary of State was irrational to conclude that 24 these targets could be met. My Lord, no. They can be 25 met. We are not suggesting for one moment that it is 84 1 going to be straightforward to meet them, and indeed, 2 nor should it be. They are targets which we have set -- 3 they are challenging targets in one sense because they 4 are meant to be, but the notion that there is evidence 5 that proves they cannot be met, such that the decision 6 is irrational, at this stage in my submission is 7 hopeless because of course the detailed scheme is what 8 we need to understand that. But a broad view has been 9 taken and, indeed, frankly I would say TfL's own view is 10 the 50 per cent target can be achieved by 2030 and if 11 you want to achieve 55 per cent, you may need to do 12 access charging. So be it. Those are routes to 13 achieving these. There clearly may be other routes too. 14 In light of all of that, I say the complaints made 15 have no merit. It can't be said we didn't consider 16 TfL's points. Again, you will see that in a number of 17 places like the consultation response we did engage with 18 TfL's points, but all we had to conclude and what we did 19 conclude was that it was possible that these mode share 20 targets could be reached. 21 But suppose HAL come forward with an application 22 which fails to prove they can meet those targets. Then 23 they'll be in breach of that requirement of the ANPS. 24 My Lord, beyond that I remind you once again, I am 25 sure your Lordships have got this point, mode share is 85 1 important, it is an important requirement but it is not 2 the only requirement for surface access. There are 3 a number of other requirements I showed you which will 4 also have to be met. 5 My Lords, unless I can assist you further, I know 6 I have to come back to your Lordships on that one point 7 I have left over, but subject to that that is what 8 I wanted to say in relation to surface access. 9 Can I then turn to the issue of air quality. 10 My Lords, our position on this is really best summarised 11 in our skeleton argument at paragraph 58. Really there 12 are two points we make in paragraph 58. First of all, 13 relying on the expert assessment of WSP, the Secretary 14 of State considered that the northwest runway scheme was 15 capable of being delivered consistently with air quality 16 obligations with limit values, capable of being 17 delivered. 18 But secondly, that in any event, there is 19 a requirement that a DCO before it is granted 20 demonstrates this as a condition for the grant of 21 consent. And if it's not, then consent will not be 22 granted. 23 My Lord, if I can persuade your Lordships that the 24 Secretary of State was rational to have taken the view 25 that the scheme was capable of being delivered in air 86 1 quality terms, in my submission that really is the end 2 of this challenge. 3 My Lords, by way of background to the air quality 4 point, can I just deal with these matters if I may. 5 First of all, my Lord, air quality is clearly an 6 important consideration and there is no disputing, and 7 the Secretary of State does not dispute, the importance 8 of the issue. It has been taken very seriously 9 throughout. It was a key area of work for the Airports 10 Commission. As we have seen they produce numerous 11 studies and assessments through Jacobs. It was also 12 a key consideration for the Secretary of State. 13 My Lord, much of the focus of my submissions is 14 going to be on the WSP October 2017 re-analysis. 15 Indeed, up until Mr Jaffey made his oral submissions 16 that was the entire focus of the Boroughs' case as well. 17 That is an important document. It is a very important 18 document. It is not of course the only document because 19 that re-analysis as we will see, built on Jacobs' 20 detailed modelling work for the Airports Commission. 21 The Airports Commission, we know, also produced 22 a business and sustainability case for the northwest 23 runway which is included in the bundles. That included 24 a chapter on air quality. Air quality was a key matter 25 for them, but post the Airports Commission there have 87 1 been three WSP re-analyses and this October 2017 one was 2 the final one. I will focus on it but it is 3 unquestionably the tip of the iceberg in terms of the 4 amount of work that has been done on air quality over 5 the six and a half year period from the setting up of 6 the Airports Commission to the designation. 7 The second point is air quality is though a matter 8 where things have moved on from the Airports Commission 9 and that's why these re-analyses were done. There were 10 a number of changes that required in air quality terms 11 matters to be looked at again. One was a new national 12 Air Quality Plan. The second was new pollution climate 13 mapping projection, PCM projections from DEFRA, and the 14 third was the updated passenger forecasts. 15 That's what was looked at in the final October 2017 16 air quality re-analysis which I am going to come to in 17 some detail in a moment. 18 In this context, in the context of air quality we 19 did, as I have said, update the analysis for the new 20 passenger forecast, the 2017 passenger forecast. We did 21 that using a scaling methodology, so we didn't remodel. 22 Why did we do that? 23 My Lord, can I just show you Ms Stevenson's 24 evidence, one reference to it, volume 4, tab 3, 25 page 388. My Lord, paragraph 3.2: 88 1 "The re-analysis adopted a scaling approach to 2 assessing material changes to assumptions, in which the 3 impacts modelled by the AC were not remodelled but 4 adjusted to take account of the new information or 5 revised assumptions. This approach was both robust and 6 appropriate for the purposes of the AOS. Throughout the 7 re-analysis exercises, it was clear that the principal 8 driver for uncertainty in the final conclusions, 9 manifested in terms of risk of impacting on compliance, 10 related to uncertainty in the PCM modelling [so that is 11 the pollution climate mapping modelling] and not 12 uncertainty in the contribution from airport expansion. 13 As such, further detailed modelling could have been 14 undertaken but this would have introduced added and 15 unnecessary complexity to the compliance assessment 16 without reducing the uncertainty in the final 17 conclusions." 18 Ie there was uncertainty, which we are coming to, in 19 the analysis but it wasn't uncertainty from the impacts 20 of the airport. It was uncertainty about the general 21 level of emissions in London based on projections in PCM 22 projections but also in terms of what the Air Quality 23 Plan is going to do. 24 So an expert judgment was reached that there would 25 be no benefit to remodelling and the way in which it 89 1 should be done instead was an upscaling. And we say 2 that was a robust and appropriate approach. 3 In writing, the claimants, I think, sought to 4 challenge that aspect of the analysis, despite the fact 5 that they have not been permitted to adduce expert 6 evidence. But, my Lord, any challenge that being an 7 inappropriate approach as a matter of judgment about how 8 one assesses these things is in my submission hopeless 9 in terms of Mott and Wednesbury. 10 MR JUSTICE HOLGATE: When you say in writing ... 11 MR MAURICI: My Lord, it was done in -- it was certainly 12 still pursued in -- if my Lord will give me one moment. 13 (Pause) 14 Yes, my Lord, if you go to the Boroughs' skeleton; 15 paragraph 38, under issue 4.1, you will see they refer, 16 three or four lines down, to Ms Stevenson's evidence 17 that I have just read and they say: 18 "Modelling had been done before and was previously 19 thought to be appropriate." 20 And: 21 "As Mr Williams notes, responding to Jones 1, the 22 crude factor in approach was not precautionary in nature 23 and failed to capture the multiplier effects of 24 congestion air pollution." 25 They are challenging directly the method which we 90 1 use. I will show you in a moment why it was actually 2 a precautionary methodology the way we scaled up, but 3 never mind the detail of it for now, I will come to the 4 detail of it, the reality is they are directly 5 challenging there an expert judgment on how one should 6 take account of the updated passenger forecast. 7 My Lord, on the basis of Mott and Wednesbury I say that 8 is an impossible submission for them to get home on. 9 Then, my Lords, thirdly by way of the background, 10 the WSP report, which I am coming to, the re-analysis 11 I should call it, that is what it is, my Lord, in 12 a nutshell what did that conclude? It concluded that 13 the scheme could be delivered without impacting on model 14 compliance limit values for NO2, albeit that due to 15 inherent uncertainties in air quality modelling a risk 16 remained. That risk was greater the sooner the airport 17 opened before 2030. But crucially, as we will see in 18 a moment, the analysis itself was based on a number of 19 conservative assumptions and secondly, as we have seen, 20 the risk is not actually related to the airport's 21 expansion but rather uncertainties in the level of the 22 background of air quality. 23 My Lord, one consequence of that is that this 24 concern that the Mayor has would apply to any 25 development in London because we are not talking largely 91 1 about the impacts of the airport. We are talking about 2 the risk arising from the fact that background levels 3 may not, because of the risks -- the inherent 4 uncertainties of modelling may not fall as quickly as 5 they are currently predicted to fall. 6 My Lord, that would apply then to any development in 7 London. It would apply to all the housing that's 8 currently being promoted in the London plan by the 9 Mayor. Very considerable tens of thousands of new 10 houses. And it would also apply to any TfL scheme, and 11 there are a number of TfL schemes that have gone through 12 DCOs which would also face the same issues and do face 13 the same issues. 14 So, my Lord, it is a submission that proves too much 15 when we come to look at it. 16 My Lord, in any event, finally, your Lordships have 17 got this point, the ANPS says clearly that unless you 18 can at the DCO stage demonstrate that you would be able 19 to do this consistently with legal obligations, and we 20 will come to what that concerns in a moment, but if you 21 can't do it consistently with legal obligations you 22 won't get consent and it is a red line, and we have said 23 it is a red line. 24 MR JUSTICE HOLGATE: That reflects the statute, does it? 25 MR MAURICI: My Lord, in my submission it goes further 92 1 because if you are understanding what legal obligations 2 mean in this context you have to now read that in the 3 light of Shirley and the Court of Appeal and the outcome 4 of Shirley in the Court of Appeal in my submission is 5 there is not a requirement, there is never a requirement 6 under the directive itself to refuse consent for 7 a project. You don't have to do that. But I will come 8 to Shirley in a little bit more detail a bit later on. 9 MR JUSTICE HOLGATE: I think that would be helpful because 10 we need to understand the interaction between Shirley, 11 the statute and the ANPS, because the point, the wider 12 point you made a moment ago about any TfL scheme and 13 housing developments around London would presumably be 14 met with the Shirley answer. 15 MR MAURICI: My Lord, yes. It would be met by that answer 16 as a legal response, my Lord, yes. But I mean, stepping 17 back for a moment, the Mayor is involved in these 18 proceedings and bringing them because he says the 19 concern of the Mayor, and I accept it is genuine, is 20 about air quality in London and impacts on air quality. 21 MR JUSTICE HOLGATE: I know but that is a forensic point. 22 MR MAURICI: My Lord, I am not sure I really accept -- I 23 don't know if it is a forensic point or not. 24 MR JUSTICE HOLGATE: We are concerned with the law. 25 MR MAURICI: I accept there is a point about the law, 93 1 my Lord, but we are talking about air quality as an 2 important consideration in any event. If this point is 3 good to be applied to us it is also good to be applied 4 as a concern even if not in terms of legal principle. 5 I will come back to Shirley, I promise I will. 6 My Lord, can I start then by showing you just 7 briefly some sections in the ANPS. You have seen some 8 of these before so I don't think I need to spend very 9 long on them because Mr Jaffey showed you most of them 10 I think. Can I just pick up on a couple of them which 11 perhaps we haven't seen before. This is core bundle 6, 12 tab 7, paragraph 2.19 to start with. This one I don't 13 think you have seen before. 2.18: 14 "The government also acknowledges the local and 15 national environmental impacts of airports and aviation, 16 for example, noise and emissions, and believes that 17 capacity expansion should take place in a way that 18 satisfactorily mitigates these impacts wherever 19 possible. Expansion must be deliverable within national 20 targets on greenhouse gas emissions and in accordance 21 with legal obligations on air quality." 22 Then, my Lord, in 3.6 we just need to pick up one 23 point. 3.6: 24 "The work on air quality which demonstrated that 25 expansion (with mitigation) is capable of taking place 94 1 within legal limits, is outlined in the government's air 2 quality re-analysis, 58 footnote ..." 3 That's the further updated air quality re-analysis, 4 which I am coming to. 5 "... and the appraisal of sustainability." 6 What the appraisal of sustainability does, as we 7 will see, is simply cross-refers to the conclusions of 8 the re-analysis. 9 Then this: 10 "Both documents contain a worst case scenario." 11 I am going to make that good in a moment, that they 12 were looking at a worst case scenario and that is 13 something that's acknowledged. 14 Then, my Lord, I don't go back to it, but do you 15 remember when we looked at 5.9 and 5.21 on the surface 16 access requirements, they had specific requirements to 17 deal with impacts on air quality and mitigating of air 18 quality. 19 We don't need to go back to those. If you go 20 forward to page 254, we have the key provisions which 21 I think you have already seen. My Lord, 5.24 refers to 22 the directive. I am not going to read it out because 23 you have seen it before. 24 5.29: 25 "The Airports Commission identified a number of 95 1 measures that would help mitigate any negative impacts 2 on air quality. In addition, for the Heathrow northwest 3 runway scheme, the Airports Commission recommended [some 4 measures]." 5 And, my Lords, note one of them was increasing 6 public transport, so that goes to mode share, and the 7 second one is congestion or access charge for road 8 vehicles which is another reference to road charging as 9 something that was recommended. 10 5.31 talks about there being developments in matters 11 that have happened and over the page to page 255: 12 "This analysis [and this again is a reference to the 13 WSP re-analysis] has been updated to take account of 14 revised aviation demand forecasts and the final Air 15 Quality Plan. The result of this analysis helped inform 16 the government view that with the suitable package of 17 policy mitigation measures including the government's 18 modified Air Quality Plan the scheme would be capable of 19 being delivered without impacting the UK's compliance 20 with air quality limit values." 21 Then, my Lord, 5.32 is what -- 22 MR JUSTICE HOLGATE: That modified Air Quality Plan referred 23 to in 5.31, just to -- 24 MR MAURICI: That is the most recent. 25 MR JUSTICE HOLGATE: -- tidy things up. That takes you back 96 1 to 5.26, does it, the one that was published 2 in July 2017? 3 MR MAURICI: My Lord, that's correct and the one -- 4 MR JUSTICE HOLGATE: It was quashed as regards -- 5 MR MAURICI: It wasn't quashed. 6 MR JUSTICE HOLGATE: Right. 7 MR MAURICI: This was the one that was challenged in 8 ClientEarth 3. It was found to be unlawful in respect 9 of those 45 authorities but no quashing. They were 10 required to produce supplement to the Air Quality Plan 11 for those 45 authorities. 12 MR JUSTICE HOLGATE: I only raise it now because no one 13 seems to be taking any point that the declaration of 14 unlawfulness in relation to those 45 areas has any 15 implications for the legality of the ANPS. 16 MR MAURICI: It doesn't because those 45 authorities are not 17 authorities that are relevant for the purposes of our 18 discussion. That is correct. 19 MR JUSTICE HOLGATE: Thank you. 20 MR MAURICI: Then, my Lord, 5.32 is the paragraph you have 21 certainly seen before under the heading "Applicant's 22 assessment" where it says: 23 "Failure to demonstrate this will result in refusal 24 of development consent." 25 My Lord, there is then, if you look at the bottom of 97 1 255, you have a series of paragraphs dealing with 2 mitigation. I don't read those out but all of them 3 contain a series of measures, both at a construction and 4 operational phase. 5 If you go to 5.39, just by way of example: 6 "Other mitigation measures which may be put forward 7 include [the penultimate one] an emissions based access 8 charge." 9 Then you have the decision making sections 5.42 and 10 5.43 which Mr Jaffey took you to. I am not going to go 11 back to those. 12 I am going to head to the air quality re-analysis in 13 just a moment. Before we do we need to go back to the 14 document that Mr Jaffey took you to instead of the air 15 quality re-analysis to try and make good his point about 16 high risk. My Lord, that is the AOS itself which is 17 volume 9, tab 2. In particular if we could go to 18 page 146 which were the paragraphs that you were taken 19 to by Mr Jaffey. 20 This is in the main report and 146 has a heading 21 "Air quality". Your Lordships will know there is 22 a whole separate annex dealing in far more detail with 23 air quality which is at page 401 onwards, but let's just 24 look at the paragraphs that you were taken to. 25 He started, I think, Mr Jaffey at 7.4.87: 98 1 "WSP's updated re-analysis..." 2 So these paragraphs are absolutely directly talking 3 about what is said in that re-analysis. So it starts 4 with: 5 "[That's the re-analysis] of the AC's impact 6 assessment in relation to compliance with the EU 7 Directive limit values, taking into consideration the 8 Air Quality Plan, indicates the scheme does not impact 9 on modelled compliance with limit values in the 10 re-analysis core scenario." 11 So again, we are talking about the re-analysis. 12 Then 7.4.88: 13 "The conclusion is, however, subject to uncertainty. 14 The risk of an impact on compliance with limit values 15 increases the earlier the assumed opening year. For 16 early opening (assessed for 2026 in the re-analysis), 17 the risk is high." 18 Just pausing there. If you want to understand what 19 high risk means you do not go to that previous table, 20 3.2, which you were taken to by Mr Jaffey to say that 21 means 80 per cent likelihood; you go to the re-analysis 22 which defines in terms, as we will see, what high risk 23 means in this context. 24 MR JUSTICE HOLGATE: Sorry, just to help. The table 3.2, 25 that was which page? 99 1 MR MAURICI: That was page 58, table 3.2, my Lord. 2 My Lord, the other thing is, just to note, Mr Jaffey 3 took you to bit about probability. You will see that 4 probability and risk are actually different things 5 because risk is -- they are different things obviously 6 but they are actually different things as defined in the 7 AOS. Risk is not the same -- 8 MR JUSTICE HOLGATE: They are different things as a matter 9 of language. Probability normally means frequency. 10 MR MAURICI: Yes, my Lord, or probability can mean 11 likelihood of happening as opposed to -- I am not going 12 to get into linguistic -- they are different things. 13 MR JUSTICE HOLGATE: We were taken to table 3.2, 14 probability. 15 MR MAURICI: And it was said high means 80 per cent. 16 LORD JUSTICE HICKINBOTTOM: Yes. 17 MR MAURICI: That's what you were taken to, my Lord. 18 In my submission when you are being told in 19 paragraph 3.4.88 the risk is high you are not being told 20 that the probability is 80 per cent. That is not 21 talking about probability in that sense at all. It is 22 talking about risk and risk as defined in the 23 re-analysis, and I am going to show you what the 24 re-analysis says because the re-analysis defines high 25 risk. It doesn't mean 80 per cent probability. 100 1 Then, my Lord, just to finish off on the AOS you 2 will see in any event, this risk falls to medium in 2030 3 at the end of 7.4.88. So it is a risk that's high, as 4 we are going to see it is defined in a moment in the 5 re-analysis, in the early years, 2026, falls to medium 6 in 2030. 7 My Lords, before I go to the re-analysis, which 8 I keep threatening to go to and not going to, you can 9 put away volume 9. I just want to make good my point 10 that the Boroughs have never, prior to Mr Jaffey's 11 submission, made the suggestion that high risk here 12 means 80 per cent probability. 13 My Lords, to try and cut through that on a single 14 sheet of paper I have just set out their pleading and 15 their skeleton so that we have it to hand. Can I hand 16 those up to your Lordship? 17 (Handed) 18 My Lord, this arises under -- the heading is: 19 "High risk of delaying compliance." 20 It is relevant to issues 4.2. and 4.3. Those issues 21 we set out at the top, so 4.2 is a failure to consider a 22 worse case. And 4.3: 23 "It was irrational to have designated when the 24 Secretary of State knew, or ought to have known, there 25 would be a high risk of breach." 101 1 Then, my Lords, it's the amended statement of facts 2 and grounds, the pleading, reliance is upon the 3 conclusion in the re-analysis, not that table in the AOS 4 as to the high risk in delaying compliance in support of 5 the alleged second error under the air quality ground. 6 That is issue 4.2, and in support of the third error, 7 4.3, saying it is irrational to designate if there would 8 be a high risk that the obligations would be breached 9 from 2026 to 2030. No mention made of that table in the 10 AOS, nor to the level of risk being expressed as 11 a possibility of occurrence. 12 Moreover, the air quality ground, paragraph 43, 13 adopts a number of paragraphs in the statement of common 14 ground as being the background. 15 All of those paragraphs, when you look at them, 16 my Lord, are about the conclusions of the re-analysis. 17 Again, no mention of table 3.2, no mention of this being 18 a probability. 19 Then, my Lord, look at the very last bit, what is 20 actually agreed. This is actually agreed. Let's pick 21 it up about four or five lines down: 22 "The high risk referenced in the statement of common 23 ground is by reference to the re-analysis. See 24 paragraph 81.A of the final statement of common ground." 25 Which refers to two paragraphs of the re-analysis, 102 1 which I am coming to, and quotes the latter as follows: 2 "The available headroom is less than 10 per cent for 3 the CAZ scenario until 2029 inclusive. As such, with 4 the opening of the NWR past 2030 a high risk of an 5 impact on the compliance status of the Greater London 6 zone is identified." 7 That correctly -- as we shall see in a moment -- 8 what the risk -- high risk here means here. High risk 9 means that your model values are coming in within 10 10 per cent of the limit values. I have to put it 11 a little bit more carefully when we actually get to look 12 at the document, but in broad terms, it is a headroom 13 issue, my Lords. Because if you are relatively close to 14 the limit values because there is an inherent 15 uncertainty in air quality modelling, there is obviously 16 a high risk you are going to go over. 17 MR JUSTICE HOLGATE: As I understand it, the word "risk" 18 when used in this context connotes the consequence -- 19 MR MAURICI: Yes, my Lord. 20 MR JUSTICE HOLGATE: -- as opposed to probability being 21 based on frequency. Normally, when you look at risk, it 22 can be a combination of likelihood, but certainly 23 involves consequence. 24 MR MAURICI: Yes, my Lord, and we'll look at it. But there 25 is some reference to probability in the re-analysis, 103 1 but, my Lord, because -- that's always a probability -- 2 it is quite a complex analysis and because this point 3 hasn't been raised before, I am going to struggle to 4 give you any full explanation about the probability 5 section of the analysis because it needs some 6 explanation as to how you spell out what that means, but 7 I can tell you what risk means and high risk means 8 because that is clearly shown to you. 9 There is also some analysis of probability, but it 10 is very difficult. I am not going to be able to help 11 you, unless you want a witness statement from WSP 12 about -- 13 MR JUSTICE HOLGATE: But is your point that the main thing 14 we need to understand is what is meant by "high risk"? 15 MR MAURICI: My Lord, exactly. 16 I say you don't need a witness statement because 17 high risk is very clearly defined, and we are going to 18 come to it in a moment. But it actually is exactly what 19 is said here. Basically, you are falling within that 20 range of the limit values, and there is not much 21 headroom. 22 Then the reply had nothing, but then the skeleton, 23 the final one, reliance is placed upon 43.1 on 4.6 of 24 the re-analysis, as quoted in the final statement of 25 common ground, to submit there was less than 10 per cent 104 1 headroom below the limit value and the projection and, 2 as such, there was a higher risk of the NWR affecting 3 the compliance status of the GLC for several years. 4 Then paragraph 53.1 also relies on the re-analysis. 5 Again, no mention of the table, no mention of the risk 6 being expressed as a probability of occurrence. 7 That is where we get to. 8 Let's just go and look at the re-analysis. That is 9 in core bundle 8, volume 5. My Lord, there are a number 10 of passages I need to show you. Can we start on 11 page 230. I start with -- this is in the executive 12 summary, table 1.1. You have the options listed, and 13 the second option is the Heathrow northwest runway. You 14 will see the conclusion is summarised: 15 "The implementation of the actions in the 2017 plan, 16 the option does not impact on model compliance limit 17 values in any potential opening year (2026 onwards). 18 "Given the inherent uncertainties in air quality 19 modelling, there remains, however, a risk that the 20 option could delay compliance with limit values." 21 Then "Commentary": 22 "The risk of an impact on compliance limit values 23 increases the earlier you open." 24 Secondly: 25 "The impact on compliance is high up to 2029 since 105 1 the option potentially impacts on compliance in Central 2 London and exists whether or not the government's plan 3 actions are fully implemented. From 2030 onwards the 4 risk falls to medium." 5 I will go into the detail of this in a moment 6 because this is a summary, obviously: 7 "The level of risk is primarily dependent on the 8 timing and introduction of and effectiveness of the plan 9 to reduce emissions from vehicles on the wider road 10 network, together with ..." 11 This is a piece of legislation, the real driving 12 emissions legislation. My Lords, you may know that was 13 a piece of legislation introduced in the light of the 14 scandal over emissions, in order to ensure that real 15 life emissions matched the sort of computer measured 16 emissions: 17 "It is it largely independent of assumptions 18 relating to the impact of the option itself or the 19 direct mitigation of option related emissions. Impacts 20 near the airport do not, in general, affect zone 21 compliance." 22 Then finally: 23 "Additional measures aimed at targeting high NO2 24 concentrations, at the local level and across London, 25 could potentially mitigate this risk further." 106 1 So, that is the sort of introduction and a summary 2 to it. 3 Could we then go to page 233? 2.1.3. As I said 4 earlier, this piece of work takes as its base the Jacobs 5 air quality modelling from the Airports Commission. You 6 will see it says: 7 "The AC's local air quality assessments [and this is 8 what it is based on and we will see this in a moment] 9 used a worst case scenario. They were based on 10 projections of future activity levels taken from demand 11 forecasts that resulted in the greatest likely air 12 quality impacts consistent with the promoter's preferred 13 business models. Namely, carbon traded low cost is king 14 for Gatwick, and carbon traded global growth for 15 Heathrow northwest runway." 16 So, basically, the starting point for this analysis, 17 the Airports Commission's modelling, was a worst case 18 for the schemes that we are considering. 19 Then, 2.3.4. My Lord, the reason I keep emphasising 20 this point about worst case and conservative assumptions 21 is obviously there is a high risk identified, whatever 22 that means -- and I will come to that in a moment. 23 There's a high risk identified of non-compliance, but a 24 high risk based on conservative assumptions and, 25 secondly, without any assumed mitigation, scheme 107 1 specific mitigation, ie anything done by HAL to try and 2 mitigate those impacts. 3 Then, 2.1.8, on page 234, just in passing, the 4 approach that was used was the design manual for roads 5 and bridges. That is what the commission used. We say 6 that was also the methodology used in this document. 7 I think the boroughs, in the statement of common ground, 8 reserved their position on that, but no submissions have 9 been advanced, so far as I'm aware, in support of any 10 suggestions that we did not follow the DMRB methodology. 11 Can I ask you to go to 237? You will see DfT has 12 produced new forecasts that have been used in the 13 assessment of airport capacity in the South East. 14 Updated projections for air transport movements for the 15 years 2025 to 2050. For each of the shortlisted options 16 have been produced the three demand scenarios -- low, 17 central and high -- based on the same assumptions of 18 airport capacity as defined by the commission: 19 "As before, this analysis uses the high scenario to 20 assess air quality impacts, rather than the central 21 scenario, to provide a conservative assessment." 22 So, another way in which this is a conservative 23 assess. 24 Then, 2.3.3, on the same page: 25 "No new modelling undertaken. Rather we have based 108 1 it on the Airports Commission's local air quality 2 assessment." 3 Which you will remember that was a worst case in 4 itself. Then DEFRA's PCM, which are new, 2017, and the 5 new forecasts from DfT. 6 So, that's what it updates to. 7 Then, my Lord, 3.1.1, on page 239. There were three 8 PCM model data sets that were used. So, one was the 9 baseline, which is: 10 "PCM model data generated from a 2015 baseline based 11 on COPERT emission factors and ongoing measures to 12 improve air quality." 13 Then 2017 plan, PCM CAZ scenario. This was taken as 14 the main scenario in this document. That assumes not 15 just what we have in the PCM baseline, but also it 16 assumes a network of clean air zones in urban areas, 17 including Greater London, will be implemented in 2021 at 18 the latest. I will show you the Mayor's evidence later 19 on about what's happening in relation to that, but that 20 is the central assumption. It was the central 21 assumption based on the fact that is what government 22 thought to be the most likely scenario. I will show you 23 that later on, where I get that from. 24 There was then an additional model which took into 25 account not just the CAZ, but additional measures, 109 1 including the zero emission zone in Central London. 2 That wasn't the main scenario that was looked at, but 3 there was an additional scenario looked at. That 4 obviously results in a more positive conclusions 5 because, but it wasn't taken as the main scenario here. 6 So, my Lord, that's page 239. 7 Page 240, just look at these compliance dates. So, 8 these are the dates taken from the 2017 plan, so the 9 most recent national plan showing when you are expecting 10 compliance. So, you have Greater London, which is what 11 we are interested in: 12 "Current status: non-compliant." 13 Then: 14 "When will be it become compliant?" 15 Well, in the baseline 2028, with CAZ 2026, and with 16 CAZ and ZEZ 2025. 17 So, that's from the plan. Then you see there is 18 a heading "Uncertainty." 19 In 3.3.2: 20 "On the advice of the panel [so this is an expert 21 panel that is referred to in 3.3.1, set up by DEFRA] 22 DEFRA undertook a statistical analysis of the base year 23 PCM model concentrations. [This is the background to the 24 air quality modelling] against independently measured 25 NO2 concentrations. The analysis indicated that the 110 1 overarching uncertainty in the modelling conducted for 2 the plan was plus or minus 29 per cent." 3 So, there was an overarching uncertainty in DEFRA's 4 national modelling of plus or minus 29 per cent. 5 Then, 3.3.5, it is said by WSP: 6 "However, the impact of this uncertainty on roads 7 within Central London is of critical importance to the 8 assessment and is essentially the principal driver for 9 uncertainty within the re-analysis study. That is to 10 say the proposed opening years for the airport schemes 11 at Heathrow coincide with the years in which the Greater 12 London zone moves from non-compliance into compliance. 13 As a result, multiple roads within the zone that are 14 impacted by the airport growth have projected PCM 15 concentrations, in the potential opening years for the 16 Heathrow options (2026 onwards), that sit either just 17 above or just below the limit value, and are thus 18 susceptible to impact by relatively small changes." 19 This is the beginning of the headroom point, 20 my Lord. If you come in and your model concentration is 21 close to the values, because of the inherent uncertainty 22 in the overall modelling, there is a risk that you may 23 end up going over because the modelling turns out to be 24 plus 29 per cent, or the reality turns out to be 25 29 per cent over the modelling. Of course, it could be 111 1 minus 29 per cent, in which case there is no issue at 2 all. 3 But 3.3.6: 4 "This results in a heightened risk of impact of 5 non-compliance for the earlier opening years of the 6 Heathrow schemes, albeit a risk that decreases over 7 time." 8 Then 3.3.7: 9 "It is possible that the uncertainty range relating 10 to emission factors will decrease over time as a result 11 of the implementation of the real driving emissions 12 legislation." 13 So, that legislation, quite separately come in -- 14 may also drive down the risk and progressively reduce 15 the disparity between vehicle emission standards and on 16 road emissions. So, that is another factor that may 17 also reduce the risk. 18 Then, My Lords, 3.3.14: 19 "As such it is considered that where modelled 20 concentrations are less than 20 per cent of the limit 21 value, it is unlikely that the limit value will be 22 exceeded." 23 So, that is a low risk, but then a little bit on: 24 "But that a high risk of exceedance exists where the 25 modelled concentrations lie within 10 per cent of the 112 1 limit value." 2 So, the high risk is defined here, and the statement 3 of common ground records this in terms because of the 4 headroom point, because you are lying within 10 per cent 5 of the limit value, that is a high risk because of the 6 inherent uncertainty in the modelling. That is what 7 high risk means, and we'll see that taken up in a moment 8 a little bit further. 9 If we go to page 243, there is a heading 10 "Methodology". I just want to pick up four short points 11 from this section before we look at the conclusions. 12 4.1.4, again, you will see this document, we say, 13 used a DMRB, the design manual for roads and bridges 14 methodology. That is 4.1.4. 15 If you go quite a way forward, page 249, we are 16 still in the methodology section. But 4.3.32, on 17 page 249: 18 "Taking into account the uncertainty in the 19 assignment of trips on to the road network, and the 20 variability in the ratio of trip growth modelled by the 21 different demand models, the factor used to scale road 22 transport ..." 23 This is how we did the scaling: 24 "... the factor used to scale road transport related 25 impacts for the Heathrow NWR has been set at the maximum 113 1 growth ratio seen on any affected link, eg 1.11 in 2026 2 and 1.48 in 2030. This is greater than the ratio for 3 overall trip generation and represents a conservative 4 approach. The scaling factor for air-side emissions has 5 been taken from the growth in ATM." 6 So, the scaling that we did itself was on 7 a conservative basis. So, it is another element of this 8 analysis which is conservative and therefore robust. 9 Then, my Lord, 4.4.1, at the bottom of the page. 10 This is an important section: 11 "Impact assessment." 12 How do we look at impact? So, the impact is 13 assessed against the following criteria: 14 "A: does the option cause a compliant 15 zone/agglomeration to become noncompliant? 16 "B: does the option cause a delay to compliance 17 within a noncompliant zone/agglomeration or a worsening 18 of the zone compliance assessment? 19 "C: does the option cause a worsening or exceedance 20 of the limit value alongside one or more of the PCM 21 links without delaying compliance of the 22 zone/agglomeration." 23 Just by way of explanation, what does that last one 24 mean? 25 That last one means you have a Greater London zone, 114 1 and say the real problem in terms of getting the whole 2 zone compliant is the Marylebone Road, because it has 3 the highest level of nitrogen dioxide, what you could 4 have a situation where you add to a local link. You add 5 pollution to a local link, but not above the highest 6 level that you see at Marylebone Road. So, obviously, 7 the driver for compliance for the whole zone is then 8 still Marylebone Road, not the link near you that you 9 have added to. 10 So, you add to a local link, you are not directly 11 pushing the exceedance over, you are not directly 12 delaying compliance for the zone as a whole, but you are 13 worsening a local link, even though you haven't delayed 14 the compliance of the whole zone. So, it is looking at 15 that scenario as well. 16 All three of those scenarios being looked at. 17 The reason that's important, my Lord, is that when 18 Mr Jaffey gave you his version of what the legal 19 obligation meant in terms of air quality, he said it 20 meant -- and this is in the transcript, Day 2, page 56, 21 lines 11 to 17: 22 "The runway should not impact on compliance with 23 limit values such that it will create, maintain or 24 worsen a breach." 25 That is what he said. That is his test. It 115 1 shouldn't allow the airport to happen if it would create 2 or maintain or worsen a breach. 3 My Lord, my submission is these criteria pick up all 4 of those. I have heard no submission from Mr Jaffey -- 5 Mr Jaffey didn't go to this document -- that these 6 criteria do not pick up all of the elements of his test. 7 He has not made that submission to date. 8 My Lord, the reason -- again, I see the time. If 9 your Lordships don't mind, I will just take one more 10 point because it fits with what I have been saying. 11 If you go to page 251. First of all, at 5.1.3 you 12 will see again there is a recording of the ways in which 13 the analysis is conservative in terms of air quality 14 impacts, but then you will see 5.1.7, the same page, 15 251: 16 "All scenarios and options were assessed against 17 criteria A to C." 18 Remember those are the ones we just looked at: 19 "The following tables include colour gradings using 20 the following classes ..." 21 Green means you don't cause or contribute to 22 exceedances of EU limit values, ie the answer to all 23 three of those criteria, A, B and C, is you don't cause 24 an issue, so it is a green light, effectively. 25 Then yellow is a bit different because yellow causes 116 1 an exceedance on a road or worsens an existing 2 exceedance, but doesn't affect the maximum contribution 3 on a zone. So, that would be you are okay on A and B, 4 but you have failed C, effectively. Red shading is that 5 you failed on A and B as well. 6 What you then see -- we will have to do this after 7 lunch. But, my Lord, when we come to look at the 8 northwest runway, if you forward to page 255, on the 9 colour coding, table 5.2 shows that on the CAZ scenario, 10 so with CAZ, which is what was taken to be the sort of 11 central scenario, in every year from 2026, it is said 12 Heathrow northwest runway is green, ie it wouldn't 13 impact on any of those three criteria. 14 Now, we will look at after lunch what it says about 15 the risk factor again, specifically in relation to 16 Heathrow. But the central conclusion is, on all of 17 those three scenarios, which I say cover all of the 18 limbs of Mr Jaffey's test, the conclusion of WSP was 19 that, from 2026 onwards, it wouldn't impact on model 20 compliance. Indeed, that is the conclusion we saw in 21 the executive summary. 22 My Lord, that is probably a convenient moment. 23 In terms of how much longer I have to go, I would 24 say probably in the order of an hour or so, maybe 25 a little bit longer than that. I also have the point 117 1 I need to come back to on surface access if I can find 2 the answer over lunch. If I can't, I'll have to come 3 back on it on Monday, but I'll try to find it now over 4 lunchtime. 5 MR JUSTICE HOLGATE: Could I just ask, page 254 -- I am 6 sorry if I have not followed this -- I think you said, 7 according to the transcript, from 2026 onwards. 8 MR MAURICI: Yes. 9 MR JUSTICE HOLGATE: Where do we see 2026 in the table? 10 MR MAURICI: Do you see in 5.2 it has -- the first blue 11 coloured row. 12 MR JUSTICE HOLGATE: Sorry, in the previous. 13 MR MAURICI: Yes, that is the 2026 scenarios. 14 MR JUSTICE HOLGATE: I am with you. I beg your pardon. 15 MR JAFFEY: So, we are clear page 254 is Gatwick. Page 255 16 is Heathrow. 17 MR JUSTICE HOLGATE: That helps as well. I think I wrote 18 down the wrong page number. Sorry. 19 MR MAURICI: Yes, it is 255 I was looking at. 20 LORD JUSTICE HICKINBOTTOM: 255. 21 MR JUSTICE HOLGATE: Ah, wrong again, sorry. 22 LORD JUSTICE HICKINBOTTOM: Good. 2 o'clock. Thank you 23 very much. 24 MR MAURICI: Thank you, my Lord. 25 (1.05 pm) 118 1 (Luncheon Adjournment) 2 (2.00 pm) 3 LORD JUSTICE HICKINBOTTOM: Mr Maurici, before we press on, 4 could we just go back to your submissions immediately 5 before lunch. Speaking entirely for myself, I am not 6 sure I understand the re-analysis that you took us to. 7 Let me just try and find it. It was 242, I think. 8 MR MAURICI: 242 did you say? 9 LORD JUSTICE HICKINBOTTOM: Yes, it starts before then. It 10 starts perhaps on 240, really. 11 Firstly, I am not convinced I understand all of 12 this. 13 Secondly, I am not certain as to the extent to which 14 we need to understand it, if that makes sense? 15 But where risk is used here, am I right in saying it 16 doesn't matter whether risk means "chance" or "risk" in 17 a common law sense, which is chance plus consequences? 18 MR MAURICI: My Lord, I think that is probably right. 19 LORD JUSTICE HICKINBOTTOM: For the purpose of your 20 argument. 21 MR MAURICI: For my argument it doesn't matter. 22 LORD JUSTICE HICKINBOTTOM: I think it probably doesn't 23 matter, but all of this is linked to margins of 24 uncertainty? 25 MR MAURICI: Yes. 119 1 LORD JUSTICE HICKINBOTTOM: But you say that this is 2 relevant to undermine Mr Jaffey's submission in what 3 way? 4 MR MAURICI: My Lord, simply in this way: principally, 5 Mr Jaffey pinned his colours to the mast on this. He 6 said: high risk means the 80 per cent. 7 LORD JUSTICE HICKINBOTTOM: Yes. 8 MR MAURICI: I say that's wrong. 9 LORD JUSTICE HICKINBOTTOM: It doesn't, it means what it 10 means. 11 MR MAURICI: It means what it means here. 12 MR JUSTICE HOLGATE: Whatever this means. 13 MR MAURICI: Whatever this means. 14 LORD JUSTICE HICKINBOTTOM: No, exactly. 15 MR MAURICI: In one sense, my Lord, yes, whatever it does 16 mean. Because, my Lord, the key thing is -- and the 17 common understanding between the parties up until 18 Mr Jaffey made his submissions -- that this high risk 19 point was about headroom. It was about how close your 20 model values were. 21 LORD JUSTICE HICKINBOTTOM: And that is this? 22 MR MAURICI: That is this. My Lord, there are layers and 23 layers of complication that one can add to it and, 24 indeed, the author of this went through explaining it to 25 me the other evening, but in my submission that doesn't 120 1 take us anywhere at all because that basic point is the 2 point I wanted to get across to your Lordships, that 3 high risk has that particular meaning here. 4 LORD JUSTICE HICKINBOTTOM: It is a headroom meaning. 5 MR MAURICI: It is a headroom point, my Lord. 6 LORD JUSTICE HICKINBOTTOM: Not what Mr Jaffey said. 7 MR MAURICI: No, my Lord. 8 Beyond that, my Lord, the only points I really seek 9 to take from this -- and perhaps I'm overdoing it by 10 going through it in so much detail, but that that high 11 risk that's identified in here, is a high risk because 12 that's what it's called, "a high risk", but it is a high 13 risk based on a series of conservative assumptions and 14 it is not based on any scheme specific Heathrow 15 mitigation. So, it doesn't assume anything that 16 Heathrow itself might do to mitigate. 17 Now, the report does say -- and I accept this -- 18 that there might be limits on what Heathrow could do in 19 terms of some of these risks because the actual risk 20 when we get to it a bit later on, is about 21 non-compliance in Central London where -- 22 MR JUSTICE HOLGATE: I think this is one of the things you 23 need to tease out. 24 MR MAURICI: Yes, where Heathrow makes a very small 25 contribution, but of course you know there are things 121 1 that could be done because, with a surface access 2 charging scheme, if you are actually discouraging people 3 going into vehicles, you will have some impact across 4 that. Plus, my Lords, although it is not a requirement 5 of the NPS, HAL have made this pledge about seeking to 6 achieve no new traffic. 7 If that is the way they seek to put forward their 8 scheme, because of course for them it is not a 9 requirement. But if they put that forward and they 10 achieve that, then of course there is no impact from the 11 airport beyond what its impacts would be today. 12 So, my Lords, that's what I take it from and, of 13 course -- 14 LORD JUSTICE HICKINBOTTOM: I am sorry to interrupt. Is the 15 plan specific figure, the plus or minus 29 per cent? 16 MR MAURICI: Sorry, is that the -- 17 LORD JUSTICE HICKINBOTTOM: That is a plan specific -- that 18 is a figure that belongs to -- 19 MR MAURICI: To DEFRA's PCM modelling, basically, yes, the 20 national modelling. Because their independent panel of 21 experts advised them that is the risk band for the DEFRA 22 PCM. 23 LORD JUSTICE HICKINBOTTOM: That is a band just arising out 24 of the model? 25 MR MAURICI: Yes, the model, yes. So, it is actually -- 122 1 that plus or minus 29 per cent has nothing to do with 2 the airport. It is to do with the background PCM 3 modelling. 4 LORD JUSTICE HICKINBOTTOM: So, all of this is to do with 5 the model? 6 MR MAURICI: In effect, yes, my Lord. The answer is 7 basically yes, because if we go back to the executive 8 summary -- 9 MR JUSTICE HOLGATE: Model plus headroom? 10 MR MAURICI: Yes, model plus headroom. My Lord, that's -- 11 MR JUSTICE HOLGATE: Could we just try and go through it, 12 between us and yourself, and see if we can pick up any 13 questions we have along the way? 14 MR MAURICI: Yes, my Lord, you mean carry on with the 15 references? 16 MR JUSTICE HOLGATE: Would you mind, for my part -- I am 17 slower than everyone else -- could we just retrace our 18 steps and just see if I have grasped -- 19 MR MAURICI: Yes, my Lord. 20 MR JUSTICE HOLGATE: If we go to the beginning of chapter 3, 21 as my Lord did, you have the PCM data sets, at 3.11, 22 page 239, yes? 23 MR MAURICI: Yes. 24 MR JUSTICE HOLGATE: 325 picks up the important links, the 25 critical links as they become and, as you point out, 123 1 line 3 of 3.2.5, there are two link references given, 2 both on the A40 Westway for Heathrow and a couple of 3 other different ones, obviously, for Gatwick. 4 Then, 3.3 you took us to, uncertainty. 3.3.1 5 summarises the uncertainty drivers, if you like. 6 MR MAURICI: Yes. 7 MR JUSTICE HOLGATE: That then gives rise, in 3.3.2, to the 8 second sentence. This is my Lord's question about the 9 overall uncertainty in the PCM modelling: 10 "The analysis indicated the overarching uncertainty 11 in the air quality modelling conducted for the plan was 12 plus or minus 29 per cent, with a 95 per cent confidence 13 interval." 14 MR MAURICI: Yes. 15 MR JUSTICE HOLGATE: That point is picked up also -- and you 16 turn to the opposite page at 241 -- at 3.3.12 and 17 3.3.13. In other words, it is describing other drivers 18 which are uncertain in any event, and give rise to this 19 plus or minus 29 per cent. 20 MR MAURICI: Yes, my Lord. 21 MR JUSTICE HOLGATE: So, the very bottom of 2.41: 22 "It is useful to note that a 95 per cent confidence 23 limit of plus or minus 29 per cent equates to the 24 following observations ..." 25 Then they re-express that and it is a standard 124 1 distribution curve. 2 MR MAURICI: Yes, it is. 3 MR JUSTICE HOLGATE: Then if EU look at the second one, over 4 the page: 5 "Approximately 75 per cent of modelled 6 concentrations will underestimate concentrations by less 7 than 10 per cent, or overestimate." 8 So, it is plus or minus 10 per cent, but that is 9 interpreting a standard distribution curve. 10 MR MAURICI: It is. 11 MR JUSTICE HOLGATE: It is that which gives rise then to 12 3.3.14, which you took us to. 13 MR MAURICI: That is correct. That is why they are 14 interested in being within 10 per cent. 15 MR JUSTICE HOLGATE: They are saying if your model is 16 telling you, once you have plugged Heathrow in, for 17 example, that you are within 10 per cent of the limit 18 value, then you can apply the confidence limits. 19 MR MAURICI: Yes. 20 MR JUSTICE HOLGATE: "A high risk of exceedance exists when 21 the model concentrations lie within 10 per cent of the 22 limit value. In this case, 25 per cent of model 23 concentrations will be likely to exceed the limit 24 value." 25 That comes from the previous paragraph, doesn't it? 125 1 MR MAURICI: Yes, my Lord. 2 MR JUSTICE HOLGATE: But it could go the other way, as well. 3 MR MAURICI: It could. 4 MR JUSTICE HOLGATE: If you look at just one side of the 5 curve, there is a risk of exceedance when you are within 6 10 per cent; is that what it is saying? 7 MR MAURICI: Yes, that's right. 8 MR JUSTICE HOLGATE: Then when we get to the tables you took 9 us to -- well, first of all, there is the impact 10 assessment at page 249, paragraph 4.4.1, the three 11 criteria, and that gives rise to the colour coding at 12 page 251, paragraph 5.1.7. 13 MR MAURICI: Yes, my Lord. 14 MR JUSTICE HOLGATE: Then it is useful when we look at 15 Heathrow, starting at page 254, it explains table 5.2, 16 looking at 5.3.1 and 5.3.2 and 5.3.3, again, with these 17 confidence limits in mind. It picks up the headroom 18 point at 5.3.2. 19 5.3.4 reminds us that the critical link is the A40 20 Westway. If you look at the table, the second column 21 has "critical PCM link", that is the A40 Westway again, 22 isn't it? It is the same two link references. 23 MR MAURICI: Yes, that's correct. 24 MR JUSTICE HOLGATE: It starts off at 2026 and goes up to 25 2030. 126 1 MR MAURICI: Yes. 2 My Lords, I just ask you to note -- I didn't take 3 you to this, but 4.2.2, on page 244, just for the 4 purpose of this re-analysis, the "with CAZ" scenario is 5 considered to be the core scenario: 6 "... since it takes accounts of actions which the 7 government is confident can be achieved." 8 I did mention this, but I didn't take you to it. 9 That is why I focused on the CAZ, rather than the CAZ 10 plus ZEZ. 11 In the skeleton of the boroughs at paragraph 40, 12 they make a challenge -- it wasn't developed orally at 13 all -- that we shouldn't have assumed that the CAZ 14 measures will be in place. We were wrong to assume CAZ 15 as the core scenario. 16 My answer to that is: that is a question of judgment 17 and the government's view is that is what is achievable, 18 and that is a duty for us. 19 The only other thing if you want to pursue the point 20 any further, there is evidence from the Mayor himself in 21 a statement of Lucy Owen, which you have in bundle 3, 22 tab 13, pages 265 and 66, where she also expresses 23 confidence that those measures can achieve compliance. 24 MR JUSTICE HOLGATE: Just trying to understand, for my 25 part -- I'm sure My Lord is ahead of me -- we ha 127 1 alighted at page 255, paragraph 5.3.4, the critical link 2 is the A40 Westway: 3 "On this road, the impact of the airport is small 4 and the risk of non-compliance is determined to 5 a large degree by the magnitude of the PCM model 6 projection." 7 Is that back to the 29 per cent point again? 8 MR MAURICI: Yes. 9 MR JUSTICE HOLGATE: "Rather than the magnitude of the 10 airport's impact. On the critical link the impact of 11 the airport is small and related entirely to highway 12 trips to the airport. The impact of air-side emissions 13 on the link and on the compliance risks for the option 14 overall is negligible." 15 Then, with that in mind, looking at the table, look 16 at 2026, baseline, second row, the link 70181, there you 17 see in the fourth column: 18 "PCM model, projected concentration 19 44.6 micrograms ..." 20 That is the projected exceedance, and it is that 21 which causes the colour to be red in the box on the -- 22 MR MAURICI: Yes. 23 MR JUSTICE HOLGATE: That is solely related to this link on 24 the A40. 25 MR MAURICI: It is. The reason -- if you look at -- just to 128 1 explain, my Lord, if you look at 5.3.1, just to be clear 2 about this, it does explain. It's second line: 3 "As set out in the methodology all links in the PCM 4 model at risk of exceeding limit value for which the 5 options predicted to result in an increase in 6 concentrations are considered in the compliance risk 7 assessment, but for clarity of reporting ..." 8 MR JUSTICE HOLGATE: I have noticed that, too, because 9 that -- we will see in a moment when we turn the page 10 that other links are dealt with. 11 MR MAURICI: They are. 12 MR JUSTICE HOLGATE: So, if you go to the second box and the 13 2026 part of the table with CAZ, with Heathrow, and then 14 R added in, you don't get, on that critical link, to 40, 15 so that's why the boxes are green. 16 MR MAURICI: Correct. 17 LORD JUSTICE HICKINBOTTOM: In terms of the headroom, where 18 it has nil in the headroom box on that line, again, I am 19 afraid I don't understand that because doesn't the 20 headroom have to be 10 or more? 21 MR JUSTICE HOLGATE: I think what that is expressing, if you 22 go back to the previous column: 23 "Total NO2 concentration." 24 The modelled figure is 39.9. Compared to 40, it is 25 virtually 0 headroom. 129 1 MR MAURICI: You treat it as being basically at that height. 2 MR JUSTICE HOLGATE: So, there you get a result, which -- 3 picking up my Lord's point -- is within ... 4 I am going to get this wrong now. 10 per cent? 5 MR MAURICI: 10 per cent. 6 MR JUSTICE HOLGATE: Yes. So, that is a projected figure, 7 which for that critical link is very close to the limit 8 you are trying not to exceed. Therefore, the headroom 9 has virtually disappeared. 10 MR MAURICI: Therefore, it is considered to be a risk. 11 MR JUSTICE HOLGATE: In that situation, you are rather more 12 concerned -- according to the distribution curve -- of 13 the probability of the number, the true number being 14 above that. 15 MR MAURICI: My Lord, yes. 16 MR JUSTICE HOLGATE: Which is what the previous paragraph 17 was dealing with. 18 MR MAURICI: Absolutely. Absolutely right. 19 LORD JUSTICE HICKINBOTTOM: That is high risk, isn't it? 20 MR MAURICI: That is considered to be high risk, my Lord. 21 That is why it is said in the overall conclusion that in 22 this period from 2026 to 2029 inclusive it is all 23 considered high risk. 24 LORD JUSTICE HICKINBOTTOM: Exactly. Now I understand it. 25 So, in 2030, where on that line it is 11, with CAZ, 130 1 2030 scenario, with CAZ, 70181, the percentage headroom 2 is 11 per cent and that is why it is medium risk. 3 MR MAURICI: Yes. 4 LORD JUSTICE HICKINBOTTOM: I am sorry it has taken so long 5 to get there. 6 MR MAURICI: It is important. It is definitely important 7 that we have to go through and understand it, but it is 8 not straightforward. 9 LORD JUSTICE HICKINBOTTOM: No. As I say, I don't know at 10 the moment whether it is important we understand all of 11 this, but I thought we should understand it. 12 MR MAURICI: We should. 13 MR JUSTICE HOLGATE: It is in this context, when we turn 14 over the page as my Lord has done, to 5.3.7: 15 "In the vicinity of the airport impacts on Bath Road 16 and the A312 are assessed, but the links are not the 17 critical link, in that for this option they do not 18 trigger non-compliance of the zone or experience 19 a worsening of exceedance of the limit value in any 20 scenario." 21 It is that which I think gives rise to a point of 22 law that I think Mr Jaffey was possibly putting forward. 23 We'll see: 24 "Having tested the critical link, the model results 25 do not trigger non-compliance of the zone." 131 1 I understand that I think: 2 "Or experience a worsening of exceedance of the 3 limit value in any scenario." 4 Which I suppose would imply no delay to achieving 5 compliance if you don't worsen the exceedance. 6 MR MAURICI: Yes, my Lord. I just have to try and -- we 7 have some of the other PCM links in the appendices. 8 I would have to try and find -- so Bath Road. 16112. 9 The top one. 10 MR JAFFEY: I don't know if it helps, but the Mayor's case 11 is not about the Bath Road. It is about the critical 12 links in Central London. It is about increased traffic 13 going to and from the airport, which causes the risk of 14 exceedances. 15 Further out of London, where there is less traffic 16 generally, those may not be the critical links. 17 MR MAURICI: Yes, that is helpful in the sense that we 18 probably don't need to explore those other links. 19 MR JUSTICE HOLGATE: No, but I wasn't sure -- and it is 20 a question of trying to join up the dots in this case, 21 but I wasn't sure whether the approach taken in 5.3.7 22 was otherwise being criticised. But, if not, we won't 23 worry about it. We have plenty to grapple with. 24 MR MAURICI: As I understand not. 25 LORD JUSTICE HICKINBOTTOM: But your primary submission -- 132 1 this may be relevant -- is that Mr Jaffey is wrong in 2 saying that higher risk, as it were, was an internal 3 reference. It is a reference to this. 4 MR MAURICI: It is. That is my primary submission, and my 5 secondary submission is, insofar as we are concerned 6 with the case that was previously being advanced by the 7 boroughs, which was that -- 8 MR JUSTICE HOLGATE: Based on this. 9 MR MAURICI: -- high risk as defined in this document is not 10 precautionary and irrational, I say the answer to that 11 is that, although it is identified as high risk, there 12 are factors which allow us to take confidence around it 13 because there are conservative assumptions, there is no 14 assumption about mitigation, et cetera. 15 There is a summary -- my Lords, I am not sure -- 16 MR JUSTICE HOLGATE: Forgive me. Thirdly, this is looking 17 at the possibility of exceeding the limit value as 18 a result of these model projections in the context of 19 the 29 per cent variance -- 20 MR MAURICI: Yes. 21 MR JUSTICE HOLGATE: -- attributable to non-Heathrow 22 factors. 23 MR MAURICI: Absolutely, my Lord. Absolutely correct. 24 I suppose there is another thing, which is maybe 25 this is the same point as mitigation, but, of course, 133 1 also, this doesn't assume any phasing restrictions. 2 Because the high risk is for 2029. If, for example, the 3 airport was restricted in the amount of new capacity it 4 could release, you would be able to push this back, 5 effectively. 6 My Lord, that is all summarised. I think, given 7 where we have come to, I don't think I need to take your 8 Lordships to any other references in this document. 9 There are -- 10 LORD JUSTICE HICKINBOTTOM: Just for my note, could you give 11 us the reference to the document that Mr Jaffey referred 12 to, the -- 13 MR MAURICI: The AOS. 14 LORD JUSTICE HICKINBOTTOM: Where we started all of this. 15 MR MAURICI: Yes, it is bundle 9, tab 2. So, it is the AOS. 16 My Lord, his table is at page 58, the table 3.2 is at 17 page 58. The pages he took you to before that were 18 pages 146 and 147. 19 LORD JUSTICE HICKINBOTTOM: Yes, that is helpful. Because 20 the wording of 7.4.88 in this document is: 21 "The risk of an impact on compliance." 22 Now, we may debate as to what that means, but that 23 is the phrase used in the -- 24 MR MAURICI: Yes, my Lord, and in that -- 25 LORD JUSTICE HICKINBOTTOM: Re-analysis. 134 1 MR MAURICI: Yes, in 7.4.88. That third sentence, second 2 line: 3 "For early opening assessed for 2026 in the 4 re-analysis." 5 LORD JUSTICE HICKINBOTTOM: Whatever it means, it is the 6 same phrase. 7 MR MAURICI: It is the same phrase, my Lord, yes. 8 MR JUSTICE HOLGATE: Would you forgive me, there are one or 9 two other parts of -- 10 MR MAURICI: Yes, I am happy to -- 11 MR JUSTICE HOLGATE: I think we ought to look at the 12 conclusion of the section review document, starting at 13 page 260: 14 "To some extent, this repeats, to some extent it 15 clarifies." 16 For example, if you go to page 262, paragraph 6.2.5: 17 "The plus or minus 29 per cent uncertainty bounds on 18 the PCM model projections were representing a worse case 19 95 per cent confidence interval upper bound on likely 20 uncertainty in the model results ..." 21 We don't need to get into Gaussian distributions I 22 suspect. 23 MR MAURICI: Let's hope not. 24 MR JUSTICE HOLGATE: Not on a Friday afternoon. Also, 25 I have been reading 6.4 Heathrow NWR and the 135 1 commentaries; were you going to take us to that? 2 MR MAURICI: I was going to take you through those. 3 MR JUSTICE HOLGATE: Then I'll stop. 4 MR MAURICI: I am very happy to do -- so, my Lords, on 5 page -- we are on page 263. My Lords, the table here is 6 really a repeat of what we saw in the executive summary, 7 which I showed you right at the beginning. 8 MR JUSTICE HOLGATE: When I read it through it made a little 9 more sense to me now. 10 MR MAURICI: Yes, my Lord, that is obviously what it is 11 trying to get across, and it obviously does, once you 12 have taken in the detail, as a summary it works. 13 MR JUSTICE HOLGATE: Some of those comments are just flagged 14 up and on the transcript, in the right-hand column of 15 the table, "Commentary", are quite significant: 16 "The level of risk is primarily dependent on the 17 timing of the introduction on the effectiveness on 18 actions of the government's 2017 plan to reduce 19 emissions from vehicles on the wider road network. It 20 is largely independent assumptions relating to the 21 impact of the option itself, or the direct mitigation of 22 option related emissions ..." 23 MR MAURICI: Yes. 24 MR JUSTICE HOLGATE: One reads it as a whole, obviously. 25 MR MAURICI: Yes. Then, my Lords, you will see at the 136 1 bottom of the page there is another reference to 2 headroom, 10 per cent. I don't think we need to go into 3 the detail of that. 4 But then you have over the page, at 6.2, a table 5 which is presenting a slightly different way. So, 6 my Lord, if you take 2026, you have -- I think it is 7 a good example with CAZ: 8 "No impact on zone compliance. Zero per cent with 9 the central emissions, but of course 29 per cent with 10 high emissions." 11 Ie the plus 29, if you add 29 per cent, which is the 12 outer reaches of the uncertainty, then that's the 13 outcome that you get. 14 Then that's just followed through in the table. 15 Then, my Lords, the only other paragraph I was going 16 to take your Lordships to was 6.4.11, on page 265. Just 17 to pick up, but this is what is said: 18 "It was a relatively little direct action that can 19 be taken by the airport to reduce the impact of or zone 20 on individual ... in Central London. It might be 21 possible for the airport to offer various inducement 22 measures to encourage ... transport by passengers and 23 staff. The reduction in compliance risks is primarily 24 dependent on measures taken by national and local 25 government to reduce emissions on the wider network, 137 1 including a plan. The actions set out in the plan and 2 the effect of implementation of the RDE [that is the 3 legislation that we all mentioned] should minimise the 4 risks that the Heathrow option would impact on the 5 compliance of the Greater London zone in any potential 6 opening year. 2026 ... similarly, any additional 7 actions undertaken at local or London level to improve 8 air quality may reduce the risks." 9 The point there is that while there is relatively 10 little direct action, it does recognise that if you can 11 stop people getting into cars -- 12 MR JUSTICE HOLGATE: Charging schemes. 13 MR MAURICI: And encouraging them to take public transport, 14 you can have that impact. Those are precisely the kind 15 of things that HAL are considering. I am sure 16 Mr Humphries will deal with that in terms of his 17 evidence, that he has on that, before the court. 18 Then, my Lord, as you will see in 6.4.12 -- I don't 19 really need to go into the detail, but: 20 "The risk of impact on compliance decreases over 21 time, primarily due to the anticipated decreases in 22 pollutant concentrations." 23 That is just making the point that, again, if you 24 are talking about either opening the airport later or 25 phasing the release of new capacity, you are going to be 138 1 able to reduce the risk because you are opening later. 2 My Lords, I think that does complete the key points 3 in this document. 4 I did want to show you one reference in our 5 evidence, the evidence of Ms Low. Her first witness 6 statement, volume 4, tab 1, page 167. My Lords, at 399 7 Ms Low, she's been describing the work done by WSP, and 8 says: 9 "As outlined at paragraph 371, the October 2017 10 update [and that is what we have just been looking at, 11 the October 2017 re-analysis] recognises the inherent 12 uncertainty associated with making forecasts into the 13 future. This is something officials carefully 14 considered. Despite the inherent uncertainty [of course 15 we know that's uncertainty about the PCM model, rather 16 than the scheme] the government's view was further 17 supported, Ie the view that the scheme could be 18 delivered compatibly by a number of things." 19 One was analysis was based on the best and most 20 up-to-date evidence. 21 Secondly, a point I tried to emphasise in a number 22 of places we went through, there's a very conservative 23 approach taken to scaling, but there are also other 24 conservative assumptions. As I said, it is all based on 25 the Airports Commission work, which used the worst case, 139 1 et cetera, et cetera. Then (c): 2 "The analysis did not take account of the additional 3 measures the applicant could take to address emissions. 4 For example, as set out in the ANPS, the scheme promoter 5 would be required to consider an extensive range of 6 mitigation measures, including an emissions based charge 7 to access the airport. Most air quality issues around 8 Heathrow Airport stem from road journeys. This is why 9 the ANPS specifically sets public transport mode share 10 targets." 11 Second line, over the page: 12 "The airport operator could, for example, phase the 13 construction of their scheme to ensure the additional 14 capacity is only utilised once there is certainty that 15 the air quality compliance would not be delayed. In 16 practice, it is very likely construction supporting 17 terminal infrastructure of the scheme will be phased 18 over a number of years." 19 Then, my Lord, just one other paragraph, I think, in 20 here. If you go to 416, on page 172, it is really 21 a similar theme: 22 "As set out above, we considered all the available 23 evidence and were sufficiently assured, given the 24 conservative nature of the assessment WSP carried out, 25 that the northwest runway could be delivered in 140 1 compliance with leading obligations on air quality. 2 Moreover, as explained by Ms Stevenson, the main cause 3 of the high risk and non-compliance in the analysis is 4 uncertainty as to future PCM forecasts. The risk is 5 present for any analysis in and around the London area. 6 It is not dependent on whether Heathrow is expanded or 7 not." 8 Which I think picks up the other point that my Lord, 9 Mr Justice Holgate, made to me a moment ago. 10 So, my Lord, that is the correct evidential basis on 11 which the Secretary of State took the view that the 12 scheme was capable of being delivered in accordance with 13 air quality limit values and legal obligations. 14 What I wanted to do then was to respond briefly, 15 I hope, now to the five issues, sub-issues, that are 16 raised in relation to air quality. 17 My Lord, issue 4.1 is an allegation, you will 18 recall, that the Secretary of State's air quality 19 analysis is flawed for the same reasons that the surface 20 access assessment is flawed. 21 My Lord, there are really only two points in answer 22 to that. One is I obviously repeat my submissions 23 I have already made on the surface access side of the 24 claim to say there is no flaw. But, my Lord, secondly, 25 you will recall that one of the criticisms under the 141 1 surface access ground is that we didn't update the 2 surface access modelling for the revised passenger 3 forecast 2017, DfT revised passenger forecast. 4 Of course, that criticism can't be pushed across to 5 the air quality ground because although we didn't 6 remodel, we scaled up. The only criticism that can then 7 be made, and has been made as I showed you earlier in 8 written submissions, including in the skeleton, not 9 developed orally, is that it is inappropriate to have 10 scaled rather than modelled. 11 I have shown you already Ms Stevenson's evidence 12 about why it was considered appropriate not to remodel, 13 but to up scale. 14 My Lord, you may recall -- it was paragraph 3.2 of 15 her first witness statement -- one of the points she 16 made was that given all the uncertainties are actually 17 related to the PCM model, actually remodelling the 18 impact of the scheme isn't really going to be a very 19 useful exercise in terms of air quality and whether 20 there is going to be compliance. 21 My Lords, that is really all I need to say about 22 issue 4.1. 23 Issue 4.2 and 4.3, Mr Jaffey took together, rightly, 24 and they allege that, first of all, we took an 25 insufficiently precautionary approach. 142 1 Secondly, that we took an irrational approach. 2 Really what they come down to is the same point, 3 which is that we shouldn't have concluded that Heathrow 4 northwest runway was capable of meeting air quality 5 obligations. We shouldn't have chosen it because there 6 is a high risk of non-compliance in air quality terms. 7 My Lord, we have already gone through this. The way 8 it was put orally was hinged entirely on the 80 per cent 9 probability that it would be breached and that, as 10 I hope I have shown your Lordship, is wrong. Beyond 11 that, the complaint that was made prior to Mr Jaffey 12 raising his oral submissions was that even if you take 13 high risk to mean what it means in the air quality 14 re-analysis, that is irrational too because it is still 15 described as a high risk and you shouldn't be 16 countenancing something that generates a high risk. My 17 answer to that is the answer your Lordships have already 18 heard from me about all the mitigating factors, ie this 19 is about the PCM model, not Heathrow. We haven't taken 20 account of mitigation and the assumptions that generate 21 that high risk are conservative. 22 So, on that basis, I say no breach of the 23 precautionary principle, no irrationality in the 24 approach that we have taken. 25 Then, my Lord, issue 4.4, focuses on what are said 143 1 to be unjustified assumptions made about mitigation in 2 the transport analysis. That wasn't developed orally at 3 all. It is dealt with in our skeleton at paragraphs 72 4 to 74. 5 My Lords, there is really two points, if I could 6 just briefly summarise what they are and briefly 7 summarise what our answer is. There are two distinct 8 points that are pursued and it is paragraphs 39 and 40 9 of the boroughs' skeleton. 10 Two points that they pursue in their written 11 submissions. One is that this re-analysis, if we are 12 going back to the re-analysis, was based on Jacobs's 13 modelling work, and Jacobs's modelling work took account 14 of western rail, southern rail, et cetera, and the NPS 15 doesn't impose a strict requirement for those to be in 16 place. 17 But, my Lord, I have already given my answer to 18 that, which is we took a different approach. We have 19 specified outputs. We have not sought to specify the 20 inputs, but we do have targets which have to be met, 21 including around mode share, which of course has a very 22 direct relationship to air quality. 23 But beyond that of course, in any event, the risks 24 are not about the risks from the additional passengers 25 to Heathrow, the real risks are about the wider London 144 1 situation. As we have seen, it is the plus or minus 2 29 per cent. 3 So, really, any reliance on the alleged failure, or 4 the failure, I suppose, of the NPS to specify you have 5 to deliver western rail, you have to deliver southern 6 rail, you have to deliver -- I think they say 7 Crossrail 2. By the way, my Lords, footnote: we say 8 Crossrail 2 has very little relevance to Heathrow. It 9 is Crossrail 2. It is more relevant to Gatwick, which 10 is why it was being looked at. 11 But, in any event, these complaints are really the 12 same complaints of surface access and we say there is 13 nothing in them. 14 That is not the only complaint they pursue. The 15 second complaint they pursue is the one at paragraph 40; 16 that is the one I touched on earlier when we were 17 looking at the air quality re-analysis, which is to say 18 we shouldn't have used, as our central scenario, with 19 CAZ. We shouldn't have used with CAZ. 20 My answer to that is: well, the analysis explains 21 that's based on a judgment that the government's 22 confident that can be achieved. As I said to you 23 earlier -- and I gave you the reference, which should be 24 in transcript -- Lucy Owen's evidence in fact reiterates 25 that confidence that the Mayor has about CAZ being 145 1 delivered. 2 In my submission, there is nothing in those issues 3 for issue 4.4. 4 We then turn to the final of the air quality issues. 5 It's issue 4.5. That is the legal test issue. 6 Can I ask you to go to the list of issues in 7 volume 6, tab 1? I want to begin by just looking at 8 what the agreed issue is before I turn to address it 9 because there is a question, my Lord, and a very 10 important question about what your Lordships have to 11 decide as against what you are being asked to decide by 12 the boroughs. 13 4.5: 14 "The Secretary of State acting irrationally and/or 15 contrary to any obligations to act transparently to give 16 reasons by failing to set out the legal test for 17 compliance with the Air Quality Directive (including the 18 obligation under Article 12 to endeavour to preserve the 19 best ambient air quality compatible with sustainable 20 development)." 21 Leave for the moment, Article 12, and I will come 22 back to that. What is being alleged here is that it is 23 irrational or unlawful for us not to have -- when we say 24 in the ANPS, "At the DCO stage there needs to be 25 compliance with legal obligations", we should have 146 1 spelled out what we mean by that, what the law is on 2 that. That is the allegation that's being made. 3 I want to pause and think about that issue in terms 4 of what your Lordships have to decide and what your 5 Lordships should be deciding at this stage. 6 My Lords, you have my point already, and this is 7 sort of really what Mr Jaffey is saying: it is not 8 lawful to have a policy which requires compliance with 9 air quality legal obligations unless you spell out what 10 the law requires. 11 That is the allegation, my Lord. That is what the 12 agreed issue is and that's what they pleaded and that is 13 what they alleged in their skeleton argument. 14 They are saying that the duty to give reasons, and 15 this obligation of transparency -- which is raised in 16 the skeleton, not pursued orally -- requires us not just 17 to say legal obligations must be complied with, but to 18 explain precisely what that means. 19 My Lords, just think about that for a moment. We 20 have referred to compliance with a large number of 21 directives in that NPS: habitats; water; framework 22 directive, and other directives as well. We have not 23 spelled out what the law is in those policies. We have 24 said, you have to comply with the law in this particular 25 area. 147 1 My Lord, what I simply say is that there is no 2 proper basis for an assertion that policy must set out 3 what the law is. 4 In reality, my Lord, we have had no argument, 5 certainly no oral argument, but very little written 6 argument, really, that goes to the point that there is 7 some kind of obligation when you say in a policy, "In 8 this area of law there's some legislation and you must 9 comply with that legislation", there is no obligation to 10 set out what the law means. 11 LORD JUSTICE HICKINBOTTOM: I think this is right: the 12 obligation could only be, couldn't it, that there was an 13 obligation on the Secretary of State to set out the law 14 as he thought it meant? 15 MR MAURICI: As he thought it was, yes. 16 My Lord, just pausing and thinking about that for 17 a moment. Obviously, what the law is, is not a matter 18 for the Secretary of State. 19 LORD JUSTICE HICKINBOTTOM: No, quite. 20 MR MAURICI: It is not a matter for the Secretary of State. 21 Beyond that, just think about this: when does this 22 issue actually matter? 23 It actually matters at the DCO stage, because what's 24 going to happen is an applicant is going to apply for 25 a DCO and one of the things they are going to have to 148 1 show is compliance with air quality law, put it in that 2 broad way. They are going to have to comply with air 3 quality law. 4 Now, what's going to happen in the examination? 5 What is going to happen is in writing, and no doubt 6 in the hearings that will take place, there will be 7 arguments on both sides about what the law means. So, 8 boroughs will no doubt argue that the law means X, very 9 strict test, and maybe -- I don't know -- but HAL might 10 come along and say the test is not that strict, and 11 submissions will be made. The examining authority will 12 write a report and they'll set out what their view is, 13 recommending a position to the Secretary of State. The 14 Secretary of State will then have to reach his decision 15 on whether to grant the DCO or not, and will have to 16 take advice from the department, or whoever else, on 17 what the correct answer is on the legal test. 18 Of course, my Lord, based on what the law is at that 19 date. Because what the law is could change. We have 20 had the Shirley case, happened since the ANPS was 21 designated. There is an application for permission to 22 appeal to the Supreme Court in Shirley. We don't know 23 whether that will be granted. We don't know what the 24 Supreme Court will say. 25 There is European case law still because, as 149 1 Mr Jaffey mentioned there is an infraction case being 2 brought by the Commission against the UK in relation to 3 air quality; that was referred to by Mr Jaffey in his 4 submissions. That could explain or clarify what the law 5 is. 6 My Lords, that would have to be judged at the DCO 7 stage. Of course, at that point, the Secretary of State 8 will have to reach a view, having had submissions from 9 both sides, about what the law is and whether they can 10 comply with it. 11 If any party is not happy with that view, they can 12 then bring a judicial review under this same statute to 13 the court and the court can provide its view. 14 But what's really happening here is you are being 15 invited to either express a view about what the law is 16 or to say that we were required to express a view on 17 what the law is. That was the gauntlet that was thrown 18 down to me. I am supposed to stand up and say, here and 19 now, today, what view the Secretary of State is going to 20 take about this test. My Lord, I say it is just 21 misconceived because we have said on not just air 22 quality, but on a large number of legal obligations, 23 that the law must be complied with. 24 We haven't set out what the case law means and what 25 the Habitat Directive requires and 150 1 Commission v Portugal. All of that stuff is in the 2 ANPS. We have said you must comply with law. There 3 will be argument about what the law is. A decision will 4 be made on the law, as it stands at that date, and there 5 will be a chance for parties to come back and deal with 6 it. 7 So, the question is: is it unlawful for us not to 8 have spelled out what the law was? 9 Sorry, not what the law was. What our view of the 10 law was, because we can't spell out what the law is. 11 My Lord, once you see it like that, in my submission 12 this ground has no merit whatsoever. 13 There is a footnote to this, which I should deal 14 with in case it is raised in reply. That is it hasn't 15 really been put this way, but I suppose it could be put 16 this way in reply. It could be said: well, no, the flaw 17 is not that. The flaw is that you said it's capable of 18 complying with air quality law, and how can you know 19 that without telling us what your test is? 20 In my submission, that is not really the way it has 21 been put, but let's say that was the compliant. The 22 reason I say that doesn't arise is because we have set 23 out -- if you remember those scenarios in the WSP 24 test -- three different scenarios for compliance, all 25 the three different things that you were going to 151 1 consider. If you passed all three, you had a green. 2 I say those covered all of Mr Jaffey's limbs. 3 So, is there any flaw in the ANPS because we haven't 4 said what view we took of the law when we have done an 5 analysis, which actually looks at every possible way in 6 which limit values could be impacted and covers off all 7 of Mr Jaffey's points? 8 In my submission, if that is made -- I haven't 9 really heard it made, but if that is made in reply, my 10 submission is that doesn't really get the boroughs 11 anywhere at all, either. 12 My Lord, if that is right, that is the end of it. 13 That is the end of it. 14 My Lord, the other issue which I should touch on -- 15 but my Lord I am reluctant to go too far unless your 16 Lordships want my assistance on this. 17 It was put to me earlier by Mr Justice Holgate: when 18 you set out in your NPS that there is a requirement to 19 comply with legal obligations, you are just mirroring 20 the statute, ie section 104, which requires compliance 21 with legal obligations. 22 I was reluctant to accept that was necessarily so. 23 But, my Lord, stepping back, it doesn't matter. It 24 doesn't matter. Because what's the two scenarios? 25 Either my Lord, Mr Justice Holgate, is absolutely right 152 1 about that and we are just mirroring what the Act does. 2 In which case, sobeit, that's all we're doing, mirroring 3 the Act. 4 Alternatively, if that is not what the Act 5 requires -- because I could make some argument about 6 Shirley, which I think is unnecessary, but I could make 7 some argument about Shirley. If I make that argument 8 and I am right, that we have gone further than what the 9 law requires, well, so what? If we have imposed 10 a higher test than the law requires, ie section 104 11 doesn't require what we have put in there, section 104 12 doesn't require that, so what? We have set a higher 13 test for the application. That surely can't be a cause 14 of complaint for the boroughs. 15 So, my Lords, I sort of question whether it is 16 necessary, really, for me to go into all of this and to 17 try and persuade your Lordships to take one view or not. 18 Because what I am doing at that point is I am trying to 19 persuade your Lordships what legal obligations mean in 20 this context, either under the Act or under the policy. 21 But, in either case, I say it is really not necessary, 22 and perhaps I should go as far as to say not really 23 appropriate, for this court to reach a view on that at 24 this stage, because unless you have to, you should leave 25 that to the procedures that follow in the Act, where 153 1 arguments can be made examining the report, the 2 Secretary of State look at it and a view reached. 3 MR JUSTICE HOLGATE: The matter will be determined as the 4 law is at that point in time, which is when section 104 5 applies. 6 MR MAURICI: Yes, but we can have a debate now about 7 Shirley, but what's the point? Because if the Supreme 8 Court grant permission, if the infractions proceedings 9 result in a judgment, if other things happen to change 10 the law, there are other things that could happen to 11 change the law in air quality. 12 At the end of this month, there could have been 13 things, although I have breached the rule about not 14 mentioning Brexit now. But all of those things could 15 change. 16 So, my Lord, if I start making submissions about 17 Shirley, what am I going to be doing? I am going to be 18 trying to persuade your Lordships to express a view on 19 something that doesn't need to be decided. 20 The same point arises on Article 12. The issues 21 that have been raised under Article 12, we did respond 22 to them in our skeleton. Boroughs raised their 23 arguments in their skeleton. Mr Jaffey, I think, did 24 mention Article 12 when he went through the statute, but 25 again, whether Mr Jaffey is right or wrong about what 154 1 Article 12 requires is not something that this court 2 needs to or should decide now. 3 The point they are making is we should be saying 4 what Article 12 requires at the DCO stage, and I say, 5 again for the same reasons, we don't need to. 6 My Lord, Article 12, you will remember it has two 7 obligations. One is basically once you have a zone 8 that's in compliance, your obligation is to try and keep 9 it in compliance. It says you must keep it in 10 compliance. That is the first part. 11 The second part is you should only allow development 12 that constitutes sustainable development. Then one gets 13 into a debate: well, is any particular development 14 sustainable development or not? 15 Within the NPS, you won't be surprised that there 16 are numerous paragraphs which refer to a requirement for 17 the developers to demonstrate that this sustainable 18 development related to things like noise, design, all 19 kinds of things. I can give your Lordships some 20 paragraph numbers if would help. For example, 4.30, 21 4.32, 4.33, 5.57, 5.68, 5.86, that's covering things 22 like noise, design, biodiversity, but there are other 23 references to sustainability, on things like waste and 24 sustainable drainage. Not surprisingly, because this 25 reflects the NPPF, really, we have a situation where 155 1 there is a requirement to show this development is 2 sustainable in accordance with government policy and 3 that will relevant to the issue under Article 12, but 4 your Lordships can't possibly, in my submission, take 5 a view on that now because it depends on the scheme that 6 comes forward. 7 MR JUSTICE HOLGATE: It depends on fact-finding. 8 MR MAURICI: Exactly. So, in my submission, this final 9 sub-issue, 4.5, is a non-issue. The key thing is 10 whether your Lordships consider that it was unlawful or 11 irrational or whatever else for the Secretary of State 12 not to set out what his view of the law was, and I say 13 clearly not. 14 My Lord, those are my submissions on air quality. 15 My Lords, can I just say, on that surface access 16 point that was left over. I think I have identified the 17 right place in the evidence, but I have not had a chance 18 to go through it. 19 MR JUSTICE HOLGATE: I am trying to remember what the point 20 was. 21 MR MAURICI: The point, as I recall it, my Lord, was about 22 the different assumptions of passenger numbers going 23 forward into which year, so 2030, this is later years or 24 earlier years. Do you remember it was the comparison 25 between what the Airports Commission work did and what 156 1 the current passenger forecasts showed about when the 2 airport would fill up, to what year? 3 My Lord, there is a document I have identified, 4 which I think answers all of those questions, but 5 I haven't had a chance to go through it properly. If 6 you are happy, my Lord, I would rather check that over 7 the weekend and come back on Monday. 8 LORD JUSTICE HICKINBOTTOM: That must be the most sensible 9 course. 10 MR MAURICI: I am grateful, my Lord. All I have to do is 11 I have to deal with that first of all. 12 I should just say that I won't be making any 13 substantive response to Mr Spurrier's claim, in the 14 sense that I have given an answer to his claim in my 15 skeleton and we have covered it in our evidence. 16 There was one factual matter I think he raised which 17 I need to check and take instructions on. If I need to, 18 I will come back to that on Monday morning, but beyond 19 that, I won't be dealing separately with the submissions 20 of Mr Spurrier. 21 In my submission, his claim is unarguable and should 22 be refused permission because it is simply challenging 23 expert judgments. That is my submission. It is in the 24 skeleton. His further points are all dealt with, albeit 25 briefly, in our skeleton. 157 1 I will deal with outstanding problems of surface 2 access. If I need to deal with this factual issue that 3 Mr Spurrier raised, once I have checked it, I'll will 4 deal with that. Then I will proceed to deal with 5 climate change, and then I think have also probably 6 ten minutes of submissions on relief. Probably not ten 7 minutes, but five minutes on relief, if necessary. 8 I think I am timetabled to finish, I think half an hour 9 after lunch. 10 LORD JUSTICE HICKINBOTTOM: Yes, that is the timetable. 11 MR MAURICI: My Lords, I am grateful. That is all I have 12 for today, unless I can assist you further. 13 LORD JUSTICE HICKINBOTTOM: But you are confident of 14 finishing? 15 MR MAURICI: I am confident I can finish. 16 LORD JUSTICE HICKINBOTTOM: Because we have, thanks to 17 everybody's effort, kept to the timetable, which is very 18 important. 19 MR MAURICI: My Lord, I am grateful. 20 LORD JUSTICE HICKINBOTTOM: Is there anything else now? 21 MR MAURICI: No, my Lord. 22 LORD JUSTICE HICKINBOTTOM: 10.15 on Monday. Thank you very 23 much. 24 (3.00 pm) 25 (The court adjourned until Monday, 18 March at 10.15 am) 158 1 INDEX 2 Submissions by MR MAURICI ............................1 (continued) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 159