1 Monday, 18 March 2019 2 (10.15 am) 3 Housekeeping 4 LORD JUSTICE HICKINBOTTOM: Could we just raise two points 5 from last week? 6 MR MAURICI: Yes, my Lord. 7 LORD JUSTICE HICKINBOTTOM: Just, really, I think by way of 8 confirmation. The first is really very straightforward, 9 but we would just like confirmation. 10 We assume that the decision-maker on the DCO in this 11 case will be the Secretary of State for Transport. 12 MR MAURICI: Can I have one moment on that, my Lord, because 13 I don't think it is quite as straightforward as that? 14 It will be the Secretary of State for Transport, but 15 there is a likelihood that it may be taken by one of the 16 ministers under him, rather than by the Secretary of 17 State himself. 18 LORD JUSTICE HICKINBOTTOM: But it is by the Department for 19 Transport. 20 MR MAURICI: It will be by the Department for Transport -- 21 LORD JUSTICE HICKINBOTTOM: Not -- 22 MR MAURICI: -- and it will be in the name of the Secretary 23 of State because that is the department head. That is 24 the position, although it is quite possible -- and if 25 your Lordships want to know I can give more details, but 1 1 I am not sure it is really relevant to the question. 2 LORD JUSTICE HICKINBOTTOM: No, the question, as it were, 3 was departmental, rather than anything. 4 MR MAURICI: Yes, departmental. Definitely Transport. 5 MR JUSTICE HOLGATE: Some DCOs presumably will be decided by 6 other departmental ministers? 7 MR MAURICI: Correct. 8 MR JUSTICE HOLGATE: If it is an energy scheme, for example. 9 MR MAURICI: My Lord, yes, BEIS, effectively, for those. 10 MR JUSTICE HOLGATE: Sometimes perhaps even the Secretary of 11 State for Housing, Communities and Local Government will 12 have an input. 13 MR MAURICI: Correct. 14 LORD JUSTICE HICKINBOTTOM: The second point is really just 15 by way of confirmation. I just wanted to confirm this: 16 my understanding is that it is the Secretary of State's 17 position in relation to alternatives that until the NPS, 18 the northwest runway was his preference, and by the NPS, 19 and obviously after the NPS, it was a policy which 20 excluded Gatwick as an alternative. 21 MR MAURICI: Yes. 22 LORD JUSTICE HICKINBOTTOM: Again, this is only putting the 23 same point in different words: before the NPS Gatwick 24 was, as it were, still in the mix. 25 MR MAURICI: My Lord, it was. 2 1 LORD JUSTICE HICKINBOTTOM: It was a runner. 2 MR MAURICI: My Lord, it was. 3 LORD JUSTICE HICKINBOTTOM: But after the NPS, it wasn't. 4 MR MAURICI: My Lord, that's correct. Obviously, the 5 department and the Secretary of State came to 6 a position, as we saw, where they took the view that 7 Gatwick -- and of course it must be a provisional view 8 at this stage -- wouldn't meet the hub status point. 9 Obviously, there were consultations in relation to that 10 policy, but until that policy was finalised, both 11 whether that should be the policy, ie should you really 12 give that preference to hub status? But, also, 13 underneath that, as I mentioned last week, Gatwick were 14 arguing at various points that if your policy was hub 15 status -- is very important. We can meet that hub 16 status. 17 So, it was all open until the NPS was made, as 18 your Lordship put to me. 19 LORD JUSTICE HICKINBOTTOM: Yes, and the NPS determined that 20 it was going to be northwest runway and not Gatwick -- 21 MR MAURICI: Correct. 22 LORD JUSTICE HICKINBOTTOM: -- and -- in brackets -- not 23 extended northern runway either. 24 MR MAURICI: Yes, my Lord. Everything else before that, by 25 definition, was a provisional view, subject to the 3 1 consultation being complete. 2 LORD JUSTICE HICKINBOTTOM: Quite. It was just confirmation 3 of the Secretary of State's position on that. Thank you 4 very much. 5 MR JUSTICE HOLGATE: Could I just -- following up from 6 that -- ask you to look at a paragraph in the ANPS; 7 volume 6, tab 7, page 223? This is part of chapter 3, 8 the government's preferred scheme. 9 MR MAURICI: Yes. 10 MR JUSTICE HOLGATE: Heathrow northwest runway. In the body 11 of the chapter, the comparisons between NWR and 12 Gatwick's second runway, and then between NWR and ENR 13 are dealt with. 14 MR MAURICI: Yes. 15 MR JUSTICE HOLGATE: But, in the introductory section, 3.12, 16 bottom of page 223: 17 "The government believes that NWR, of all the three 18 shortlisted schemes, is the most effective and most 19 appropriate way of meeting the needs case ... as such 20 the government has also concluded the other shortlisted 21 schemes do not represent true alternatives to the 22 preferred scheme." 23 MR MAURICI: My Lord, yes. 24 MR JUSTICE HOLGATE: So, the two other shortlisted schemes 25 would include ENR. 4 1 MR MAURICI: Correct. ENR and Gatwick, yes. 2 My Lords, I need to check, but I believe that 3 wording was in the previous -- certainly in 4 the October 2017 version. But, my Lord, I need to check 5 this, but I think it may have been in the February 2017 6 version, as well, but I will need to check that. 7 MR JUSTICE HOLGATE: The transcript is extraordinarily 8 helpful I find, and I was looking at the discussion of 9 this part. It might be helpful for us, and for all 10 concerned, just to have, on a single sheet of paper, the 11 references to where this topic is dealt with, both as 12 regards Gatwick and ENR. 13 MR MAURICI: In the ANPS? 14 MR JUSTICE HOLGATE: In the ANPS and/or any other relevant 15 material. In order to limit the exercise, maybe 16 possibly the AOS and/or the HRA because this issue came 17 up when we looked at the submissions to ministers 18 in September 2017 on the HRA. So, to avoid chasing 19 around papers -- 20 MR MAURICI: My Lord, you have the references in our 21 chronology that we put into the documents, but, yes, we 22 can certainly do a list of the relevant references in 23 the ANPS and the HRA. I think they are probably the two 24 key documents. 25 MR JUSTICE HOLGATE: Just the core ones? 5 1 MR MAURICI: The core ones, my Lord, yes. I think we are 2 talking about four our five references in each, I think. 3 MR JUSTICE HOLGATE: Exactly. At the time the consultation 4 exercise began and then, of course, there is a further 5 phase from October 2017 onwards, and then the final 6 document. 7 MR MAURICI: So, you would like the paragraph references, 8 the equivalent ones to these, in the previous versions 9 of the ANPS as well? 10 MR JUSTICE HOLGATE: Well -- 11 MR MAURICI: That's fine. We will do that. 12 LORD JUSTICE HICKINBOTTOM: That will be helpful, but the 13 tipping point is the ANPS itself. That is the tipping 14 point -- 15 MR MAURICI: My Lord, yes. 16 LORD JUSTICE HICKINBOTTOM: -- when the preference -- 17 MR MAURICI: Because that is the -- 18 LORD JUSTICE HICKINBOTTOM: -- became something -- 19 MR MAURICI: Because that is when the policy is made and the 20 consultation has been taken into account, concluded and 21 decision made. 22 LORD JUSTICE HICKINBOTTOM: Thank you. 23 MR JAFFEY: Sorry to rise. We have amended the chronology 24 that has been prepared by Mr Maurici and his team, to 25 include those. Mr Maurici was sent a draft version of 6 1 it yesterday and we can hand it up when it's convenient, 2 probably tomorrow morning. 3 LORD JUSTICE HICKINBOTTOM: Good, thank you very much. 4 MR MAURICI: I haven't looked at that chronology myself yet 5 because, obviously I have been focused on other things. 6 In terms of today, my Lords, I need to turn to 7 a couple of points that are left over from last week. 8 There were two points in relation to some case law 9 research that we were asked to do, which I will come to 10 in a moment. My Lords, there is one matter on surface 11 access which I said I would return to, which I will do 12 thereafter, which I don't think will take very long. 13 Then, obviously, I will take to climate change, which 14 will take up nearly all the time I have remaining today, 15 running until after lunch. Then I also have a few 16 things to say about relief at the end. 17 Submissions by MR MAURICI (continued) 18 MR MAURICI: Can I start with the case law points? There 19 were two points your Lordships asked us to look at. The 20 first was whether there are any domestic authorities 21 that have applied the CREED NZ reasoning on appearance 22 of bias and predetermination, ie the suggestion that 23 kind of ground of challenge, appearance of 24 predetermination, can be excluded entirely by the 25 statutory scheme and leave you only with the possibility 7 1 of actual predetermination. 2 My Lords, we haven't been able to find any domestic 3 authorities that have expressly applied that reasoning 4 from CREED NZ. 5 My Lords, what you do have in the bundle -- and we 6 have looked at it briefly was Lewis v Redcar in the 7 Court of Appeal -- one of the things that is done in the 8 Lord Justice Pill in that case is a very comprehensive 9 review of domestic authorities -- although it also 10 includes CREED NZ -- looking at appearance of bias, 11 appearance of predetermination. That does pick up cases 12 like Edmundsbury, which my Lord, Mr Justice Holgate, 13 mentioned, and also cases like R v Sevenoaks and Terry. 14 The reason I mention those cases is they were 15 appearance of bias cases in relation to planning 16 authorities who were deciding planning applications in 17 respect of their own land, and there are some 18 observations in those cases -- some observations -- that 19 any conflict of interest was built into the legislative 20 system by Parliament. 21 We haven't produced those authorities to you, 22 although we are very happy to do so if the court would 23 think they would be useful. They are summarised in 24 Lewis v Redcar. 25 The only thing I would say, my Lords, is that, from 8 1 Lewis v Redcar onwards, what appears to be the approach 2 is not to exclude the possibility of the appearance of 3 bias or predetermination entirely, which is the way it 4 was done in CREED NZ, but instead to say: yes, in 5 principle you can have an appearance of predetermination 6 and appearance of bias in relation to political 7 decisions around planning, but obviously the test is 8 very different to that applied to judges. 9 It is very hard to establish that appearance for 10 a number of reasons, really, but one is, of course, that 11 the reasonable observer would have regard to and give 12 very great weight to the legislative context in which it 13 arises. 14 My Lords, I would say it still, in my submission, 15 remains the case that a statutory regime could by 16 implication exclude entirely the appearance of 17 predetermination as a ground. That could happen, as was 18 the situation in CREED NZ. As I say, it does have more 19 than a few parallels to this case. It was a fast track 20 planning procedure, power given to ministers. 21 Even if that were not right, even if your Lordships 22 were not prepared to go that far, then obviously I would 23 fall back on to Lewis v Redcar. In relation to that, 24 those same matters would be highly relevant, highly 25 material to whether there was an appearance of 9 1 predetermination, whether the reasonable observer would 2 regard there to be such. 3 My Lord, you will remember there was an observation 4 made by the Court of Appeal in that case that 5 appearances are very much less important when one is 6 dealing with political decision makers as opposed to 7 court tribunal decision makers. 8 My Lords, that's where we came to in terms of 9 CREED NZ in terms of our research. If your Lordships 10 would like to see Edmundsbury or Sevenoaks, we can 11 produce them in due course, but I am not sure at the 12 moment, for my part, it is necessary. I certainly 13 wouldn't be asking your Lordships to look at them as 14 part of my submissions. 15 LORD JUSTICE HICKINBOTTOM: No, thank you very much. 16 MR MAURICI: The other point you asked us to look at was 17 case law in addition to the Court of Appeal in 18 West Berkshire on the extent of the duty of reasons in 19 relation to consultation responses. 20 My Lords, that is a search which we haven't really 21 been able to fully bottom out because when you put in 22 consultation and response, the research drives -- sends 23 you up so many cases that it is quite hard to go through 24 them and they are often very fact specific. So, we 25 started that exercise, but didn't get through the 10 1 hundreds of returns. 2 The one thing that was mentioned by -- I think 3 Mr Justice Holgate, was Mr Justice Ouseley's decision in 4 the HS2 case. 5 My Lords, there are two paragraphs, which if I can 6 just tell you briefly what they say. It is paragraphs 7 549 and 624. In 549, the learned judge says: 8 "I do not accept that material considerations have 9 been ignored by the Secretary of State. The 10 consultation responses were given conscientious 11 consideration. The decision document, the DNS and 12 related decision documents, did not have to go through 13 the responses as if a decision letter following a public 14 inquiry. The real question is whether the response to 15 the problem is rational." 16 At 624: 17 "It would be wrong to suppose that conscientious 18 consideration of consultation responses on what the 19 proposal should be required a fully reasoned decision 20 letter, as if one following a public inquiry into the 21 substantive decision." 22 My Lords, at the moment, you do not have that 23 decision in the bundle. What I was going to say is we 24 are going to present you with a choice, which is we can 25 either copy the extracts -- not just those, but the full 11 1 extracts -- where the learned judge deals with 2 consultation, which is still quite a lot of material, or 3 you can have copies of the full judgment, but it is 4 hundreds of pages long. 5 MR JUSTICE HOLGATE: The first one. 6 MR MAURICI: Extracts? 7 LORD JUSTICE HICKINBOTTOM: Yes, please. 8 MR JUSTICE HOLGATE: That case obviously went to the Court 9 of Appeal and the Supreme Court. But, in the Supreme 10 Court, they didn't deal with consultation. I can't 11 remember what happened in the Court of Appeal. 12 MR MAURICI: No, the Supreme Court didn't and, my Lord, I am 13 pretty sure it wasn't dealt with in the Court of Appeal. 14 MR JUSTICE HOLGATE: Could that be checked? 15 MR WOLFE: I can help. I was in the case. It wasn't 16 appealed. That was the only one of the seven judicial 17 reviews that was successful and it wasn't appealed. 18 MR MAURICI: Yes, but there was a consultation challenge on 19 the other claims as well. Mr Wolfe's claim was one of 20 them. 21 MR JUSTICE HOLGATE: So far as the searching is concerned, 22 maybe it would help to limit it to Gunning 4 or 23 Sedley 4. 24 MR MAURICI: Yes. 25 MR JUSTICE HOLGATE: I mean, it is the conscientious 12 1 requirement. 2 MR MAURICI: Yes, we will do that. We will try again and 3 see where we get to on that. 4 My Lords, can I then turn to -- there was one matter 5 on surface access that I needed to return to. 6 I indicated this last week. I hope this won't take 7 long, but can I just start with this: if your Lordships, 8 in due course, look back on the transcript on Day 5, at 9 page 68, lines 14 to 25, Mr Justice Holgate and myself 10 had an exchange where, at one point, I said, between 11 lines 14 and 25: 12 "That at some point Heathrow will become full. It 13 will be operating at capacity. When it is operating at 14 capacity, that is obviously the maximum potential 15 service traffic impact." 16 First of all, what I said there in response to 17 my Lord, Mr Justice Holgate, isn't quite correct, and 18 the reason it is not quite correct is there is a 19 difference between the maximum ATMs, ie the runways 20 being full, and the maximum passenger numbers. The 21 reason being, of course, load factors and plane sizes. 22 Although it is true once you have the runway full 23 the ability for passenger numbers to go up reduces 24 drastically because your only option at that point is to 25 change your load, to change your plane size. 13 1 But, my Lords, the reason we were discussing that, 2 if I can remind you, was -- can we go back to -- because 3 the exchange arose out of a piece of evidence from 4 Mr Jones. So, this is bundle 4, if we could just go 5 back to it. No, sorry, it is bundle 5, core bundle 5, 6 and, my Lord, we are looking at tab 1, page 14. 7 My Lords, if you recall, I put in those tables on 8 surface access, and the second one was dealing with why 9 we had not updated the traffic modelling for the 2017 10 passenger forecasts. I took your Lordships to this 11 reference, at paragraph 38 of Mr Jones's witness 12 statement, which is where he said: 13 "We considered the 2017 revisions to the 14 government's forecasts for aviation passenger volumes 15 across the UK, including at Heathrow. These revised 16 passenger forecasts do not however change the scale of 17 the forecast growth of passenger numbers as a result of 18 the increased airport capacity at Heathrow, only the 19 time period in which this might be achieved. Therefore, 20 this did not change the overall surface access approach. 21 While some interventions might have been brought forward 22 in time, the scope and scale of such interventions would 23 not be significantly affected." 24 That is our answer, but can I take you to one other 25 reference in Mr Jones's second witness statement? It is 14 1 also referred to in the table, which I gave in to your 2 Lordships in the same row. If you go forward in this 3 same bundle, my Lords, please, to page 126, paragraph 12 4 of Mr Jones's second witness statement. Responding to 5 paragraph 11A of Mr Williams's second witness statements 6 he says: 7 "Mr Williams notes DfT published updated aviation 8 passenger forecasts which show higher growth in demand 9 than the AC's forecasts. The updated aviation forecasts 10 are shown in figure 2.4 of the updated appraisal report 11 ... showed faster growth at Heathrow with the expansion, 12 but over time, and by around 2040, this converges with 13 the AC's forecasts at Heathrow as Heathrow Airport fills 14 up the additional runway capacity." 15 So, the main effect of the demand updates could be 16 a requirement on the airport capacity sooner, but it 17 does not fundamentally change the nature of the surface 18 access. 19 Can we look at figure 2.4? Because my Lord, 20 Mr Justice Holgate, I think wanted to see some 21 comparisons of what do the Airports Commission assess 22 versus what do the passenger forecasts show. That is 23 what you get if you go in core bundle 8, tab 6, and 24 start at page 287. My Lords, just give me one moment. 25 (Pause) 15 1 Sorry, tab 6, my Lords, in bundle 8. This is the 2 updated appraisal report for airport capacity in the 3 South East. It was published in October 2017, so it was 4 part of the second consultation. 5 My Lords, if you go to page 290, just to see the 6 context, you will see there is a subheading: 7 "Updating the evidence base." 8 Basically, I won't go through it, but what it is 9 referring to, in terms of updating the evidence base, is 10 at the very bottom of 290, you see: 11 "DfT 17 aviation passenger demand forecast." 12 So, one of the key things it is looking at is: how 13 do those forecasts change the analysis? 14 Then if you go to 297, that is the figure that 15 Mr Jones was referring to in paragraph 12 of his second 16 witness statement. If you look at 2.17, on page 297: 17 "Figure 2.4 shows passenger demand at both 18 potentially expanded airports under the DfT 17 19 forecasts, relative to the Airports Commission's demand 20 scenario range." 21 My Lords, you may recall that the 22 Airports Commission looked at, I think, five different 23 demand scenarios. 24 If you then look at figure 2.4 and look at the blue 25 LHR northwest runway, you will see what you have is you 16 1 have some grey lines which diverge, and they are the AC 2 demand forecast range. So, you have the highest of the 3 range and the lowest of the range. 4 Then you have a blue dotted line, and the blue 5 dotted line is the Airports Commission assessment of 6 need carbon traded; that is one of its scenarios. The 7 reason that is pulled out in particular is because that 8 was treated by Jacobs, who were the Airports 9 Commission's transport consultants, as the core scenario 10 for their assessment. So, that was their core scenario 11 in respect of Heathrow. 12 My Lords, I think I do have a reference for you if 13 you want to follow that through. Yes, I don't ask you 14 to go to it, but it is bundle 11, volume 6, page 63, 15 paragraph 2.2.1. You will see what the core scenario 16 was. 17 Then, my Lords, what you then have in addition is 18 the -- I think it is darker blue, thick line -- DfT 17 19 central. So, that's the DfT's central forecast scenario 20 from the updated figures. 21 You will see that what it really shows is greater 22 demand in passenger forecasts in the short run because 23 that line climbs much more quickly than any of the 24 Airports Commission range and, in particular, grows more 25 quickly than that core scenario that the Airports 17 1 Commission looked at in those early years. But, of 2 course, what then happens, you see, is it in fact over 3 time, effectively the trajectory levels out. So, 4 effectively, it makes the point -- this is Mr Jones's 5 point -- that although one may have a passenger demand 6 coming online more quickly, demanding quicker 7 interventions, it doesn't change the overall profile of 8 the demand. 9 Then you will see at 2.19, at the bottom of the 10 page -- I think it is the final thing I need to just 11 deal with in relation to this -- under the LHR northwest 12 runway scheme, Heathrow is expected to be full by 2028. 13 If you use the DfT forecast, full by 2028, compared to 14 2035 in the Airports Commission's assessment of need 15 carbon traded forecasts. 16 Then, crucially, this assumes no phasing of 17 additional capacity and no barriers to airlines making 18 use of this capacity as soon as it becomes available. 19 So, literally, the assumption is you build the 20 runway, you build the terminals, they fill up overnight 21 with all the new airlines coming in to fly out, which 22 clearly, on any view, is not a realistic scenario that 23 it happens overnight, but that is the way it has been 24 assessed. Obviously, it creates a worst case situation. 25 My Lords, that is why we say -- I don't ask you to 18 1 go back to it, but -- 2 MR JUSTICE HOLGATE: Just before you leave these graphs, can 3 you just remind us -- I think you covered it last 4 week -- the traffic assessment looks at 20 -- 5 MR MAURICI: The focus of the Airports Commission in all of 6 their modelling, they focused on 2030. The reason being 7 they wanted a comparator between the schemes. So, one 8 has to -- from their work -- extrapolate, but they are 9 always focused when you look at the reports on 2030. 10 But, obviously, they don't close it off at 2030, but 11 2030 is their focus. But they obviously do look at what 12 happens thereafter, but the key focus of the Airports 13 Commission is 2030. 14 MR JUSTICE HOLGATE: 2030 with what assumption as to number 15 of ATMs? 16 MR MAURICI: I am not sure I can answer that straight off. 17 Let me just check one thing. 18 MR JUSTICE HOLGATE: We can come back. I had in mind the 19 submission you made about worst case analysis. 20 MR MAURICI: I think, 2030, they were looking 21 at 125 million. But can I just check one reference, 22 my Lord, which may give you the answer to that? I've 23 just realised I think that might be covered by ... 24 (Pause) 25 MR JUSTICE HOLGATE: Sorry. 19 1 MR MAURICI: My Lord, yes,that reference I gave you earlier, 2 SB11/6/63, that refers to 125.2 million passengers in 3 2030 in the core scenario. 4 MR JUSTICE HOLGATE: That's SB11? 5 MR MAURICI: Tab 6, page 63. 6 (Pause) 7 2.2.1, that is their core scenario, carbon traded 8 global growth CTGG. Then you will see: 2030, 9 125.2 million passengers. 10 MR JUSTICE HOLGATE: You dealt with this on the transcript, 11 just after the page you gave us a moment ago, page 65, 12 Day 5, when I asked, I think, whether you tested as 13 a worse case maximum capacity, and you said: 14 "There were sensitives done around maximum capacity 15 by 2030." 16 MR MAURICI: Yes, my Lord, because that is just the core 17 scenario, my Lord. If you look at the graph, for 18 example, you will see -- it is quite hard to follow the 19 exact position of the years. 20 MR JUSTICE HOLGATE: You went back to Mr Jones. 21 MR MAURICI: You will see on the graph at 297, obviously, 22 that scenario we have just been looking at, that is 23 described in bundle 11, is effectively the dotted 24 blue -- it is one of the scenarios within the grey 25 range. So, you will see that the grey range actually 20 1 looked at different passenger forecast numbers over 2 a different period of years. 3 My Lords, if you look -- 4 MR JUSTICE HOLGATE: I can also see the upper curve for the 5 grey range almost touches the solid blue line for 2030. 6 MR MAURICI: Yes, my Lord, it does. It does, yes. 7 My Lord, that gives -- obviously, the importance of 8 this document was of course this document was part of 9 the consultation documents, and it has in it, we say, 10 the very point that has been made by Mr Jones, about the 11 fact that, yes, there is going to be more -- on the 12 passenger forecasts, more passenger demand, more surface 13 access, therefore, in those early years, assuming, of 14 course, no phasing and no restrictions -- commercial 15 restrictions on filling up, but that, over time, the 16 trajectories level out and therefore the same issues 17 arise. 18 The final thing to say on that is: when your 19 Lordships go back to some of the submissions I made 20 about the content of the ANPS itself on surface access, 21 you will remember I took you to a number of paragraphs. 22 One of them was 5.9, which is -- I don't ask you to go 23 back to it, but CB6, tab 7, page 251. That was the 24 paragraph, if you remember, that requires the applicant 25 to prepare the airport surface access strategy, 21 1 including dealing with matters of phasing. 2 The importance of that is that 5.9 is there to give 3 a flexibility about this. It allows the operator to set 4 out how they'll actually expect numbers to grow and how 5 they are going deal with that. Both by phasing, but 6 also by how they are going to bring in the necessary 7 measures to control that level of passengers as the 8 scheme goes forward. 9 So, 5.9, we say is designed in particular to cater 10 in variations in demand to allow the operator to put 11 forward a scheme that takes into account their expected 12 growth of passengers, based on what they believe will 13 happen, rather than, if it is different, the estimates 14 that have been put forward by the Airports Commission 15 and the government's statistics. 16 My Lords, those are the only things I wanted to deal 17 with on surface access. 18 Can I turn to climate change? 19 My Lords, by way of introduction, this really breaks 20 down to three main themes. There are a number of issues 21 in the issues that we have agreed, but there are three 22 main themes. 23 The first one, in my submission, is whether the ANPS 24 fails properly to explain how it took into account 25 government policy on climate change contrary to 22 1 section 5 of the Planning Act. That's really Friends of 2 the Earth's reasons challenge. That is theme 1. 3 Theme 2, which picks up issues 9, 15, 16 and 18 to 4 20, all relate to the implications of the Paris 5 Agreement. As a result of the Paris agreement there are 6 three allegations made of illegality. One is breach of 7 the SEA Directive, that is Friends of the Earth, that is 8 issue 9. There is an allegation of breach of section 5 9 of the Planning Act. That is Plan B only who allege 10 that Paris gives rise to a breach of section 5 on 11 reasons. 12 Then section 10, where both Plan B and Friends of 13 the Earth argue that Paris -- because it wasn't treated 14 as relevant -- breaches section 10 of the Planning Act. 15 So, that's all issue 2. It is all about Paris and 16 various ways in which Paris is said to give rise to 17 unlawfulness. 18 Thirdly, there is a further issue under issue 19 19 which is about the treatment of non-CO2 emissions, and 20 whether that breached section 10 of the Planning Act, 21 which is pursued by Friends of the Earth under their 22 ground 2. 23 My Lords, the way I intend to deal with this is by 24 breaking it down into nine headings that I am going to 25 cover. I am going to start with some preliminary 23 1 submissions on Paris because that's central to a lot of 2 these points. 3 Secondly, I am going to highlight some differences 4 between the Plan B and the Friends of the Earth cases, 5 and how I intend to deal with those. 6 Thirdly, I have some overarching background points 7 to make relevant to all the grounds. 8 Then, fourthly, I am going to deal with the legal 9 context. 10 Fifthly, I'll then turn to deal with the Paris 11 Agreement issues collectively. 12 Sixthly, I will deal with the reasons challenge that 13 Friends of the Earth make. 14 Seventhly, I will turn to non-CO2 emissions, and 15 then, eighthly, I will deal with the allegation of 16 breach of the SEA by reason of the Paris agreement. 17 Then, finally, my Lords, at nine, I need to respond, 18 hopefully briefly, to the boroughs' climate change 19 issues, which they put in a four page note that I think 20 went in some time last week. 21 My Lords, can I start with some preliminary comments 22 on Paris, which is my first heading. 23 Paris Agreement is obviously central to both Friends 24 of the Earth and Plan B's claim. The challenges are 25 made in different ways, something I will come to, but 24 1 there is one overriding, or one overarching point that 2 we would make. That is quite a simple one: Paris is an 3 unincorporated international treaty. 4 Thus, first, it is not something that can be given 5 direct effect in domestic law and, secondly, it is not 6 something, on ordinary public law principles, that 7 regard was required to be had to, unless -- and this is 8 what Mr Wolfe argues, as he must -- the Planning Act 9 2008 can be said to implicitly require that the Paris 10 Agreement be considered. 11 Now, Mr Wolfe realises he has a constitutional 12 barrier to the claim that he wishes to pursue. One of 13 the ways he's tried to get around that has been to make 14 a submission that -- not that-- I suppose I should break 15 it down first of all. 16 If you look at Plan B, Plan B tried to get across 17 this constitutional barrier by saying the Paris 18 Agreement is already part of government policy. It has 19 already been adopted as part of government policy. That 20 is their argument. 21 Mr Wolfe has expressly disavowed that argument. 22 I will just give you this reference in the transcript. 23 Day 3, page 42, over onto page 43. It is page 42, 24 line 22, over to page 43, line 3. Mr Wolfe explains 25 that Plan B are trying to argue that the section 5(8) 25 1 duty to give reasons for government policy is something 2 that includes Paris, and he says: 3 "We say not so. We agree with the Secretary of 4 State as it happens." 5 That is recorded, my Lords, in the climate change 6 annex because there is agreement between Friends of the 7 Earth and the Secretary of State on what the policy is, 8 and it doesn't include Paris Agreement. Plan B dispute 9 that section of the climate change annex. 10 So, Mr Wolfe doesn't seek to get around the 11 constitutional barrier he faces by arguing, as Plan B 12 do, that this is already part of government policy. 13 Mr Wolfe accepts, on behalf of Friends of the Earth, 14 that it is not. Rightly so, we say. 15 Instead, what Mr Wolfe has done, at least in part to 16 try and get over this, is to say he's not really asking 17 your Lordships to hold that we were required to take 18 into account the Paris Agreement itself, but really we 19 were required to take into account emerging thinking on 20 the implementation of the Paris Agreement across 21 government. It is this that we failed to take into 22 account. 23 My Lord, Mr Justice Holgate, will remember that was 24 also the focus of the disclosure applications by Friends 25 of the Earth. 26 1 In my submission, that is no more than a sleight of 2 hand, and it is really is seeking to incorporate and 3 give effect to the Paris Agreement by the backdoor, or 4 perhaps more accurately by the back window, because it 5 is focused not on -- it says: we are not focused on 6 Paris. We are not focused on any policy implementing 7 Paris. We are not even focusing on an emerging policy 8 document that has been published that focuses on Paris, 9 but we are looking at emerging thinking within 10 government departments. 11 That's the material consideration that apparently we 12 should have considered and that we erred in failing to 13 consider. 14 My Lords, in my submission that is fundamentally 15 misconceived. It fails to get over the constitutional 16 barrier. It is an attempt to get over it, but it fails. 17 But all the more so, my Lords, when one considers -- and 18 I'll come to this in more detail in a moment -- that the 19 Climate Change Act provides an express mechanism by 20 which significant developments in international law are 21 to be considered and, if appropriate, relied upon to 22 amend the 2050 target that lies at the heart of Climate 23 Change Act. 24 That is section 2 which we will return to. 25 Of course, that amending provision requires you to 27 1 obtain the advice of the climate change committee, and 2 we'll come to that. 3 My Lords, moreover, as Lord Justice Hickinbottom 4 observed to Mr Wolfe on Day 3, Paris itself imposes no 5 carbon reduction target. It is only domestic law that 6 can do that. There are a host of considerations, as we 7 will see when I look at the regime later on. There are 8 a host of factors that can play into a decision to 9 modify carbon reduction targets set by the Climate 10 Change Act. 11 Just to mention them now -- I will come back to them 12 in a little bit more detail, but not much more detail 13 later on -- under section 10 of the Act, under carbon 14 budgets, when you set them, you have to have regard not 15 just to climate change science, but economics and fiscal 16 matters, social matters, effect on the devolved 17 administration. There are a whole range of factors that 18 this legislation builds in as things you must consider. 19 My Lords, given the constitutional position and the 20 express way that Parliament has laid down for these 21 matters to be dealt with, in my submission -- and I will 22 deal with it in more detail in a moment -- it is 23 unarguable that Paris was something that we were 24 required to take into account in making the ANPS. 25 I will return to that in a little bit more detail in 28 1 a moment, but that is my first heading, just those 2 observations on Paris. 3 Can I then deal very briefly with the differences 4 between Plan B and Friends of the Earth? 5 There are three differences. There are three ways 6 where Plan B go beyond Friends of the Earth. 7 The first one, as we have seen, is that Plan B argue 8 the Paris Agreement is already part of government policy 9 for the purposes of section 5(8), and therefore that we 10 have breached section 5(8) by not considering Paris. As 11 I have said, that is an argument Mr Wolfe has disavowed, 12 and rightly so, we say. 13 That is the first difference. My Lord, the second 14 difference is that Plan B make this Human Rights Act 15 argument to help seek support their interpretation of 16 the Planning Act. That human rights argument has not 17 been pursued or endorsed in any way by Friends of the 18 Earth at any time in these proceedings. 19 Thirdly, Plan B -- this is issue 18 in the agreed 20 issues -- pursue an irrationality challenge to the 21 Secretary of State's decision on these matters. Again, 22 as far as I can see, at no time have Friends of the 23 Earth and Mr Wolfe, the legal team behind Friends of the 24 Earth, ever supported or endorsed that submission, 25 either. 29 1 My Lords, we have set out our answers to Plan B's 2 case in our skeleton at paragraphs 170 to 178, but also 3 in our evidence. Can I just give you a couple of 4 references to our evidence, where we deal with Plan B's 5 case, insofar as it goes beyond Friends of the Earth's 6 case? 7 First of all, in Caroline Low's witness statement, 8 that is CB4.1, first of all, paragraphs 292 to 293, 9 which is page 716 to 717. Then also in the annex to 10 that same witness statement at pages 294 to 296. 11 Finally, in terms of references, Ms Low's second witness 12 statement, so that is core bundle 4, tab 2, at 13 paragraphs 46 and 47. 14 That is our answer to Plan B's case, insofar as they 15 have sought to go beyond -- 16 MR JUSTICE HOLGATE: I am just wondering whether the page 17 references are right. 18 MR MAURICI: I am sorry, I possibly ... 19 MR JUSTICE HOLGATE: Ms Low's first witness statement, core 20 bundle 4, tab 1, you say paragraphs 292 to 293? 21 MR MAURICI: Yes, my Lord. 292 to 293? Apologies if I have 22 these wrong. 23 (Pause) 24 Yes, my Lord. Sorry, my Lord, the page references 25 are wrong. It is page 130 to 131. Then, my Lord, the 30 1 annex, if I can just make sure I have the right 2 reference to that, the annex to that document, 3 page 294 ... 4 Yes, that is correct. So, the annex is 294 to 296. 5 That is where it deals with Plan B. 6 My Lord, in the second witness statement -- 7 MR JUSTICE HOLGATE: That is pages 294 to 296? 8 MR MAURICI: Yes, my Lord. In the second witness statement, 9 it is 46 to 47, which your Lordships will find at pages 10 324 to 325. That is tab 2 of core bundle 4. 11 My Lord, beyond that, in my oral submissions, I am 12 going to be focusing on the arguments made by Friends of 13 the Earth. I am not going to be saying more, other than 14 perhaps in passing, about the arguments that have been 15 pursued by Plan B, to the extent that they go beyond 16 Friends of the Earth. 17 My Lord, in short, in my submission, Plan B's case 18 is unarguable and I ask that permission be refused in 19 respect of it, insofar as it goes beyond Friends of the 20 Earth's case. 21 Can I then turn to some overarching background 22 points? Which is my third heading. There are six 23 matters I want to deal with. 24 First of all, as set out in our skeleton at 25 paragraph 150(1), climate change was not 31 1 a differentiating factor between the three shortlisted 2 schemes. All would have increased carbon emissions. 3 So, while we know of course that one of the policy 4 decisions made in the ANPS was to prefer the northwest 5 runway scheme, of course it was not on the basis of 6 carbon. Effectively, those claimants who pursue these 7 climate change issues, in particular Friends of the 8 Earth and Plan B, are arguing that there should be no 9 airport expansion, in effect. 10 My Lords, secondly -- 11 MR JUSTICE HOLGATE: Alternatively, if they are otherwise 12 right in their legal analysis, that a decision may be 13 taken to increase capacity, but in the right way. 14 MR MAURICI: My Lord, yes, I see that. But, effectively, 15 their positions -- that is true in terms of the legal 16 argument, but their positions are actually, as 17 organisations, against airport expansion. So, some of 18 the claimants here say it shouldn't be Heathrow, it 19 should be Gatwick. They are not that kind of claimant. 20 I accept, my Lord, there may be -- 21 MR JUSTICE HOLGATE: What I am saying is -- 22 MR MAURICI: I accept -- 23 MR JUSTICE HOLGATE: -- the differentiation point between 24 the three schemes doesn't get you very far because it's 25 an error of law. 32 1 MR MAURICI: I accept that point, my Lord. By way of 2 introduction, that is the basis upon which they come to 3 these claims. 4 Secondly, there is no disputing the importance of 5 climate change as an issue, either generally or in the 6 context of airport expansion. That is our skeleton, 7 paragraph 150(2). 8 Can I just make a few further points on that? You 9 will know the Airports Commission gave detailed 10 treatment to carbon and climate change issues. Indeed, 11 my Lords, the central importance of climate change to 12 the Airports Commission is illustrated by the fact that 13 one of its members, Professor Julia King, was also 14 a member of the climate change committee. 15 My Lords, you will also know the Airports Commission 16 concluded that, under a number of different scenarios, 17 expansion could take place consistently with the UK's 18 climate change obligations. That was the analysis that 19 the Airports Commission came to. 20 Then, my Lords, in Ms Low's witness statement -- 21 again, that's bundle 4, tab 1, at paragraphs 471 to 22 499 -- she gives an account of the various detailed 23 expert assessments that have been undertaken both by the 24 Airports Commission and the department, by expert 25 consultants, which have addressed climate change issues 33 1 and carbon issues over six and a half years. 2 My Lords, the simple point is -- and we can move 3 on -- apart from the issues around the Paris Agreement 4 and non-CO2 emissions, there is no pleaded challenge -- 5 and I use those words advisedly -- to the lawfulness of 6 the Secretary of State's reliance on the outcome of 7 those many expert assessments. 8 My Lords, because they are not challenged in the 9 pleaded cases, other than in relation to this point 10 about Paris and non-CO2 emissions, we have obviously not 11 troubled the court by placing those documents before 12 you. 13 But, again, my Lords, those documents concluded that 14 expansion could be delivered, was capable of being 15 delivered within the UK's current climate change 16 obligations. 17 You will know that one of the assessments, that both 18 the Airports Commission and the department did, was on 19 the Carbon Capped scenario. The Carbon Capped scenario 20 was the one that showed how airport development could be 21 delivered consistently with the planning assumption. 22 I will return to the planning assumption in a moment, 23 my Lord, but the planning assumption being the climate 24 change committee's advice in relation to how aviation be 25 dealt with under the Act. 34 1 My Lords, then, thirdly, in terms of overarching 2 points, the ANPS itself gives detailed consideration to 3 climate change issues, both in terms of what an 4 applicant must assess, in terms of the mitigation 5 requirements and in terms of the proposed decision 6 making tests on climate change issues. 7 Of course, the Secretary of State within the ANPS 8 did come to a view that the scheme was capable of being 9 delivered in accordance with the UK's climate change 10 obligations. As my Lord, Lord Justice Hickinbottom, 11 observed on Day 3, whether any particular scheme will 12 comply with the climate change obligations will depend 13 on the details of the scheme to which any future DCO 14 relates by definition. 15 Then, my Lord, fourthly in terms of overarching 16 points, can I ask you to take out Friends of the Earth's 17 amended statement of facts and grounds, which is in 18 volume 1, tab 15. I ask your Lordships to go to 19 page 434, at paragraph 4. 20 My Lords, you will see at paragraph 3 a summary of 21 Friends of the Earth's grounds is given; that is all of 22 their grounds, all three of their grounds. At 4, it 23 said this: 24 "At the heart of those [which means those grounds] 25 is the way in which the NPS has dealt with a picture, in 35 1 terms of climate change obligations and climate change 2 policy, which is likely to change between now and the 3 point at which the Secretary of State comes to consider 4 an application for development consent under the 5 Planning Act." 6 So, that is, on Friends of the Earth's own pleaded 7 case, what lies at the heart of all of their grounds. 8 All of their grounds. They are concerned that between 9 the ANPS being designated and the DCO being made there 10 are going to be changes to climate change obligations 11 and climate change policy. Of course, principally, they 12 would say because of implementing, giving effect to the 13 Paris agreement. 14 But that's what lies at the heart of the claim. If 15 that is what lies at the heart of the claim -- which it 16 clearly does -- there are three ways, we say, in which 17 the Planning Act is capable of dealing with changes. 18 MR JUSTICE HOLGATE: Before you look at those ways, as 19 a legal point, if it has merit, this would apply rather 20 more generally when you draw up policy. 21 MR MAURICI: My Lord, yes. 22 MR JUSTICE HOLGATE: The likelihood is there will be 23 a change of circumstances between adopting a development 24 plan. 25 MR MAURICI: Correct, there will be lots of other changes of 36 1 circumstance, inevitably there will be. On a major 2 scheme like this -- 3 MR JUSTICE HOLGATE: Sorry, I interrupted you. 4 MR MAURICI: -- of course there will be other changes, but 5 that is what lies at the heart of Friends of the Earth's 6 claim. The Act, the Planning Act is capable of dealing 7 with that in three ways. 8 I mean, first of all, my Lord, in terms of the ANPS 9 itself, obviously a DCO has to be in accordance with -- 10 the requirement is it should be determined in accordance 11 with the NPS. In this NPS, we have a number of 12 requirements related to assessment against the 13 government's carbon obligations. 14 My Lord, you will know our position is that in the 15 ordinary way, that happens in other planning situations 16 too, when you come to judge, at the DCO stage, the 17 scheme against the government's carbon obligations, it 18 means those obligations as they stand at the date of the 19 DCO decision. So, that is one way in which the 20 Planning Act can easily deal with changes, to deal with 21 what lies at the heart of the Friends of the Earth's 22 claim. 23 Secondly, my Lord, there is also section 104(2)(d) 24 of the Planning Act, which says the Secretary of State 25 must have regard to: 37 1 "Any other matters which the Secretary of State 2 thinks are both important and relevant to its decision." 3 My Lords, if there were new policy, new carbon 4 obligations, the concern that Friends of the Earth had, 5 they would also be, in my submission, required to be 6 considered under section 104(2)(d) because they would be 7 relevant and they certainly would be important. 8 Then, my Lords, thirdly, the Act has a further 9 mechanism to deal with this, and that of course is 10 section 6 of the Planning Act, which allows the 11 Secretary of State to review where there has been 12 a significant change of circumstances. So, if the 13 change in carbon policy was very significant, it would 14 be open to the Secretary of State to consider reviewing 15 the ANPS itself. 16 My Lord, what all that shows is that there are 17 a series of inbuilt mechanisms within the Planning Act 18 that can deal with the central concern, the heart of the 19 concern that Friends of the Earth have. We say that is 20 an important kicking off point for considering their 21 grounds. 22 My Lords, two other overarching background points. 23 First of all, one I can deal with very briefly. Both 24 Friends of the Earth and Plan B have sought to rely on 25 the correspondence that there was between the chair of 38 1 the climate change committee and the Secretary of State 2 following the ANPS designation. My Lords, I don't ask 3 you to go to it. You have the letter, the letter from 4 the climate change committee chair and the Secretary of 5 State are also summarise in the statement of common 6 ground, and you also have the letters in the bundle. 7 But just these really short points: first of all, the 8 letter from the chair is not about the ANPS itself, as 9 such, but about the Secretary of State's statement to 10 the House of Commons about the ANPS, because he says: 11 "I am surprised you haven't mentioned X in your 12 statement." 13 So, that is what the letter is about. 14 Secondly, as Mr Justice Holgate observed, the letter 15 does not say: you should not therefore designate or 16 should not have designated the ANPS. 17 But, in fact, it specifically says these matters are 18 something that they look forward to being dealt with 19 through the Aviation Strategy. 20 My Lord, the Aviation Strategy is something -- as 21 your Lordships will know -- that is coming down the 22 line. It has been the subject of consultation and it is 23 due later this year. That is dealt with in Ms Low's 24 first witness statement, if you need it, at paragraphs 25 331 to 332. 39 1 MR JUSTICE HOLGATE: Was the letter sent before designation? 2 I thought it was sent at the beginning of the month. 3 MR MAURICI: The letter is in bundle 13, tab 30. I will 4 just have a look. 5 (Pause) 6 My Lord, it was sent on 14 June, so that is -- 7 MR JUSTICE HOLGATE: Yes. 8 MR MAURICI: Yes. I am trying to remember now when we 9 designated the NPS. 10 MR JUSTICE HOLGATE: I thought it was designated at the end 11 of the month. 12 MR PLEMING: 28 June. 13 MR MAURICI: So, it was before, yes. So, it does not say: 14 you should not adopt the NPS. 15 It says: we look forward to these matters being 16 dealt with through the Aviation Strategy. 17 The final of my overarching points is one that has 18 been touched on a number of times already, and that is 19 this: the Friends of the Earth say -- see, for example, 20 their skeleton at paragraph 46 -- that the UK Government 21 policy on climate change is out of sync with the Paris 22 agreement, and that the Paris agreement necessarily 23 means that the 2050 target will have to be changed. 24 My Lords, we disagree with that. 25 My Lords, can I ask you to go in bundle 13, please, 40 1 to tab 31. I need to begin by saying something about 2 the date of this document. So, this is the response -- 3 LORD JUSTICE HICKINBOTTOM: Could I have the page number? 4 MR MAURICI: Sorry, my Lord, page 295. It is SB13/31/295. 5 I need to say something about the date of this 6 document because, in the index, it is said that this 7 document is dated July 2018, but it doesn't actually 8 have a date on it. The actual date of this document is 9 10 April 2018. If you want to see something on that, we 10 can certainly produce some documents, but it is 11 confirmed that is the date on Plan B's own website, and 12 we also have the email to the GLD serving the document, 13 which was 10 April. 14 My Lord, the reason it says "for the hearing on 15 4 July" is what happened was the oral hearing was listed 16 in March 2018 for Plan B's claim, but it was adjourned 17 by the judge for two reasons; (1) they didn't have 18 enough time; (2) the judge wanted the climate change 19 committee to file this kind of document. So, 20 a direction was made, in March, that this document be 21 filed. They already had, at that point, fixed a date 22 for the hearing to take place. So, this document, 23 although it says "July hearing" was a 10 April 2018 24 document. If that is disputed, I can produce the 25 relevant documents, but I don't anticipate that it will 41 1 be disputed, as it is clearly recorded on Plan B's own 2 website. 3 If I invite you to go to 297 in the document, this 4 is what the climate change committee said. This is 5 paragraph 11(v), right at the bottom: 6 "In considering the implications of the political 7 agreement reached in Paris for the UK's 2050 target, it 8 is necessary to translate the temperature goal in the 9 agreement to what this could mean for UK emissions. 10 Having considered this in our 2016 report, we noted that 11 'the UK 2050 target is potentially consistent with 12 a wide range of global temperature outcomes'." 13 Page 16. That is a cross-reference to their 2016 14 advice: 15 "The CCC recommended no change to the existing UK 16 2050 target [at that time, October 2016], not because 17 a more ambitious target was infeasible, but rather 18 because the existing UK target was potentially 19 consistent with the more ambitious global temperature 20 goals, including that in the Paris Agreement." 21 So, my Lord, that is the climate change committee's 22 position based on their own advice that they gave in 23 2016. 24 My Lords, I should say you don't actually have the 25 relevant page 16 in the bundle because you only have the 42 1 executive summary, I think, of the advice. So, again, 2 I don't trouble your Lordships with it, but if you want 3 more of the climate change committee's advice, then we 4 can certainly provide that. 5 Just to clarify further what the position -- 6 MR JUSTICE HOLGATE: Sorry, just to make sure I have grasped 7 this, this reply is part of the context of a Plan B JR, 8 which was seeking to challenge an ongoing failure on the 9 part of the relevant Secretary of State to amend the 10 2008 Act. 11 MR MAURICI: Correct. To reflect Paris, correct. 12 MR JUSTICE HOLGATE: The statement of facts and grounds we 13 have at tab 23. 14 MR MAURICI: My Lord, yes. 15 MR JUSTICE HOLGATE: Okay. 16 MR MAURICI: My Lord, can I ask you to go to one other 17 document relevant to this, just to further clarify the 18 position taken by the climate change committee. This is 19 a document that does post date designation, but it 20 effectively explains the position consistently -- 21 entirely consistently with that. It is in the 22 authorities bundle. My Lord, it is authorities 23 bundle 5, tab 133. 24 My Lord, this was the judgment of 25 Mr Justice Supperstone following the oral renewal. 43 1 I don't cite it as an authority, as such, because I am 2 really only looking at it to see what the position of 3 the climate change committee was, consistent with the 4 document we just looked at. 5 If we go first of all to paragraph 12, this is 6 referring to Mr Lord, who was a policy officer at the 7 Department for Business, Energy and Industrial Strategy. 8 MR JUSTICE HOLGATE: I beg your pardon, could you give me 9 the reference again? 10 MR MAURICI: Sorry, my Lord, yes. Authorities bundle 5, 11 tab 133. It is paragraph 12, you will see there is 12 a reference to Tim Lord, who is a policy officer at the 13 Department for Business, Energy and Industrial Strategy, 14 and the judge is talking about his witness statement. 15 If you look at 13, Mr Lord continues at paragraph 10: 16 "The essential point is that both the Committee and 17 the Secretary of State agree that, as at October 2016, 18 the position was that the 2050 target did not need to be 19 amended at that time because it was not incompatible 20 with the Paris Agreement, but that the level of the UK's 21 ambition should be revisited when appropriate 22 opportunities arise." 23 Then, my Lord, if you go forward in the judgment to 24 paragraph 25: 25 "Mr Richard Gordon QC for the Committee [that is the 44 1 climate change committee] submits it is clear the 2 Committee's position was that it was neither necessary 3 nor appropriate to amend the 2050 target at the time it 4 provided its advice, in October 2016. As for the 5 claimants' suggestion that the government decision not 6 to amend the 2050 target is based on a misunderstanding 7 of the Committee's advice, it seems to me to be quite 8 clear, from the executive summary and the main body of 9 the report, that the Committee's view was that emission 10 reductions of greater than 80 per cent by 2050 are 11 feasible. Indeed, the Committee said that it was 12 feasible to amend to the order of 90 per cent, but 13 plainly they had their eye on the zero target (see 14 paragraph 21 above). 15 "I agree with Mr Gordon that the Committee's 16 position was that the existing 2050 target is compatible 17 with the Paris Agreement, and that overall the 18 Committee's assessment is that the 2050 target is 19 potentially consistent with a wide range of temperature 20 outcomes. As Mr Gordon observes, one end of the Paris 21 ambition, 1.5, probably implies a greater than 22 80 per cent reduction by 2050 in the UK, the other part, 23 well below 2 degrees, does not. I reject the suggestion 24 that the Committee has changed its position." 25 My Lords, you will know that from the Paris 45 1 Agreement. If you go back to paragraph 10 in this 2 judgment, you can see Article 2 of the Paris Agreement 3 set out. Article 2(1)(a) says: 4 "Holding the increase in the global average 5 temperature well below 2 degrees and pursuing efforts to 6 limit the temperature increase to 1.5." 7 So, what's being said is that if you are limiting 8 well below 2 degrees, the climate change committee is 9 saying that is potentially consistent, potentially 10 consistent -- 11 MR JUSTICE HOLGATE: Yes, the trouble is though -- "well 12 below" is something above 1.5, and the validity of that 13 argument depends on how far "well below". 14 MR MAURICI: That's true. 15 MR JUSTICE HOLGATE: The closer you get to 1.5, the less 16 true that statement is. 17 MR MAURICI: True, my Lord. The only reason I go to any of 18 this, my Lord, is to make a submission in a moment that 19 I will make, that there is no certainty that there will 20 be a change at all in due course. There may be. 21 I accept there may be, but there is no certainty that 22 there will be. 23 My Lords, I won't read it now, but I ask you also in 24 due course -- also relevant in explaining the climate 25 change is paragraph 26 and paragraph 30 of that 46 1 judgment. Again, referring to advice given by the 2 climate change committee in 2016. I won't take up time 3 looking at those now. 4 So, the position is in my submission, before we set 5 off looking at the issues, first, we know in 2016 the 6 climate change committee advised not to amend the 7 target, and that advice is still extant because there 8 has been no further advice, yet. That further advice is 9 coming in May. 10 Second, one of the reasons why it is said not to 11 amend was because the 2050 target may be consistent with 12 the obligations of the Paris Agreement. May be. 13 So, it may need to change. It may not. 14 Of course, under the Climate Change Act, before we 15 can amend those targets we must obtain the climate 16 change's committee's advice, see section 3.1. That 17 process has now started, post-designation, with the 18 advice expected in May. If the target is to change, we 19 cannot know now how it will change because we must await 20 the climate change committee's advice and we must await 21 the government's response. 22 My Lords, the fact that there was and has been 23 internal thinking about the implications of Paris within 24 government in no way detracts from any of those points. 25 Can I just add this: at various points in the 47 1 proceedings, in the original claims, some of the 2 claimants, including the boroughs, sought to argue the 3 Secretary of State had acted unlawfully by adopting the 4 ANPS when he did, instead of waiting for, first of all, 5 the IPPC advice, and then I assume waiting also for that 6 process to play out with the climate change committee, 7 et cetera. 8 Nobody has actually pursued that argument that we 9 were required to, as a matter of law, to pursue those -- 10 to wait, rather than to designate then. 11 My Lords, rightly so, because, as I have said to 12 you, there are mechanisms which allow any change to be 13 taken into account. 14 I should just say before I move on to my next topic, 15 which is the legal context: Mr Wolfe, in his relief 16 submissions that he submitted prior to the hearing, 17 suggests that this point about the 2050 target being 18 potentially consistent with Paris is a new point that we 19 are taking. 20 My Lords, can I just ask you to look, in due course, 21 in our amended detailed grounds, but not in an amended 22 part, CB1/17. It is paragraphs 34.3 and 34.4. This 23 point has always been part of our case. Indeed, it was 24 in the summary grounds, too. It is also in Ms Low's 25 statement, but I don't think we need to go to that. 48 1 My Lords, can I then touch on the legal context? 2 Here I focus, first of all, on the Climate Change Act 3 itself. I don't ask you to turn it up because Mr Wolfe 4 took you to it, but can I just make some key points 5 about the central features of that Act insofar as it is 6 relevant to these proceedings? 7 First of all, the 2050 target, as your Lordships 8 know, is set by section 1, and that is an 80 per cent 9 reduction in carbon by 1990. 10 Secondly, section 2, in my submission, is absolutely 11 key because that is the power given to the Secretary of 12 State to amend the target by either amending the 13 percentage or the baseline date if it appears to the 14 Secretary of State that there has been significant 15 developments in European or international law or policy. 16 That is the mechanism by which Paris, if it is to be 17 given effect, should be given effect. 18 My Lords, we know, of course, Plan B's judicial 19 review -- which failed -- was an attempt to force those 20 targets to be changed. 21 My Lords, if you just look in authorities bundle 1, 22 we have the Climate Change Act at tab 4. You also have, 23 at tab 5 -- just briefly I will refer to this -- you 24 have some of the explanatory notes to the Act. You will 25 see at the bottom of the first tab of page 5, in 49 1 describing section 2.2(a), which is the relevant 2 section, it says: 3 "Paragraph (a) allows an amendment because there had 4 been significant developments in scientific knowledge 5 about climate change in European Community law or 6 policy, or in international law and policy. For 7 example, this power might be used in the event of a new 8 international treaty on climate change. 9 So, not surprisingly, it was always intended by 10 Parliament that if there was a new climate change 11 treaty, the way to give it effect would be under 12 section 2 of the Climate Change Act 2008. 13 Then, my Lord, section 3.1, the key point from that 14 is that before amending those targets or the baseline 15 year there is a mandatory requirement for consultation 16 with the climate change committee. The Secretary of 17 State must obtain and take into account the advice of 18 the Committee on Climate Change. 19 My Lords, there are a number of provisions that 20 follow about carbon budgets, which are sort of the key 21 mechanism under the Act. You will see section 4 is 22 headed "Carbon budgets" and introduces them. I don't 23 need to say too much about them. They are future 24 looking. They must be set 12 years in advance with 25 five-year budget periods. 50 1 What is perhaps more relevant to us is if you go 2 forward to section 10 in the Act, this is in tab 4 of 3 the authorities bundle. Section 10, you will see the 4 matters that are required to be taken into account by 5 the Secretary of State when setting carbon budgets. 6 They include things like 2(a), obviously scientific 7 knowledge and technology, but also (c) economic 8 circumstances, (d) fiscal circumstances, (e) social 9 circumstances. 10 Then, My Lords, of course, to save us coming back to 11 this, you will see at 2(i): 12 "The estimated amount of reportable emissions from 13 international aviation and international shipping for 14 the budgetary period or periods in question." 15 My Lords, the reason for that, of course, is that 16 section 30 of the Act, which you have in the bundle, 17 section 30(1): 18 "Emissions of greenhouse gases from international 19 aviation do not count as emissions from sources in the 20 UK for the purposes of this part of the Act, except as 21 provided by regulations made by the Secretary of State." 22 So, international aviation is excluded as counting 23 as emissions in this part of the Act, but as we saw back 24 in section 10(2)(i), you do nonetheless have to have 25 regard to, in setting your carbon budgets, the estimated 51 1 amount of reportable emissions from international 2 aviation. 3 You will also know that there is provision within 4 the Act to add other greenhouse gases into the regime 5 beyond carbon. We do not have that provision, I don't 6 think. 7 LORD JUSTICE HICKINBOTTOM: Section 24. 8 MR MAURICI: My Lord, yes, exactly. 9 My Lords, I should just touch on the planning 10 assumption because -- I will deal with it briefly. You 11 can probably put that away, but the planning assumption 12 is described, first of all, in the statement of common 13 grounds, so I'll give you the reference. It is CB6, so 14 core bundle 6, tab 4, pages 68 to 69, paragraphs 8 and 15 9. It is also dealt with in Ms Low's first witness 16 statement, paragraphs 454 to 456, which is core 17 bundle 4, tab 1, pages 183 to 184, and also in 18 paragraphs 461 to 462 of that witness statement, at 19 page 185. 20 My Lords, as you know, the planning assumption is 21 the approach that has been advised by the climate change 22 committee to be taken in relation to how one takes into 23 account international aviation. But, my Lord, it has 24 not as yet been adopted as policy by the government, 25 albeit the government has set its budgets by reference 52 1 to it. 2 One of the things the Aviation Strategy -- that is 3 coming later in the year -- is looking at is whether to 4 accept, or not, the planning assumption. 5 My Lord, some other brief points on the statutory 6 regime, in particular the Climate Change Act. 7 First of all, the parties have agreed -- again in 8 the annex to the statement of common ground, the climate 9 change annex, which is core bundle 6, tab 4, page 68, at 10 paragraph 7 -- that the Act, the Climate Change Act, is 11 the legislative centrepiece of the UK's efforts to 12 tackle climate change. My Lord, there are two points in 13 my skeleton, which I will just refer to now. I will 14 give you the references. My Lords, paragraph 150(2), we 15 say the UK is a world leader on climate change. Of 16 course, the Climate Change Act was the first Act 17 anywhere to set legally binding targets. 18 Then, my Lords, we also make the point, in 19 paragraph 160 of the skeleton, that if you look at the 20 UK carbon budgets, the target reduction from 1990, by 21 2030, is 57 per cent in the UK. The EU's target is 22 40 per cent. 23 Then, my Lords, I think just two other things on the 24 statutory regime. First of all, I don't ask you to go 25 back to them, but when you look at the explanatory notes 53 1 to the Act, which are in authorities bundle 1, tab 5, 2 you will see at paragraphs 29 and 486 that the Act was 3 specifically made in the context of giving effect to 4 Kyoto. That is specifically mentioned and dealt with. 5 My Lords, I think at one point Mr Wolfe said that 6 the Kyoto Protocol had run its course by 2012. It is 7 not quite right because there was a follow up to that, 8 which runs until 2020, that was agreed in Doha, in 2012, 9 but I don't think we need to trouble ourselves with 10 that. 11 Can I then turn to the relationship between the 12 Climate Change Act and the Planning Act, which is really 13 the final thing on the legislative regime? 14 Do you have a copy of the Hansard citation notice 15 that we put in with our skeleton argument? It came with 16 our skeleton. If not, we have some spare copies, 17 I believe. I don't think it made it into the bundle of 18 skeletons. 19 LORD JUSTICE HICKINBOTTOM: No. 20 MR MAURICI: So, I will hand it up. 21 LORD JUSTICE HICKINBOTTOM: No, I am afraid we don't have 22 that. 23 (Handed) 24 I think everyone else has it, but there are some 25 spare copies there. 54 1 My Lords, you have the relevant Hansard extracts in 2 the authorities bundle, but I wanted to just go to 3 paragraph 5 of the note and to just briefly run through 4 what we take from this Hansard material. 5 The reason we go to it is not because we say there 6 is any ambiguity in legislative provisions, but as we 7 have explained in our skeleton, it's effectively to look 8 at what the mischief was; what was the Act intended to 9 do? But, more importantly: what were these provisions 10 that we were discussing in this case? So, section 5(8), 11 section 10(3), why were they introduced? What was the 12 purpose of introducing them? So, it is more about 13 mischief and purpose. 14 At 5, you will see the Planning Bill -- now of 15 course the Planning Act -- was developed jointly by the 16 relevant departments. You will see that what is said in 17 a number of places in Hansard is that the Planning Bill 18 and the Climate Change Bill along with the Energy 19 Bill -- which we are not concerning ourselves with -- 20 formed an overall framework for tackling climate change 21 and an integrated package to ensure we can meet our 22 challenging targets on climate change. I have given you 23 where we have taken those from in the Hansard material. 24 Secondly: 25 "The government explained that NPSs will need to set 55 1 out how proposals for major infrastructure take into 2 account any obligations and targets flowing from the 3 Climate Change Bill, and that the Planning Bill will be 4 subject to the provisions of the Climate Change Bill." 5 My Lords, what we take from that is one is intended 6 to read these acts together. The Planning Act is to be 7 read with the Climate Change Act. We would say, 8 therefore, the relevant obligations in the Planning Act 9 are, in terms of climate change, to be read alongside 10 the Climate Change Act. 11 Then, my Lords, 3: 12 "Section 5(8) and 10(3) were not within the version 13 of the Planning Bill introduced in the House of 14 Commons." 15 So, those are two provisions. As you know, one 16 dealing with reasons; the other one dealing with duty to 17 have regard to matters, which deal with climate change 18 mitigation and adaptation. Those weren't in the 19 Planning Bill. They were introduced later on: 20 "These provisions were originally from amendments 21 introduced by the government, both introduced at the 22 same time, when the Planning Bill was ... in the House 23 of Lords. Clause 9(2) sets out the duty of the 24 Secretary of State when exercising powers to designate 25 and review national policy statements, to do so with the 56 1 objective of contributing to the achievement of 2 sustainable development." 3 Then, clause 5(6) about the duty, which is now 5(7). 4 Namely, national policy statement must give reasons for 5 the policy set out in the statement. 6 The amends were introduced in response to backbench 7 MPs and Lords, who wanted "a more explicit requirement 8 that climate change and reduction targets set in the 9 Climate Change Bill be considered when the NPSs are 10 drawn up." 11 So, why did these two provisions go in, these two 12 Acts with central provisions? 13 The purpose was to effectively provide an explicit 14 requirement in the Planning Act to consider not climate 15 change obligations more generally, but to consider the 16 Climate Change Bill. 17 Then, finally, you will see 5: 18 "The amendments were made to clarify [it was said by 19 ministers] or make explicit that the above duty 20 encompasses climate change issues." 21 Those are words taken from various of the 22 ministerial speeches. 23 So, my Lords, what we derive from that principally 24 is that, first of all, these are two Acts which need to 25 be read together. They need to be seen and interpreted 57 1 as a whole. 2 My Lords, secondly, the purpose of the particular 3 provisions that we are concerned with, section 5(8) and 4 section 10, insofar as they deal with climate change 5 were introduced and intended to make a link between the 6 two Acts. That is what they were intended to do. That 7 is what we say the purpose was. 8 MR JUSTICE HOLGATE: It is not as if you can point to the 9 2008 Act, the Planning Act, as containing a provision 10 which says, "This Act shall be read together with ..." 11 as you find in some legislation. Really, your argument 12 focuses on section 5(8) and 10(3). 13 MR MAURICI: Yes, my Lord. 14 MR JUSTICE HOLGATE: That is where it is given expression. 15 MR MAURICI: Yes, that is where it is given expression. 16 MR JUSTICE HOLGATE: It is no wider than that. 17 MR MAURICI: No, my Lord and the reason they were -- yes, 18 my Lord, that is absolutely right. 19 MR JUSTICE HOLGATE: But you would say it doesn't need to be 20 wider. 21 MR MAURICI: No, because that is where we are focused in 22 relation to this case. My Lord is absolutely right in 23 the way he puts it to me, but those two sections, or 24 those two subsections, were specifically introduced to 25 ensure that there was the link -- 58 1 MR JUSTICE HOLGATE: I think Mr Crosland was making 2 a similar submission, wasn't he? 3 MR MAURICI: He does make it from a slightly different 4 perspective, but he does, yes. 5 MR JUSTICE HOLGATE: Some joint. 6 MR MAURICI: My Lord, I wonder if that is a convenient 7 moment for the break? 8 LORD JUSTICE HICKINBOTTOM: Yes, certainly. Ten minutes, 9 thank you. 10 (11.30 am) 11 (A short break) 12 (11.45 am) 13 LORD JUSTICE HICKINBOTTOM: Apologies, Mr Maurici, I was 14 hijacked, but take a few minutes after 1 o'clock if you 15 need them. 16 MR MAURICI: I'm grateful, my Lord. 17 I was going to turn to the fifth of the nine matters 18 I was going to cover, and the fifth is all the Paris 19 Agreement issues save for SEA, which I will come to 20 later on. 21 My Lords, this is focused on, as you know, 22 section 10(2) and (3) of the Act, and this is Friends of 23 the Earth's ground 2, insofar as it relates to Paris. 24 Obviously, your Lordships have my central submission 25 that Paris, being an unincorporated treaty, was not 59 1 something that, on ordinary public law principles, we 2 were required to have regard to. 3 The only way around that, that can work for Friends 4 of the Earth, is to argue that the statute, the 5 Planning Act requires that it be considered, so that 6 there was an obligation on the Secretary of State in 7 designating the NPS to have regard to unincorporated 8 international obligations. 9 My Lord, we say that there is no requirement that 10 can be spelled out from the Act. Indeed, we say -- and 11 I will come to it in a moment -- that construing the Act 12 correctly, and alongside the Climate Change Act as well, 13 that actually the Act is very much pointing you against 14 doing that. 15 My Lord, can I start with just these preliminary 16 points? There is of course, if you go in the 17 Planning Act -- which is authorities bundle 1, tab 8 -- 18 to section 104 ... 19 What I say is: if this Act had intended that regard 20 must be had to unincorporated international obligations, 21 before they had been given effect to through the Climate 22 Change Act, it would have said so because it is 23 relatively unusual for an Act to require that 24 unincorporated international obligations are something 25 you have to have regard to. 60 1 What is interesting about that is, of course, 2 section 104, which applies at the DCO stage. At (4), as 3 your Lordships know, provides: 4 "If the Secretary of State is satisfied that ... in 5 accordance with any relevant national policy statement 6 would lead to the UK being in breach of any of its 7 international obligations." 8 So, my Lord, there appears to have been thought 9 given by Parliament to when international obligations 10 have to have regard to in this Act. It may be quite an 11 unusual provision, but that is what they have done, and 12 it is at the DCO stage. There is no similar provision, 13 nothing like it that applies to national policy 14 statements. 15 Having thought about it in relation to DCO stage, 16 had Parliament intended for international obligations to 17 be something that was required to be had regard to at 18 the NPS stage, it would have said so. That is the 19 simple submission I make on that. 20 Can I turn to one authority that is relevant to 21 these points? We may come back to the Act in a moment, 22 but it is in authorities bundle tab 5, tab 124. This is 23 the case of Hurst v the London North District Coroner in 24 the House of Lords. If your Lordships could turn to 25 paragraph 57, this is in the Lord Brown speech, at 57: 61 1 "Some considerations are required to be taken into 2 account by decision-makers. Others are required not to 3 be. But there is a third category, those considerations 4 which the decision-maker may choose for himself whether 5 or not to take into account." 6 Then a citation of a well-known passage from 7 CREED NZ. Then, just below the quotation, still in 57: 8 "Lord Scarman in Re Findlay approved these two 9 passages of Cooke J's judgment as a correct statement of 10 principle." 11 Then 58: 12 "Applying that principle to the present case, it 13 seems to me quite impossible to say that the 14 unincorporated international obligation on the United 15 Kingdom here was so obviously material to the coroner's 16 decision whether or not to resume this inquest that he 17 was required to give it direct consideration. Still 18 less in my judgment was he obliged to give effect to it, 19 the very contention so roundly rejected in Brind." 20 My Lord, there are then three categories of position 21 that you can be in. There can be a matter that you are 22 required to take into account, ie the statute, either 23 expressly or implicitly, because it is a matter so 24 obvious that it has to be had regard to. There are also 25 matters that you must not have regard to and, thirdly, 62 1 there are matters you can choose whether you have regard 2 to or not. 3 My Lords, the principal position of the Secretary of 4 State is that when you construe the Act properly the 5 entire intention of the Act was to deal with climate 6 change and the considerations around climate change 7 through the Climate Change Act, and it was only when the 8 Climate Change Act gave effect to such obligations that 9 they were required to be taken into account through the 10 provisions of the Planning Act. Save, of course, for 11 section 104(4), where you have a specific provision to 12 take into account international obligations. 13 In my submission, the structure is if you have a new 14 international treaty on climate change, like Paris, 15 point one is: how is that given effect? 16 We know how it is given effect through section 2 of 17 the Climate Change Act, following all the procedures 18 that are set out in that Act. 19 Secondly, when that has been done, we say, and only 20 when that has been done, and that Act has become part of 21 our law, part of the obligations around climate change, 22 part of the policy around climate change, only then are 23 you required to take it into account under 24 section 10(3). 25 Then, the third element is: if there is a change in 63 1 circumstance between the NPS being adopted and the DCO, 2 then there are ways in which that can be dealt with, 3 ie by having regard to these matters at the DCO stage or 4 by review. 5 So, what are the arguments that Friends of the Earth 6 make against this, which I say is an orthodox analysis 7 of what position should be? 8 What Friends of the Earth say, the principal 9 argument that they make, it really comes down to three 10 building blocks. First, they accept that in 11 section 5(8) of the Planning Act -- that is the reasons 12 duty in respect of climate change matters -- they accept 13 that is limited only to government policy. So, it does 14 not include the Paris Agreement. 15 They make that concession on the basis that 16 section 5(8) does use the words "government policy". 17 But, secondly, their second building block is they 18 say section 10(3)(a) is different because while it uses 19 the same language around mitigation and adaptation of 20 climate change, the words "government policy" that one 21 sees in 5(8) are missing from 10(3)(a). 22 Then, my Lords, the third building block is the one 23 I have already mentioned, which is Friends of the Earth 24 try to move the focus away from the Paris Agreement 25 itself and towards government thinking on the Paris 64 1 agreement. 2 So, those are the building blocks of Friends of the 3 Earth's argument. Against this, my Lords, the points 4 really are ones I have probably already made, but in 5 summary, if we read these Acts together -- and when you 6 read them together, the Climate Change Act and the 7 Planning Act make sufficient and express provision for 8 how international obligations on climate change are to 9 be dealt with. They are taken forward through the 10 Climate Change Act, and only when they are do they 11 become relevant in relation to an NPS and the process 12 for designating an NPS. 13 My Lords, secondly, I have made the point it would 14 be unusual for a statute to require consideration of 15 international obligations that are unincorporated unless 16 it expressly said so, and that has absolutely not 17 happened here in relation to provisions on climate 18 change. 19 My Lords, then this: we know these two provisions -- 20 my Lord, 5(8) on reasons and 10(3) -- were introduced at 21 the same time and for the same purpose. The purpose was 22 to make an express link to the Climate Change Act. 23 My Lords, I accept, as I must of course, that there is 24 a difference in wording between them, that those words 25 "government policy" are missing from 10(3)(a), but, 65 1 my Lords, I say that is inconsequential because one must 2 read them together and one must read them, I say, in the 3 light of the purpose for which they were introduced. 4 The purpose being to create that link, an express link 5 in this regard between the Planning Act and the Climate 6 Change Act. Not to introduce an obligation to have 7 regard to unincorporated international obligations that 8 have not been given effect to through the Climate Change 9 Act. 10 In terms of interpretation points, there is one 11 other point that I would draw attention to in the 12 Planning Act itself, which is tab 8 of volume 1 of the 13 authorities. My Lord, if we look at section 10 ... 14 My Lord, I am particularly here addressing whether 15 one should read 5(8), the reasons obligation on climate 16 change, to be doing something different and narrower 17 than the obligation in 10(3)(a) in terms of climate 18 change matters because the latter doesn't contain these 19 words "government policy". But, my Lord, section 10 20 begins, 10(1): 21 "This section applies to the Secretary of State's 22 functions under section 5 and 6." 23 So, one of the functions to which this applies is 24 section 5(8), ie the section which deals with climate 25 change and reasons for climate change, and is focused on 66 1 government policy. So, I say that's another reason why 2 one really has to make sense of this, read together 5(8) 3 and 10(3)(a), and not interpret them to have a different 4 scope. 5 There is also a point that we make in our skeleton, 6 at paragraph -- 7 MR JUSTICE HOLGATE: Sorry, to make sure I am following you, 8 so the effect of this is that 10(3) relates to policy? 9 MR MAURICI: Well, my Lord, reading them together, that is 10 what I say, yes. 11 MR JUSTICE HOLGATE: But not a legal obligation? 12 MR MAURICI: Not a legal obligation, my Lord, no, because 13 one of the points that's made by -- I should just pick 14 that up, my Lord. One of the points that's made by 15 Mr Crosland -- just for your note, it was the transcript 16 Day 3, lines 12 to 14 -- he says -- Mr Maurici says that 17 section 5(8) relates effectively -- because remember 18 Mr Crosland is arguing about section 5(8) and what the 19 policy means. He says section 5(8) relates only to 20 legislative commitments and obligations. 21 But that is not correct. I am not saying that 22 government policy, as defined in 5(8), only means 23 legislative obligations. After all, I have agreed 24 a statement of common ground, the annex with Friends of 25 the Earth, which says that the policy consists of not 67 1 just the Act, but also, for example, APF, the aviation 2 policy framework. So, it is not just legislative 3 provisions. It can also include policy, and it says 4 "government policy", and I accept it means government 5 policy. But, of course, Friends of the Earth and the 6 Secretary of State are agreed that this doesn't include 7 Paris, at this stage. 8 My Lords, paragraph 181 of the skeleton, we don't 9 need to turn to it, but one of the points we make there 10 is if you do read 5(8) and 10(3)(a) to have a different 11 scope -- which is what Friends of the Earth urge you to 12 do -- it is a slightly odd result that they are 13 contending for. It would be that you are required -- in 14 terms of climate change under 10(3)(a) -- to have regard 15 to matters going beyond government policy -- so, for 16 example, international obligations or thinking about 17 them -- but you are not required to set them out in your 18 reasons. 19 I say that would be an odd result for Parliament to 20 have intended, and the better analysis is that one reads 21 these provisions together. 22 My Lords, my principal submission in relation to all 23 of this is that, first of all, when one reads these Acts 24 together, the position is that you are expressly not to 25 take into account international obligations, unless you 68 1 are specifically directed to do so. There are only two 2 ways they can come in across both of these Acts. One is 3 through section 2 of the Climate Change Act, you can 4 amend your domestic obligations based on international 5 obligations, but, secondly, one also has in 6 section 104(4), at the DCO stage, the possibility of 7 having regard to international -- 8 MR JUSTICE HOLGATE: That is saying something slightly 9 different. You are not to take them into account unless 10 expressly directed to do so. That is not the same as 11 paragraph 57 of Hurst, which says you may take -- sorry. 12 MR MAURICI: My Lord, my principal argument has always been 13 that when you construe the Act properly, it is actually 14 telling you not -- effectively, we say telling you not 15 to have regard to these things. That is the principal 16 way I have always put it. But, my Lord, the fall back 17 argument, as I have called it, is if we are wrong on 18 that, then Hurst. 19 MR JUSTICE HOLGATE: Hurst, okay. 20 MR MAURICI: Yes, Hurst. You may recall what Mr Wolfe said 21 was that there was a fallacy, and he put the case in 22 that way to your Lordships, because what he said was you 23 can't rely on Hurst as a fall back because if you 24 thought the Act required you not to take it into 25 account, you can't have exercised a discretion -- was 69 1 the way he put it -- whether to take it into account or 2 not. 3 My Lord, that misunderstands, in my submission, 4 Hurst and Brind completely because what the case law 5 actually says is that matters like international 6 obligations don't need to be considered. So, think 7 about this for a moment: if you had failed, in Brind for 8 example -- which was the ban on Sinn Fein speaking on 9 the news -- you couldn't say, "This decision is unlawful 10 because you failed to consider whether to apply the 11 European Convention on Human Rights". Why not? Because 12 international obligations are not things that you are 13 required to take account of. Nor are you required to 14 think about whether you will take them into account. 15 All there is, if Hurst and Brind applies, is you 16 have a choice. The discretion is the choice: do you 17 take them into account or not? There is no obligation 18 to consider whether you take these things into account. 19 Otherwise there would be lots of decisions that were 20 challenged by reason of the fact that the government 21 didn't consider this particular obligation and whether 22 it should choose to apply them. 23 MR JUSTICE HOLGATE: I don't see the point that is being 24 made against you here because the first point is 25 a question of construction. 70 1 MR MAURICI: My Lord, yes. 2 MR JUSTICE HOLGATE: The second would arise if you are wrong 3 on the construction. 4 MR MAURICI: That is the way I put it. 5 MR JUSTICE HOLGATE: That is why it is a fall back. 6 MR MAURICI: Yes, that is the way I put it. I maybe don't 7 need to say anymore about that. 8 There was one other point on Paris from Mr Wolfe's 9 submissions that I need to cover. For your Lordships' 10 reference this was in the transcript, Day 3 again, pages 11 58 to 60. Mr Wolfe developed an argument that we had 12 failed to consider, under section 10(2), the objective 13 of contributing to the achievement of sustainable 14 development, in which I think he then encompassed, or 15 tried to encompass Paris or thinking around the Paris 16 agreement. 17 My Lords, you may remember the way he put it was he 18 took your Lordships to a footnote in the ANPS, 19 footnote 125, which for your Lordship's reference is 20 volume 6, tab 7, page 203, which only refers to 21 effectively section 10(3)(a), mitigating and adapting to 22 climate change, in the footnote. He also took your 23 Lordships to our amended detailed grounds at 24 paragraph 61, which just for the reference is volume 1, 25 tab 17, page 514. 71 1 And said, "Again, you have only referred there to 2 effectively 3(a)". On the basis of that, he made 3 a submission: well, you have therefore failed to have 4 regard to the objective of contributing to the 5 achievement of sustainable development entirely. 6 Three short points on that. 7 First of all, I am going to make the submission that 8 is an overly forensic point to be pursuing. 9 My Lords, secondly, as I pointed out when dealing 10 with air quality and the argument around Article 12 of 11 the Air Quality Directive and sustainable development, 12 the ANPS is replete with references to the need to 13 consider sustainable development and for this to be 14 sustainable development. Perhaps not surprisingly given 15 the general thrust of government planning policy in the 16 NPFF. 17 Thirdly, the key provision, in my submission, must 18 be 10(3)(a) and what it requires in terms of considering 19 the desirability of mitigating and adapting to climate 20 change. 21 If your Lordships were to agree with me -- that 22 needs to be read alongside 5(8) as not including 23 unincorporated international obligations -- in my 24 submission it can't be right that then one brings them 25 back in through section 2 and the more general 72 1 obligation for the achievement of sustainable 2 development. There is specific consideration being 3 given to this in 10(3)(a), and either that gets my 4 learned friend home or it doesn't, in my submission, in 5 terms of what is required. 6 My Lords, those are the submissions I make on Paris, 7 save for the SEA point, which I am going to come back to 8 a bit later on. 9 Can I turn to my sixth heading, which is Friends of 10 the Earth's ground 1 and reasons? I intend to deal with 11 this relatively shortly. The challenge, as pleaded, is 12 that the Secretary of State failed to comply with his 13 duty under section 5(8), to explain how the policy and 14 the NPS takes account of government policy relating to 15 the mitigation and adaptation of climate change, Ie if 16 you remember, Mr Wolfe raises five points -- which he 17 says are not clear -- from the ANPS, about how carbon 18 policy works in this ANPS. As a result of those five 19 issues, either individually or all together, the policy 20 is uncertain and therefore there have been inadequate 21 reasons given for the policy. 22 My Lords, the first thing is I won't take your 23 Lordships back through all the paragraphs of the ANPS, 24 but just so your Lordships have it in the transcript. 25 In core bundle 6, volume 7, I would ask you in due 73 1 course to look back over paragraphs 3.61 to 3.69, which 2 is pages 233 to 234, and also paragraphs 5.69 to 5.83 3 which are pages 261 to 264. 4 My Lords, I say that those provisions clearly set 5 out what the policy is in relation to carbon and climate 6 change, and that what is said there is sufficient to 7 meet the section 5(8) obligation to set out reasons for 8 the policy. 9 Friends of the Earth and Plan B may disagree with 10 the Secretary of State's policy, but they can't say 11 reasons have not been given for what the policy is. 12 My Lords, you will also have seen that at page 261, 13 in footnote 162, before setting off in the climate 14 change section to set out what the policies are, the 15 Secretary of State does specifically have regard to and 16 cite section 5(8) and the obligation that sets on him. 17 So, he directed himself correctly to the obligation in 18 section 5(8) to give reasons. 19 Then, my Lord, can I ask you then to turn to our 20 skeleton, please, at paragraph 168 because I say this 21 sets the context for the various complaints that are 22 made by Mr Wolfe in relation to climate change. At 23 paragraph 1.68 of our skeleton, we say although framed 24 as a reasoned challenge under section 5(8), what is seen 25 and said to be sought by Friends of the Earth is some 74 1 form of declaratory relief as to the meaning of certain 2 passages in the ANPS, and this is both misconceived and 3 inappropriate. Then this: 4 "The courts have recognised (see Tesco and Dundee) 5 that planning policies are not to be construed as if 6 they were statutory or contractual provisions, nor need 7 they be drafted in such a way. Moreover, by their 8 nature, they are full of broad statements of policy, not 9 readily capable of detailed legal analysis and which are 10 difficult to reconcile if construed strictly. In 11 addition, many of the provisions of planning policy are 12 framed in languages, application to a given set of fact 13 requires the exercise of judgment." 14 See also Hopkins, and also Nicholson and Allerdale, 15 which is a decision of Mr Justice Holgate. 16 My Lord, the nature of planning policy -- as your 17 Lordships will appreciate -- is that it may not always 18 be possible to answer every single possible issue and 19 question that might arise at the DCO stage simply from 20 reading the policy at this point because it depends on 21 the facts and because policy can't cover all scenarios. 22 It can't specifically deal with each and every situation 23 that might arise. That is the nature of planning 24 policies, that they set out what are sometimes very 25 broad statements and those statements then have to be 75 1 applied in individual cases. 2 My Lords, what is the situation here? 3 My Lords, five issues were raised. On four of them 4 my learned friend was -- if I can put it this way -- 5 happy with our answers. So, issue 1 was: does the NPS 6 conclusively presume that the northwest runway scheme is 7 compatible on climate change grounds and carbon? 8 Obviously, our answer is no, as the policies 9 themselves make clear. You have to demonstrate that on 10 the actual scheme that you bring forward. 11 My Lord, secondly, on 5.82 of the NPS, Mr Wolfe 12 said: what targets are being referred to? 13 We have responded by saying it is the targets in the 14 Climate Change Act. 15 On issue 3, the question was: does the applicant's 16 obligation to undertake an assessment on carbon include 17 international aviation, and we have said yes. 18 And then leave issue 4 for a moment. 19 Issue 5 was: does the assessment have to include 20 emissions in flight? Again, we have said yes. 21 My Lord, pause for a moment about whether Mr Wolfe 22 is happy with those or not because there is a question 23 about what your Lordships should do about this, which I 24 will come to in a second. But the one issue which 25 Mr Wolfe remained unhappy with is about the question of 76 1 what material impact meant in the policy. If you go to 2 the policy of the ANPS itself, volume 6, tab 7. 3 I should say that our answers to all of these issues, 4 are set out in the annex to Ms Low's first witness 5 statement which is core bundle 4, tab 1, pages 283 to 6 285. 7 My Lords, 5.82 in the ANPS, page 263: 8 "Any increase in carbon emissions alone is not 9 a reason to refuse development consent unless the 10 increase in carbon emissions resulting from the project 11 is so significant that it would have a material impact 12 on the ability of the government to meet its carbon 13 reduction targets including carbon budgets." 14 Mr Wolfe says, well, we don't know what that means, 15 we don't know what material impact means in terms of 16 meeting the targets. 17 My Lords, can I just hand up a single sheet to your 18 Lordships which I gave to my learned friend earlier. 19 I have some spare copies here. 20 (Handed) 21 This is an extract from the National Policy 22 Statement for National Networks. This is an NPS in 23 respect of road schemes and it was designated 24 in December 2014. If you look at 5.18 under "decision 25 making", about seven lines down: 77 1 "Therefore, any increase in carbon emissions is not 2 a reason to refuse development consent unless the 3 increase in emissions resulting from the proposed scheme 4 are so significant that it would have a material impact 5 on the ability of the government to meet its carbon 6 reduction targets." 7 My Lord, the language very similar if not identical 8 to what we see in 5.82. 9 That policy has been in place for five years. It 10 has been applied and considered at numerous examinations 11 and, my Lord, in my submission there can't possibly be 12 any sensible suggestion that the failure to further 13 define what material impact means renders the policy 14 unlawful for a failure to give reasons. 15 My Lord, this brings me on to: what is this ground 16 really about and where does it go? Because what we have 17 had throughout these proceedings in my submission are 18 a sort of set of exam questions that have been asked at 19 each stage by Friends of the Earth about questions they 20 would like to know the answer to on particular points 21 arising from the ANPS. As we have answered each one of 22 those new ones have emerged. What they are now trying 23 to do is to set that examination paper for your 24 Lordships. Here are their five questions; they would 25 like answers to them. 78 1 My Lord, we have given you our answers and if your 2 Lordships are happy with them and want to say that is 3 what the position is, then we have no objection, but the 4 ground of challenge can only be that we have given 5 inadequate reasons, so that the policy is so unclear 6 that this should be quashed on the basis of a failure to 7 give proper reasons. 8 My Lords, in my submission that is hopeless. It is 9 quite clear what's meant. It is clear enough, 10 certainly, for a planning policy to be valid. If your 11 Lordships agree that the policy is sufficiently clear, 12 there is no requirement in my submission for your 13 Lordships to go on and give declarations and answer all 14 of these questions. Why not? It is similar really, 15 although not entirely the same as the submission I made 16 in relation to some of the air quality points. Because 17 there will be a specific DCO application made which will 18 have, no doubt, very scheme specific points but will 19 deal with carbon, there will be a full assessment, the 20 parties will make submissions on what the policy means 21 and how it applies to that DCO. The examining body will 22 write a report recommending what the position is and the 23 Secretary of State or one of his ministers will decide, 24 and of course there can be a judicial review at that 25 stage. 79 1 So in my submission there can't be a requirement for 2 your Lordships to answer all these questions. What your 3 Lordships need to do is to be satisfied that on the 4 points Mr Wolfe has made, issues 1 to 5, that the policy 5 is sufficiently clear that we have given good enough 6 reasons for it. 7 MR JUSTICE HOLGATE: I have to say analytically I don't 8 understand this argument. If it is said that a policy 9 is unclear, then it is a matter for the court to 10 interpret it. It has nothing to do with the duty to 11 give reasons for the policy. 12 MR MAURICI: My Lord, there is that logic in prior point. 13 If you look at all the points that are raised they are 14 not really about reasons at all. 15 MR JUSTICE HOLGATE: It is nothing to do with reasons, it 16 is, as you just said, a question as to what the policy 17 means. 18 MR MAURICI: It is, my Lord. 19 LORD JUSTICE HICKINBOTTOM: If you are right and they are 20 clear, they are clear. 21 MR MAURICI: They are clear. 22 LORD JUSTICE HICKINBOTTOM: I mean -- 23 MR MAURICI: But, my Lord, if -- 24 LORD JUSTICE HICKINBOTTOM: If they are clear we don't have 25 to -- 80 1 MR JUSTICE HOLGATE: It is just a non-issue. 2 MR MAURICI: No, it is a non-issue. You don't have to in 3 the judgment go through and answer the exam paper that 4 you have been set by Friends of the Earth, as we have. 5 MR JUSTICE HOLGATE: You certainly don't need to do it under 6 the umbrella of a reasons challenge. 7 MR MAURICI: No. My Lord, that is of course the only way it 8 is put of course, is it not, for this point? I accept 9 there may be other -- I think the point my Lord 10 Mr Justice Holgate is putting to me is there may be 11 issues on this including carbon which require you to 12 think about what the ANPS means but it is not this 13 ground. 14 LORD JUSTICE HICKINBOTTOM: If they are clear they are clear 15 and if they are unclear, if they are unclear, it may be 16 very difficult for us to tell what they are intended to 17 mean. 18 MR MAURICI: Yes, my Lord, I accept that. 19 I haven't really got anything to say about the 20 reasons ground unless I can help you further on that. 21 Can I turn to a separate issue which is non-CO2 22 emissions. My Lords, what I want to do is to take up 23 a number of references in a moment in relation to this 24 point, but obviously the first point about this is that, 25 as I pointed out earlier, and indeed I think, as 81 1 my Lord Lord Justice Hickinbottom pointed out on Day 3, 2 section 24 of the Climate Change Act has this express 3 power to extend the Climate Change Act to cover 4 non-carbon emissions, and that power obviously hasn't 5 been exercised at this stage. 6 I want to take your Lordships to a series of 7 references. 8 MR JUSTICE HOLGATE: Is that section 24 again? 9 MR MAURICI: Yes, it is, my Lord. I want to take up 10 a series of references which deal with this issue about 11 how non-CO2 emissions were dealt with and how they 12 should have been dealt with. 13 Can I start with the Aviation Policy Framework which 14 is in core bundle 7, tab 2. If you go to page 66 in 15 that document, and you will recall this of course is 16 a document which is agreed by Friends of the Earth and 17 the Secretary of State to be part of government policy 18 and it does include government policy on climate change, 19 as we can see from page 66. 20 It was adopted in 2013 but it remains government 21 policy up until the Aviation Strategy replaces it, as 22 I say, which is expected to be later on in the year. 23 At 66 you have paragraph 2.1, and a heading 24 "Context": 25 "Aviation's most significant contribution to climate 82 1 change in the longer term is through emissions of carbon 2 dioxide which make up about 99 per cent of the sector's 3 Kyoto basket of greenhouse gas emissions, and this has 4 therefore been the focus of government action. But we 5 recognise that the complexities of atmospheric chemistry 6 mean that the total climate change impacts of aviation 7 are greater than those from its CO2 emissions alone. 8 Non-CO2 emissions from aviation can have both cooling 9 and warming effects on climate, with a likely overall 10 warming impact on the atmosphere. Nitrogen oxides, 11 sulphur oxides and water vapour all contribute to the 12 overall effect, with NOx emissions resulting in the 13 production of ozone, a greenhouse gas and air pollutant 14 with harmful health and ecosystem effects. However, 15 despite advances over the past decades considerable 16 scientific uncertainty remains about the scale of 17 climate change on non-CO2 emissions. As a consequence 18 there is no consensus on whether and how to mitigate 19 them." 20 2.3: 21 "Our focus will remain on actions to target CO2 22 emissions which may also help to reduce some of the 23 non-CO2 emission. We will continue to support efforts 24 to improve the understanding of non-CO2 impacts of 25 aviation. The UK is participating in and having to fund 83 1 a number of projects investigating non-CO2 impacts such 2 as the effect of contrails and NOx on atmospheric 3 warming. As scientific understanding improves and 4 evidence of the effects of non-CO2 becomes clearer we 5 will adapt our approach as necessary to ensure our 6 strategy addresses aviation's total climate change 7 impacts effectively." 8 Effectively two points in government policy on 9 aviation insofar as it relates to climate change. One 10 is that the current position is that there is such 11 uncertainty, such level of scientific uncertainty that 12 there is no consensus on whether or how to deal with 13 non-CO2 emissions and secondly, the way forward for the 14 government is to focus on the CO2 emissions and 15 mitigating those which may also help to reduce some of 16 the non-CO2 emissions from aircraft. 17 So that is government policy. That is the context. 18 It hasn't changed. It will obviously be something that 19 is being looked again for the Aviation Strategy but 20 that's not yet adopted. 21 So, my Lords, that is the first. Secondly, 22 my Lords, can we go to Mr Graham's witness statement. 23 That is in volume 5, tab 5, page 214. At 214 Mr Graham 24 in a section dealing with carbon which starts over the 25 pages at 70: 84 1 "Potential carbon mitigations were included in the 2 assessments. [This is the airports mitigation 3 assessment.] Non-CO2 impacts were not assessed, in line 4 with the analysis set out by the climate change 5 committee its 2012 advice on the inclusion of 6 international aviation and shipping in carbon budgets." 7 So not dealing with CO2/non-CO2 impacts in 8 accordance with climate change advice. 9 Then this: 10 "The question of non-CO2 effects was highlighted in 11 both the AC's discussion paper on aviation and climate 12 change and its interim report, as well as being 13 discussed by Sir Howard Davies [so the chair of the 14 Airports Commission] directly with Lord Debden, the 15 chair of the CCC, who advised that the appropriate 16 approach was not to assess or include them given the 17 significant scientific uncertainty regarding their 18 scale." 19 So direct advice sought by the commission from the 20 climate change committee on how should we deal with 21 these? And the direct answer given was you can't 22 include them because there's too much scientific 23 uncertainty around assessing them. 24 That is the second reference which I take your 25 Lordships to in relation to that. The third one is, can 85 1 we go to the climate change annex which has been agreed 2 which is volume 6 of the core bundle, tab 4, and we will 3 see what is said at paragraph 27 on page 73. There is 4 a heading "Aviation's non-CO2 climate effects." 5 And you will see it is said: 6 "The scientific communities currently working on 7 temperature based metrics including global warming 8 potential (GWP) measured over 100 years, which is also 9 the metric for comparing gases used by Kyoto and Climate 10 Change Act. The latest scientific estimates show the 11 likely total of GWP for all aviation emissions to be 12 1.92 approximately double that of aviation's CO2 13 emissions alone." 14 Then this: 15 "The value of this multiplier remains subject to 16 significant uncertainty." 17 So there is agreement that as matters stand, in 18 accordance with what is said in the policy, in 19 accordance to the advice of the climate change 20 committee, this is a matter which is subject to 21 considerable uncertainty. 22 My Lords, then I think in terms of references, the 23 next thing to look at is you will see, if we put this 24 document -- if we go to page 74, paragraph 31: 25 "As part of its assessment the AOS considered 86 1 non-CO2 emissions but set out that these were not able 2 to be assessed due to levels of scientific uncertainty 3 associated with these emissions. It states there are 4 likely to be highly significant climate change impacts 5 associated with non-CO2 emissions from aviation which 6 are likely to be up to two times the magnitude of the 7 CO2 emissions themselves but which cannot be readily 8 quantified due to a level of scientific uncertainty and 9 have therefore not been assessed." 10 My Lords, the relevant paragraph in the AOS is 11 6.11.11. The reference for that is -- we don't need to 12 go to it -- core bundle 9, tab 2, page 118. 13 My Lords, that issue is also dealt with by 14 Ms Stevenson in her first witness statement, 15 paragraph 3.132 which is bundle 4, tab 3, page 420. 16 My Lords, if you do in due course go to the AOS, and 17 the particular paragraph I have referred you to, in 18 footnotes to that paragraph, 101, 102, it makes clear 19 that this idea that you can't assess non-CO2 emissions 20 because of the scientific uncertainty is supported by 21 a number of Airports Commission publications which we 22 have seen, but also by the government's WebTAG analysis 23 tool. 24 My Lords, the position is that we have followed 25 government policy, we have followed the independent 87 1 expert climate change committee's advice and we have 2 followed the approach of the Airports Commission, 3 themselves independent experts, that these matters are 4 unfortunately just too uncertain to make any assessment 5 of as matters currently stand. 6 My Lord, there can be in my submission no error of 7 law in that, no breach of, and this is the way it is put 8 by Friends of the Earth principally, because this comes 9 under ground 2, is that it is a breach of section 10 10(3)(a), the obligation to have regard to matters 11 around adaptation and mitigation of climate change or 12 under 10(2) to have regard to sustainable development. 13 I say no breach of that provision because we followed 14 advice, expert advice and policy that it can't be 15 assessed. 16 LORD JUSTICE HICKINBOTTOM: Do you put the parallel argument 17 that you put in respect of Paris because of section 24 18 of the Climate Change Act together with section 2, 19 whatever it is, which refers to the way in which 20 section 24 is triggered or changed? 21 MR MAURICI: Yes, my Lord, because it is something that can 22 be added to and dealt with by the Act but it hasn't 23 been. So there is that point which is why I didn't make 24 that mention of section 24 at the outset of this set of 25 submissions. 88 1 LORD JUSTICE HICKINBOTTOM: That links it with section 2 and 2 there is a sort of similar argument -- 3 MR MAURICI: Process, yes. 4 LORD JUSTICE HICKINBOTTOM: -- good or bad that you have 5 made in respect of Paris. 6 MR MAURICI: There is a similar argument that could be there 7 as well, yes. My Lord, that is right. 8 The other point is that I thought perhaps in his 9 oral submissions that Mr Wolfe might have been trying to 10 put this more around SEA Directive and SEA regulations. 11 But if that is what is happening, it doesn't really take 12 us any further because if you go in our skeleton to 13 paragraph 194.4, the SEA regulations provide in 14 regulation 12(3)(a), and there's obviously something 15 similar in the directive, that: 16 "The environmental report shall include such of the 17 information referred to in schedule 2 of these 18 regulations as may reasonably be required taking account 19 of 20 "(a) current knowledge and methods of assessment." 21 Obviously our point is, consistent with what that 22 statutory provision says, that the expert view of the 23 climate change committee, the Airports Commission and 24 the view of policy is that at the moment current 25 knowledge and methods of assessment don't allow this to 89 1 be assessed. 2 So that is our answer to the non-CO2 emissions 3 ground. 4 I turn to the eighth of my nine subject matters, to 5 the penultimate one. This deals with the SEA argument. 6 So this is SEA and Paris. My Lord, this is Friends of 7 the Earth's ground 3. What is argued? 8 The complaint made is that the AOS did not consider 9 the Paris Agreement and that this is a breach of 10 annex 1(e) in the directive, paragraph 5 of schedule 2 11 in the SEA regulations which refers to the environmental 12 protection objectives "established at international 13 community or member state level which are relevant to 14 the plan or programme and the way those objectives and 15 any environmental considerations have been taken into 16 account during its preparation." 17 My Lord, there is first of all, as one can see from 18 annex 1(e), a test of relevance. One has to have regard 19 to environmental protection objectives where they are 20 relevant. 21 But, my Lord, in addition, and as was put by 22 Mr Justice Holgate to Mr Wolfe on Day 3, the obligation 23 to produce a report containing the matters in the annex 24 in the directive is applied by Article 5 and that says 25 an environmental report shall include, and we have just 90 1 seen the equivalent words in the regulations from our 2 skeleton, "the information that may be reasonably 3 required". So there is a judgment on two levels. One 4 is something relevant and secondly, is it information 5 that may be reasonably required? 6 There is not an absolute requirement to set out 7 every international obligation that may set 8 environmental protection objectives for a particular 9 proposal. After all, there are a huge number of 10 international conventions on environmental matters, many 11 of which have not been incorporated and it can't be 12 right that the requirement is to have regard to all of 13 them when they might be relevant to your proposal. 14 What is our position? Can I ask you to go to 15 Ms Stevenson's witness statement which is volume 4, 16 tab 3, page 419 under the heading "Carbon" towards the 17 top of the page. And it is recorded by Ms Stevenson: 18 "Appendix A of the scoping report identifies the 19 Kyoto Protocol and the Climate Change Act stating that 20 the AOS should include objectives to reduce carbon 21 emissions." 22 My Lord, just pausing there -- we don't have to go 23 to it -- what the scoping report is supposed to do is to 24 set out what you are going to cover and allow the 25 environmental bodies that you have acquired to consult 91 1 to say yes or no whether that is acceptable. 2 Mr Wolfe sought to make much of the points I made on 3 scoping but the only point I have made on scoping, 4 fairly made on scoping is that we in our scoping report 5 did not refer to Paris, that is clear. We referred to 6 the Climate Change Act and the Kyoto Protocol which of 7 course is what is given effect to by the Climate Change 8 Act and in response, none of the environmental bodies 9 indicated that Paris was something that we should 10 consider. So none of them questioned that our approach 11 should be confined to those matters. That is the only 12 point I make as a matter of fact about what happened. 13 But Ms Stevenson goes on at 3.126: 14 "The Climate Change Act (referenced in the scoping 15 report) stemmed from international commitments made 16 under the 1992 Kyoto Protocol and is the basis of the 17 UK's approach to tackling and responding to climate 18 change." 19 That is correct, of course, as matters currently 20 stand: 21 "The Act established a legally binding target to 22 reduce the UK's greenhouse gas emissions by at least 23 80 per cent below the base year levels by 2050. The 24 UK's carbon budgets, as described within the Act, are 25 set by the government acting on advice by independent 92 1 Committee on Climate Change. The CCC has advised the 2 government and the government has set interim five-year 3 caps for UK emissions. These are currently set as far 4 as 2032. The overarching target was devised by the CCC 5 to reduce the UK's carbon emissions in line with global 6 targets to limit temperature rises to 2 degrees 7 Centigrade in consonance with the international 8 consensus at the time. 9 "In the setting of the carbon budgets, there is an 10 expectation that, should additional reductions be 11 required to meet stricter emissions targets, as for 12 example under the Paris Agreement, future budgets will 13 be altered by the CCC accordingly." 14 Then my Lords, 3.128, which Mr Wolfe took you to, as 15 stated in Caroline Low's statement, in October 2016, the 16 climate change committee said that the Paris Agreement 17 targets were more ambitious than both the average number 18 underpinning the UK 2050 target and previous 19 international agreements, that the UK should not set new 20 UK emission targets now as it already has a stretch in 21 targets, and achieving them will be a positive 22 contribution to global science action. The AOS has 23 followed this advice and considered existing domestic 24 legal obligations as the correct basis for assessing the 25 carbon impact of the project." 93 1 Mr Wolfe complains about timing issue there, 2 my Lord, but it is true that the scoping process began 3 before that October 2016 advice. What is said in 3.128 4 is the AOS has followed this approach. The AOS is an 5 iterative process. The AOS was first published 6 in February 2017, well after that October 2016 guidance. 7 Of course, the final version wasn't in fact published 8 until June 2018. 9 My Lord, you have from Ms Stevenson an explanation 10 about what we consider to be relevant for assessing 11 carbon, and we did it in accordance with the domestic 12 law and the international obligations under the 13 Kyoto Protocol to which the Climate Change Act has given 14 effect. 15 My Lord, beyond that, the arguments that Mr Wolfe 16 made really mirror the arguments he has already made 17 under ground 2 in respect of section 10 of the Climate 18 Change Act, and whether we were required to consider 19 Paris or thinking on Paris, if that's the way he chooses 20 to put it. 21 Just thinking for a moment about where this ground 3 22 stands on SEA. Two scenarios, if Friends of the Earth 23 make good their ground 2 point, that we were required to 24 consider Paris under section 10, if they make that point 25 good, it is difficult to see that this point, praying in 94 1 aid the SEA Directive, adds anything to Friends of the 2 Earth's case. 3 Secondly, if that ground fails -- as we say it 4 should -- so that there was no requirement under the 5 Planning Act, no requirement to consider the Paris 6 Agreement as an unincorporated treaty, in my submission 7 that has a very significant impact on this ground 2. 8 Why? 9 Because a decision that has been made by the experts 10 preparing the AOS is what was relevant and what was 11 required to be focused on was the Climate Change Act and 12 any international obligations already given effect. 13 My Lords, if you have decided that Mr Wolfe is wrong 14 on his section 10 points, your Lordships will have 15 decided that is what the Planning Act itself required, 16 that we simply focus on the Climate Change Act and any 17 obligations that gave effect to. 18 My Lord, therefore, any failure to refer to the 19 Paris Agreement in the AOS would be wholly immaterial. 20 Not least of all because, as you know, the case law says 21 SEA is not supposed to be a legal obstacle course. It 22 is an aid to decision making. If we are right, that 23 under the Planning Act Paris was not something that we 24 were required to have regard to in the decision making, 25 then it is difficult to see why Paris would be relevant 95 1 and it would be reasonable to require Paris to be 2 considered any further in the AOS. 3 But if you are against me on that -- 4 MR JUSTICE HOLGATE: There could be a difference, and it may 5 be you don't need to rely on the concept of relevance. 6 There could be a difference because the SEA schedule 7 explicitly refers to international obligations. 8 MR MAURICI: It does. 9 MR JUSTICE HOLGATE: There is a difference of legislative 10 text there. 11 MR MAURICI: My Lord, there is. 12 MR JUSTICE HOLGATE: It carries through to the 2004 13 regulations. So, the more you put your argument on the 14 concept of relevance -- which is a first limb you rely 15 on -- the more that comes into sharp contradistinction, 16 if you like. If, on the other hand, you look at 17 regulation 12(3)(a) as may reasonably be required, you 18 don't have that problem. 19 MR MAURICI: No, my Lord, that's true. As your Lordship 20 knows, and that is why your Lordship is raising it with 21 me -- I did put it on both the basis of relevance and 22 not reasonably required. I think what your Lordship 23 began with saying was I may not need the relevance 24 point, which -- 25 MR JUSTICE HOLGATE: The trouble with the relevance point is 96 1 it is normally a question of law for the court. 2 MR MAURICI: It normally is, my Lord, but in relation to 3 this, if one thinks about it, we are talking about 4 international obligations, which obviously normally 5 wouldn't concern this court, but it is those that are 6 relevant to the scheme in hand, so there must be a level 7 of judgment there about what's relevant and what is not 8 relevant to the scheme in hand. It is not simply -- 9 it's a pure question of law, that. There must be also 10 a question of expert judgment around that. 11 If your Lordship puts to me I don't need the 12 relevance point, I would accept that I don't need the 13 relevance point because I also have the reasonably 14 required point; that does allow me to make a similar 15 submission, but on that different language. 16 If you were against me on all of that, and you 17 thought that whatever the position was under section 10 18 we should really have considered Paris, said something 19 about Paris in the AOS. We then do get back into the 20 territory that we traversed on Day 4 about Blewett and 21 what the correct test is because it is a Wednesbury 22 test, in my submission. I think that is where a lot of 23 the argument went on Day 4. 24 The question that gives rise to the Wednesbury test 25 is: whether if you have missed something that was 97 1 mandatory from the EIA regulations, or the SEA 2 regulations, that was required to be done and you 3 haven't done it, the Wednesbury question is: can the AOS 4 still be reasonably said to constitute an environmental 5 report, even though you have missed this one thing that 6 should have been considered under the regulations? 7 What Mr Wolfe says is he accepts Blewett, but then 8 he also makes the submission that because Paris has been 9 missed, if it was required to be considered and it has 10 been missed, that's it, the AS is unlawful. The whole 11 NPS falls. 12 In my submission, that is accepting Blewett, but 13 then applying a test which is the exact opposite of 14 Blewett because the question has to be whether failing 15 to mention the Paris Agreement means the AOS cannot be 16 reasonably described as an environmental report. As 17 a result, the whole NPS fails. 18 That is difficult in my submission because there is 19 extensive consideration of carbon and climate change 20 throughout the AOS and in a separate chapter, and there 21 is an assessment very strongly made against the Climate 22 Change Act and the obligations that we have given effect 23 to from international law. 24 My Lord, in my submission, applying the Blewett 25 test, it can't be said that the failure to refer to this 98 1 one matter, Paris, would be such that you can no longer 2 regard the AOS as reasonably constituting an 3 environmental report. 4 My Lord, you would have to judge that not just 5 against the SEA Directive, but also it would be relevant 6 to consider how relevant was Paris to the overall 7 decision that is being made here, the decision to 8 designate the ANPS, which probably takes us back into 9 section 10 and the issues that I considered in that 10 context. 11 My Lords, that's, I think, all I was going to say on 12 SEA and Paris. 13 Could I turn then finally, under heading 9, to the 14 boroughs' argument on climate change. That's really 15 contained in the note that they put in last week. 16 I intend to deal with it briefly. 17 The focus of the boroughs' note, my Lord, is on 18 London's carbon budgets. So, they are set under the 19 London environment strategy, the LES. The relevant 20 passages dealing with carbon budgets and the LES in the 21 final statement of common ground are in sections -- 22 I will just give you the note -- 3.4.4 and 3.4.5, which 23 are paragraphs 156 to 159, and that is core bundle 6, 24 tab 3, page 61. 25 My Lords, the history of this point that is pursued 99 1 has a bit of a -- it has a history that I just need to 2 briefly explain. When the original boroughs' claim was 3 lodged there were two distinct pleaded points about 4 climate change. So, the boroughs had a freestanding 5 climate change ground where they were alleging breach of 6 section 5(8) of the Planning Act by reason of the fact 7 that we had not considered London's carbon budgets. But 8 they also raised carbon budgets and the LES under their 9 SEA ground. 10 In the context of their SEA ground, the complaint 11 that they were making was that this is one of those 12 relevant plans or programmes that we should have 13 considered when we were looking at the AOS, and when we 14 were scoping the AOS. 15 In the amended pleadings, paragraphs 109 to 113 of 16 the amended boroughs' grounds, which is CB1/7, pages 203 17 to 204, there is no freestanding climate change ground. 18 This is pleaded as part of the complaint about SEA and 19 breaches of the SEA Directive. 20 But within that pleading they do maintain in the 21 pleading an allegation of breach of section 5(8) of the 22 Planning Act. The difficulty is if you look at the 23 agreed list of issues, there is no agreed issue which 24 says: is there a breach of section 5(8) by reason of not 25 having considered London's carbon budgets? 100 1 The only agreed issue is actually in relation to the 2 SEA. So, I am not saying they didn't plead it because 3 they did plead it, albeit under SEA. But under SEA, 4 they made an additional allegation of breach of 5 section 5(8), and that's what the whole of the note, 6 pretty much, that was put before your Lordships last 7 week is focused on; on this allegation of breach of 8 section 5(8), rather than breach of the SEA Directive. 9 I am going to deal with both points if I can. On 10 the SEA Directive point, we rely on Ms Stevenson's first 11 witness statement. I will just give you the reference. 12 It is paragraphs 3.49 to 3.52, which is core bundle 4, 13 tab 3, page 399. I would ask you in due course to note 14 that, especially in 3.52, she explains that the London 15 Environmental Strategy and the London carbon budgets 16 would not change the outcome of the assessment. 17 My Lords, beyond that, I repeat the submissions 18 I made on Day 5, about what the proper approach is to 19 take in relation to plans and programmes in an AOS, 20 where what you are considering is a national policy 21 statement on a national scale. Because insofar as the 22 boroughs rely on the LES and the carbon budgets, they 23 are relying on it to support the argument that we didn't 24 properly consider plans or programmes. I have made my 25 submissions in a broader sense on that last week, 101 1 although I was focused and local plans at that stage. 2 My Lord, the separate allegation -- which although 3 it is pleaded under SEA doesn't really involve SEA at 4 all, and doesn't have a corresponding issue in the 5 agreed issues -- is the allegation that the LES and the 6 London carbon budgets fall within section 5(8) of the 7 Planning Act because they are government policy. The 8 defendant therefore breached those provisions by not 9 considering them. That is paragraph 6 of their note. 10 In the alternative, they say it was irrational not to 11 consider those matters. 12 My Lords, taking that forward, our submission in 13 response to that, you will find our answer to it in our 14 detailed grounds, paragraph 135, core bundle 1, tab 17, 15 page 345, which explains that the reason we didn't have 16 regard to the London environment strategy and the London 17 carbon budgets under 5(8) of the Planning Act is that 18 5(8) refers to government policy and we say that plainly 19 only refers to national policy, not subnational 20 policies, such as the London carbon budget. 21 My Lord, if you think about it, the Act, the 22 Planning Act and the section that we are concerned with, 23 section 5, are dealing with national policy statements. 24 So, when it refers to "government policy", in my 25 submission, self-evidently that is talking about 102 1 national government policy, not the policy of regional 2 authorities, like the Mayor or local authorities. 3 My Lord, on that basis, we say there is no breach of 4 section 5(8). 5 In addition, there is a further point about the 6 Planning Acts, and it is relevant to this. I wonder if 7 we could just take out, in authorities bundle 1, the 8 Planning Act again. Authorities bundle 1. If we go 9 first of all to section 104(2)(b). Under 104(2)(b), one 10 of the things the Secretary of State must have regard to 11 is any local impact report within the meaning given by 12 section 60(3): 13 "Submitted to the Secretary of State before the 14 deadline specified in a notice under section 60(2)." 15 My Lord, if you then go back to section 60, which we 16 should also have in the bundle, local impact reports, 17 you will see, at 2(b), that one of the bodies which may 18 produce these local impact reports is the Greater London 19 Authority: 20 "If the land to which the application relates or any 21 part of it is Greater London." 22 And (3): 23 "A local impact report is a report in writing giving 24 the details of the likely impact of the proposed 25 development on the authority's area or any part of that 103 1 area." 2 My Lord, these kind of matters impact on London's 3 carbon budget, impact on the London Environmental 4 Strategy. The proper place for those to be dealt with, 5 in my submission, is at the DCO stage through those 6 particular provisions. There was no requirement on us 7 under either section 5(8) or otherwise to give any 8 consideration or any detailed consideration, or to give 9 any considerations, my Lords, to those matters which 10 have a mechanism for being picked up through the 11 Planning Act at the DCO stage. 12 In my submission, there is nothing in the boroughs' 13 climate change points to the extent they still pursue 14 those in these proceedings. 15 That completes my submissions on climate change. 16 The final subject that I was going to come to -- can we 17 just deal, my Lord, with relief? Can I just hand up 18 a single sheet of references, which I think will save us 19 time? I might be able to finish before lunch. 20 (Handed) 21 What we have done here is simply give your Lordships 22 a number of references in relation to surface access, 23 SEA and habitats for places where, in our evidence, 24 witnesses make the point that if there has been an 25 error, as alleged by various complainants, that error 104 1 wouldn't have made any impact, wouldn't have made any 2 material change to the position, wouldn't have changed 3 the outcome of the assessment. 4 So, we have tried to put together all the references 5 to where we have produced evidence that there would be 6 no impact from having made the error that is alleged, if 7 we have made that error at all. 8 My Lord, you will see that I have actually also 9 included Mr Williams' second witness statement, 10 Mr Williams for the boroughs and for the Mayor. The 11 reason being, my Lord, is that you will see that he 12 actually says that one of the key purposes of his second 13 witness statement was to respond to the suggestion in 14 the statement of Roger Jones that TfL's analysis did not 15 demonstrate any material difference in the surface 16 access analysis from that undertaken by the Airports 17 Commission. 18 The only reason I do that is you have made seen in 19 the boroughs' relief submissions they complain that our 20 position on relief is unfair, that they haven't had 21 a chance to respond or deal with our submissions about 22 no difference. 23 But, in terms of the evidence that we rely on, they 24 have had that evidence and indeed they have responded to 25 that evidence, specifically responded to it. 105 1 So, where are we on relief? 2 My Lords, first of all, in my submission, clearly 3 any detailed submissions on relief are only possible 4 once the court has determined whether there have been 5 any errors and which errors there are; that is what has 6 happened, as your Lordships know, in Hillingdon 2010. 7 See the authorities bundle volume 2, tab 37, 8 paragraph 98. 9 But, my Lords, our evidence -- see the table -- has, 10 in a number of places on SEA, surface access and 11 habitats, put forward points where we have said that the 12 TfL and boroughs' arguments, even if they were accepted 13 and your Lordships found involved some kind of error, 14 would have made no material difference to the 15 assessments undertaken. 16 What's the impact of that evidence? 17 First of all, forget about relief for a moment. 18 That evidence goes to whether there is any material 19 error of law at all in the points raised. 20 But, secondly, if we do get to relief and parties 21 are all agreed, not surprisingly, that the final issue 22 for this court is: what relief, if any, should be 23 granted if any of the grounds are made out? 24 This material would be relevant to that, because 25 relief is always discretionary and, if something would 106 1 make no difference, that would clearly be relevant to 2 discretionary relief. 3 The principal complaint that is then made by the 4 boroughs, as I understand it, is that we did not -- and 5 they are correct -- specifically plead in our pleadings 6 section 31 of the Supreme Court act. Could we just look 7 at that section briefly? It is in authorities bundle 1, 8 tab 10. It is section 31.2(a) in tab 10: 9 "The High Court must refuse to grant relief on an 10 application for judicial review." 11 We don't need to look at (b): 12 "If it appears to the court to be highly likely the 13 outcome for the applicant would not have been 14 substantially different if the conduct complained of had 15 not occurred." 16 If your Lordships get to relief, we are all agreed 17 that the issue is what relief, if any, should be 18 granted. There is clearly evidence before you on 19 a number of points that seeks to demonstrate that these 20 points, even if they are shown to be errors, would make 21 no difference. 22 My Lords, whether we pleaded it or not, section 2(a) 23 imposes an obligation on this point. It must not grant 24 relief if that test is met. 25 My Lords, 3(c) -- we should also look at because we 107 1 are still at the permission stage -- is different to 2 a degree. My Lord, again, my learned friends say -- and 3 they are right -- that we didn't plead 3(c). So, when 4 considering whether to grant leave. This would only be 5 if your Lordships were not thinking about refusing 6 relief, but thinking about refusing leave, the High 7 Court may of its own motion consider whether the outcome 8 for the applicant would have been substantially 9 different if the conduct complaint had not occurred. 10 So, that is something you may consider, but you don't 11 have to. You only have to if you have been asked to do 12 so by the defendant. 13 The difficult one there is, I suppose, we have 14 raised that in our skeleton, but we didn't previously -- 15 I accept we didn't previously expressly plead reliance 16 on that provision, but we are now, nonetheless, raising 17 that point. 18 My Lord, what it comes down to is you have evidence 19 that a number of errors that have been alleged would 20 have made no difference. We say that is relevant, both 21 to whether they are material errors, but also to whether 22 relief should be granted. On any view, 23 section 31.(2)(a) must apply to the court when it gets 24 to that stage. 25 My Lord, beyond that, you will know I have made 108 1 a submission about the fact that if the court decides it 2 is going to grant some relief, there will obviously be 3 a discussion to be had as to whether that should be some 4 form of quashing order for the whole or a part of the 5 ANPS, or whether it should be a mandatory order for the 6 Secretary of State to consider reviewing the ANPS in 7 light of the court's judgment. 8 The difficulty I think I face is that it is really 9 impossible to make any detailed submissions on that 10 without knowing what the errors are that the court 11 found, if that's where we end up. 12 LORD JUSTICE HICKINBOTTOM: Yes, given the number of 13 grounds, as well. 14 MR MAURICI: My Lord, that has always been part of the 15 issue. It is very difficult to plead to all of that 16 when we have such a range of grounds. 17 Those are my submissions. My Lord, I think that 18 means I have finished slightly early. Can I just have 19 a lunch adjournment to make sure there is nothing else 20 I need to raise? But otherwise I have finished. 21 LORD JUSTICE HICKINBOTTOM: Yes, then Mr Humphries I think, 22 and Mr Banner, and you will be finished this afternoon 23 between you, one way or another. Good. 24 2 o'clock. 25 (1.05 pm) 109 1 (Luncheon Adjournment) 2 (2.00 pm) 3 MR MAURICI: My Lord, there is nothing else I want to add 4 anything your Lordship had anything else. 5 LORD JUSTICE HICKINBOTTOM: Just one question from me, or 6 really a matter that we just want to make sure whether 7 you wanted to comment on this or not. 8 There is a submission made by Mr Spurrier at the end 9 of his submissions, and it was really in relation to 10 where is there evidence that the Secretary of State took 11 into account other carbon producers. He specifically 12 referred to regional airports, but it would include 13 anyone who had a carbon output, in coming to the 14 conclusion that Heathrow could be expanded in accordance 15 with the scheme to achieve the Paris targets. 16 MR MAURICI: Yes, my Lord. I'll need to chase down to meet 17 the targets in the Climate Change Act. I will need to 18 chase down some references in various documents. I will 19 do that and provide them to you. 20 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. Yes. 21 Submissions by MR HUMPHRIES 22 MR HUMPHRIES: May it please your Lordships, I appear for 23 Heathrow Airport in these claims, the interested party. 24 My Lords, I have two copies of my speaking notes. 25 I have already provided one to the transcript writer and 110 1 I will also pass up two copies of a sheet. I will 2 explain what that is. 3 (Handed) 4 The single sheet that I have handed up is simply 5 a conversion table. We noticed in our witness 6 statements that, of course, the core documents and the 7 appendices -- 8 LORD JUSTICE HICKINBOTTOM: Mr Pleming is looking flummoxed. 9 MR HUMPHRIES: This is simply a conversion sheet. The 10 speaking notes we'll circulate at the end, if that is 11 acceptable to you. 12 MR PLEMING: Why? 13 MR HUMPHRIES: Because I don't have any more copies. 14 LORD JUSTICE HICKINBOTTOM: We have two documents. One 15 is ... 16 This just cross-refers to the bundle references. 17 MR HUMPHRIES: Yes, this is the bundle references. All the 18 original witness statements that you have, when they 19 refer to "core documents", it is core documents in the 20 bundles as they were submitted several months ago, not 21 the trial core bundles. 22 LORD JUSTICE HICKINBOTTOM: Yes, that is helpful. 23 MR HUMPHRIES: So, we have simply done a conversion and told 24 you what the latest versions are. I am not going to do 25 anything -- 111 1 LORD JUSTICE HICKINBOTTOM: No, that is just to help, yes. 2 MR HUMPHRIES: My speaking note, I supplied to the 3 stenographers and, again, I have supplied that and we'll 4 circulate those at the end. 5 My Lord, I start with a few comments by way of 6 introduction. HAL promoted the northwest runway scheme 7 through the Airports Commission process, and supported 8 its designation through the process that led to the 9 designation of the NPS. HAL is the licensed operator of 10 the airport and is the owner of much of the land. 11 HAL has gone through two stages, currently, of 12 nonstatutory pre-application consultation; a stage one 13 consultation, which dealt with component parts to 14 a future master plan. So, it looked at runway, it 15 looked at terminals, it looked at aprons, it looked at 16 taxiways in January/February last year, 2018. 17 This year it undertook some consultation in January 18 and February of 2019 on operational procedures and, at 19 the same time, undertook some consultation in relation 20 to the airspace change process. HAL anticipates 21 undertaking statutory pre-application consultation -- 22 that is under sections 42 and 47 of the Act -- later 23 this year. It is anticipated it will be this summer. 24 The scope of these submissions, we have, in 25 accordance with the court's directions, cooperated with 112 1 the defendant to avoid duplication, and therefore these 2 submissions necessarily will just cover certain issues. 3 Part of the reason for giving you the speaking note is 4 so that it makes some sense if I just jump from one 5 thing to another. Although the speaking notes may 6 appear quite long, there are sections that I don't 7 really need to go to, and therefore, coherence of the 8 whole. 9 LORD JUSTICE HICKINBOTTOM: Yes. 10 MR HUMPHRIES: There are a number of areas, though, that 11 I will make submissions on. 12 Firstly, the issue on section 104 and alternatives. 13 Secondly, surface access and issue 3, and the thrust 14 of our case on that goes to these issues that you are 15 familiar with now, I believe, phasing, controls and 16 whether the northwest runway project is capable of 17 complying with the ANPS on surface access. Air quality 18 and, again, the same point, we'll look at phasing and 19 controls. Noise, issue 8, we don't engage there 20 directly on the SEA grounds. That's a matter for the 21 Department for Transport, but I will make a few general 22 comments on some of the air noise points raised by the 23 boroughs. At the end, I'll very briefly put down 24 a marker on the issue of relief. 25 First, my Lords, I am going to touch on two points 113 1 by way of context. Context really for the way in which 2 a DCO is examined and the controls that may be imposed. 3 Early in his own submissions, Mr Pleming made the 4 point -- I have given the transcript reference there -- 5 that the Planning Act of 2008 did away with the public's 6 involvement in these things. In fairness, that may have 7 been a throw away comment. Whether it was or wasn't, it 8 is very, very wrong. There is considerable provision 9 during the examination of a DCO for public participation 10 and the participation of various prescribed bodies and 11 local authorities. Therefore, what I have done in the 12 next paragraphs -- which I will take very light touch, 13 if you will forgive me -- is simply give you an overview 14 of the framework by way of context to later submissions 15 about how certain things can be left to the DCO process. 16 Not all of these sections are in the extracts you 17 have at AB8, authorities bundle 8. They can be supplied 18 if you require them, but I'll run through these points, 19 I hope quickly. 20 I start with statutory pre-application consultation. 21 There is a statutory requirement, obviously, in the 2008 22 Act. It doesn't exist, certainly in the same way, in 23 the Town and Country Planning Act, or statutory 24 pre-application consultation. 25 The application for a DCO must be accompanied by 114 1 a consultation report. Again, I give the reference. 2 The adequacy of that consultation is in the statute as 3 a criterion for the acceptance of an application. There 4 is a 28 day period after the application within which 5 the planning inspectorate must look to it to see whether 6 it is adequate, and consultation is one of the points. 7 Following acceptance, there is notification and 8 advertising. The public are then given an opportunity 9 to make what are called "relevant representations" and 10 they become interested parties in the process, and they 11 are notified at certain procedural procedures. 12 The examination itself will last for some six 13 months, although it can be extended. During the 14 examination, the inspectors set a detailed timetable. 15 It sets deadlines for various events. Those events will 16 include the delivery of -- and you have heard about this 17 this morning -- local impact reports, but also written 18 representations. Those who have made relevant 19 representations can make more detailed representations 20 and they are called "written representations". 21 The examining authority ask written questions. For 22 large projects, they will typically run into hundreds of 23 questions. On occasions, they have run into four 24 figures, over a thousand questions. Typically in two 25 rounds. Importantly, importantly they'll very often 115 1 reflect the representations of objectors and other 2 bodies. There are provision for three types of 3 hearings: issues specific hears; compulsory acquisition 4 hearings and open floor hearings. Open floor hearings 5 are reserved for the public. There are agendas for each 6 of those, and you can have cross-examination, although 7 that's unusual. The Secretary of State then has three 8 months to report. 9 It is important to know that the provisions, ie the 10 Articles in the schedules of DCO evolve through the 11 process. Unlike a planning application, where the 12 application remains pretty fixed, the DCO or the draft 13 DCO evolves through the process. The applicant can 14 propose amendments to it, to respond to representations. 15 The examining authority can request changes. Others can 16 request changes. Indeed, the Secretary of State, when 17 he makes it, can make the DCO with modifications. 18 All of those points, I say, point to there being 19 a very considerable opportunity for the public, 20 landowners, LPAs and others to raise issues, including 21 surface access, air quality and noise, and have them 22 examined. I will come later to the point about 23 alternatives. 24 I come now to controls over development under the 25 Planning Act, section 120. Perhaps we could just look 116 1 at that. It is in tab 8 of the authorities bundle and 2 section 120(1) gives the power to impose requirements, 3 and those are what the Planning Act 2008 uses, and they 4 correspond, as you can see, from subsection (2)(a) to 5 conditions, and subsection (3) also makes clear: 6 "An order granting development consent may make 7 provision relating to, or to matters ancillary to, the 8 development for which consent is granted." 9 Then, in subsection (4), that's a reference to 10 matters which may be included, of that sort in schedule 11 5. 12 The important point to note here is that this is an 13 extremely powerful and flexible mechanism for imposing 14 controls on developments subject to development consent, 15 and provision may also be made to amend legislation. 16 My Lords I might look then at tab 16. This is an 17 example of some extracts from a development, but they 18 are made typically as statutory instruments because 19 they'll normally amend compulsory acquisition 20 legislation. This is one such example. It is used 21 because it is based in London and it is recent. It was 22 also promoted by TfL on behalf of the Mayor. 23 What you will see in this, the way in which 24 development consent orders are able to control things. 25 You can see if you look at Article 2 on interpretation, 117 1 you can include by certifying the documents -- you can 2 see down page 2, as it is numbered at the top, the 3 charging policy. It is a document described as the 4 charging policy in schedule 14 of the Act, which you 5 don't have, but that becomes a certified document. 6 On the next page, two thirds of the way down, 7 "Monitoring and mitigation strategy". Again, that is 8 another certified document under the DCO or under a DCO, 9 and this one sets out how monitoring and mitigation will 10 be achieved in relation to traffic monitoring, air 11 quality monitoring, noise monitoring, socio-economic 12 monitoring and the implication of mitigation. 13 This method, which is used in the Silvertown DCO is 14 what is sometimes called "adaptive monitoring and 15 mitigation". In other words, it allows the control of 16 things subject to monitoring. Monitoring indicates 17 something needs to be done. Mitigation can be imposed. 18 If you -- 19 MR JUSTICE HOLGATE: Sorry, can I just ask: certified, does 20 that reflect an application procedure? 21 MR HUMPHRIES: Yes, there will be an Article in most DCOs 22 that says certain documents are certified and they are 23 listed very often in a schedule, and that derives, 24 I think originally, from the Statutory Instrument Act 25 1946 and the Statutory Instrument Regulations 1947. 118 1 I can check that. It is a procedure certifying a 2 document. 3 MR JUSTICE HOLGATE: It is a bit like a condition on a 4 planning permission reserving some things for subsequent 5 approval. 6 MR HUMPHRIES: Yes, when one looks back at that 1940s 7 legislation it was so that statutory instruments didn't 8 become voluminous. They could, in effect, export 9 detailed provisions to another document, that document 10 was certified and then it is made clear that document 11 can be used in court proceedings. 12 MR JUSTICE HOLGATE: So, it won't be a document which 13 necessarily exists when the statutory instrument that 14 you are showing us here, for example, is enacted. It is 15 something which is created subsequently? 16 MR HUMPHRIES: All of these are documents that the parties 17 will look at and there will be negotiation, discussion 18 on those to make sure -- and, indeed, in this particular 19 case, these control documents, as they are called, 20 changed substantially. So, one can see in this 21 particular example of a London DCO, Article 53 was the 22 charging policy. They introduced this charging policy. 23 I gave you the reference. Article 54 was the power to 24 charge the tunnels, and the tunnels here are not just 25 the Silvertown Tunnel, but also the Blackwall Tunnel 119 1 alongside it, because both needed to be charged, and 2 that charging has to be in accordance with the policy. 3 Then, interestingly, if I can invite you to turn on 4 to requirements -- schedule 2 requirements, which is 5 a few pages later. It starts with interpretation, but 6 the page after that is "Monitoring and mitigation 7 strategy". I won't take you through this in detail. 8 You can clearly look at it, but that is paragraph 7 of 9 schedule 2 of the requirements. It introduces the 10 monitoring and mitigation strategy, and you can see 11 there are pre-opening measures, italicised subheading on 12 the next page: 13 "Post opening, monitoring and mitigation." 14 On the page after that: 15 "Air quality monitoring and mitigation." 16 The effect of that is, for that order, which was for 17 a tunnel, the Silvertown Tunnel under the Thames, next 18 to the Blackwall Tunnel, a procedure under which the 19 applicant there had to monitor nitrogen dioxide at 20 various locations and, depending on the results of 21 monitoring, had to take mitigation steps. This form of 22 adaptive monitoring and mitigation is now an increasing 23 feature in development consent orders. 24 My Lords, in response to a question on Day 5, 25 page 52 in my note: 120 1 "Could requirements include a limit on ATMs?" 2 Yes. There could be, for example, phased limits on 3 ATMs during critical years to make sure that the 4 development is compliant with the directive. Although 5 the more modern approach, I have to say -- in line with 6 Silvertown and various other DCOs -- is to set a number 7 of limits or controls on environmental effects, so you 8 control its effects. You don't control numbers of 9 people or something like that. You control effects. 10 Such that an ATM limit in that case, an air 11 transport movement limit, would not be necessary. But 12 that's a matter for the DCO examination. That would be 13 a matter, possibly, to be debated. 14 In the note I next touch on section 174, I don't 15 really need to mention that. That is just the point 16 about development consent order or obligations. These 17 points go to the issue of whether the northwest runway 18 project is capable of complying with the Airports 19 National Policy Statement. Clearly that judgment has to 20 be seen within the context of the controls that are 21 available. 22 Now, the next issue I want to touch on is 23 section 104. I invite your Lordship just to turn back 24 to authorities bundle 8. I am just going to touch on, 25 briefly I think, a few concepts here. Section 104(2)(a) 121 1 talks about a national policy statement which has 2 effect. Those are important words because a national 3 policy statement which has effect is -- see the second 4 line there: 5 "Is a relevant national policy statement." 6 That language has effect -- is deliberately echoed 7 in the Airports National Policy Statement. So, if we 8 turn to the Airports National Policy Statement, you will 9 see those words because you can see then what the ANPS 10 has effect for. 11 It is CB6, tab 7, page 210, paragraph 115. You see 12 in the middle of the paragraph: 13 "The policies in the airports NPS will have effect 14 in relation to the government's preferred scheme." 15 It then gives the details. The next sentence: 16 "It will also have effect in relation to various 17 elements of terminal infrastructure." 18 That is an echo of those provisions in the Act. 19 One can also turn on to page 115, paragraph 1.421, 20 to understand what the airports NPS does not have effect 21 in relation to. It tells us there that it does not have 22 effect in relation to an application for development 23 consent for an airport not comprised in an application 24 relating to the northwest runway and proposals for new 25 terminal capacity located between the northwest runway 122 1 and the existing runway, and the reconfiguration of 2 other facilities. 3 So, you can see there, clearly, what is meant. 4 Where the ANPS has effect, it becomes a relevant 5 national policy statement, and that's important for -- 6 if we go back to section 104, section 104(3): 7 "The Secretary of State must decide the application 8 in accordance with any relevant national policy 9 statement." 10 That's why the ANPS is relevant to the northwest 11 runway scheme and not any other scheme. Not, for 12 example, to Gatwick. 13 So, in 104(3): 14 "In accordance with ..." 15 In our skeleton, my Lords, we referred to the City 16 of Edinburgh case. It is not in the bundle, but for the 17 proposition that is very well-known, that policies can 18 pull in different directions and that when looking at 19 whether something is in accordance with, you look at the 20 whole plan and decide whether or not the proposal 21 accords with it. 22 HAL does accept, however, that the ANPS itself says 23 what Mr Maurici called certain red lines, where 24 development consent will be refused. The next word 25 I just draw attention to there is the "unless" word. 123 1 So: 2 "Decide in accordance with unless ..." 3 Then the various exceptions are set out. In fact, 4 there is a typo there. I think that should be, under 5 (b): 6 "Unless 408 ..." 7 Actually, not 9. Apologies. 8 So, section 104(7), I draw attention to this -- 9 my Lord, it has been covered -- to make it clear section 10 104(7) is absolutely precise about what the balance is. 11 It says: 12 "The subsection applies if the Secretary of State is 13 satisfied that the adverse effects of the proposed 14 development would outweigh its benefits. The balance is 15 between the adverse effects and the benefits of the 16 proposed development." 17 That is why telling inspectors at a DCO examination 18 about the benefits or disbenefits of Gatwick is of very 19 little assistance to them because the balance is one 20 about the proposed development. That is the point of 21 the Thames Blue Green Economy passages. 22 My Lord, for time I won't take you to them again, 23 but Thames Blue Green Economy, at authorities bundle 28, 24 paragraphs 36 to 40, do invite, I suggest, some 25 revisiting because they make it very clear how section 124 1 104(3) and 104(7) work. They also deal explicitly with 2 the two-stage process, the SEA process having been 3 decided through the NPS, the waste water NPS in that 4 case, and that's settling certain things, which are then 5 dealt with in the DCO. In my respectful submission, 6 those paragraphs, 36 to 40, correctly set out the test. 7 But it is important to remember, also, that of 8 course that doesn't exclude all alternatives. In Thames 9 Tideway Tunnel, there was very considerable debate about 10 alternative shaft sites, alternative alignments for 11 a tunnel, but just not about alternatives to a tunnel 12 because the tunnel had been identified as the solution 13 in the NPS. 14 It is in that. 15 MR JUSTICE HOLGATE: The only point on subsection 7 that 16 still troubles me -- it perhaps doesn't arise in this 17 case -- is that you could have an NPS which is not site 18 specific or project specific, and just simply sets out 19 criteria. If that were to be the case, I find it very 20 difficult to see why subsection (7) would preclude the 21 relevance of alternatives as a way of ameliorating 22 a disbenefit. 23 MR HUMPHRIES: My Lord, in those circumstances that may be 24 relevant, both in Thames Tideway Tunnel, the waste water 25 NPS, was a solution specific NPS. 125 1 MR JUSTICE HOLGATE: And it excluded alternatives. 2 MR HUMPHRIES: And excluded alternatives. 3 MR JUSTICE HOLGATE: In explicit terms. 4 MR HUMPHRIES: In this NPS, again, it is, if you like, 5 a solution specific one, a northwest runway. But if you 6 look, for example, my Lords, at the energy national 7 policy statement, EN1, and you look specifically at -- 8 forgive me, I am trying to do this from memory. It is 9 either section 3.4 or 4.3. I think it is 3.4. It has 10 a whole section on, for energy purposes, how one is to 11 take into account alternatives and the tests to be 12 applied, which I think, My Lord, is the sort of point 13 you are making; that alternatives might be relevant in 14 some circumstances in that type of NPS. 15 So, in answer to the question, my Lord, which 16 I think you pose: is refusal following the balancing 17 exercise itself a challenge to government policy under 18 section 87 or 160? 19 The answer I believe is no. Section 104(7) 20 recognises that adverse effects may outweigh benefits, 21 so that is not a challenging of government policy. That 22 is simply a recognition that benefits weighed against 23 the adverse effects of a particular project may outweigh 24 no project. 25 I just draw attention right to the very end of 126 1 section 104. We haven't really touched on it very much, 2 but 104.9 says: 3 "For the avoidance of doubt, the fact any national 4 policy statement identifies a location as suitable or 5 potentially suitable for a particular description does 6 not prevent one or more of sections 4 to 8 from 7 applying." 8 It does make it very clear that, just because the 9 NPS is site specific, doesn't mean that adverse effects 10 can't outweigh benefits. 11 So, I move to the next part. I am on page 6 now in 12 my speaking notes. Our case sort of in a nutshell on 13 issues 3 and 4. 14 I make a number of brief points there, eight brief 15 points. First, that DfT aviation forecasts were based 16 on an assumption as to the Heathrow ATM passenger 17 throughput in 2030. 18 Secondly, DfT's consideration of surface access and 19 air quality issues were therefore taken within that 20 context of an assumed throughput. TfL's surface access 21 analysis was again taken on the basis of 132 mppa in 22 2030. In fact, it will be possible, and it is HAL's 23 long stated intention, to phase the introduction of 24 capacity. In any event, the DfT and TfL analyses did 25 not take into account all potential surface access and 127 1 air quality mitigation. 2 Six, the environmental effects of the northwest 3 runway project can be controlled by the imposition of 4 DCO requirements and obligations. 5 Seven, HAL's evidence is that an NWR project is 6 capable of complying with policy requirements of the 7 ANPS and that the boroughs is have presented no evidence 8 to suggest otherwise. 9 Eight, in these circumstances, DfT's decision to 10 designate was not flawed and nor was it irrational. 11 Now, I'll develop these points to the extent not 12 already covered by Mr Maurici, and I am conscious 13 therefore in my notes there are things that I will 14 simply pass over and I hope that's acceptable. 15 So, surface access, and I introduce here three 16 concepts. These concepts are actually rather important 17 to understand. Firstly, demand. The DfT's updated air 18 transport forecasts are demand forecasts. They are 19 based on an econometric model that looks at incomes 20 growth, population growth and it produces demand 21 forecasts. 22 The second concept is capacity. Capacity exists in 23 various forms, runway capacity, terminal capacity, apron 24 capacity -- aprons are the areas on which the aircraft 25 stand -- and taxiway capacity. It is no good having 128 1 a runway if you can't get enough aircraft to the start 2 of roll to take off. Airport capacity is therefore 3 a function of all these elements of capacity and some 4 other things. 5 The third concept, throughout. If demand is above 6 capacity, then throughout will reflect that capacity. 7 If demand is below capacity, then throughput will 8 reflect demand. It is throughput that has environmental 9 effects, not demand. Throughput in ATMs or throughput 10 in mppa. 11 In that context, I would like to take us to the 12 DfT's. 13 MR JUSTICE HOLGATE: Can I just a question? Capacity can 14 therefore be a constraint in some circumstances when you 15 have a design? 16 MR HUMPHRIES: Correct. 17 MR JUSTICE HOLGATE: But we don't have a design yet. 18 MR HUMPHRIES: No, but what Heathrow has made very clear is 19 that it intends to phase the introduction of terminal 20 capacity and apron capacity, so that although the runway 21 will have a capacity if unconstrained by other things -- 22 and this is what we will almost look at now in the DfT's 23 forecast -- it will be constrained by our building out 24 terminal capacity, apron capacity, taxiway capacity to 25 serve that runway. 129 1 The DfT's UK aviation forecast, these are in -- you 2 should have these. They were added, I think at the end 3 of the week before we started, by HAL. They are 4 referred to in our evidence, but you should have bundle 5 12, tab 8A. 6 MR JUSTICE HOLGATE: Does this start at page 244.1? 7 MR HUMPHRIES: Correct. It is surprising, we have heard so 8 much about forecasts and the 132 million, no one has 9 actually produced the document. This is the document on 10 which those numbers come. We had to add them. We have 11 included the executive summary, section 6, at 12 page 444.13, is the unconstrained forecast. These are 13 forecasts developed on a UK-wide basis on the 14 econometric basis that I described. 15 Section 7, 244.20 is capacity constrained forecast. 16 This is where they take the UK-wide forecast and they 17 constrain it down to existing capacity at airports. 18 All importantly, on 244.27 a capacity expansion 19 forecast. This is where the UK forecast, the DfT 20 forecast of demand, finally look at the expansion 21 scenarios. You see that in 4.26, and 4.27 says: 22 "Chapter 5, and in particular table 25 sets out 23 three options considered. These are the options 24 considered by the Airports Commission. Then 25 paragraph 7.28 says: 130 1 "The modelling [this is DfT's demand modelling] 2 assumes that runway capacity is the primary constraint. 3 Therefore, for each option it is assumed that submission 4 terminal capacity is provided so as not to prevent the 5 full use of the expanded runway capacity. These are the 6 same final capacity settings as assumed by the 7 Airports Commission." 8 So, our point on this is: it's wrong to regard these 9 figures as a forecast of throughput. They were 10 a forecast of demand and it was simply assumed that 11 capacity was there. 12 If you look at the table, 3.34, you can see for 13 2030, the top line, Heathrow, and it has the different 14 scenarios. So, Gatwick second runway, extended northern 15 runway, Heathrow northwest runway, that is the 16 132 million. 17 That is the 132 million. 18 MR JUSTICE HOLGATE: Sorry, can you just give me the 19 reference again, please? 20 MR HUMPHRIES: Yes, page 244.28, it is table 34, and you can 21 see the table is entitled: 22 "Passenger demand by airport." 23 It's passenger demand because they assumed capacity 24 was there. 25 You can see -- you asked, my Lord, in a different 131 1 context this morning about ATMs. If you were to turn 2 over the page, 244.29, table 35, you can see the ATM 3 forecasts, ATM demand forecasts there and for Heathrow 4 in 2030, with the northern runway, it is 753,000 ATMs. 5 So, it was on that basis, those were the figures, 6 the 132, which was based on an assumed capacity being 7 there, that was then used by the DfT when it looked at 8 issues such as surface access and air quality, and was 9 also of course picked up by TfL. On my notes now, I am 10 towards the bottom of page 7. 11 The TfL analysis has also been based on a throughput 12 of 132 million by 2030. TC stands for Tony Caccavone. 13 That is our witness statement, paragraph 40. 14 There are examples of that. For example -- perhaps 15 no need to look at it right now -- there was a TfL 16 planning technical note of November 2017. I have given 17 you the full reference there. It was the TfL reps on 18 a revised draft NPS, or one of them. Paragraph 2.1 19 says: 20 "All three runways are forecast [it is talking about 21 the DfT forecast] to be full in 2028. Just two years 22 after opening." 23 Now, yes, but that was an assumption. As we have 24 looked at it, it wasn't a forecast of throughput, it was 25 a forecast of demand and an assumption that capacity was 132 1 there. 2 We can see also the way this fed in -- we would say 3 wrongly -- into TfL's whole approach to this and 4 Mr Williams's evidence, perhaps we should look at this 5 one, volume 3, CB3 -- 6 MR JUSTICE HOLGATE: Sorry, before we do that, can I make 7 sure I am following. On your speaking note, page 7, 8 point (b)(iii): 9 "Modelling is very conservative if throughput is 10 less than 132 mppa." 11 MR HUMPHRIES: Yes. 12 MR JUSTICE HOLGATE: That depends again on physical 13 capacity. 14 MR HUMPHRIES: In other words, the throughput depends on the 15 capacity we provide. 16 MR JUSTICE HOLGATE: Exactly. 17 MR HUMPHRIES: So, terminal capacity, et cetera, et cetera. 18 But, of course, the number of passengers if we provide 19 less terminal capacity than full capacity in the early 20 years, which is what we have said since 2014 we would be 21 doing, then of course modelling, either for surface 22 access or for air quality on 132 million passengers in 23 2030, is as, we see it, extremely conservative. When 24 one is asking: are we capable of complying with the 25 requirements of the ANPS? 133 1 We would say: yes, we are because our throughput 2 isn't going to be anywhere like as high at that. 3 I can point you to where we have consistently, over 4 many years, made it very clear that is not how we would 5 phase the capacity. Principally terminal, apron and, to 6 a lesser extent, taxiway capacity. 7 MR JUSTICE HOLGATE: My understanding is correct; the 8 conservatism comes from the physical capacity which is 9 actually provided in conjunction with the runway? 10 MR HUMPHRIES: Yes. The runway would have a higher 11 capacity. The terminals and aprons would be phased so 12 that they had a lower capacity, meaning that the 13 throughput -- hence my demand capacity -- would be less 14 than 132 million, and therefore insofar as DfT looked at 15 an assumed throughput of 132 million, that -- and Mr 16 Maurici has made the point -- was acknowledged to be 17 conservative, pessimistic, too high. 18 Insofar as TfL did the same thing, again, all of 19 their forecasts, including their mode splits and how 20 high the charge would have to be to achieve mode splits, 21 all that is far too conservative because the actual 22 throughput we would be, we say, less and could be 23 controlled through DCO conditions on effects. 24 I pointed towards the bottom of page 7, to that TfL 25 technical note, which makes it very clear that they were 134 1 again following this point about the runways being full 2 in 2028. It is Williams' witness statement. That's 3 volume 3, tab 11, page 202. Again, it simply confirms 4 that this is what TfL did as well. 5 You can see there, at page 202, at paragraph 101, 6 they talk. It is towards the end of that paragraph: 7 "TfL has ..." 8 They originally looked at a throughput of 9 148 million, which they thought was a reasonable 10 assumption. Okay, in fairness, they put that to one 11 side. Then they say: 12 "TfL has subsequently focused on a minus 10 per cent 13 sensitivity, broadly in line with the 132 million cited 14 in the revised NPS aviation forecasts as the demand for 15 an expanded Heathrow in 2030." 16 So, again, you can see TfL has also based itself on 17 this assumed throughput figure. If one wants to be 18 absolutely certain about this, one can look at 19 paragraph 5 of the same witness statement. That is 20 page 180 of the bundle, paragraph 5: 21 "Analysis by TfL indicated that a three runway 22 Heathrow, serving 132 million passengers per annum in 23 2030 will result in 134 additional passenger and staff 24 trips every day compared to today." 25 These are figures you will have heard from the 135 1 boroughs. Our point simply is that this once again is 2 based simply on an assumption as to what we were going 3 to do in terms of providing terminal capacity and not an 4 assumption that accords with what we have said very, 5 very publicly we are going to do. 6 Now, on page 8 in my note, I refer to various 7 passages in Mr Caccavone's witness statement. So, TCWS, 8 tony Caccavone's witness statement. You can see those. 9 I am not sure that it is necessary for me to take you to 10 all of those. There seems to be quite a lot of text 11 there because we have noticed that some of the source 12 documents seem to be missing from the bundles and some 13 have been somewhat mixed up, but the headings of the 14 document title, so: 15 "Taking Britain further." 16 Which was our submission to the Airports Commission 17 2014, is referenced at Mr Caccavone's paragraph 17. Our 18 evidence to the Transport Select Committee, again, is 19 referenced in Mr Caccavone's evidence, and the document 20 does seem to be in the bundle, but the pages are 21 a little bit mixed up. 22 I perhaps invite you to look at -- I won't do it 23 now, in view of time, but in the third of those 24 subpoints, (iii), you see some paragraphs there, 231 to 25 234. 136 1 I do invite you just to make a note of 234. That is 2 the one where we set out five or six reasons why an 3 airport wouldn't build out all capacity immediately. 4 This has to do with a number of things, given the 5 phasing of the funding, but also airlines can't simply 6 produce schedules for, as Mr Pleming put it, a Gatwick's 7 worth of capacity in two years. They take time to build 8 up their networks, to order aircraft, to take on staff, 9 and these sorts of things. We say it is obvious. 10 I always said it, very, very publicly, that capacity 11 would be built up much more slowly. 12 Now, my point (e) on page 8: 13 "The boroughs suggest that phase growth would not 14 achieve the same economic benefits." 15 Mr Jaffey said -- and again I give the page and line 16 references -- a number of things. He talked about how 17 we would have to introduce additional mitigation or we 18 won't open the runway. In which case, he said, the 19 policy was irrational because of the fundamental impact 20 on the economic case. 21 As I hope is clear from my submissions, HAL is not 22 suggesting that it would not open the runway. What HAL 23 has always made clear is that terminal and apron 24 capacity to serve that runway would be phased, as is the 25 overall airport capacity is phased. 137 1 But DfT was aware of that. We had been making that 2 set of submissions to them for, as I said, the 3 Airports Commission in 2014, and they did a sensitivity 4 test because they wanted to understand whether there was 5 an effect on economic benefits. You should probably 6 look at this. I think it is core bundle 8 -- sorry, 7 I am not wandering off. I think most of my bundles are 8 over there, so I am just going to get bundle 8. 9 (Pause) 10 That reference, bundle 8, tab 6, page 330 is 11 important. So, this is an updated, amongst other 12 things, economic appraisal report, that again went with 13 the Airports National Policy Statement. You can see on 14 page 330: 15 "Phasing of capacity at Heathrow." 16 It says: 17 "This sensitivity test exams the effect of phasing 18 of capacity. Unlike in the central case, the increase 19 in capacity at Heathrow is assumed not to happen 20 instantly, it is brought in gradually over 10 years." 21 That does very much accord broadly with what we 22 anticipated and have said so publicly: 23 "This sensitivity test is only applied to London 24 Heathrow northwest runway, as phasing would not affect 25 the Gatwick second runway scheme. The phasing of 138 1 capacity affects passenger demand forecasts and scheme 2 benefits. 3 "The table below shows the effect on scheme benefits 4 of the phasing of capacity at the northwest runway for 5 the AC's forecast and for the updated 2017 forecasts 6 [the ones we were just looking at]. The impact on 7 passenger benefits is small because the change only 8 affects a relatively small proportion of the appraisal 9 period at a time when there is spare capacity in 10 London." 11 So, you can see the change at the end of the column 12 is minus 0.5. I think that's billion. But they 13 describe it as "small". 14 The important point to note, though, is that when 15 designating the ANPS, DfT was clearly aware that 16 Heathrow wanted to phase and it specifically took 17 account of it in terms of economic benefits, and 18 concluded that the effect was small, and despite that, 19 designated the ANPS with a northwest runway as the 20 preferred scheme. 21 Over the page, on page 9 of my notes, we say it is 22 also important to note -- this is at (f), that the TfL 23 analysis did not model the full range of surface access 24 mitigation that was available to HAL. So, not only did 25 they look at 132 million in 2030, but they didn't take 139 1 into account all the surface access mitigation that we 2 have identified. I set out there, again, the references 3 to Mr Caccavone's evidence. I refer to various 4 paragraphs there, 56. 57 is a very long paragraph, 5 including a long list of the mitigation measures we are 6 intending, and 60 makes it very clear we are not relying 7 on western rail link or southern rail link. 8 Therefore, I submit that, even for 132 million 9 passenger per annum airport for 2030, the TfL analysis 10 does not demonstrate that an NWR project is not capable 11 of complying because it simply did not take into account 12 all of our mitigation. 13 We say that the actual project we bring forward, (a) 14 will have a lower throughput in 2030 and, secondly, this 15 is (g)(ii), it will include adaptive monitoring and 16 mitigation, very much along the lines that TfL itself 17 proposed, I think very properly, at Silvertown. 18 (h), I make the point which my learned friend 19 Mr Maurici has already made. If you look at the ANPS, 20 paragraph 5.9, I have extracted some pages to make it 21 easy. It is clear that the government knew all about 22 this. The airport surface access strategy, it says: 23 "... must reflect the needs of the scheme contained 24 in the application for development consent, including 25 any phasing over its development, implementation and 140 1 operational stages, reflecting the change in number of 2 passengers, freight operators and airport workers 3 attributable to the number of air traffic movements." 4 So, not only was, we say, the department aware of 5 our proposals, they tested it, economically, to see if 6 it made any difference to the judgment between choices, 7 and then made it clear that when we bring forward 8 a surface access strategy, we have to include phasing at 9 all stages. 10 The (i) at the bottom of the page here, so it may be 11 we can pass over some of this quickly. I just 12 identified some other issues that had come up and 13 I point you, really, to where we deal with this in terms 14 of our evidence. 15 So, points on surface access strategy. I have just 16 pointed to paragraph 5.9. I point there to the fact 17 that HAL is preparing its strategy to comply with the 18 surface access requirements of the ANPS. 19 Tony Caccavone's witness statement makes that clear. 20 Mode share, I have made the points above about 21 capacity, but we also make the point to say that 22 Mr Williams is wrong when he appears to suggest that 23 traffic impacts can only be mitigated by a shift in mode 24 share to public transport. Actually, there are other 25 means of reducing cars, even if the mode share stays the 141 1 same. Taxi back-filling, freight consolidation and the 2 concept. I didn't put it in the note, but there is 3 a concept called "kiss and fly". This is where someone 4 takes a relative or friend to the airport. They drop 5 them off and then they drive away again, the only person 6 in the car, and two weeks later they drive back, one 7 person in the car to the airport. Pick up the family 8 and then drive away again. Four traffic movements. If 9 that was a taxi backfilled, it would be two traffic 10 movements. You would be there, the taxi full; you would 11 be back, the taxi full. 12 Therefore, we have to do with things with changing 13 attitudes and behaviour. It is not just about mode 14 share. That mode share would be exactly the same 15 whether it was kiss and fly or whether it was two taxis, 16 but it has halved the number of movements. 17 Western rail link/southern rail link. Again, 18 Mr Caccavone makes the point that HAL has developed two 19 cases that it is analysing; an expected surface access 20 case and an assessment case. In the assessment case, it 21 doesn't include or depend on western rail link and 22 southern rail link. It makes it very clear. Where it 23 doesn't in that assessment in that case, it obviously 24 looks at other means of achieving a mode share and 25 getting vehicles, cars off the road. So, greater 142 1 investment in coach and bus, optimising fares on rail 2 connections, access charges, either to the airport or 3 indeed to forecourts. 4 That leads me on to (iv) there: 5 "Road user and access charging." 6 The Airports National Policy Statement specifically 7 identifies emissions-based access charge as a form of 8 mitigation. 9 In the introduction of road user charging and access 10 charge, it would clearly be within the powers of the 11 DCO. I refer back again to section 120, in schedule 5, 12 which I touched on before, and the example of 13 Silvertown. 14 Again, Mr Caccavone's witness statement makes it 15 clear that HAL is considering proposals for road user 16 charging and access charging. Over the page, top of 17 page 11, I get some references. 18 Clearly, I would say, the ability to charge 19 including on a basis of emissions, is important in 20 considering HAL's ability to meet mode share targets and 21 in considering whether a northwest runway project is 22 capable of complying with the surface access and air 23 quality requirements of the ANPS. 24 Clearly, that just hasn't been taken into account by 25 the boroughs. In these circumstances, we say that the 143 1 DfT's approach was not flawed and the Secretary of State 2 did not act irrationally. 3 Insofar as TfL looked at, of course, charges, their 4 charges were based on throughputs, which were far 5 higher. I think they came up with access charges of £50 6 per trip, which is, I suppose one could say, an 7 equivalent of a week of the congestion charge in London, 8 but far higher than our own modelling has indicated 9 because, of course, we are looking at much lower flows. 10 Section 7, here, air quality. The boroughs accept 11 indeed they assert, that errors in DfT's surface access 12 analysis undermine its air quality analysis. But, of 13 course, the same is true for TfL's surface access 14 analysis. Insofar as it was based on an incorrect set 15 of throughputs or an incomplete set of mitigations, it 16 undermines their points on air quality. 17 Now, from 7(c) I think I can take this very quickly. 18 This is where I was going to cover points on the DfT's 19 air quality re-analysis, but Mr Maurici dealt with this, 20 particularly yesterday morning, in a lot of detail. It 21 seems to me it is not necessary. You can see the 22 subheadings I have put in there to try and take you 23 through the steps. 24 I draw attention simply -- towards the bottom of 25 page 11, there is a subheading (iv): 144 1 "WSP's adjustments to the surface access modelling." 2 Mr Maurici took you through that. I just point to 3 number 2 under that as summarised in TC's witness 4 statement. Mr Caccavone actually summarises those quite 5 complicated steps in the adjustments in his 6 paragraphs 36 and 37, which you might find helpful. 7 At the top of page 12, I simply draw attention there 8 to the sort of headline message, that basically those 9 re-adjustments from the Airports Commission surface 10 access modelling to the adjusted modelling that WSP 11 looked at, looked at a 9 per cent growth in ATMs, but it 12 led to a 48 per cent increase in flows on all links. 13 Mr Caccavone says that's extremely conservative. 14 5 per cent increase in movements leading to 48 per cent 15 increase in flows is very conservative. 16 Again, we simply make the point that of course goes 17 generally to this picture that the DfT was taking a very 18 conservative approach. 19 I don't need to touch on (v) and (vi) there. (d), 20 The 2017 appraisal of sustainability. I think 21 Mr Maurici has dealt with this. This is the point about 22 the fact the reappraisal actually forecast that we would 23 be compliant against air quality limit values. It was 24 only when one added the plus or minus 29 per cent 25 uncertainty, and in particular the plus 29 per cent 145 1 uncertainty, that the risk came in. 2 That was a high risk in 2026. That would be the 3 first year of opening. Medium by 2030, and we are well 4 below DfT and TfL figures in 2030, and of course the 5 risk then declines after 2030. 6 The important point is that with HAL's phased 7 approach to capacity, it only gets to 132 million on 8 a sort of ten-year -- broad sort of ten-year gradual 9 build up in about 2036. That's when we get to 10 132 million. Of course, that's well after the critical 11 years because of background, NO2 levels as modelled by 12 the PCM model. The pollution control model. 13 The next point again, I think I've touched on this, 14 but of course I touched on adaptive monitoring and 15 mitigation in relation to surface access issues. I make 16 the same point in relation to air quality, and I took 17 you specifically in Silvertown, in the Silvertown DCO, 18 to that section in the schedule on adaptive monitoring 19 and mitigation for air quality issues. It is very clear 20 that mechanism would be available. 21 So, turning over the page to page 13, we say the 22 boroughs seem to point to a high medium risk of 23 non-compliance in 2026/2030. We say the ANPS says that 24 we have to be capable of delivering the runway without 25 impacting on UK's compliant limit values. Our case is 146 1 that a northwest runway project, an NWR project is 2 capable of being delivered without impacting and, 3 indeed, the WSP re-analysis actually showed that. It is 4 only when you added the uncertainty factors there was 5 a risk of non-compliance. 6 Indeed, the issue of whether a northwest runway 7 project is capable of being in compliance is not proved 8 by testing a worst case. What you need to test is the 9 best case. You need to say: what is the very best case 10 for a runway? 11 If you could demonstrate that the very best case 12 doesn't comply with air quality minutes, then you would 13 begin to have an argument. 14 Simply to say that a worst case doesn't comply tells 15 you nothing about whether we are capable of coming 16 forward within air quality limits. 17 My Lord, I am not sure what time you are wanting to 18 break. I can move swiftly on the noise now. I am 19 making pretty good progress. 20 LORD JUSTICE HICKINBOTTOM: You are not going to be very, 21 very much longer? 22 MR HUMPHRIES: No. 23 LORD JUSTICE HICKINBOTTOM: Then might be a good time to 24 break, and then Mr Banner can carry on after the break. 25 MR HUMPHRIES: My Lord, I am very happy to do so. 147 1 So, noise. Noise seems to have been raised by the 2 boroughs in a general context way, for example, 3 statements about noise from the northwest runway will 4 affect a lot of people and things of that sort, as well 5 as, I think, in the context of issue 8.2, some of the 6 SEA issues. At times, the arguments that were raised by 7 the boroughs seem to relate to just adverse noise 8 effects from the northwest runway, generally. 9 Secondly, the extent of noise effects compared to 10 Gatwick. 11 Thirdly, some confusion over noise matrix. 12 Fourthly, the extent of consultation by HAL and DfT. 13 And, fifthly, indicative flight paths. 14 It is difficult to know with all of those points 15 quite how to pigeonhole them in terms of the issues. 16 I make it very clear I am not going to engage on the 17 SEA issues, Blewett, et cetera. I leave that to the 18 department and anyone else. But I will make some 19 general points in the context of the examination of 20 a DCO application in relation to noise. So, I am going 21 to pick up those five numbered points, and I am just 22 going to make a few observations on them. 23 Adverse air noise effects from the northwest runway, 24 clearly air noise will be an issue that will be 25 considered at an examination into the application for 148 1 a northwest runway project. 2 The application should be in accordance with the 3 ANPS, and the ANPS, in the references I give at the top 4 of page 14 -- that is paragraphs 5.44 to 5.62 -- set out 5 policy on noise, and clearly that is part of the policy 6 context to which we will have to work. 7 The adverse impacts of noise of the proposed 8 development, from (a), the northwest runway project, 9 will have to be balanced against its benefits, and it 10 will be open -- I make it absolutely clear -- to the 11 objectors to say that the adverse effects outweigh the 12 benefits, and thus development consent should be 13 refused. That is not a forbidden argument. That is not 14 precluded by the ANPS. 15 The second point though, the extent of noise effects 16 compared to Gatwick, there -- and I think I can probably 17 deal with this fairly lightly -- that's the point about 18 section 104(3)/104(7) and the balancing of the benefits 19 and adverse impacts of the proposed development. It is 20 classic Thames Blue Green Economy territory, those 21 paragraphs, 36 to 40 I think it is. 22 HAL's position is that it couldn't be argued at an 23 examination that the northwest runway should be refused 24 development consent on the basis that Gatwick had lesser 25 or different effects because that wouldn't be balancing 149 1 the benefits and the adverse effects of the proposed 2 development. 3 Location in this matter is something that has been 4 decided by, or will have been something decided by the 5 NPS, and that's a legitimate purpose of the NPS. 6 Section 5 makes it very clear, section 5.5D: 7 "An NPS may identify suitable, and indeed 8 unsuitable, locations." 9 Again, Thames Blue Green Economy deals with this. 10 MR JUSTICE HOLGATE: Does it follow from that analysis -- 11 assuming it to be right -- that at the DCO stage, when 12 you look at that balance, the promoters of a scheme 13 would be entitled to say that the decision must be taken 14 on the basis that there is only one location capable of 15 delivering the benefits? 16 MR HUMPHRIES: I don't think -- 17 MR JUSTICE HOLGATE: Is it in other words something which 18 could be positively put into the balance in favour of 19 the scheme? Because, if it can be, then it could be 20 said that opens up consideration of alternatives which 21 say the benefits can be delivered in some other way, or 22 do you just have to assume that is completely 23 disregarded? 24 MR HUMPHRIES: Yes, what one would assume is that the 25 location is determined by the strategic document, the 150 1 NPS. 2 MR JUSTICE HOLGATE: I follow that. 3 MR HUMPHRIES: We would be bringing forward a project in 4 accordance with that. There may be elements of our 5 development for which there could be alternatives, 6 "Look, don't put the road here, put the road there". 7 MR JUSTICE HOLGATE: My question -- perhaps it is not a very 8 good question -- is whether, in deciding how much weight 9 to give to the benefits, you can give additional or 10 enhanced weight because the assumption is there is only 11 one place to put it. 12 MR HUMPHRIES: My Lord, that's -- 13 MR JUSTICE HOLGATE: Or do you take that aspect out of the 14 equation? 15 MR HUMPHRIES: Yes, I think we would say that government 16 policy in this regard would have very considerable 17 weight, anyway. To the extent that government had gone 18 through a very sophisticated process over a number of 19 years, we would say that would give it weight, but 20 I think -- I wouldn't want to sort of invite the idea 21 that actually you can get into an argument about 22 alternative locations by the backdoor. 23 MR JUSTICE HOLGATE: That is why I am asking the question. 24 MR HUMPHRIES: Yes, exactly. I thought it might be. 25 MR JUSTICE HOLGATE: Put to one side the Habitats 151 1 Regulation -- 2 MR HUMPHRIES: Through the question of weight. So, my 3 answer to that is that one looks at the ANPS, it's 4 decided that strategic question, and it's government 5 policy and one attaches significant weight to it. 6 MR JUSTICE HOLGATE: It is not an entirely easy issue 7 because the very concept of looking at benefits of 8 a scheme which is there to meet need, and how much 9 weight to give to those benefits, normally is 10 intrinsically and intimately tied up with whether there 11 are other locations. 12 MR HUMPHRIES: In Thames Blue Green Economy -- and we can 13 look at it if it would helpful -- Mr Justice Ouseley 14 specifically looks at this question. The point was put 15 to him, I think by Mr Parkinson on behalf of Thames Blue 16 Green Economy, about need and can need be met in some 17 other way. Mr Justice Ouseley says in that passage, 18 "Well, hang on, that's a conventional planning argument. 19 That conventional planning argument that you ask can 20 need be met in some other way, doesn't apply, doesn't 21 work in the context of the Planning Act and, in 22 particular, the relationship between section 104(3), 23 decided in accordance with the relevant national policy 24 statement and section 104(7) look at the benefits and 25 adverse effects of the proposed development. That is, 152 1 if you like, to that extent, the exercise one is 2 carrying out. It is in part in that context he was 3 making the point: look, to be told about benefits or 4 disbenefits of something else just doesn't help the 5 decision-maker on that balance. 6 My Lords, (d) on page 14: 7 "Boroughs' confusion over noise metrics." 8 During his submissions Mr Pleming referred to -- and 9 I tried faithfully to put an example of each time it 10 happened -- a number of points about different contours, 11 different types of matrix and so on. So, contours, 12 Mr Pleming spoke at one time -- you can see from the 13 page references -- almost sort of interchangeably about 14 dB Laeq 16 hour contours and dB Lden 24 hour contours, 15 and referred to them almost, it seemed to me, 16 interchangeably, but these are very different matrix. 17 It is like simply comparing a 70-mile an hour speed 18 limit, and saying a car going at 75 kilometres an hour 19 is breaking the speed limit. Well, it is not. They are 20 just different matrix. 21 It is just not possible, as appeared in one or two 22 places to be the case, to simply look at different 23 contours and muddle them up. They are very different, 24 or at least they are different. 25 "Observed adverse effect levels ..." 153 1 You can see I have put that wrong. I do apologise, 2 and you can see below I have done it wrong: 3 "... on health and quality of life." 4 Those concepts come from the Noise Policy Statement 5 for England, which Mr Maurici referred to yesterday, and 6 also in the case of UAEL, from planning policy guidance, 7 the online version. 8 Those documents -- and I am not sure if the noise 9 policy statement was put in, but what those documents do 10 is, they set certain thresholds. They don't give the 11 values, those are given in other documents, but they set 12 certain values, and those values are there in order to 13 indicate the type of response expected. So, if one 14 looks, for example, at the national policy statement, 15 you can see again the language of the Noise Policy 16 Statement for England echoed there. So, CB6, tab 7, 17 261, paragraph 5.68. That paragraph is almost perfectly 18 lifted from the Noise Policy Statement for England. It 19 says: 20 "Development consent should not normally be granted 21 unless the Secretary of State is satisfied that the 22 proposals will meet the following aims for effective 23 management and control of noise within the context of 24 government policy on sustainable development. Avoid 25 significant adverse impacts on health and quality of 154 1 life. Mitigate and minimise adverse effects on health 2 and quality of life. Where possible, contribute to the 3 improvement of health and quality of life." 4 Thus, if you are above a SOAEL, you are supposed to 5 avoid. That is normally interpreted as provide sound 6 insulation to houses. If you are between the SOAEL and 7 the LOAEL, you are to mitigate and minimise. That might 8 mean other things. Runway alternation, night noise 9 bans, things of that sort. 10 So, these various concepts that are being used are 11 actually mechanisms to drive the promoter, whether it be 12 an airport or some other form of noisy development, to 13 certain types of responses. When one looks at the Noise 14 Policy Statement for England -- and maybe it would be 15 helpful if you had that. It is a short document -- it 16 is pretty obvious that is what it is about. 17 The next concept that was used was the onset of 18 significant community annoyance, the 54 dB Laeq. 19 Again, I refer to it. This is not the same as 20 LOAEL. This is a criterion, which is at 54 -- whereas 21 LOAEL is 51 -- which is based on social surveys. It is 22 the point at which populations begin to be significantly 23 annoyed by a certain level of noise. It doesn't mean 24 they all are, but the population will begin to be 25 annoyed. 155 1 Therefore, at various points, it seemed to be 2 suggesting there was some confusion between the 51 LOAEL 3 and the 54 onset of community noise. Those are just 4 different concepts. 5 (4): 6 "HAL operational procedures consultation." 7 That was our consultation this year on envelopes for 8 airspace design. The boroughs here producing yellow 9 plans, which they said were composites of the various 10 HAL plans. 11 The first point which I made at the time was: it is 12 misleading to suggest that they show that areas that 13 will be overflown. 14 Mr Pleming then said, at one point: 7,000 contour 15 band, you know, that equates to the 51 dB LOAEL. 16 No, it doesn't. 17 The LOAEL would be equivalent to about 4,000 feet. 18 The use of the 7,000-foot threshold comes from the Air 19 Navigation Guidance. I won't take you through it now, 20 but invite you do look at paragraphs 3.3 and 3.9. 21 The point about it is: above 7,000 feet air traffic 22 control is designed in a different way. It is designed 23 so that routes are more direct and they reduce CO2. 24 Below 7,000 feet, you take into account environmental 25 things on the ground. That's why HAL, in its January 156 1 this year consultation, which was both on the DCO and on 2 airspace design -- and the document we were shown 3 relates really to airspace design -- was looking at 4 things up to 7,000 feet. It is required to do so. It 5 doesn't mean that all of those people are experiencing 6 adverse effects on health or quality of life. 7 The next point, supplementary metrics. N65, N60, 8 N70. These are simply threshold levels. Avoid the 9 criticism that some people make, that dB Laeq is 10 a logarithmic average of noise over a 16-hour period. 11 HAL used the N65 and some of the consultation 12 material, but that doesn't mean, as Mr Pleming 13 suggested, that HAL had dropped the use of LOAEL. They 14 are just different things for different purposes. It 15 was using the 7,000 metres and the N65 to satisfy 16 a requirement of the CAA in terms of airspace design. 17 LOAEL comes in when we look at actual noise contours at 18 a different stage, and serves a different purpose. 19 It is not clear from all these points what legal 20 point was being made, but it does actually, I suggest, 21 give a very good example of why the court should be very 22 careful about delving into matters of technical or 23 scientific nature. The issue here is rationality. It 24 is really for you to be invited to, in some way, draw 25 conclusions from the whole series of points made on 157 1 Day 2, many of which were just simply wrong. It rather 2 illustrates the point in Mott. What we say is there is 3 nothing irrational in what the department has done on 4 air noise. 5 The next point, I think, the top of page 16, the 6 extent of consultation by HAL and DfT, I think 7 Mr Maurici has really dealt with that. 8 I mean, they think we consulted too widely. Maybe 9 we did, maybe we didn't, but that's what we did. 10 Insofar as we were looking at thresholds of 7,000 feet 11 for various purposes, that's driven by the requirements 12 in relation to the design of airspace. 13 Indicative flight paths. This again was Mr Pleming. 14 HAL has undertaken consultation on the envelopes within 15 which the actual flight paths will be developed. That 16 is not the LOAEL, but those envelopes. That was part of 17 our airspace change consultation material from January 18 of this year, but we have not yet consulted on 19 indicative flight paths. 20 But the ANPS does require HAL to develop indicative 21 flight paths as part of the application, and we clearly 22 will be looking at those as part of the application. 23 If we look at the ANPS, this time it's 5.52. So, 24 that's volume 6, tab 7, page 258 to 9. You will see 25 there, on 258, 5.52, the applicant's assessment, and 158 1 just before the bullet points, it says: 2 "The noise assessment should include the 3 following ..." 4 And it goes through the bullet points. At the end, 5 it says, after the bullet points: 6 "The issue of taking into account construction and 7 operational noise, including from surface access 8 arrangements and aircraft noise. The applicant's 9 assessment of aircraft noise should be undertaken in 10 accordance with the developing indicative airspace 11 design. This may involve the use of appropriate design 12 parameters and scenarios based on indicative flight 13 paths." 14 Therefore, we will be looking at indicative flight 15 paths. That was not the purpose of the consultation 16 in January this year. 17 Finally, point 9, on relief. I think I do no more 18 here in essence, early on, than to echo what Mr Maurici 19 said to you at the bottom of my page 16. 20 At the top of my page 17, I said on the issues on 21 which HAL has particularly engaged, issues (iii) and 22 (iv), it is clear that even if there was a technical 23 flaw in the DfT's surface access or air quality 24 analysis, and northwest runway scheme is still capable 25 of being developed consistent with the requirements of 159 1 the ANPS and surface access and air quality obligations, 2 and obviously make the point that would need to be 3 controlled by requirements and obligations. 4 We say that we have already undertaken two stages of 5 nonstatutory consultation and we intend to undertake 6 statutory consultation later this year, and that if the 7 ANPS was quashed, that would create considerable policy 8 uncertainty for the project and could affect HAL's 9 current programme for making its application. For the 10 above reasons, we would support, I think, the 11 department's view that discretionary relief should be 12 refused. 13 My Lord, I am very, very slightly early, but 14 I suppose that is to be welcomed. 15 LORD JUSTICE HICKINBOTTOM: Commended. 16 MR HUMPHRIES: My Lord, those are my submissions. 17 LORD JUSTICE HICKINBOTTOM: Thank you very much. So, 18 Mr Banner, ten minutes. 19 MR BANNER: Thank you. 20 LORD JUSTICE HICKINBOTTOM: Thank you very much. 21 (3.23 pm) 22 (A short break) 23 (3.35 pm) 24 LORD JUSTICE HICKINBOTTOM: Just before you start, 25 Mr Banner, can I just deal with one administrative 160 1 matter and that concerns tomorrow. Tomorrow we are due 2 to have the replies, and I think we are due to finish 3 just after lunch, although I haven't checked the 4 timetable. If we started at 10 o'clock, would that mean 5 we may finish by lunchtime? 6 MR PLEMING: Probably, yes. The timetable shows half an 7 hour after 2 o'clock, so starting at 10.00 I am 8 certain -- 9 LORD JUSTICE HICKINBOTTOM: That would be helpful. I hope 10 for everybody, but certainly for us, because we have to 11 try and sort this out. Of course, we have the next 12 round starting on Wednesday. 13 MR PLEMING: Yes, starting at 10 o'clock. 14 MR SPURRIER: Sorry, my Lord, I am due on at 2.00, so 15 I would be on in the morning then? 16 LORD JUSTICE HICKINBOTTOM: Yes, hopefully before lunch, but 17 it may not technically be the morning, but, yes. 18 Submissions by MR BANNER 19 MR BANNER: I start by adopting Mr Maurici's submissions in 20 their entirety. I have some supplementary submissions 21 on issue 7, which is the approach to be taken by the 22 court for reviewing compliance with the SEA directive, 23 particularly in light of how the oral argument went last 24 week and some comments from the bench. 25 The two critical targets that I am directing my 161 1 submissions at are, firstly, that both the legislation 2 and the case law point towards the application of 3 conventional public law principles in this context and 4 not the heightened standard of review contended for by 5 paragraph 71 of the boroughs' skeleton, and by 6 Mr Pleming, orally. 7 Secondly, that there is no tension between the case 8 law. The cases such as Ashdown Forest, the whole cases, 9 Blewett, and the cases about the equality of the ES are 10 actually all applications of the same overall approach, 11 namely conventional public law. 12 May I start by going back to the legislation itself 13 and first principles? Can I trouble the court to go 14 back one more time to the SEA Directive itself? It is 15 volume 1 of the authorities, tab 19. 16 I will use the directive and give you the 17 regulations references as well. If we can start at 18 Article 3. My Lords, I suggest that the overarching 19 duty on the plan making authority in the SEA context is 20 twofold. 21 Firstly, under Article 3 and specifically 22 Article 3.1, that is regulation 6: 23 "To subject the plan or programme to environmental 24 assessment." 25 Of which, per Article 2(b), the environmental report 162 1 is one component, but not the only one. 2 The process for that assessment is governed by the 3 provisions that follow. 4 Then, Article 8, which is the Article that actually 5 bites on the decision to adopt the plan, to take into 6 account the components of the environmental assessment 7 before adopting the plan or programme. 8 My Lords, in performing that duty, the plan making 9 authority has to satisfy itself that the environmental 10 report complies with Article 5, taken together with 11 annex 1, and with regulation 12 taken with schedule 2. 12 I note in that context -- or reiterate I should 13 say -- that Article 5(1) is of course qualified by 14 Article 5(2), the reasonably required provision, and 15 therefore the claimants are wrong to describe annex 1 as 16 "mandatory requirements", paragraph 71.1 of the 17 boroughs' skeleton. They are not in all cases mandatory 18 because they are subject to 5(2). 19 MR JUSTICE HOLGATE: Will you forgive me, you have just said 20 that the plan-making authority has to satisfy itself 21 that the environmental report complies with Article 5, 22 taken together with annex 1. But I thought, for my 23 part, the upshot of cases such as Cogent Land and the 24 Court of Appeal decision is that there may be 25 a deficiency in the environmental report, but you look 163 1 at the process as a whole, the first part of your 2 submission, and deficiency can be remedied by something 3 which happens subsequently. 4 MR BANNER: In Cogent and No Adastral there is a 5 supplementary report, and by "environmental report", I 6 use that term collectively to include any supplementary 7 environmental report which is subjected to the same 8 process. Effectively, what happened is they went back 9 to the Article 5 stage. 10 MR JUSTICE HOLGATE: So, when I read your submission, it is 11 "environmental report" in the broader sense, not the 12 initial document, but being taken as a whole. 13 MR BANNER: Absolutely, very much so. 14 MR JUSTICE HOLGATE: Sorry. 15 MR BANNER: My Lord, where the plan making authority has so 16 satisfied itself, the directive doesn't prescribe for 17 right of appeal or any particular procedure to challenge 18 the authority's adoption plan on that basis. As the 19 court has already heard, Article 12 doesn't govern 20 decision-making or appeals. It is concerned with 21 relations with the Commission on a systemic basis. 22 It follows, my Lords, that where a judicial or 23 statutory review challenge is made, on the ground that 24 the authority erred in finding Article 5 compliance, the 25 application of convention or domestic public law 164 1 principles, including Wednesbury, is an entirely 2 orthodox application of the discretion or autonomy left 3 to member states by the directive. That is a simple, 4 straightforward application of first principles of how 5 EU law relates with national law. 6 Therefore, if the subject were free from 7 authority -- and it is the authorities to which I will 8 now turn -- the default position, based upon the 9 legislation and first principles wouldn't be the 10 claimant's heightened standard review, but the 11 application of conventional public law, including 12 Wednesbury. 13 My Lord, the cases that the court has been taken to 14 on this issue last week are entirely consistent with 15 this. I am going to start with the cases concerning 16 what my Lord, Lord Justice Hickinbottom, called the 17 "hole" in the environmental report for shorthand, then 18 the cases about attacks equality, and then Blewett after 19 that. My proposition being that they all apply the same 20 overall standard review, namely Wednesbury. 21 The first category of cases, which include Save 22 Historic Newmarket, otherwise known as Forest Heath, 23 Heard and Ashdown were all cases where there was 24 a complete failure to deal with reasonable alternatives 25 to the challenge policies without any explanation or 165 1 attempt to justify that omission by reference to 2 Article 5(2). That meant in the circumstances of those 3 cases no rational plan making authority could have 4 concluded that the environmental report complied with 5 Article 5.9(xi) and, in any event, that the authority 6 had failed to have regard to legally relevant 7 considerations. Therefore those cases, although they 8 ended up as a resulting in the court finding 9 non-compliance, they can be seen as the court doing so 10 by reference to a straightforward application of 11 conventional public law. No heightened standard, as 12 contended for by the claimants. 13 May I illustrate that by taking you to the relevant 14 parts of the three cases I have mentioned. Can I start 15 with Newmarket, which is same bundle, bundle 4, tab 94? 16 When the court has that, the best entry point is 17 paragraph 31. I am afraid it is not paginated. 18 31 simply provides the court with the bearings 19 because that's the policy, or the allocation that was 20 the subject of the challenge. An allocation for 1,200 21 weddings over the it iterative plan-making process that 22 led to that policy. The number had gone up 23 significantly. 24 Paragraph 33, over the page, after 25 Mr Justice Collins quotes the relevant part of the SA, 166 1 he says this in the last sentence: 2 "Nowhere does the SA identify or evaluate reasonable 3 alternatives or explain why they were rejected in favour 4 of what is proposed." 5 Then he refers to section 6, "Environmental Report": 6 "Nothing said there about alternatives, nor is there 7 an explanation as to why the increase had been decided 8 and whether the effect of that would make any 9 difference." 10 There was simply nothing in relation -- nothing at 11 all in relation to alternatives. 12 Actually, I remember the case. Chapter 6 of the 13 environmental report said: 14 "For alternatives see chapter 10." 15 And chapter 10 said: 16 "For alternatives see chapter 6." 17 That was the extent of the profound error. 18 Paragraph 40, my Lord, you will see that's what led 19 to the conclusion, expressed by Mr Justice Collins in 20 those terms, at paragraph 40, that there was a failure 21 to comply with the requirements of the directive. He 22 wasn't applying a merits review or any sort of 23 heightened standard, it was simply a fundamental, 24 profound, irretrievable omission. 25 Ashdown, although it is not chronologically next it 167 1 is a very good illustration of this point, so I am going 2 to deal with that next. That was handed up last week. 3 I don't think there were actually numbers given to the 4 authorities last week. I have my freestanding, but 5 I think you put it at the back of tab 8, or was it 6? 6 LORD JUSTICE HICKINBOTTOM: Or six. 7 MR BANNER: Take your pick. 8 LORD JUSTICE HICKINBOTTOM: Yes. 9 MR BANNER: My Lord, firstly, again, the entry point that 10 challenged policies, paragraphs 3 and 4. It was 11 a policy WCS12, which contained a requirement that new 12 development within 7 kilometres of the Ashdown Forest 13 European site had to provide sand, suitable alternative 14 natural green space, which presented a problem in 15 practice with developers because there wasn't any, so 16 effectively it was operating as a constraint on 17 development. 18 Paragraph 34, which is a submission that Mr Elvin 19 and I advance to the Court of Appeal, as to why 20 Mr Justice Sales, in the High Court, was wrong to say 21 the habitats assessments stood as a proxy for SEA in 22 this context. The habitats assessments simply ruled out 23 the potential for effects on habitats on the basis that 24 7 kilometres was enough to rule out such an effect. 25 What it didn't do is explore whether there were 168 1 alternative ways of achieving that same consequence. In 2 essence, the council's for avoiding habitats had led it 3 to overlook the SEA duty. You see that in the second 4 sentence: 5 "Not the function of the habitats assessment to 6 consider an alternative. The exercise did not in fact 7 involve any consideration of alternatives. The focus 8 was an elimination of risk." 9 Then picking up, the three lines from the bottom: 10 "The question whether it was necessary to go that 11 far to eliminate the risk or whether risk could be 12 eliminated by other means was not posed. There was 13 simply no discussion of alternatives." 14 That was the submission advanced to the court, and 15 the claimants' submissions were accepted in general 16 terms in paragraph 44. 17 At 42, the court will see the way that 18 Lord Justice Richards looked at it. He accepted the 19 defendant counsel's submission: 20 "The identification of reasonable alternatives is an 21 evaluative judgement, subject to review on public law 22 principles." 23 In order to make a lawful assessment, however, the 24 law does at least have to turn its mind to the question, 25 and it didn't do there: 169 1 "There is no evidence the council gave any 2 consideration to the questions of reasonable 3 alternatives to the seven kilometre zone." 4 It is on that basis the failure to have regard to 5 that legally relevant question, a classic application of 6 public law again, that the whole, in this respect, in ES 7 rendered the plan unlawful. Again, you see at the very 8 bottom of paragraph 50: 9 "The error is described in terms of the council's 10 failure to consider the question at all." 11 Again, although the outcome was successful for the 12 claimant/appellant there, there is no difference of 13 approach. It is still classic conventional public law. 14 Heard is the next authority and that's at bundle 4, 15 tab 95. The facts are a bit more complicated, but 16 I think the critical context can be gleaned by starting 17 at page 473, paragraph 54. The claimant's grievance was 18 with a proposed urban extension, known as the northeast 19 growth triangle, NEGT. You will see that acronym 20 throughout. Picking up at the beginning of 21 paragraph 54, these are the claimant's submissions. The 22 issues and options paper which started the plan making 23 process had a number of different options, which were 24 given letters. Two of which, C and D, were not the 25 subject of an environmental assessment at all. D was 170 1 the one that included no NEGT. All the other options, 2 including the refined options that followed, involved 3 some more or less development in the NEGT, but D was no 4 NEGT. 5 The criticism, if one then turns to paragraph 58, 6 which is now the judge's, Mr Justice Ouseley's 7 conclusions, was that. At 58: 8 "The issues and option paper and its sustainability 9 appraisal were themselves perfectly sensible papers. 10 However, option D was not assessed and the SA did not 11 explain why not. There was therefore no assessment of 12 an alternative which did not include development in the 13 NEGT nor an explanation of why that was not a reasonable 14 alternative even though one which might have been 15 identified as an option. That was not unimportant in 16 light of the uncertainty over the NDR. The NDR was 17 Northern Distributor Road which was considered to be, if 18 not necessary for the NEGT, then certainly an important 19 facilitator and therefore if that was in doubt, ergo it 20 was said well so might the NEGT be in doubt and 21 certainly made the alternative reasonable to consider." 22 It was that again, that complete absence of 23 consideration of the alternatives to an NEGT option 24 which then led to the comments of Mr Justice Ouseley at 25 61 to 63. 171 1 Can I just ask the court to spend a moment -- I am 2 sure these are familiar passages -- reading 61 through 3 to 63 and 66, just a moment. 4 LORD JUSTICE HICKINBOTTOM: Yes. 5 (Pause) 6 MR BANNER: You will see, as I suggest, that was another 7 complete failure test. Hardly surprising or unorthodox, 8 as a straightforward application of public law review 9 would lead to the outcome in that case. 10 One last brief illustration of the 11 Mr Justice Ouseley judgment in HS2, some more extracts 12 for you to get in due course. 13 Paragraph 165, where Mr Justice Ouseley, upheld by 14 the Court of Appeal, held that if what was -- according 15 to the DNS -- the white paper for HS2 had required SEA, 16 if it had been a -- 17 MR JUSTICE HOLGATE: Did you say 165? 18 MR BANNER: 165. I think that's the right reference. Of 19 HS2. I will provide you the extracts. I am just 20 reading the paragraph number into the transcript in case 21 that helps later. 22 But if the DNS had been a framework setting plan 23 requiring SEA it was a framework setting plan for the 24 whole "why" of HS2. Whereas the appraisal 25 sustainability had only looked at the route corridor for 172 1 the London to the Midlands, and the alternatives to that 2 route corridor. It hadn't assessed the environmental 3 impacts of the whole "why", or the alternatives to that 4 strategic hole. Again, that is a glaring, fundamental, 5 profound omission of the character of those three 6 previous cases, and not surprising, that applying 7 conventional public law, Mr Justice Ouseley held that 8 had SEA Directive applied, there would have been 9 a breach. 10 By contrast, the second category of cases covers 11 those challenges where the complaint properly analysed 12 is not that there is a complete and unexplained -- by 13 reference to Article 5(2) -- failure to include one of 14 the annex 1 considerations, but the quality of analysis 15 in the environmental report was in some way inadequate. 16 It wasn't full enough, it was wrong, it was deficient in 17 some other way. 18 Here, the application of conventional public law 19 principles poses a more demanding challenge in the 20 circumstances for a complainant because the attack is on 21 an evaluative judgment as to adequacy of the 22 environmental information before it. 23 You have been taken away to Shadwell, paragraphs 79 24 to 81 of tab 97. I won't take you back to that. 25 Friends of the Earth, Lord Justice Hickinbottom's 173 1 judgment. See also Mr Justice Ouseley in HS2, at 2 paragraph 114. 3 Can I very briefly take you to Gladman because 4 I suggest Mr Justice Lewis puts the point in words very 5 similar to how Mr Maurici made his submissions. That's 6 tab 102 of volume 4, page 680. Actually, end of 679, 7 paragraph 90. The structure of Mr Justice Lewis's 8 judgment is at paragraph 90. He records all the things 9 that the environmental report and the environmental 10 assessment process did do. 11 Then, at 92, it characteries the complaint as not 12 being there that had been some complete failure of the 13 nature of those earlier cases, but rather that the 14 claimant, picking it up six lines from the bottom, was 15 critical of the level of detail. It made a wish for 16 more detail, but that the plan-making authority was 17 entitled to say it had enough. So, the complaint was of 18 an entirely different character, and applying 19 a Wednesbury approach didn't get off the ground. 20 My Lords, what I say is, pulling this together, is 21 there is one governing approach to review, namely 22 conventional public law principles including Wednesbury. 23 I say it that way, rather than just Wednesbury because 24 of Ashdown Forest being a material consideration case, 25 really, but the application of those conventional 174 1 principles will tend to be harder edged in cases where 2 the complaint is of a complete and unexplained absence 3 of an annex 1 ingredient, than in a case where the 4 complaint is that the analysis was qualitatively 5 inadequate. 6 Can I just pause there and illustrate that by 7 reference to the point made by Friends of the Earth in 8 relation to Paris? 9 The annex 1 consideration in this regard, if we very 10 briefly go back, it is important to understand what the 11 requirement is. So, back to tab 19 of authorities 1. 12 Annex 1(e). It is: 13 "The environmental protection objectives established 14 at community, international and member state level. 15 Relevant to the final programme, the way those 16 objectives and environmental considerations have been 17 taken into account during the preparation." 18 It is untenable to suggest that the AOS contained 19 nothing on that subject. What Dr Wolfe's main complaint 20 here is, or his complaint is, is that it should have 21 contained more, namely Paris. 22 To illustrate that -- and this is by no means 23 complete illustration -- core bundle 9 within the main 24 bundles, there are two references I can -- there is 25 firstly core bundle 9, tab 2, page 47. There is a table 175 1 that sets out where in the AOS the annex 1 2 considerations are dealt with. You will see at entry 3 number 5, which is the top of 47, the environmental 4 protection objectives. It says: 5 "Look at appendix A." 6 So, it is to appendix A we turn. There are lots of 7 different subsections of appendix A depending on the 8 subject, but the carbon section is at tab 8, 9 appendix A-9, starting at 436. 10 LORD JUSTICE HICKINBOTTOM: I am sorry, which? 11 MR BANNER: It is tab 8 of the same bundle. 12 LORD JUSTICE HICKINBOTTOM: Yes. 13 MR BANNER: You see appendix A starts at 433. The point 14 I simply wanted to make is when we go to page 436, you 15 see firstly, at just above "Policy and legislation", 16 a description of the objective. Then reference to 17 various legislation, including, at EU level, having 18 regard to the UN international civil aviation 19 organisation meeting, and domestic law, and then you 20 have the assessment. 21 So, it can't possibly be said that there is no 22 annex 1-H material in the AOS. The complaint is there 23 isn't enough. In particular, there should have been 24 reference to Paris, which I adopt what Mr Maurici said. 25 So, properly analysed -- 176 1 MR JUSTICE HOLGATE: You mean annex 1-E, I think. 2 MR BANNER: Yes, forgive me. You are quite right. So, 3 properly analysed the FoE complaint is a complaint 4 falling in the second category, rather than in the first 5 category. 6 My categorisation of the two categories of cases 7 being applications of the same approach in different 8 circumstances is supported by a judgment of my Lord, 9 Lord Justice Hickinbottom. There is one more that 10 hasn't been provided in the authorities. Can I possibly 11 ask for it to be handed up to you? 12 (Handed) 13 Everybody else has had a copy of this already. It 14 was the case about the so-called ban on second homes in 15 St Ives' neighbourhood plan. 16 Can I ask the court to go to page 387? So, picking 17 it up at paragraph 40, where my Lord reiterates what you 18 said in the Welsh context, in the Friends of the Earth's 19 case, and said, unsurprisingly, it was equally 20 applicable in England. 21 Then, at 41, you say that whilst it is true that to 22 a considerable extent you, in reaching those principles, 23 drew upon the first instance judgment in Ashdown, 24 Lord Justice Richards on appeal didn't undermine those 25 principles. He simply reached a different conclusion 177 1 applying them. 2 So, pausing there, my Lord, the approach that the 3 court took in the RTL case was that the different 4 strands of case law were entirely reconcilable in the 5 manner that I have described. 6 I also want to draw the court's attention to the 7 next page, paragraphs 44 and 45, where building on the 8 Friends of the Earth case you describe what was 9 necessary for something to be a reasonable alternative. 10 I just pause and just ask the court to refresh its 11 memory of 44 and 45. 12 (Pause) 13 That may be of assistance on the Gatwick issue if 14 you consider the approach to alternatives is analogous. 15 My Lords, applying what you said at 44 and 45, you 16 found that whilst the alternative that my client argued 17 for, increasing in the housing requirement in the 18 St Ives' neighbourhood plan beyond the OAN, if you found 19 it hadn't been considered at all by the plan-making 20 authority in the course of the enviromental assessment, 21 so to that extent there is similarity to Ashdown. 22 Unlike Ashdown, it wasn't capable of being an 23 alternative for the purposes of annex 1 because it is a 24 complete non-starter, and therefore there was no failure 25 to have regard to a relevant consideration. So, again, 178 1 straightforward application on public law. Different 2 outcome on different facts. All these cases are at 3 a piece. 4 Finally, I turn on this theme to Blewett, which is 5 at tab 91, and can I ask the court to go to page 581, 6 the end of paragraph 40, and then the full paragraph 41. 7 The tab was 91. Again, bundle 4. 8 What I suggest to the court is that the critical 9 formulation that has been cited on the skeletons, which 10 you find at the end of 41, is so deficient it couldn't 11 reasonably be described as an environmental statement 12 for the court as defined by the regulation, that 13 captures both categories. It captures a complete and 14 unexplained, by reference to Article 5, absence of an 15 annex 1 consideration, and it captures where the quality 16 of an environmental report is so lacking that having 17 regard, importantly, not just to the report, but to what 18 follows in the environmental assessment process, no 19 reasonable decision-maker could be satisfied they have 20 adequate information before them as to the likely 21 significant effects of the plan. 22 So, it covers what are broadly called category 1 and 23 category 2 of the cases. It is shorthand. 24 LORD JUSTICE HICKINBOTTOM: You say that is nothing more 25 than conventional public law. 179 1 MR BANNER: Absolutely, and it is not just me who says that 2 because Mr Justice Beatson says that in Shadwell. You 3 obviously have the point. In paragraph 74, he poses the 4 question: what does the view on Wednesbury grounds mean 5 in this context? 6 It means Blewett. See tab 97, paragraph 74. I also 7 just note in passing that in brackets, immediately after 8 the well cited passage, "so deficient", et cetera. The 9 very end of 41, Mr Justice Sullivan says TEW was an 10 example of such a case. 11 TEW is referred to in the two pages before. 12 Paragraph 34 says: 13 "Information capable of meeting the requirements of 14 schedule 4's regulations must be provided, see amongst 15 others TEW." 16 TEW was a case -- you don't have it before you. 17 I can provide it if needed, but I don't want to 18 overburden you. 19 TEW was a case where, again, there was a complete 20 black hole. There was nothing in the planning 21 application or in the environmental assessment about the 22 parameters of the design, size and scale of the project 23 because it was before the days when you at least have an 24 indicative master plan, which was tied in by reference 25 to condition, which I think actually was derived from 180 1 the outcome of that case. In those circumstances, it 2 was concluded that no rational authority could have 3 found the environmental statement adequate. So, once 4 again, TEW is in the analogy in the EIA context of 5 Heard, Newmarket, et cetera, Ashdown in the SEA context. 6 So, once again, there is symmetry and, of course, you 7 probably have the point already from the skeleton, but 8 at the end of 40 and 41, the point Mr Justice Sullivan 9 makes is there is a built in process in the EIA context 10 for representations to be made on the quality of 11 environmental statement, and that the environmental 12 information, which the decision-maker has to take into 13 account, includes the consultation responses. So, 14 consideration of any criticisms made in those responses 15 of the environmental statement is something for the 16 authority, and that's obviously an evaluate judgment. 17 So, Wednesbury makes sense, even if it wasn't already 18 the default position in public law. 19 My Lords, what I say is that the essentials of 20 Mr Justice Sullivan's reasoning read over readily into 21 the SEA context. I have already explained the 22 environmental assessment under Article 8 of the 23 SEA Directive, which has to be taken into account, 24 includes the whole process; not just the report, but 25 what comes later. If any criticisms are made, any new 181 1 information, any contrary information is provided, that 2 is all something that Article 8 requires to be evaluated 3 in the decision. So, it is at a piece. 4 I should also say it was said by Mr Pleming in 5 opening on Day 2 that there is a difference between EIA 6 and SEA because SEA has mandatory requirements. 7 I first explained: no, it doesn't, really. See 8 Article 5(2). 9 But, in any event, the EIA regime does have certain 10 information which should be provide. TEW illustrates 11 that. If you want the references, the latest version of 12 the EIA regulations 2017, regulation 19(3). In the 13 latest EIA directive, Article 5(1), in which they used 14 the term: 15 "At least ..." 16 So, there is no real difference in substance between 17 the key components of the EIA process and the key 18 components of the SEA process in this regard. 19 One other point that Mr Pleming made by way of 20 attempt at distinction orally, on Day 2, was Walton. He 21 relied on an observation of Lord Carnwath. Can I -- 22 conscious of the time -- briefly take you to that? That 23 is at tab 96, also of authorities 4. The relevant 24 passage is on page 83 of the law report, paragraphs 126 25 and 127. 182 1 The cautionary note that Mr Pleming sought to 2 impress upon this court was the beginning of 3 paragraph 127, where, having quoted the passage from 4 Lord Hoffmann in Berkeley, Lord Carnwath said: 5 "Of course, these statements carry a great 6 persuasive weight, but care is needed in applying them 7 in other statutory contacts and other factual 8 circumstances." 9 I suggest to the court that what Lord Carnwath was 10 really meaning by the statutory context wasn't -- at 11 least principally wasn't a comparison between EIA and 12 SEA, but a comparison between the legislation quoted in 13 the passage immediately above, section 288.5(b) because 14 this was a passage where Lord Carnwath was talking about 15 relief, where a statutory review had succeeded. 16 MR JUSTICE HOLGATE: Was this to do with the scope of the 17 breadth of the discretion? 18 MR BANNER: Indeed, absolutely. The starting point has to 19 be: what does the legislation say? 20 Lord Carnwath has quoted section 288.5(b) in the 21 English context. Whereas what was in issue in Walton -- 22 see the very first paragraph, page 54 of the law report, 23 paragraph 1 of Lord Reid's judgment -- was an albeit 24 analogously worded, but nonetheless different statutory 25 context. The schedule 2, paragraph 2 of the Scottish 183 1 Roads Act 1984. So, firstly, a different statutory 2 context. Secondly, Scottish law, where public law isn't 3 entirely on all fours in terms of procedure. Until 4 recently it wasn't even a requirement for permission. I 5 suggest actually, read fairly, that is at least 6 principally, if not exclusively, what Lord Carnwath 7 meant by the "statutory context". 8 If there is any doubt about that, I rely on the 9 passages in Lord Reid's judgment. 10 MR JUSTICE HOLGATE: The concession made by counsel for the 11 Secretary of State in Berkeley, as I recollect, was not 12 to ask the court to exercise discretion at all. 13 MR BANNER: Yes, that's right, which is now obviously no 14 longer -- 15 MR JUSTICE HOLGATE: That wasn't argued. 16 MR BANNER: Quite, absolutely. 17 MR JUSTICE HOLGATE: Lord Carnwath liberating. 18 MR BANNER: Indeed, and subsequently there is a champion as 19 well, very much so my Lord. 20 But what you see from Lord Reid's judgment, if you 21 go to paragraph 10, at the top of page 57, several 22 references to the SEA legislation and EIA legislation 23 being complementary and interrelated. So, picking up at 24 the top of page 57: 25 "It [which is the SEA Directive] complementary in 184 1 particular to the EIA Directive." 2 Then a little bit further down, just before D: 3 "Taken together, the directives ensure that 4 significant environmental effects are taking into 5 account at both plan and project stages." 6 Then use it as reference to one of the many Advocate 7 General Kokott opinions in this context, and you see her 8 comment at 31: 9 "The SEA Directive complements the EIA Directive." 10 So, it is not just Lord Reid, but Advocate General 11 Kokott. 12 Over the page at 14, the European Commission have 13 described the relationship as complementary, too, in the 14 terms you see after 14. 15 So, it is unsurprising given that complement parity 16 and interrelationship that jurisprudence from the EIA 17 context should be read across to the SEA context and 18 vice versa. 19 MR JUSTICE HOLGATE: That helps to explain in part why 20 certain attitudes have been taken to lack of 21 consideration of alternatives in the SEA process applied 22 to plan-making because it can affect, down the line, 23 what happens to development control. 24 MR BANNER: Absolutely. That fundamentally was at the heart 25 of the HS2 judgment in the Supreme Court. Could there 185 1 be a constraint on project decision making, which could 2 mean that the EIA couldn't do its full job if there 3 hadn't been an SEA? Absolutely. 4 So, that is Walton. 5 I remind the court, as Mr Maurici has already done, 6 that Blewett has in any event already been read across 7 the context of the IPPC Directive, now the IED 8 Directive. See Edwards, authorities bundle 4, tab 92. 9 We don't need to go there. Lord Hoffmann, at 10 paragraph 38, page 70G to 71A, and I suggest that SEA is 11 as least as close a context to EIA as PPC, if not more 12 so. 13 Then, very last point, a response to Mr Pleming's 14 submission that No Adastral and Cogent are 15 distinguishable, and thus not binding as to the 16 applicability of Blewett in the SEA context. If you 17 agree with what I have said so far, it doesn't really 18 matter because if it is right to apply it anyway, it 19 doesn't really matter if you are bound or not. 20 But, insofar as that last point is live, Mr Pleming 21 says the point in those two cases was different. Namely 22 there's a so-called deficiency and an environmental 23 report could be rectified by a supplementary or addendum 24 environmental report prior to the adoption of the plan. 25 My Lord, that was the issue in the facts to those 186 1 cases. However, the court's rationale for holding that 2 was possible relied upon the Blewett principle being 3 applicable to SEA. The point being that SEA, like EIA, 4 comprises not just the report, but the whole process. 5 As such, there was a built in mechanism for identifying 6 alleged shortcomings, and evaluating any such criticisms 7 and responding to them. 8 It was held both by Mr Justice Singh, as he then 9 was, and the Court of Appeal upholding him, that if 10 a supplemental report couldn't be issued in response to 11 criticisms to deal with a shortcoming to be identified, 12 that would lead to absurdity because any defects 13 identified by consultees couldn't be cured. I will give 14 you the reference in a moment. 15 That's No Adastral, bundle 4, tab 101, paragraphs 51 16 to 54, especially 51 to 52, and the passages from Cogent 17 quoted there. 18 So, I suggest to the court that in light of that 19 proper characterisation of the Court of Appeal's 20 judgment, and Mr Justice Singh's, that the principle 21 that underpinned Mr Justice Sullivan's reason in Blewett 22 was red across the SEA context in ratio of those cases 23 and it inexorably follows that it should do here, too. 24 In light of the time, I wasn't going to labour over the 25 detail, just give you the references. 187 1 Unless I can assist you further, that is all I wish 2 to say on these claims. 3 LORD JUSTICE HICKINBOTTOM: No, thank you very much. 4 MR BANNER: Thank you. 5 MR JAFFEY: My Lord, I mentioned this morning that we had an 6 updated chronology and a note on Article 6(4) of the 7 Habitats Regulation. I now have printed copies. Would 8 it be convenient to hand them up now? I am not 9 expecting the court to have read them before tomorrow, 10 but they will speed up argument when we get there. 11 There are also some authorities. 12 MR MAURICI: Can I just say, there are seven new authorities 13 that have been cited. I saw them last night. It's what 14 you have just been given. We had them at about 6.30 15 last night. I haven't looked at them yet because I was 16 preparing other things, but I think it was been 17 acknowledged by boroughs, they being new authorities 18 I have a right to come back to them if I want to. So, 19 I will reflect on them. 20 MR JUSTICE HOLGATE: One of them I see is the British 21 American Tobacco case; is that the one that went to the 22 Court of Appeal? Where the Court of Appeal had 23 something to say about what Mr Justice Green said about 24 expert evidence. 25 MR MAURICI: Yes. I think we have copies here as well, 188 1 actually. Yes. 2 LORD JUSTICE HICKINBOTTOM: We'll look at these. Good, 3 10 o'clock tomorrow morning. 4 (4.20 pm) 5 (The court adjourned until the following day at 10.00 am) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 189 1 INDEX 2 Housekeeping .........................................1 3 Submissions by MR MAURICI ............................7 (continued) 4 Submissions by MR HUMPHRIES ........................110 5 Submissions by MR BANNER ...........................161 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 190