1 Tuesday, 19 March 2019 2 (10.00 am) 3 Housekeeping 4 LORD JUSTICE HICKINBOTTOM: Certainly the temperature in the 5 court varies quite dramatically. We seem to be starting 6 off quite warm today. 7 MR MAURICI: Very warm. 8 LORD JUSTICE HICKINBOTTOM: We'll try and get the 9 temperature down for everybody's comfort. Yesterday, 10 when we asked for it to come down, the temperature did 11 indeed come down, so I don't know who's doing this. 12 Perhaps it is just magic. Anyway, we will do our best 13 to get the temperature down. 14 MR MAURICI: I'm grateful, my Lord. I promised to put in 15 extracts from Mr Justice Ouseley's judgment in HS2. 16 These are just the extracts on consultation, if I could 17 hand those. 18 (Handed) 19 My Lords, I know you have had a number of other 20 documents, both from us and other parties, and we have 21 seen the email asking for an updated index. Ms Dobson 22 for the boroughs and Mr Byass for the Secretary of State 23 are liaising on creating an index that records 24 everything that has come up during the course of the 25 hearings. 1 1 LORD JUSTICE HICKINBOTTOM: This HS2, this is just on 2 consultation? 3 MR MAURICI: These are just the extracts on consultation, 4 which appears in several places in the judgment because 5 there were several distinct consultation challenges by 6 different parties. 7 My Lord, Mr Justice Holgate, did ask about the Court 8 of Appeal. There was one consultation point that was 9 taken to the Court of Appeal in relation to the claim by 10 Heathrow Hub and the failure to consider their 11 representations, which failed on the facts. There is 12 nothing really in terms of principles, my Lord. I think 13 your Lordship asked whether there is anything in terms 14 of principles and there is nothing. 15 MR JUSTICE HOLGATE: Okay. Given the size of the HS2 16 transcript, can you just remind us of the key 17 paragraphs? 18 MR MAURICI: Yes, my Lord, there are two particular ones 19 I drew your attention to, if you just give me one 20 moment. I drew your attention to paragraphs 549 and 21 624. 22 MR JUSTICE HOLGATE: And the rest is just for interest. 23 MR MAURICI: Well, my Lord, the rest gives the factual 24 context. My Lord, so far as we are concerned, we would 25 be happy for you just to look at those two paragraphs. 2 1 But, my Lord, obviously, since we have some of the 2 background to that, I am certainly not asking you to 3 read it all, or drawing your attention to any other 4 parts of it. 549 and 624. 5 LORD JUSTICE HICKINBOTTOM: Thank you. Just before you sit 6 down, Mr Maurici, just a couple of things. Firstly, 7 there was the point that Mr Spurrier made; are you going 8 to respond to that? 9 MR MAURICI: My Lord, I put in a note this morning giving 10 you the references in relation to that. I think 11 everyone has been circulated with copies. I hope they 12 have. It's two pages. What we have done is just pulled 13 out the relevant references, my Lord. The key point is 14 that the -- if you look at paragraph 5 -- 15 LORD JUSTICE HICKINBOTTOM: Those are the references to 16 where you say it has been considered? 17 MR MAURICI: Exactly, my Lord, that is where we have 18 considered the point about whether, on the Carbon Capped 19 scenario, in terms of carbon, if you expand Heathrow, 20 are you either going to exclude any expansion of 21 regional airports or, alternatively, are you going to, 22 therefore, have expansion beyond the cap? This is our 23 answer to how that can be dealt with. It has been 24 considered in a number of documents. 25 MR JUSTICE HOLGATE: This deals with, therefore, the effect 3 1 on regional airports, their share of the carbon budget. 2 MR MAURICI: My Lord, it does. 3 MR JUSTICE HOLGATE: Was the matter looked at more widely as 4 regards those commercial uses generally, throughout the 5 country, that would otherwise consume part of the carbon 6 budget? 7 MR MAURICI: My Lords, we focused on the regional airports 8 by reason of what was put in, in response to 9 Mr Spurrier. 10 My Lords, some of the documents I have referred to, 11 which are referred to in witness statements, but you 12 don't have, things like Ricardo Energy at paragraph 5.3, 13 and also the Beyond the Horizon document. They do look 14 more widely because they are looking at carbon in the 15 wider sense of how you could effectively create any head 16 space. There are other documents I could probably refer 17 you to, but, in my submission, that is probably enough 18 to deal with the response to Mr Spurrier. 19 LORD JUSTICE HICKINBOTTOM: Mr Spurrier's point was 20 concerning regional airports. 21 MR MAURICI: Yes, that was the way he put it in his oral 22 submissions, as well. 23 LORD JUSTICE HICKINBOTTOM: Just a moment, Mr Maurici. 24 Mr Holgate has one other point. 25 MR JUSTICE HOLGATE: It is a tidying up point, really, and 4 1 it is about the duty to give reasons as in section 5(7). 2 What are the documents to which we should refer in order 3 to see whether reasons are being adequately expressed? 4 MR MAURICI: Reasons under 5(7)? 5 MR JUSTICE HOLGATE: Yes. 6 MR MAURICI: Reasons -- if you just give me one second. 7 MR JUSTICE HOLGATE: In 5(7) itself, it says: 8 "A national policy statement must give reasons for 9 the policy set up and the statement." 10 Implying that you should certainly look at the NPS 11 itself. 12 MR MAURICI: And my -- 13 MR JUSTICE HOLGATE: That might be too narrow. 14 MR MAURICI: My principal submission, my Lord, would be that 15 we have satisfied that duty by reference to what we have 16 put in the ANPS. We have satisfied that, just on the 17 ANPS. 18 But, my Lords, if you were going to look more widely 19 than that, because obviously the NPS didn't come alone, 20 it came as part of a suite of documents. The key ones 21 would, in my submission, be the consultation response 22 document, which we published at the same time. 23 My Lords, also the response to the Transport Select 24 Committee, which we separately published on our website 25 and there is a document speakers agreed that can be 5 1 looked at. 2 Then, my Lords, beyond that, in terms of the sort of 3 specific issues, obviously the AOS and the Habitats 4 Regulation Assessment, which were published alongside 5 the final NPS. Those, in my submission, would be the 6 key documents to which you would look for reasons, and 7 they all came contemporaneously with the final ANPS. 8 MR JUSTICE HOLGATE: Is there anything in the legislation 9 which requires the Secretary of State to respond to 10 a Select Committee? 11 MR MAURICI: My Lord, yes. 12 MR JUSTICE HOLGATE: Because that is an element, is it not, 13 in the framework? 14 MR MAURICI: There is, my Lord, yes. 15 The other thing I should say, of course, is that 16 just as an example of this, in the point that was raised 17 by Mr Spurrier, we have referred to the fact that the 18 ANPS refers to the issue of regional airports and 19 cross-refers in a footnote to one of the earlier 20 published documents. So, if you look at my 5, you will 21 see that the ANPS makes a statement, which we have 22 quoted. Then footnote 83 refers the reader to the 23 updated appraisal report, the UAR. There are a number 24 of places, my Lord, where in the NPS you are 25 specifically directed to other documents that have 6 1 already been published. For example, on air quality, 2 the air quality re-analysis is referenced numerous 3 times. On carbon, various carbon papers are referenced. 4 If you are looking at reasons on a very specific point, 5 it must be relevant to look at documents that you have 6 been specifically cross-referred to. 7 MR JUSTICE HOLGATE: They are incorporated by reference, 8 yes. 9 MR MAURICI: Incorporated by reference, yes. You asked me 10 about the duty in terms of Parliament, and that is 9.5, 11 my Lord. 12 MR JUSTICE HOLGATE: Thank you very much. 13 The only other question is: there is a whole raft of 14 regulations, which were issued in order to implement the 15 2008 Act. When I briefly looked at the planning 16 encyclopaedia, there is a reference to consultation 17 regulations, which flesh out, I think, section 8. 18 I couldn't find the regulations in the encyclopaedia. 19 But, again, in the same context of the legislation 20 dealing with a duty to give reasons, could someone check 21 to see whether there is anything in the secondary 22 legislation? 23 MR MAURICI: In relation to duty for reasons for national 24 policy statements? 25 MR JUSTICE HOLGATE: Yes. 7 1 MR MAURICI: Yes, we can check that. 2 MR JUSTICE HOLGATE: Or perhaps reasons to do with the 3 consultation. It bears on the HS2 type point. 4 MR MAURICI: Yes, we'll check the second legislation. 5 MR JUSTICE HOLGATE: There may well be nothing, but we just 6 need to know. 7 MR MAURICI: My Lord, we'll check that. 8 LORD JUSTICE HICKINBOTTOM: Thank you very much. 9 Yes, Mr Jaffey. 10 MR JAFFEY: My Lords, whilst we are on HS2, can I also just 11 draw your attention to paragraph 821 and onward, which 12 deals with the Gunning 4, Sedley 4 issue. The test is 13 set out from 821 onwards, and then the court's analysis 14 on the facts is from paragraph 829. Just to add to 15 Mr Maurici's identification of the relevant passages. 16 LORD JUSTICE HICKINBOTTOM: Yes. 17 Submissions by MR JAFFEY 18 MR JAFFEY: I'll take the points in reply in the same order 19 as I did in opening, so that's habitats, surface access 20 and then air quality. 21 On habitats, I have three points in reply. First of 22 all, to make further submissions on the test for review 23 of the selection of alternatives under Article 6(4) of 24 the Habitat Directive. 25 The Secretary of State's position, and the Secretary 8 1 of State here is a man with a Hammer and the nail is 2 Wednesbury. There is no issue under the Habitat 3 Directive, it seems, which can't be solved by an 4 application of the principles in Wednesbury. 5 My submission is that is wrong as a matter of law. 6 The actual standard corresponds to the part of the 7 proportionality analysis that requires the 8 identification and assessment of alternatives. Indeed, 9 that is the approach which was recommended by Advocate 10 General Kokott in Commission v Portugal, which I took 11 the court to in opening. 12 That's a topic which is dealt with in the note, 13 which was handed up yesterday. 14 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 15 MR JAFFEY: The second topic I am going to deal with is to 16 deal with the decision to exclude Gatwick on the grounds 17 of hub status, and that is because, as the court knows, 18 the Secretary of State says that Gatwick is not a true 19 alternative to the proposed scheme at Heathrow. 20 That's the wording in the national policy statement 21 at paragraph 3.12 that the court has seen. 22 The Secretary of State's conclusion that Gatwick is 23 not an alternative is a given for this part of the 24 argument. That's what the challenge is to, otherwise we 25 wouldn't be having this discussion. 9 1 The proper approach, I submit, is not simply to look 2 at what the Secretary of State says about alternatives 3 and to stop there. It is necessary to also consider 4 what the Secretary of State has in fact done, as well as 5 the Secretary of State's conclusion. 6 The reason I say that is because Gatwick was treated 7 in practice as an alternative and was subjected to 8 a full comparative analysis, as an alternative, at every 9 stage. Not just at the earlier stages of consideration 10 by the Airports Commission, the draft NPS, and so on, 11 but also -- 12 LORD JUSTICE HICKINBOTTOM: Until the NPS. 13 MR JAFFEY: Yes, even in the NPS, in the appraisal of 14 sustainability and also in the post-adoption statement, 15 which followed the adoption of the NPS. 16 Where the submission leads up to is that this case 17 is an example of the phenomenon which is identified in 18 the case law on the Habitat Directive of defining the 19 project narrowly so as to restrict the selection of 20 alternatives, so that they need not be considered at 21 all. 22 Then the third point I will make on Habitat 23 Directive relates to Mole Gap, the exclusion on 24 ecological grounds. It is accepted on both sides that 25 there is a substantial risk of harm to quite a large 10 1 number of European protected sites if a third runway is 2 built at Heathrow. 3 There is also a risk, but no more than that given 4 the limited amount of survey work that has been done to 5 date, to the Mole Gap special area of conservation if, 6 as an alternative, a second runway at Gatwick is built. 7 I think it is now accepted by the Secretary of State 8 that no commission opinion was necessary at this stage 9 in order to consider Gatwick as an alternative. So, 10 that's not a good reason for exclusion. 11 The argument which is now being put forward is that 12 the Secretary of State reached a planning judgment that 13 Gatwick should be excluded because it was ecologically 14 likely to be more harmful than building a third runway 15 at Heathrow because of the potential presence of 16 priority species. My submission will be that is 17 a hopeless position, not least because the extent of the 18 harm to priority species has not been identified. 19 Indeed, Natural England says that, on analysis, the 20 extent of the harm may be nil. That's the point that 21 Natural England made in their response to the 22 consultation. 23 So, to say it is proper to exclude Gatwick at this 24 stage, in circumstances where Natural England say that 25 on review there may be no harm at all, is an argument 11 1 which doesn't hold water, in my submission. 2 I'll deal first then, if I may, with the legal test. 3 Most of this is dealt with in the note already, but, if 4 I may, I'll show the court one additional authority that 5 we added yesterday, which is the decision in Commission 6 v Austria, which is in the additional clip of 7 authorities, and I am afraid hasn't been numbered yet, 8 but will be. 9 This is another roads case, and it is another 10 opinion of Advocate General Kokott, as always. 11 If I could ask the court to look at the Advocate 12 General's opinion at paragraph 61, which is behind the 13 court's judgment. 14 At paragraph 61, the Advocate General explains the 15 difference between EIA and the Habitat Directive. She 16 explains that EIA, at 61, four lines down: 17 "Sets no binding environmental standards, so it 18 doesn't oblige the competent authorities to draw 19 particular conclusions from the findings of the 20 Environmental Impact Assessment." 21 So, that same point, of course, is also one which 22 can be made in relation to strategic environmental 23 assessment. Indeed, that is a point which my Lord, 24 Lord Justice Hickinbottom, made in the Friends of the 25 Earth case. 12 1 Then, over the page at paragraph 62, the Advocate 2 General contrasts the Habitat Directive, which lays down 3 substantive requirements regarding the approval of 4 a project, which are intended to be served by the 5 procedure envisaged in Article 6.3 and 6(4): 6 "Impact assessment. If necessary, the examination 7 and consideration of alternatives." 8 Then explains the consequences of that. 9 Then, from paragraph 68, the Advocate General 10 considers the issue of alternatives. 11 Then, at paragraph 70, the first sentence of 12 Article 6(4): 13 "... permits approval only in absence of alternative 14 solutions. Whereas the examination of alternatives 15 under the EIA Directive entails no restrictions on the 16 choice of alternatives, but requires only an account of 17 the choice made and the reasons for it." 18 So, again, explaining the effect of the difference. 19 Then, at paragraph 72, picking it up at the bottom 20 of the page: 21 "Consequently, the approving authority must ensure 22 that at least those alternatives are examined that are 23 not obviously beyond reasonable doubt out of the 24 question." 25 Then there is a reference there to footnote 31, in 13 1 which the Advocate General again contrasts EIA and 2 explains that the Habitat Directive is more 3 far-reaching. 4 Then: 5 "In selecting the alternative, the decisive factor 6 is whether imperative reasons of overriding public 7 interest demand the implementation of this alternative 8 or whether they can be met by another alternative." 9 In my submission, none of that is Wednesbury. It is 10 a much stricter test deriving from European law. 11 Indeed, it is unsurprising the test is stricter in 12 circumstances where the Habitat Directive is intended to 13 achieve the object of environmental protection 14 identified in Article 191 TFEU. 15 MR JUSTICE HOLGATE: That last sentence of paragraph 72 is 16 quite important to your argument, isn't it? 17 MR JAFFEY: Yes. 18 MR JUSTICE HOLGATE: If I understand it correctly, it is 19 importing into the stage of selecting alternatives or 20 rejecting alternatives public interest considerations. 21 MR JAFFEY: Yes, well, what the Advocate General is there 22 considering is if there is an alternative, then there is 23 more than one alternative. Then, in selecting between 24 the alternatives, it is permissible to take into account 25 the public interest. But, here, the Secretary of State 14 1 says we don't even get -- 2 MR JUSTICE HOLGATE: It depends what you mean by "selecting 3 the alternative". The way I read that was that in 4 deciding whether something is an alternative you can see 5 whether the public interest considerations, the 6 objectives which lay behind a plan or programme in this 7 instance, are taken into account, whether the 8 alternative qualifies. 9 MR JAFFEY: Yes, that may be right, but here the Secretary 10 of State says we don't even get to that stage. We 11 simply exclude Gatwick from consideration as an 12 alternative. 13 MR JUSTICE HOLGATE: But if that is right, then that 14 involves the making of a judgment when you come to 15 decide what are alternatives. 16 MR JAFFEY: Yes, of course, I agree the judgment has to be 17 made when selecting alternatives. 18 MR JUSTICE HOLGATE: So, this doesn't necessarily exclude 19 Wednesbury as a test. 20 MR JAFFEY: Well, what the advocate general says is: 21 "Those alternatives are examined ..." 22 This is the bottom of page 2775: 23 "Those alternatives are examined that they are not 24 obviously beyond reasonable doubt out of the question." 25 MR JUSTICE HOLGATE: That may be a test, but where that 15 1 comes from is not very clear, is it? Beyond reasonable 2 doubt. 3 MR JAFFEY: What is the purpose of the directive? 4 The purpose of the directive is to provide a strict 5 level of protection -- 6 MR JUSTICE HOLGATE: I understand -- 7 MR JAFFEY: -- for a limited number of European sites, as 8 opposed to the EIA or SEA directives, where the 9 objective is to provide public information. 10 Article 6(4) -- and this is accepted by 11 Mr Maurici -- is designed to be a derogation from that 12 system of strict protection. Therefore it is to be 13 construed and applied strictly. In those circumstances, 14 the concept of the word "alternatives", its meaning is 15 a question of EU law, not a question of domestic law. 16 MR JUSTICE HOLGATE: No, but all I was asking is: is there 17 any source for the beyond reasonable doubt approach? 18 MR JAFFEY: No. 19 MR JUSTICE HOLGATE: The other thing that I noted in 20 footnote 32, which supports the sentence we have just 21 been discussing, it seems to be based in part on another 22 case, Commission v United Kingdom, which we might need 23 to look at. 24 MR JAFFEY: Yes, I did have a look at that. I didn't think 25 that it probably helps this case very much in either 16 1 direction, so I haven't provided it to you. It probably 2 doesn't take the argument that much further. It is 3 about whether or not the United Kingdom could adequately 4 transpose the Habitat Directive. 5 LORD JUSTICE HICKINBOTTOM: These submissions are targeted, 6 as I understand it, simply on the Habitats Regulation -- 7 MR JAFFEY: Assessment -- 8 LORD JUSTICE HICKINBOTTOM: -- point. 9 MR JAFFEY: Yes. 10 LORD JUSTICE HICKINBOTTOM: Not on the issue as to whether 11 Heathrow -- whether Gatwick was not an alternative 12 because it didn't satisfy the objectives, the policy 13 objectives. 14 MR JAFFEY: No, this submission goes to both; the question 15 of hub status and also the exclusion of Mole Gap, and 16 the selection of alternatives generally, because of 17 course the Secretary of State puts forward two reasons. 18 So, the test which I am seeking to identify, I submit 19 will apply to both parts of the case. 20 MR JUSTICE HOLGATE: When you are applying the Habitats 21 Regulation. 22 MR JAFFEY: When we are applying Article 6(4) of the Habitat 23 Directive. Not in relation to the other issues in the 24 case. For example, there are issues about surface 25 access, where there are reasons challenges and 17 1 rationality challenges, and so on, but in relation to 2 this aspect of the case. My submission is, first of 3 all, the concept of an alternative is a question of EU 4 law and is to be read in light of a system, a derogation 5 of strict environmental protection. Then, as to whether 6 or not -- when the Secretary of State is competent 7 authority, is exercising a judgment about the 8 identification of alternatives, what the standard of 9 review is, the standard of review is not Wednesbury. 10 First of all, because it is not what is seen in any 11 of the European authorities. I know I have already 12 shown you Commission v Portugal, but what Advocate 13 General Kokott says in that case is that the test for 14 the selection of alternatives corresponds to the stage 15 of the proportionality analysis where you look for 16 alternatives to the selected option. That was part of 17 the discussion that I had with the court in opening, 18 where I think my Lord, Lord Justice Hickinbottom, said 19 there was an analogy to be drawn with the identification 20 of a legitimate aim. That is in part true, but Advocate 21 General Kokott takes it further and says: look at the 22 rest of the proportionality analysis, and also look at 23 the stage for which you look for alternatives to the 24 selected option, to the legitimate aim. 25 LORD JUSTICE HICKINBOTTOM: But where a proposal or a 18 1 possibility does not satisfy the objectives, the policy 2 objectives, it cannot be an alternative. I have the 3 Portuguese point, that certainly you can't manipulate 4 the objectives to make sure that an option doesn't 5 satisfy them. You can't do that, but where a possible 6 option simply does not satisfy the policy objective, it 7 is not an alternative. How can it be an alternative at 8 all? Forget about European, forget about Wednesbury, it 9 is just not an alternative. 10 MR JAFFEY: Yes, but here I don't accept that test is 11 satisfied. If, for example, the test is: we want to 12 build another runway at Heathrow. Is this another 13 runway at Heathrow? Then that would be the exclusion of 14 something that is not a true alternative if that was 15 truly the policy. I submit that is not the policy which 16 the Secretary of State was adopting here, and that is 17 why I am going to show you in a moment, in relation to 18 hub status, where this really becomes a live issue, the 19 appraisal of sustainability which was published at the 20 same time as the national policy statement and the 21 post-adoption statement. Because even at the late 22 stage -- so, I don't accept that simply because the 23 Secretary of State has said, "Gatwick is not a true 24 alternative", that is the end of the court's role. The 25 court will -- 19 1 LORD JUSTICE HICKINBOTTOM: I understand that. If Gatwick 2 is not a true -- true is an unnecessary word, but if 3 Gatwick -- 4 MR JAFFEY: It is a gloss, and it is a telling gloss, in my 5 submission, which the Secretary of State puts on the 6 analysis. 7 LORD JUSTICE HICKINBOTTOM: I have that. I understand that 8 accept the premise upon which the proposition is based, 9 but the proposition is a good proposition. 10 MR JAFFEY: The proposition, is a good proposition. If 11 something is not an alternative within the meaning of 12 alternative 6(4) of the Habitat Directive, then it does 13 not need to be considered further. 14 LORD JUSTICE HICKINBOTTOM: If something does not satisfy 15 the proper policy objectives, it is not an alternative. 16 That is the proposition. 17 You don't accept the premise upon which the 18 proposition is based in this case. I understand that. 19 But that must be right, mustn't it, just as a matter of 20 language? 21 MR JAFFEY: I am slightly hesitant about saying that if it 22 doesn't meet all of the objectives put forward by the 23 decision-maker, it is not an alternative. The test is 24 one of alternatives and it is important not to add any 25 further gloss onto it, in my submission. 20 1 But something that is not suitable as an alternative 2 is one that does not need to be considered further, I 3 certainly accept that. 4 So, the question is, therefore: what is an 5 alternative in the particular circumstances of this 6 case, and the standard of review, which applies to that 7 decision? 8 I don't any there is very much point the between 9 that my Lord is putting to me and what I am responding. 10 I'm just slightly cavilling at the idea that the 11 Secretary of State can produce a list of objectives, can 12 then -- 13 LORD JUSTICE HICKINBOTTOM: No. 14 MR JAFFEY: My Lord knows why I cavil slightly, but in terms 15 of the basic principle my Lord is putting to me, I think 16 I do agree, yes. 17 MR JUSTICE HOLGATE: We should bear in mind that we are 18 talking about the application of the Habitats Regulation 19 not to a development proposal by a developer, but to 20 plan-making. 21 The Austrian case, was it a plan-making case? 22 MR JAFFEY: No, I think, actually, in the Austrian case the 23 road had already been built. 24 MR JUSTICE HOLGATE: So, it was an individual development? 25 MR JAFFEY: It was an individual development, yes. 21 1 MR JUSTICE HOLGATE: Which would have been subject to EIA? 2 MR JAFFEY: I think that's right, yes. 3 MR JUSTICE HOLGATE: Because objectives do have a particular 4 importance when a policy is being drawn by, for example, 5 a minister and the public interest considerations which 6 go with them, which isn't quite the same situation when 7 you are dealing with a project promoted by a private 8 developer. 9 MR JAFFEY: I accept that. I accept there are differences 10 between a specific identified project. It may not have 11 been a private developer in the Portuguese case, but it 12 doesn't matter. The way you are talking about 13 a specific project as opposed to a national plan. Of 14 course, there are inevitably distinctions that can be 15 made there. 16 MR JUSTICE HOLGATE: The Portuguese case was a public sector 17 road scheme, wasn't it? 18 MR JAFFEY: It was. On that test of alternatives, we have 19 also given you some extracts from Lord Reid's judgment 20 in Lumsden, where he summarises the authorities about 21 the identification of alternatives and least restrictive 22 alternatives for the purposes of the traditional 23 proportionality analysis. I am not going to take you to 24 it, but he identifies a series of factors and explains 25 when those factors will be subject to more exacting or 22 1 less exacting analysis by the court. Again, in my 2 submission, it is not a Wednesbury analysis. 3 Then, finally on the authorities, there is my Lord's 4 decision in Friends of the Earth. Again, we have dealt 5 with it in the note, but it first of all emphasises the 6 difference between strategic environmental assessment 7 and the substantive obligations in the Habitat 8 Directive. It also places some reliance on the fact 9 that the wording in the SEA Directive is different, 10 "reasonable alternatives" as opposed to "alternatives", 11 which the court placed some significance on. 12 Then, ultimately, the test the court adopted -- and 13 I am not going to take you through the judgment again -- 14 it is at paragraph 88(xi). It is whether: 15 "... there is an option which is capable of 16 sufficiently meeting the objectives, such that the 17 option could viably be adopted and implemented." 18 That's the test that my Lord identified. 19 So, applying that to the circumstances of this case, 20 can I deal with hub status first? 21 What was said, ultimately, in the national policy 22 statement, was that Gatwick was not a true alternative. 23 The court is familiar with the chronology. That has 24 been helpfully supplemented by Mr Maurici this morning 25 with extracts showing where the changes took place and 23 1 when the changes took place. 2 The majority of the changes took place 3 in October 2017, after the consultation occurred. 4 Before then -- I think this is common ground -- the 5 Airports Commission had considered a Gatwick second 6 runway scheme as an alternative that sufficiently met 7 the government's objectives so that it was credible. 8 Indeed, hub status was a matter that was part of the 9 Airports Commission's terms of reference. 10 Then, after Gatwick had been excluded on hub status 11 grounds, it continues to be dealt with in the appraisal 12 of sustainability. That's one document I would like the 13 court back to and it is in volume 9, at tab 2. This is 14 a document, of course, that is published 15 contemporaneously with the national policy statement. 16 As Mr Maurici said this morning, it forms in effect part 17 of the accompanying suite of materials that support that 18 decision. 19 Picking it up at page 47 of the bundle numbering, 20 table 1.1, paragraph 8, which deals with the SEA 21 regulations, that is reasonable alternatives: 22 "An outline of reasons for selecting the 23 alternatives dealt and a description of what was done." 24 Then it says: 25 "The reasons for selection of the short list of 24 1 alternatives are set out at section 5. The methodology 2 is section 3, and topic based information is in 3 annex A." 4 Then, 2.2.4, on page 49, explains: 5 "Section 5 provides further information on HAL 6 schemes assessed by the Airports Commission and the 7 shortlisting of three schemes which provide the 8 alternatives for assessment within this appraisal of 9 sustainability." 10 So, Gatwick is still being appraised as an 11 alternative as at June 2018. 12 Paragraph 3.3.5, on page 57, under the heading: 13 "Develop the likely alternatives." 14 It explains the process undertaken to determine 15 reasonable alternatives, and these are referred to as 16 "schemes" within the appraisal. 17 Then, paragraph 3.7, on page 65, explains the 18 relationship between this document and the Habitats 19 Regulation Assessment. Under the heading: 20 "Description." 21 At the bottom of the box: 22 "Although HRA is a separate process, information can 23 be exchanged to inform both processes." 24 Then: 25 "Relationship to this appraisal. HRA screening has 25 1 been undertaken for three shortlisted schemes as part of 2 the Airports Commission's work. Rescreening has been 3 done and further appropriate assessment has been 4 undertaken." 5 Then the whole of chapter 5 of this document 6 explains how the alternatives were developed and sifted 7 in order to narrow them down to three reasonable 8 alternatives. The work of the Airports Commission is 9 drawn upon and there is a process of sifting. In each 10 of the sifts hub status is considered. I am not going 11 to take the court through it all, but in the boxes at 12 page 77 and 79, hub status is included as a criteria for 13 that sifting. 14 Then, at paragraph 5.4, after the second sift, we 15 end up with a shortlist of credible locations at Gatwick 16 and Heathrow. 17 The criteria have not changed, the contribution to 18 maintaining the United Kingdom hub status is always 19 there, and Gatwick was found to be a credible option, 20 even in the appraisal of sustainability. So, even at 21 the time of the final national policy statement. 22 There is then a detailed comparison in chapter 6 23 between each of the options. Then, because hub status 24 is all about delivering the practical and economic 25 benefits, there is a detailed economic analysis 26 1 comparing each of the schemes. That starts at page 96 2 and 97, it goes on for many pages. Then, at page 132, 3 there is then a heading at paragraph 7.3: 4 "Reasons for selection of the preferred scheme and 5 rejection of alternatives." 6 So, it is not in doubt that they reject Gatwick, and 7 of course they explain why in the first bulleted arrow 8 at 7.3.1, on hub status grounds. But they are not 9 saying that Gatwick is not considered as an alternative 10 at all. This is a rejection of the alternatives. 11 There is then even more detailed analysis to the 12 same effect in appendix B to this document, which starts 13 at tab 10, page 499. 14 Then post-adoption, the post-adoption statement is 15 in tab 14 of the same bundle. Picking it up at 16 page 725, there is then a heading on page 725: 17 "Reasons for choosing the Airports National Policy 18 Statement in light of other reasonable alternatives." 19 Again, Gatwick is considered. 20 LORD JUSTICE HICKINBOTTOM: I am sorry -- 21 MR JAFFEY: I'm sorry, page 725. This is the post-adoption 22 statement. So, after the adoption of the national 23 policy statement, the Department for Transport publishes 24 a paper summarising everything that has happened and 25 where they have come to and including some reasons for 27 1 it. It has a chapter, chapter 5, summarising the 2 reasons for choosing the NPS in light of other 3 reasonable alternatives. 4 So, my basic submission is that one has to look at 5 what they are actually doing, rather than just what they 6 are saying. It is notable they use the words "true 7 alternative" and they put a gloss in the national policy 8 statement on what's going on, because they are, of 9 course, at the same time as the national policy 10 statement, still considering Gatwick as an alternative 11 and the appraisal is packed full of detailed analysis of 12 Gatwick as an alternative. 13 LORD JUSTICE HICKINBOTTOM: Which is the particular passage 14 in the post-adoption statement? 15 MR JAFFEY: 5.1.1. The first bullet point explains: 16 "Why the airports NPS has chosen Heathrow in light 17 of [and that is the heading] other reasonable 18 alternatives." 19 It explains that Gatwick has been not chosen because 20 of the hub status argument, as well as various other 21 arguments set out in that page. 22 It is a factor and, of course, the Secretary of 23 State is perfectly entitled to have a preference and to 24 have reasons for those preferences, but does that mean 25 that Gatwick is not an alternative at all? In my 28 1 submission, no, it doesn't. 2 MR JUSTICE HOLGATE: I am just trying to find the text: 3 "The government has chosen Heathrow in the light of 4 other reasonable alternatives." 5 I see, the heading you're relying on. It is 6 nothing in the text above the first bullet. 7 MR JAFFEY: No. 8 MR JUSTICE HOLGATE: It is the heading. But the first 9 bullet is much the same as the AOS I think, isn't it? 10 MR JAFFEY: Yes, it is. It explains the reasons why the 11 UK's position as a global hub would, in the government's 12 view, deteriorate. Of course, that is a reason why 13 Heathrow has been preferred, but it doesn't mean that 14 Gatwick is not a credible alternative which needs to 15 properly be considered. 16 MR JUSTICE HOLGATE: There is the sentence: 17 "Gatwick is predicted largely to remain a point to 18 point airport, attracting very few transport 19 passengers." 20 MR JAFFEY: Yes, but Heathrow remains a hub airport and, of 21 course, Gatwick would be a two runway airport under the 22 Gatwick possibility, which would be a mixed mode double 23 runway airport, which would therefore have larger 24 capacity than Heathrow does today. Whether it is right 25 or wrong is irrelevant. 29 1 MR JUSTICE HOLGATE: Whether it is right or wrong is 2 irrelevant. 3 MR JAFFEY: Of course. 4 MR JUSTICE HOLGATE: But what they are saying is: if you are 5 trying to enable Heathrow or the UK to maintain its hub 6 position, you are not putting additional capacity at 7 a location that will do that. 8 MR JAFFEY: But it is not being said that Gatwick does not 9 represent a credible alternative to the capacity that is 10 sought to be delivered. It is not saying that hub 11 status is a condition which must be fulfilled above all 12 else and nothing else matters. 13 The point is that, even at the point of adopting the 14 national policy statement, Gatwick is still being 15 considered as an alternative. So, when one asks the 16 question: does Gatwick qualify as an alternative under 17 the Habitat Directive? Which, if anything, will apply a 18 stricter test than strategic environmental assessment, 19 my submission is that, again, one has to look at what is 20 in fact happening, and there is no credible basis for 21 saying that Gatwick does not meet that low test for the 22 identification of an alternative and requires 23 consideration as such. 24 MR JUSTICE HOLGATE: One way of reading this document -- and 25 indeed the thought occurred to me when you took us to an 30 1 earlier passage -- that these documents, the AOS 2 included, are describing a process of looking at 3 alternatives, and what this is doing is to describe, 4 rightly or wrongly, where the government came to by the 5 time it came to the end of that process. 6 MR JAFFEY: I am not certain that's right because what it is 7 doing is it is identifying in the appraisal of 8 sustainability what the government considers the 9 reasonable alternatives are, in the circumstances. It 10 is not simply a historical narrative for the reasons 11 I have identified. 12 LORD JUSTICE HICKINBOTTOM: Do you accept that, in this 13 iterative process, something could be regarded as an 14 alternative, but during the process it would cease to be 15 an alternative? 16 MR JAFFEY: Yes. For example, the Airports Commission 17 excluded a very large number of options on the basis 18 they were just not going to be sustainable or 19 practically possible, but here that's not what was done. 20 MR JUSTICE HOLGATE: Really, one question for the court, 21 perhaps, is whether this page, for example, is to be 22 read as if the government was still considering Gatwick 23 to be an alternative. 24 MR JAFFEY: Yes, and my submission is that in this, and in 25 the rest of the appraisal of sustainability, they were. 31 1 Indeed, there is a very lengthy and detailed comparative 2 analysis doing precisely that. 3 Mole Gap, very briefly. I have dealt with the point 4 about the lack of a commission opinion, which no longer 5 seems to be substantially relied upon. 6 The point that is now made is that the Secretary of 7 State balanced the harms at Gatwick and the harms at 8 Heathrow, and concluded that Gatwick would potentially 9 be worse, and would be a less good environmental option, 10 so it would not be proceeded with. 11 The two simple points are that, first of all, that 12 is inconsistent with the Habitats Regulation Assessment. 13 I will just give you the reference. It is volume 9, 14 tab 12, page 645, paragraph 9.2.12, where what the HRA 15 says is there is a potential for adverse effects, but 16 there is no clarity. 17 Natural England's consultation response, which is 18 volume 12, tab 14, where Natural England concluded that 19 it would be necessary to look at the actual impacts of 20 Gatwick later on in the process because it might have an 21 effect on alternatives if it turned out there would be 22 no harm on a more detailed analysis to Mole Gap. So, 23 that is an argument that doesn't hold water, in my 24 submission. 25 Surface access. Transport for London and the Mayor 32 1 identify four areas where its representations, they say, 2 were not properly considered. They were the subject of 3 a helpful table from the Secretary of State's counsel. 4 I will take those four areas very briefly, in turn. 5 First of all, there are the revised passenger demand 6 forecasts. I think that ultimately we came to some 7 clarity about how all of this occurred. 8 The Airports Commission produced a model on the 9 basis of 125 million passengers per annum in 2030. 10 Mr Maurici, on Monday, confirmed, in my submission 11 accurately, that the Airports Commission didn't model 12 a number higher than 125 million passengers per annum, 13 and also didn't do any modelling for the period after 14 2030. 15 The only modelling for larger annual passenger 16 numbers comes from Transport for London. 17 The substantive response to that -- and of course 18 that's modelling that showed there would be serious 19 problems, both on the road network and the public 20 transport network, and that is because the increase in 21 traffic and the increase in congestion is not linear. 22 If you increase the number of passengers going to 23 Heathrow by X per cent, the consequences for the 24 transport network may be much more substantial than that 25 because it is already running at capacity. 33 1 The response that comes back to that, and it is 2 substantially a response that is developed by Heathrow 3 as well as by the Secretary of State, is: don't worry, 4 because at the development consent stage we may impose 5 a requirement, or the Secretary of State may impose 6 a requirement for phasing, so as to introduce the 7 capacity slowly so as to minimise the consequences in 8 the early years. 9 The difficulty with that argument is that is a point 10 that Heathrow, in particular, have been running for many 11 years. Indeed, they ran it before the Airports 12 Commission as well, but both the Airports Commission and 13 the Secretary of State decided they should produce their 14 modelling on the basis of the Department for Transport 15 forecast, not on the basis of Heathrow's proposals for 16 a much slower building out. 17 The reference to that is volume 11, tab 6, page 63. 18 That is the Airports Commission explaining that the 19 Department for Transport forecasts are what they are 20 going to adopt, rather than Heathrow's lower ones. 21 Ultimately, the government adopted that. The reason 22 for that is because it is part of the national policy 23 statement and part of the government's case for 24 Heathrow, that Heathrow will be able to achieve more 25 substantial benefits for the United Kingdom faster than 34 1 the alternative of Gatwick. That's paragraph 3.26 of 2 the national policy statement. 3 Part of the government's reasoning is that Heathrow 4 is better because it will achieve bigger benefits 5 faster. So, the Heathrow suggestion of "let's do all 6 this very slowly and gently" is inconsistent with that 7 part of that reasoning. That is why those are 8 submissions which are made on behalf of Heathrow. 9 Now, as to phasing itself, much of it of course 10 can't be phased. You have to build a runway, you have 11 to compulsory purchase a thousand homes and you have to 12 put the M25 in a tunnel. 13 So, it is notable that in relation to the phasing 14 argument it is not consistent with what the Secretary of 15 State put forward as their reasons for the selection of 16 Heathrow. 17 MR JUSTICE HOLGATE: But the ANPS does refer to phasing in 18 several places. 19 MR JAFFEY: Yes, it refers to the possibility of phasing. 20 But the difficulty is that once you decide to phase, you 21 have undermined part of the argument that is put forward 22 for adopting Heathrow in the first place. That's why 23 the answer, in my submission, is not a satisfactory one 24 at this stage. 25 MR JUSTICE HOLGATE: But you are saying the view taken by 35 1 the Commission, by the Secretary of State on modelling, 2 was predicated on the basis that approach was necessary 3 in order to reflect the economic case; is that what you 4 are saying? 5 MR JAFFEY: Yes. 6 MR JUSTICE HOLGATE: The alternative justification might 7 have been: we want it done that way to test on a worst 8 case basis. Those are two different things. 9 MR JAFFEY: Well, in my submission, the phasing issue is 10 difficult for the Secretary of State because the 11 Secretary of State predicated his reasoning on Heathrow 12 having benefits because they could be achieved more 13 quickly. That being a significant strategic benefit on 14 which reliance based. The phasing undermines that. 15 In relation to freight, I am going to deal with 16 that -- because of the time -- under air quality. 17 Catalytic activity. It is accepted that there was 18 no modelling for catalytic demand or induced demand. As 19 for the suggestion that it can't be modelled or that it 20 would be so spread across the transport network as to 21 make no difference, TfL did in fact manage to do exactly 22 that modelling and identify its effects. 23 Can I turn, finally -- given the time -- to deal 24 with the air quality issues. 25 I will begin, first of all, with the in terrorem 36 1 argument that accepting the claimants' air quality case 2 would prevent any development in London. Of course, 3 that is not the case. Shirley in the Court of Appeal 4 tells us that, but a particular development may cause 5 a breach of Article 13. That is something that Shirley 6 tells us as well, of the Air Quality Directive. 7 Now, the Secretary of State has made a decision that 8 expansion of Heathrow had to be achieved compatibly with 9 EU law, albeit without being willing to be drawn on 10 precisely what that means. Of course, it is entirely 11 understandable why the Secretary of State has chosen to 12 bind, as the reddest of red lines, Her Majesty's 13 government to those conditions. That is because the UK 14 is currently subject to infraction proceedings, and the 15 scale of the fines that may be imposed will, applying 16 the general principle of EU law, be dissuasive. 17 So, if the Secretary of State takes a major national 18 planning and policy decision which will cause or prolong 19 exceedances, the scale of the fines that the Commission 20 imposes will equally seek to be dissuasive of such 21 conduct. So, it is very obvious why that condition has 22 been imposed in the national policy statement. 23 The types of breach that this development may cause 24 are, first of all, that a compliant area may be tipped 25 over into the breach of the limit value. That is one 37 1 type of breach. 2 Another type of breach is you may make a bad area 3 already in breach of a limit value even worse. Or, 4 thirdly, you may prolong an existing exceedance of the 5 limit value. It might have lasted until date X, but it 6 now lasts a year later until date Y. The Secretary of 7 State's consultants looked at each of those potential 8 options. 9 Now, much of Mr Maurici's submissions were taken up 10 by seeking to explain to the court that the appraisal of 11 sustainability was not where we should go for an 12 assessment of the probability of an air quality breach 13 occurring. We should go to the WSP report. He said 14 that high risk doesn't equate to high probability; and 15 when the appraisal of sustainability says high risk, it 16 doesn't mean high probability and it certainly doesn't 17 mean 80 per cent. 18 Can I just go back, very briefly, then, to the 19 appraisal of sustainability, just to give the court 20 a couple more references on the question of probability. 21 It is in volume 9, at tab 2. The court has already seen 22 page 58, which is the definition of the different types 23 of probability and the statement relating to high risk, 24 which is on page 147. 25 The annexes to this document start on page 401, 38 1 behind tab 7. If I could pick it up at page 422, that 2 deals with the issue of probability in more detail. 3 On page 422, there is a heading: 4 "Objective 13 to improve air quality and reduce 5 emissions consistent with EU and other requirements." 6 Then the question that is posed is question 25: 7 "Will it support compliance with local, national and 8 European air quality requirements or legislation?" 9 Then the first box is: 10 "Description of impact." 11 Then halfway through that box there is a repetition 12 of the points the court has already seen. So, halfway 13 through it: 14 "There remains, however, a risk that the option 15 could impact on compliance with limit values. The risk 16 is high until 2030." 17 Then, over the page at 423, there is the heading: 18 "Probability. High, medium, low, very low." 19 Then, on the right-hand column: 20 "London Heathrow northwest runway. Operation high." 21 There is a high probability -- so it is not just 22 couched in risk. It is couched in terms of 23 probability -- that the emissions arising from 24 operational activities will have adverse effects on air 25 quality. 39 1 Then 424 -- 2 LORD JUSTICE HICKINBOTTOM: I am sorry, I don't have that. 3 That is in the right hand column of 422? 4 MR JAFFEY: It is 422 I have just shown the court, but the 5 relevant part is 423. The first column, with the 6 heading "Probability", and then moving over to the 7 right-hand side of the page, which deals with the 8 northwest runway. First of all, it deals with 9 construction, very low, and then operation, high. 10 LORD JUSTICE HICKINBOTTOM: Thank you very much. 11 MR JAFFEY: So, it is couched, in my submission, in the 12 Secretary of State's own appraisal of sustainability in 13 terms of high probability, which is a defined term. It 14 is defined in the way the court will see. 15 MR JUSTICE HOLGATE: Nonetheless, the context -- having 16 clarified that, the context is how close the projections 17 are to the limit value and the effect on headroom. 18 MR JAFFEY: Yes, and so the reason why the third runway may 19 cause a breach or prolong a breach is because there are 20 road links in Central London, where additional traffic 21 going to and from the airport, even a modest amount of 22 additional traffic, may well prolong or cause a breach. 23 That is the analysis which is done in the WSP report, 24 and the analysis which Mr Maurici took you through. 25 That is the cause of the exceedance. In terms of what 40 1 the extent of the risk of that is -- 2 MR JUSTICE HOLGATE: Yes, but I just want to be clear about 3 this when we come to think about it. The descriptions 4 of risk here, if one wants to see what the source 5 material is, it is the confidence limit exercise that we 6 looked at at the end of last week. There is no other 7 exercise which, for example, gets to a risk figure in 8 excess of 80 per cent; is that correct? 9 MR JAFFEY: No. It is the confidence figure -- and we have 10 seen that, for example, there is an analysis which is 11 based on the assumption of a normal distribution around 12 the confidence figure of the modelling work. But, in 13 addition, that work, the WSP work, identifies other 14 uncertainties which go into the mix. So, the WSP report 15 does the mathematical exercise of running the model and 16 then looking at the confidence intervals in the model, 17 and then in addition identifies additional potential 18 uncertainties. 19 That is my assumption. I don't know how the 20 Secretary of State has taken the WSP report and then 21 come to the Secretary of State's conclusions in the 22 appraisal of sustainability, that the overall risk of 23 causing or prolonging and exceeding -- 24 MR JUSTICE HOLGATE: I just want to be clear about this 25 because you have taken us to the conclusion. When you 41 1 opened the case you dealt with the definition of high 2 risk and, as I understand it, the Secretary of State has 3 shown us what the conclusion was based on; that I have 4 just sought to summarise. In terms of underlying 5 technical material, I don't think you have shown us 6 anything else. 7 MR JAFFEY: Can I -- 8 MR JUSTICE HOLGATE: Is that right? 9 MR JAFFEY: That, in my submission, is not right. There is 10 additional material in that document. 11 MR JUSTICE HOLGATE: No, but have you shown us anything 12 else? 13 MR JAFFEY: Beyond that document? 14 MR JUSTICE HOLGATE: Yes. 15 MR JAFFEY: No, it is that document as well, that I also 16 rely upon. 17 I am anxious about outstaying my welcome, but can 18 I just show you that document? 19 MR JUSTICE HOLGATE: This would have been a matter for 20 opening. 21 MR JAFFEY: I am responding to Mr Maurici's -- 22 MR JUSTICE HOLGATE: Sorry, this is your substantive case. 23 It should have been a matter for hoping. 24 MR JAFFEY: My substantive case is that the key document is 25 not the document that is prepared on behalf of WSP, the 42 1 consultant, but the Secretary of State's own 2 conclusions. 3 The Secretary of State's own conclusions are set out 4 in the appraisal of sustainability which is -- 5 MR JUSTICE HOLGATE: The appraisal of sustainability is by 6 WSP as well. 7 MR JAFFEY: Yes, but it is approved by the Secretary of 8 State and it is required by statute. It is the 9 Secretary of State's document for which the Secretary of 10 State takes responsibility. Mr Maurici can't say it is 11 WSP's document, it's not his problem. It is the 12 Secretary of State's document. That is the document -- 13 as I have sought to show -- that shows there is a high 14 risk defined as "in excess of 80 per cent of a breach of 15 European limit values". That is my case in opening. 16 Mr Maurici's response is: oh well, I know it says 17 that and that's how it is defined, but I can move away 18 from that because if you look at the material that it is 19 based on, when it says "high" and "80 per cent", it 20 can't possibly mean that. 21 So, his case depends on the Secretary of State being 22 able to persuade the court that the Secretary of State's 23 appraisal of sustainability, applying the defined terms 24 there -- and they are in relation to probability and not 25 just risk, as I have sought to show the court -- is in 43 1 fact wrong, and the court should go back to the 2 underlying material, analyse it for itself and conclude 3 that can't be what the Secretary of State meant. 4 Not that's the point that my Lord, Mr Justice 5 Holgate -- 6 MR JUSTICE HOLGATE: I am just asking you: is there anything 7 else you think we should look at? 8 It is a very simple question. 9 MR JAFFEY: It is. That is volume 8, tab 5, the WSP report. 10 MR JUSTICE HOLGATE: The same document. 11 MR JAFFEY: I was just dealing with the suggestion that I -- 12 LORD JUSTICE HICKINBOTTOM: Volume 8? 13 MR JAFFEY: Volume 8, tab 5. If I could pick it up at 14 page 241, which the court has already seen, at the 15 bottom of page 241 there is paragraph 3.3.13. It 16 identifies a plus or minus 29 per cent uncertainty range 17 in the modelling. Then, three lines up from the bottom: 18 "Assuming the analysis of modelled versus monitored 19 concentrations follows a normal distribution, it is 20 useful to note that a 95 per cent confidence limit of 21 plus or minus 29 per cent equates to the following 22 observations ..." 23 Then it analyses that in terms of standard 24 deviations and familiar analysis. 25 Then, 3.3.14 gives some practical examples: 44 1 "It is considered that where model concentrations 2 are less than 20 per cent of the limit value ..." 3 I actually think, based on my limited knowledge of 4 statistics, less than 20 per cent off the limit value is 5 what they probably mean there, because if the model 6 concentration is 20 per cent off the total limit value 7 there is really no real prospect of the exceedance. 8 I think they mean 20 per cent less. 9 Then, at the end of that paragraph: 10 "If the model concentrations lie within 10 per cent 11 of the limit value, in this case 25 per cent of modelled 12 concentrations would be likely to exceed the limit 13 value." 14 So, if your model says you come in at 10 per cent 15 below the limit value -- the limit value is 40, so the 16 model comes in at 36 -- that equates to a 25 per cent 17 probability of an exceedance. 18 Just on the basis of assuming a normal distribution. 19 There is no magic to that. That is just the maths. 20 Then, the Heathrow analysis is on page 255. This is 21 the table the court went through with Mr Maurici. On 22 the central option, which is with CAZ, in 2026, on the 23 critical link, which is the A40 Westway, 70181, there is 24 a zero per cent headroom. 25 So, just on the basis of the pure statistical 45 1 analysis, if you assume there is a normal distribution, 2 that would equate to a 50/50 risk because you are right 3 on the number. 4 Then there are the additional caveats that are 5 identified by the consultant. Those conclusions are set 6 out in section 6, at page 265. The ultimate conclusion 7 is at 6.4.12: 8 "The risk of an impact decreases over time, 9 primarily due to the anticipated decreases in pollutant 10 concentrations. Available evidence on the latest euro 6 11 vehicles and the impacts ... Suggests it is possible to 12 be confident that roadside ... concentrations will fall 13 ... it is the rate of decrease that is in question and 14 the point in future at which the downward trend is 15 established." 16 That is the additional caveat, and the uncertainty 17 in this analysis. They don't know when the decreases 18 are going to start because they haven't really started 19 yet. 20 We add into these uncertainties that all of these 21 figures assume western rail access, southern rail access 22 and Crossrail 2. They do not consider freight, except 23 during peak hours. But, of course, freight vehicles are 24 invariably diesel vehicles, many of them arrive at night 25 and they are therefore major contributors to the 46 1 nitrogen dioxide. Not only that, the limit values are 2 calculated as an annual calendar year mean. So, it 3 doesn't matter what time of day the vehicle arrives, it 4 still contributes to the limit value. Plus you add in 5 induced or catalytic demand, and you also assume that 6 the clean air zone, called the ULEZ in London, has the 7 expected effect. None of which is included in this 8 modelling. 9 So, that is why if I were the Secretary of State and 10 I was seeking to defend the rationality of what the 11 Secretary of State says in the appraisal of 12 sustainability, there is indeed a high risk as defined 13 in terms of probability that this proposal will lead to 14 a breach of the limit value. 15 The consequences of that are consequences I have 16 already sought to identify in opening and I won't 17 repeat. 18 Given the time, and I have already overstayed my 19 welcome by at least 10 or so minutes, unless I can 20 assist the court further, that is all I wish to say. 21 LORD JUSTICE HICKINBOTTOM: No, thank you very much. Yes, 22 Mr Pleming. 23 Submissions by MR PLEMING 24 MR PLEMING: My Lord, having lost ten minutes I think I have 25 35 to entertain you on some of the important points of 47 1 law. I also have a note to hand up to your Lordships. 2 Could I explain what it is? 3 (Handed). 4 What you see, first of all, is a note in reply. It 5 is covering, as your Lordships will understand, some 6 high level legal issues, the standard of review, how to 7 deal with Blewett; is that the applicable test? Then, 8 how do you then look at the noise and plans point? 9 Then, we still have consultation and, finally, a word or 10 two on relief. 11 So, my Lord, I apologise for the text. It was 12 intended to be a note, but, as I was writing the note, 13 it made far more sense to include the text. 14 Could I get through this as quickly as I decently 15 can and then give the break, perhaps in ten minutes or 16 so, to the shorthand writers and the court. 17 LORD JUSTICE HICKINBOTTOM: Thank you. 18 MR PLEMING: You will see on issue 1 that standard of 19 review, very little to add. I call the first point the 20 overarching standard of review. Then the showstoppers 21 and Parliament, and a word on the DCO stage. 22 Just to re-emphasise, as we sought to emphasise 23 throughout, this is not a challenge to the merits of the 24 policy decision. 25 If I can take 3 as read, then turn to 4, because 48 1 amongst the cases that are relied on -- I don't want to 2 go, of course, to all of them -- is the important case 3 of Wandsworth. It is said that because the ANPS -- this 4 is paragraph 4: 5 "... is a decision that engages political social and 6 economic considerations of the highest order, then a 7 higher test should be applied." 8 We have given you the reference to how it was put by 9 my learned friend, Mr Maurici. 10 What we seek to explain is that the test applied in 11 Wandsworth is not whether a decision involves political, 12 social and economic considerations. Rather the test 13 endorsed by the court is whether the nature of the 14 challenge presents questions which the court would be as 15 well equipped to answer as the decision-maker, for 16 example, questions of primary fact or questions where 17 the court's approach to judicial review would 18 acknowledge it was singularly ill-equipped to answer. 19 In particular, the question is whether, given the 20 nature of the challenge, the court is being asked to 21 review the decision-maker's "evaluation of political or 22 economic considerations", where there will be a heavy 23 evidential burden on the claimant. 24 As we say at the end, that may have been the 25 position in Clarke, which is a head on challenge to the 49 1 balancing exercise, but this is not our challenge. 2 My Lord, showstoppers. We thought having listened 3 to Mr Maurici still trying to preserve his showstoppers 4 argument that we should take you to paragraph 66 of the 5 Hillingdon 2010 decision upon which he relied, but, 6 my Lord, in the time available could I not take you 7 there, but point out the other references. 8 The main point in Hillingdon -- both of which my 9 learned friend and I were involved -- is that there was 10 no decision with "direct substantive effect". 11 Paragraph 48. A full consultation was required under 12 the Act and promised because of removing reliance on 13 section 12 and paragraphs are 53, 64 and 97. We have 14 now have reached the section 13 stage, here is the 15 target, the ANPS with substantive effect. So, nothing 16 to add on showstoppers. 17 My Lords, Parliament. This is also a particularly 18 important point of general application, not just this 19 case. It is said by my learned friend that it raises 20 the bar and judicial scrutiny is restricted to bad faith 21 manifest absurdity. 22 Paragraph 15 of Mr Maurici's skeleton argument says 23 words to this effect: because of Parliament's 24 involvement, that is both the Transport Select Committee 25 and the House of Commons itself, "there is a very high 50 1 threshold indeed for intervention". 2 Now, in oral submissions, that became even more 3 enthusiastically presented. It was not only a very high 4 threshold indeed -- this is my paragraph 10 -- that it 5 should apply not only to the ANPS itself, which includes 6 the decision to designate, but also the underlying 7 documents, including the AOS, thereby including the SEA 8 environmental report and the Habitats Regulation 9 Assessment. 10 The lines we have given you from the transcript are 11 lines 11 to 24. Could I just read those to your 12 Lordships: 13 "My Lord, on scope, because I was also challenged if 14 you remember by Mr Pleming about whether I can find my 15 submissions on the effect of parliamentary approval 16 solely to the NPS itself, or whether I extended that to 17 the underlying documents. In particular, for example, 18 the example that Mr Pleming picked up was the AOS. 19 My Lords, I do extend the approval point to those 20 underlying documents because they were laid before 21 Parliament; the AOS, the Habitats Regulation Assessment 22 were placed before Parliament. Although I am not to go 23 into the detail, et cetera, there was examination before 24 the Transport Select Committee." 25 That is the way it has been put, so, as we say in 51 1 paragraph 11, the Secretary of State seeks, so it 2 appears, to constrain or restrict judicial scrutiny on 3 environmental documents underpinning an NPS, any NPS of 4 course, because section 5.4 and 9.2 required any 5 statement within part of 2 of the Act is laid before 6 Parliament. We call this an ambitious submission, and 7 it doesn't fit comfortably, first with environmental law 8 principles, including the ability to access the court's 9 to question environmentally harmful decisions, but also, 10 as I mentioned earlier, with the language of section 13, 11 which allows legal challenges within limits and 12 distinguishes -- time limits in particular -- the NPS as 13 the first part of section 13 or "anything done or 14 omitted to be done by the Secretary of State in the 15 course of preparing such a statement". 16 Could I add just a word on this? Because there is 17 a danger in this submission because it invites the 18 ministers of the Crown to place documents before 19 Parliament or Select Committees and then say if there is 20 a legal challenge to anything in those documents. 21 First, you can't go into the engagement with those 22 documents in Parliament because of Article IX, first 23 obstacle and, secondly, there is now a very high 24 threshold when you come to invite the courts to consider 25 those documents. 52 1 LORD JUSTICE HICKINBOTTOM: I am not convinced there is as 2 much between you and Mr Maurici on this as you suggest 3 for this reason -- there is a lot between you, but not 4 I don't think on this issue. Mr Maurici effectively 5 said that, not all of your grounds, but most of your 6 grounds, and heavily, were actually a rationality 7 challenge. I know you don't accept that. I understand. 8 If it is a rationality challenge, and if Parliament 9 approved the NPS, then it is not straightforward for 10 a court to say that Parliament has acted irrationality. 11 MR PLEMING: No. My Lord, the answer to that is that our 12 challenges are mainly directed to information that was 13 not put before Parliament. 14 LORD JUSTICE HICKINBOTTOM: I understand that. I understand 15 that you don't accept, again, the premise that all of 16 this is rationality because you say that the 17 unlawfulness arises not primarily from rationality, you 18 have that as well, but on other conventional public law 19 grounds. 20 MR PLEMING: Yes, my Lord. Even if it is rationality, we 21 emphasise the danger of where this argument can go. 22 When Parliament itself has included in the statutory 23 framework the ability to take judicial review -- 24 LORD JUSTICE HICKINBOTTOM: I see that. 25 MR PLEMING: My Lord, could I turn to DCO just for a minute 53 1 or two. Your Lordship, as I say at paragraph 14, has 2 our submissions on what is or what is not open for 3 consideration and, if needed, the challenge at the DCO 4 stage. 5 My Lord, I hope the lines are clear between the 6 Secretary of State and ourselves, but we thought we 7 would just add that Heathrow, in its submissions, adds 8 support to our case, if not our concern, perhaps a 9 better way that it is put. 10 This is in Mr Humphries's speaking note at page 14, 11 but this is how it appeared in the text, in the 12 transcript: 13 "It couldn't be argued that the DCO at an 14 examination the northwest runway should be refused 15 development consent on the basis that Gatwick had lesser 16 or different effects. 17 "So, if that is correct, then the ANPS stage is/was 18 the claimant's only opportunity to make that comparison, 19 and this is their own opportunity to challenge the steps 20 leading to the NPS." 21 My Lord, could I turn to issue 7, just introduce it, 22 and then perhaps give those who need a rest that rest. 23 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 24 MR PLEMING: My Lord, the next topic is the proper test to 25 apply. We emphasise at paragraph 17 that the objective 54 1 of the submissions was -- the target was Blewett. That 2 was relied on specifically by my learned friend in his 3 original skeleton argument. It was then said, applying 4 No Adastral, that the Court of Appeal has endorsed and 5 approved the Blewett test, and that is picked up by 6 Mr Banner as well. 7 What we have done here is -- with the greatest 8 respect, your Lordships will know this paragraph inside 9 out and backwards -- to put paragraph 41 of the judgment 10 of Mr Justice Sullivan before you to see, as we 11 breakdown that paragraph, quite why we still have 12 concerns. 13 The focus, as you can see on the second line, is on 14 the applicant's environmental statement. This is 15 important, as I explain in the next paragraph. 16 It is noted: 17 "The overall purpose of the exercise was that 18 environmental information provides the decision-maker, 19 there the local planning authority, with as full 20 a picture as possible." 21 We agree, and our overall complaint is that the 22 Secretary of State was not -- nor was the public -- 23 provided with as full a picture as possible. 24 My Lord, the next sentence, the third sentence, 25 where the problem lies -- and we submit that it should 55 1 not apply -- it is not -- and we emphasise this: 2 a summary of modern public law Wednesbury. We invite 3 your Lordships to reject reliance on that ground. 4 If I could go back to the test, where the document 5 purporting to be an environmental statement is so 6 deficient that it could not reasonably be described as 7 an environmental statement as defined by the 8 regulations. 9 Just go back a line or two before that because -- we 10 have also underlined it -- that there is reference to 11 deficiencies, but the system at the EIA stage: 12 "... makes provision through the publicity and 13 consultation process for any deficiencies to be 14 identified, so that the resulting environmental 15 information provides the LPA with as full a picture as 16 possible." 17 There are similar provisions in the EIA regime to 18 the SEA, but they are markedly different when you go 19 through them. But we don't have that opportunity for 20 correction with the SEA because the SEA determines 21 policy. So, my last remark before the break, my Lord, 22 is our paragraph 20: 23 "The overarching purpose of the SEA must be kept in 24 mind and the difference from the EIA. The EIA is the 25 application of policy. An EIA report is used to test 56 1 a project's performance against policy. The SEA in 2 contrast is entirely different because it is about the 3 formulation of policy, here to produce the ANPS. 4 "The SEA is used to test a plan or programme's 5 environmental performance. There is to substitute. It 6 is the only tool to be relied upon to measure a plan or 7 programme against a range of sustainability objectives 8 and other environmental policies. If done badly, or 9 incompletely, a decision-maker, here the Secretary of 10 State, has nothing else to fall back on. Put shortly, 11 there is a world of difference, or at least 12 a significant difference between the EIA being 13 considered in Blewett and the SEA being considered in 14 this challenge." 15 My Lords, could I pause there as we then move into 16 Ashdown Forest, or I can invite you to take the next 17 paragraphs as read. I am in your Lordships' hands. 18 What we accept is that the Wednesbury approach 19 applies to alternatives. In the light of Ashdown Forest 20 your Lordship's judgment in FoE. Here we can say no 21 more than that. 22 But then we analyse the structure of the directive 23 in paragraph 22. In 23, we go through that in greater 24 detail. Then when we get to the correct approach we say 25 that in a modern approach to public law challenge it 57 1 isn't enough just to raise the word "Wednesbury" or to 2 raise the word "Mott" and say, "Back away". The proper 3 approach is for a structured examination and we have set 4 that out in paragraph 24. 5 All I was going to show you was the -- remind you 6 again of the extract from Pham, so could I leave that 7 until after the break? 8 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. 9 MR PLEMING: Before I sit down, you will see that the 10 documents also have two rather detailed notes which pick 11 up the schedules you were handed, or tables you were 12 handed by the Secretary of State. We have put our 13 commentary in the boxes. There should be two red and 14 black documents, my Lord. I will come to those briefly 15 after the break. 16 LORD JUSTICE HICKINBOTTOM: Yes, thank you very much. 17 (11.25 am) 18 (A short break) 19 (11.45 am) 20 LORD JUSTICE HICKINBOTTOM: Yes, Mr Pleming. 21 MR PLEMING: My Lord, to keep to the timetable, I think 22 I have 15 minutes or so. I'll speed through this. I do 23 apologise for the haste at which it is taken. 24 Just in paragraph 24, could you delete the word on 25 the first bullet point the extra "it" or if", but that's 58 1 what we want to emphasise, the reference to 2 precautionary, precautionary approaches is in the second 3 bullet that we deal with in paragraph 23. 4 In paragraph 25, as I mentioned before the break, we 5 encourage the court to adopt a structured approach if it 6 is to be a Wednesbury approach of rationality, it isn't 7 rationality in the sense of no reasonable Secretary of 8 State, that might be the conclusion, but it is more 9 structured. 10 But, my Lord, in paragraph 26, as mentioned in 11 opening, we respectfully draw your Lordship's attention 12 to Lord Mance in Pham, and I won't go back to it, 13 my Lord. 14 On sufficient quality, you will see on paragraph 27 15 we respectfully agree that Article 12.2 is primarily 16 concerned with a member state having a system in place, 17 but we do say that Mr Justice Collins was correct in the 18 way he framed his reference to quality. 19 In paragraph 28, we pick up part of the judgment in 20 my Lord's judgment in Friends of the Earth and emphasise 21 the last few words. 22 My Lords, when I then turn to the plans. These 23 are -- as I hope to explain very simply -- the note in 24 reply to the table on noise was a table which was in two 25 parts. We have put the text in red and then our own 59 1 text in black. When it comes to plans, just for 2 variety, we have done it the other way round, so our 3 text is in red, the old text is in black. 4 But on noise, the areas point, could I remind your 5 Lordships of our principal complaint? This is how we 6 put it in our agreed statement. It's how it is put in 7 the agreed statement of facts and grounds: 8 "At the most basic level the AOS fails to alert all 9 those who might be significantly affected by aviation 10 noise of that fact." 11 Sorry, it's not the agreed one. It is the amended 12 statement of facts and grounds. 13 Put another way, those who live in places, areas 14 likely to be significantly affected by aviation noise 15 from an expanded Heathrow will not know until it is too 16 late to object and compare and contrast with Gatwick, 17 because during the process of adjusting flight paths and 18 the DCO, they will learn for the first time that they 19 may be included. We showed you in opening the troubling 20 document where the Secretary of State, the Department 21 for Transport records the intention of HAL and thought 22 that might -- for want of a better word -- bring out 23 people who didn't know that they were going to be 24 affected. 25 So, just turning to noise itself. My Lords, we have 60 1 incorporated into the table on noise the Secretary of 2 State's speaking note and then our own. We note that 3 the way it is being framed in the speaking note was to 4 put the 51 contour point first and then to confine our 5 areas submission to reliance on what is shown in the HAL 6 diagrams. 7 Now, this is not only a misdescription. It is 8 a re-ordering of the claimants' argument. In the second 9 paragraph, we say in the course of submissions it was 10 said there was no challenge directly or at all, I think, 11 to the fact that we used indicative flight paths. 12 Again, that is entirely to miss the point. There is no 13 suggestion that actual precise flight paths could or 14 should be used. 15 The claimants' position is that in the absence of 16 actual flight paths, in order to identify areas likely 17 to be significantly affected, a representative spatial 18 area should have been used. I hope it will become clear 19 by the time at least when we sat down, but again there 20 is this attempt to blur the picture. 21 When it comes to "should have been used", that is 22 the text in red, again, that is not our case. We don't 23 say that there should have been an adoption by the 24 Secretary of State of HAL's diagrams. It should have 25 been the CAA, together with the Department for 61 1 Transport, not the proposer. What we showed you was 2 merely examples. 3 Over the page, my Lords, you will see there is 4 another reference to the text of the table handed up by 5 my learned friends. Perhaps with the assistance of 6 those who represent Heathrow, there's focus again on the 7 7,000 feet point, and you will see our response is an 8 invitation to your Lordship to look at the documents 9 which make it absolutely clear what was going on. 10 In the second line below that, my Lord, it says 11 "2017 guidance to the SST", that of course should be 12 guidance by the SST to the CAA. Apologies for the 13 error. 14 My Lord, at the same time, we thought we should draw 15 attention in footnote 2 to submissions made by my 16 learned friend on behalf of Heathrow. It was said in 17 many criticisms of our presentation, particularly my 18 own, that we were confused and effectively all over the 19 place. But when you look at the criticisms made, they 20 are, for example -- and the only one we picked up over 21 night -- we were accused of being factually wrong, but 22 we were not. What is worrying about what you see in the 23 footnote -- and we have given you the speaking note 24 reference -- is that the criticism is that we had failed 25 to understand what was being said. This is how it is 62 1 put in the speaking note. This is page 15: 2 "The yellow plan appears to be a composite of HAL 3 plans. Pleming states that 7,000 colour band 4 encompassed in yellow equates to 51 decibels." 5 Then the reference is Pleming, at Day 2, page 155. 6 That is factually wrong. It will be closer to the 4,000 7 band. The use of the 7,000 threshold comes from the Air 8 Navigation Guidance. 9 We showed you the references, but could I just show 10 you what is being criticised because one does leave 11 case -- I don't want to leave this case with the concern 12 that Heathrow doesn't want you to see certain documents. 13 This is in supplemental bundle 12 and it is tab 15. 14 This is the document I was talking about in the 15 passage referred to by my learned friend, Mr Humphries. 16 The page is page 496. If you flick through that, you 17 will get to a page which says, 496: 18 "Who we will consult." 19 Your Lordship may remember the document. The 20 reference to LOAEL comes from HAL's document. You will 21 see a reference to "the inner ring" and the inner ring 22 based on an estimate of max extent of LOAEL, but without 23 a number. 24 What we were showing by this is it is perfectly 25 possible to draw a circle, or maybe perhaps a more 63 1 precise document, to show the area around Heathrow where 2 it is likely that there would be significant effects. 3 The outer ring is the furthest possible reach of 4 routes 7,000 feet above ground level. 5 Then your Lordship will recall we went through the 6 pages. 7 The criticism is wrong, completely, by my learned 8 friend, and I thought I would draw it to your attention. 9 In the next page, we have picked up the question by 10 Mr Justice Holgate, who asked for the best references. 11 There is one point I wanted to emphasise in just 12 30 seconds or so. This was in the transcript, where 13 my Lord Mr Justice Holgate referred to indicative flight 14 paths, and there was reference to "the information 15 currently available". That perhaps was intended to pick 16 up the words "current knowledge" in Article 5(2) of the 17 directive, but if that is the defendant's case, then it 18 provides no answer because -- and we make four points. 19 The defendant knew that these were not going to be 20 the actual flight paths, not even the likely flight 21 paths, as -- I quote from Mr Lotinga: 22 "The airspace over London will need to be redesigned 23 irrespective of the airport expansion." 24 Secondly, the Secretary of State knew where the 25 third runway is likely to be built. He knew that the 64 1 arrivals and departures below 4,000 feet, if not higher, 2 are likely to be in an area where there are significant 3 noise effects, and knows that the area around Heathrow 4 can readily be shown visually in maps or diagrams. 5 My Lord, can I then take the rest of this as read? 6 Over the page, we then turn to the use of the 54 7 contour, rather than the 51 contour. As we explained, 8 this is a supplementary argument. 9 What we said is that the failure in relation to the 10 area is compounded by the inappropriate adoption of the 11 54 contour, rather than 51, and these are additional 12 flaws. We set out the references that show that policy 13 at the time was that it should be 51 not 54, but, most 14 importantly, is HAL and the Secretary of State seek to 15 separate out the airspace changes from the consultation 16 information in relation to Heathrow. We say that the 17 policy in relation to the noise impacts of airport 18 changes must be relevant to assessing the even more 19 dramatic noise impacts of a new airport or, in this 20 case, a new runway, and we set out why. 21 My Lord, could I turn -- and I hope take the rest of 22 that as read -- to local plans. My Lord, we have done 23 the same, but, in local plans, you may recall that there 24 was very detailed document that we had to respond to. 25 Could I start with three questions and then show you 65 1 just two passages in the note, and turn to the next 2 topic? 3 The question, whether one is looking at annex 1(a) 4 with 5(1), or with 5(2), applying public law principles 5 are threefold. 6 Was the Hillingdon local plan a relevant plan for 7 the purposes of annex 1(a) of the directive? 8 I am just asking that straight factual question 9 before we go to the filters. We say the answer is 10 clearly and obviously yes. This is a proposal which 11 will have a dramatic impact in Hillingdon. Unlike, for 12 example, the nuclear energy power -- the energy white 13 paper and NPS, which is dealing, for example, with 14 Hinkley Point on the north coast of Somerset in a remote 15 part of the UK. We can see from the footprint. 16 Second question: does the environmental report 17 address the relationship -- that is the word in 18 annex 1(a) -- of the northwest runway with the 19 Hillingdon local plan? 20 No, it doesn't. 21 Thirdly, in light of the answers to questions 1 and 22 2, has there been a failure to prepare an environmental 23 report in which the likely significant effects on the 24 environment of implementing the final programme relevant 25 to the Hillingdon local plan have been assessed? 66 1 Answer: no. 2 So, your Lordships have, as I said, a lengthy 3 document from the Secretary of State. We have tried to 4 put together, on red on the first page, the best 5 references as were answered by my learned friend, 6 Mr Maurici. It is unnecessary to go through those. 7 Those are our responses. 8 You will see that what we are trying to explain is 9 that if you look at what was proposed, when you look at 10 the documents themselves that are relied on, they do not 11 engage with the local plan. You end up with cumulative 12 effects and say that you will lose this or you lose 13 that, but you end up none the wiser as to how, for 14 example, a prediction of up to 70,000 houses will be 15 fitted in to the local authorities around Heathrow. We 16 picked that up, for example, in -- one reference and 17 I will say no more. It is the reference on page 6. 18 This is where -- and we are responding to the references 19 on the left-hand side -- CB9/32/10, that is from AOS, 20 also states: 21 "High demand scenarios indicate 42,500 to 69,300 22 homes will be required. There is a high probability 23 that the predicted increases in demand for housing and 24 community facilities will occur. However, the 25 assessment is based on various assumptions." 67 1 That reference, as we say, encapsulates the problem 2 and Hillingdon's concern. The AOS identifies a need for 3 these houses, but at non point prior to or at the DCO 4 process, or prior to the DCO process, will anyone have 5 grappled with the need to cram nearly 70,000 more homes 6 into authorities in close proximity. The same point 7 goes for how 114,000 jobs can be accommodated in the 8 area. This is just lacking in the essential detail. 9 Could I invite your Lordships, at some stage, to go to 10 Mr Thynne's second witness statement at paragraphs 59 to 11 63. 12 My Lord, at that breakneck speed, could I turn to 13 closed minds, and just take two or three minutes on 14 this? Because, again, there's a central point of law 15 that your Lordships need to make a decision on. 16 The witnesses believe that the Secretary of State in 17 fact had a closed mind, and you can see from the way 18 they formulate their witness statements, but they don't 19 have to satisfy your Lordships that is so. It is, or at 20 least was, common ground that the test is as follows: 21 would a fair-minded and reasonable observer in 22 possession of all the facts conclude on the basis of the 23 evidence that there was a real possibility or real risk 24 that the Secretary of State's mind was closed to any 25 project other than the northwest runway? 68 1 We give you two parts of the transcript. In 2 paragraph 33, Mr Maurici invited the court to have 3 regard to the appointment and role of Sir Jeremy 4 Sullivan and the related evidence of Caroline Low 5 concerning process. We submit in reply that the 6 evidence is irrelevant. 7 As I say in the opening paragraphs, the test on the 8 approach seemed clear, but the Secretary of State 9 persisted in oral submissions in relying on the very, or 10 occasionally the really crucial concession that the 11 Secretary of State was entitled to have a preference, 12 and this removed the appearance test and replaced it 13 with a tougher task, that the Secretary of State in fact 14 had a closed mind. 15 That wasn't a concession at all. It was part of the 16 background context known to the fair minder and informed 17 observer. We emphasise the words "just because" the 18 Secretary of State has a preference, which has been the 19 position at least since October 2016, it doesn't follow 20 that his mind was closed during the two consultations in 21 2017 or in the lengthy consideration of the 22 representations received. But it is a preference, not 23 a policy. 24 The fact the Secretary of State has a preference 25 does not excuse him from the requirements of a fair 69 1 consultation. 2 My Lord, attention was drawn to the judgment of 3 Mr Justice Cooke, as he then was, in CREED NZ. Two 4 observations: the date, 1981, well before the recent 5 case law on fair consultations, and the facts, it is an 6 interesting allegation of the predetermination directed 7 at the whole executive council. 8 But your Lordships asked my learned friend whether 9 there was any case law dealing with this passage. We 10 also have not found case law, but we have found the 11 decision, the very recent decision of Mr Justice Dove in 12 the Leguard case. 13 My Lord, could I hand up -- I am sorry, you have 14 them there. 15 It is a useful decision. We haven't copied the 16 whole case. It is a lengthy decision, but 17 Mr Justice Dove, at paragraph 120, turns to the question 18 of apparent bias and then spends some paragraphs dealing 19 with it. You eventually get to the summary, at 20 paragraph 133. So, in amongst the cases is CREED NZ as 21 it was discussed in Lewis v Redcar. So, it isn't 22 a separate consideration. 23 If you get to 133, my Lord, you will see the test 24 set out, and just between G and H: 25 "Part of the context for the fair-minded and fully 70 1 informed observer in relation to cases involving a local 2 government or local government is that members of local 3 authorities are democratically accountable ..." 4 If you read to the end of this paragraph, there is 5 also reference to a government minister. So, part of 6 the context is the political background and the judgment 7 that is being made, and having a preference. 8 My Lord, we have also added the Localism Act 2011, 9 section 25, which should be the next document in the 10 folder, or in the bundle. This was added in 2012, and 11 it deals only with local authorities, as you will see, 12 but 25.1: 13 "Subsection (2) applies if as a result of any 14 allegation of bias or predetermination or otherwise 15 there is an issue about the validity of a decision of a 16 relevant authority and it is relevant to that issue 17 whether the decision-maker, or any of the decision 18 makers, had or appeared to have a closed mind to any 19 extent when making the decision. A decision-maker is 20 not to be taken to have had or appeared to have appeared 21 to have had a closed mind when making the decision, just 22 because ..." 23 Then the "just because" is what had previously been 24 done and said. 25 It doesn't apply to ministers, but the "just 71 1 because" test, we say, is the same. 2 My Lord, we haven't found any other case. As we say 3 in paragraph 38, that section has been considered by 4 Mrs Justice Patterson in IM Properties, but apart from 5 applying the real possibility test, it doesn't take the 6 matter further and we haven't supplied you with copies. 7 There is nothing in the structure of the 2008 Act to 8 support a submission that the test for the Secretary of 9 State is different. 10 Paragraph 40, frankly of no relevance, although 11 entertaining. 12 Paragraph 41 is the central issue. The central 13 question is: when the evidence is considered, including 14 any relevant evidence from the defendant, is the court 15 satisfied that the fair-minded, reasonable observer, in 16 possession of all the facts, ie fully informed, would 17 conclude that there is a real possibility, a real risk 18 that the Secretary of State's mind was closed to the 19 representations made to him? And to use the language of 20 consultation, the proposals put out to consultation in 21 2017 were not at a formative stage at all. At all 22 relevant times his mind was closed to any alternative 23 and determined that it was the northwest runway 24 proposal, and only the northwest runway proposal, he 25 would put to Parliament. 72 1 We hope that is an accurate distillation of our 2 case. 3 There was a hand up on this topic from the Secretary 4 of State and, as we note in paragraph 42, the fifth 5 point we relied on was the exclusion of the ENR scheme. 6 My Lord, it is right that should be abandoned. It 7 was based on and explained in paragraphs 84 to 85 of our 8 reply, and we give you the reference in paragraph 42. 9 But that was before the split of one case from the 10 others that happened in January, and we can no longer, 11 as I understand the order, rely on factual findings in 12 the hub case. So, that's why it was there and it should 13 go. 14 My Lord, can I then turn to the last point, which is 15 a minute, and that is relief? 16 My Lord, what you have had is another hand up from 17 the Secretary of State with two pages of references. We 18 are not yet sure what this is intended to be. It was 19 a hand up which had references to witness statements. 20 None of the witnesses are a decision-maker, or the 21 decision-maker, and the only reference to a DfT witness 22 is in the last reference on habitats, when there is 23 reference to Caroline Low. 24 So, the views of the witnesses engaged as experts by 25 the Secretary of State are of doubtful relevance. But, 73 1 even if they are, this is no answer to our case on 2 relief and, my Lord, could I take you to the only 3 document before I sit down, in paragraph 10, 4 supplemental bundle 10, tab 8. 5 LORD JUSTICE HICKINBOTTOM: Sorry, which bundle? 6 MR PLEMING: Bundle 10, core bundle 10, or supplemental 7 bundle 10, tab 8. Our submissions on relief. We 8 haven't developed these because this was really 9 dependent on whether we win or lose on any of our 10 grounds. 11 Your Lordship will see that we set out at 12 paragraph 8, on page 225 and 9, the case law on this 13 section, section 31(2)(a) of the Senior Courts Act, and 14 the highly likely test. 15 At paragraph 8.5: 16 "The court should be very careful to avoid 17 trespassing into the domain of the decision-maker." 18 We haven't heard from the decision-maker. 19 My Lord, could I just invite you to read those 20 paragraphs at what passes for judicial leisure, as an 21 area that hasn't been addressed at all by my learned 22 friend and these references really don't help at all. 23 My Lord, before I sit down, could I close with one 24 observation? 25 LORD JUSTICE HICKINBOTTOM: Yes. 74 1 MR PLEMING: The boroughs and the people they represent, 2 when they challenge the October 2016 decision, were told 3 they were too early, "Wait until the NPS". Now, they 4 are still too early and should wait for the DCO. Yet by 5 the time of the DCO they are too late to say, "Look at 6 the harm, the noise and the pollution compared with 7 Gatwick". Those who are waiting for -- the frustration 8 of waiting for the bulldozers, who live close to the 9 site, this is frustrating beyond words. But, on their 10 behalf, can I say thank you to your Lordships for 11 listening so carefully to our speeches. 12 LORD JUSTICE HICKINBOTTOM: Thank you, Mr Pleming. 13 Mr Wolfe. 14 Submissions by MR WOLFE 15 MR WOLFE: My Lord, I am grateful. Can I just remind the 16 court as to the overall nature of our case? What we 17 say, what Friends of the Earth say is that this ANPS was 18 unlawfully made. What we say follows from that, that 19 a lawfully made ANPS might have been -- and that is the 20 threshold we need to aim for -- different. 21 Just to remind you, a particular focus of that is 22 the paragraph 5.82, which set out an approach to be 23 taken, perhaps a test to be taken, in relation to 24 climate change matters when it comes to the DCO. So, 25 what we say is a lawfully made ANPS might have been 75 1 different in relation to paragraphs of the ANPS, 2 including that one. 3 In relation to its scope, as in the range of 4 emissions, in relation, potentially, to its temporal 5 reach and in relation, potentially, to the threshold it 6 set; it might have been a redder line; it might have 7 been a red, red line, in the way you have heard 8 described in other cases. 9 That is the target to which we aim. 10 With that in mind, can I just identify a number of 11 points that Mr Maurici makes, which we say simply comes 12 nowhere near to that case in order to tick them often. 13 First of all, nothing in relation to that illegality 14 turns on whether or not climate change impacted on the 15 decision between Gatwick and Heathrow. That doesn't 16 matter for our case. 17 Nor does anything in our case turn on the question 18 of whether or not there should be airport expansion on 19 this scale, in this place, at all. Simply about the 20 legality of the ANPS. 21 Nor does it matter -- to pick up another of 22 Mr Maurici's points -- that the UK may be a world leader 23 in relation to climate change. Parliament framed 24 applicable legal requirements in that context. It was 25 not complacent in doing so. 76 1 Nor does it matter -- as the Secretary of State 2 seems to think -- that it might turn out that Heathrow 3 can be developed even with existing CO2 targets. Nor 4 does it matter that it might turn out that, in some 5 circumstances, those existing targets might be 6 consistent with the Paris Agreement. None of that 7 impacts on the correctness of our case. 8 Nor, again -- another similar factor -- was any of 9 that changed by the fact that the court rejected 10 Mr Crosland's Plan B judicial review challenge to the 11 decision at that point not to amend the CCA targets in 12 relation Paris. Again, it doesn't impact on that. 13 Nor are we saying and nor does it matter that there 14 was no consideration of carbon within the ANPS or the 15 related documents. There was plainly consideration. 16 Simple point is that consideration was not lawfully 17 sufficient. 18 Nor is any of that changed by the fact that some or 19 all of those things might change in the future. This is 20 a challenge in relation to the legality of the ANPS at 21 the time it was made. Not about future changes. They 22 simply set the backdrop for our concerns. 23 Mr Maurici makes much of the mechanisms there are, 24 for example, to address climate change targets. I will 25 come back to the relevance of those, but the simple 77 1 point is that the ANPS had to be lawful at the time. 2 Again, none of that is changed -- and this is the 3 last of the points in this family -- by the possibility 4 of a future Aviation Strategy, or future CCC or other 5 organisations advice. That is because, amongst other 6 things, there is no certainty that any of those things 7 will happen. They may come over the horizon and explain 8 how this can all be done, magically, within the Paris 9 targets, perhaps objectives and so on, but they may not 10 come. You cannot assume it. Not least because we have 11 no idea of the timing of an application for the DCO. 12 There is nothing to say that the DCO hadn't come forward 13 before any of those is in place. 14 So, we are necessarily in the position of assessing 15 the legality of the ANPS at the time it was made. 16 What we then say -- and it is a proper public law 17 challenge -- is that the legality of the ANPS fails. It 18 failed because the Secretary of State's approach to the 19 law was wrong. We say we are entitled to a lawfully 20 made ANPS and, in terms of the relief point, let me just 21 deal with that up-front. It is notable that in the 22 table -- and Mr Pleming just took you to this moments 23 ago -- that Mr Maurici hand up, of areas where he might 24 it seems trespass into section 31 territory -- there is 25 no mention in those references to witnesses of anything 78 1 that bears on our case. The only climate change 2 references are to elements of the boroughs' case about 3 the London plan and so on. There is nothing in the 4 relief arguments, nothing to even found an argument in 5 those matters. 6 Of course you have seen -- and I will come back to 7 it in a moment -- the way in which relief was dealt with 8 in relation to Paris under our ground 2. I will come 9 back to that in a moment. 10 My Lord, with those introductory comments, can 11 I then turn to the grounds, and I will do it, if it may, 12 ground 2, then ground 3 and then, very briefly, ground 13 1. 14 In relation to ground 2, you will recall that this 15 requires a reading together of section 10(2) and section 16 10(3) of the Planning Act. 17 In our amended statement of facts and grounds at 18 core bundle 1, tab 15, page 447, paragraphs 48 to 53, we 19 explained the way in which section 10(2) and 10(3) are 20 not, as a matter of law, limited to the subject matter 21 of section 5(8). They are not limited to consideration 22 of current government policy and climate change in the 23 way that section 5(8) is properly limited. 24 My Lords, you will recall that the Secretary of 25 State's central argument is to dispute that. He says: 79 1 no, section 10(3) is indeed limited to consideration of 2 the same components as section 5(8). 3 In other words, current government policy. 4 My Lords, that sets up a straightforward question of 5 law, a straightforward question, if you like, of 6 construction for the court of what section 10(2) and 7 10(3) mean in the context of this act and, if you like, 8 in the wider context. 9 You will recall, my Lords -- and it is set out, for 10 example, in the pre-trial review statement from the 11 Secretary of State, my Lord Mr Justice Holgate will 12 recall in painful detail I suspect -- core bundle 13, 13 tab 42, page 390, paragraph 29: 14 "The Secretary of State said in terms, 'If we were 15 right on our point of law, then we would win'." 16 "We would win", that was the basis on which he 17 resisted the disclosure application for internal 18 materials relating to emerging thinking on Paris, and he 19 resisted us putting in a witness statement which would 20 have covered that same ground. 21 My Lords, that is the basis on which the Secretary 22 of State proceeded and that is the basis which we say is 23 wrong. For the references as to the Secretary of State 24 actually proceeding on that basis, you have 25 Caroline Low, core bundle 4, tab 1, page 286, rows 55A, 80 1 55B and 55D. 2 The Secretary of State has made it absolutely clear 3 he was not considering wider considerations because he 4 thought he didn't need to as a matter of law. He 5 restricted his focus, his witnesses restricted their 6 focus to the narrow considerations that would have 7 arisen in any event under section 5(8). That is the 8 construction point. 9 Turning then to that construction point, what we 10 have here are a sequence of two statutory duties, both 11 creating a mandatory obligation to consider particular 12 things. The first, the overarching one, the objective 13 of sustainable development. The second, within that the 14 desirability of mitigating climate change. That is 15 a specific statutory question, a bit like the 16 desirability of the setting of a listed building and 17 so on in other contexts. 18 My Lord Lord Justice Hickinbottom addressed exactly 19 that question in exchanges with Mr Crosland when he was 20 making submissions, identifying, quite properly, the way 21 in which issues around the choice of temperature and 22 so on went to the desirability of addressing those 23 things. That was my Lord's correct use of that word. 24 We say that is absolutely right. This is about the 25 desirability of those things. 81 1 When we come to that, when we come to the statutory 2 understanding, can I simply remind the court, we do so 3 in the context of an overarching international 4 obligation here to proceed in a precautionary basis. 5 That is the UN framework convention on climate change. 6 You have that in tab 24, Article 3(3). 7 Turning then to the domestic language. You have 8 here in play very simple orthodox questions of statutory 9 construction, simple statutory presumptions around words 10 being given their plain meaning and simple construction 11 presumptions to the effect that where Parliament has 12 used different words it means different things, 13 particularly in the context of the same Act but we have 14 that very clearly here. 15 My Lords, we have given you some references, some 16 citations for that in our skeleton. That is core 17 bundle 10, tab 2, paragraphs 35 to 40 and thereabouts. 18 Mr Maurici doesn't challenge any of those principles. 19 And nor in our submission does he produce anything to 20 rebut those very clear and simple presumptions of 21 statutory construction. 22 One of the things he does is he focuses, and we say 23 quite rightly so, quite permissibly so at least on the 24 fact that Parliament passed the Climate Change Act and 25 the Planning Act at the same time. As a matter of fact 82 1 they did. 2 We say though that the effect of that, the inference 3 you draw from that, if any, is that Parliament knew 4 exactly what it was doing in the inter-relationship, not 5 only of section 5(8) and section 10(2) and (3) but also 6 the inter-relationship with the Climate Change Act 7 itself. The simple point is that had Parliament 8 intended that section (2) and (3) limit their focus to 9 Climate Change Act considerations, or government policy, 10 those are two different things in play here, it would 11 have said so, it could have said so and it didn't say to 12 so. 13 Mr Maurici makes a great deal of the various 14 mechanisms there are within those statutory provisions 15 for adjusting the position over time. So, for example, 16 it is clearly correct that CCA targets can be amended by 17 the Secretary of State, both in terms of the gases, in 18 terms of the objectives, the levels and in terms of 19 their temporal reach but Parliament was well aware of 20 that, parliament was well aware of that and none the 21 less it used the language it did in section 10(3). 22 Similarly, Parliament was well aware, the other as 23 it were, review mechanism, of the opportunity for 24 reviewing an NPS, the section 6 opportunities reviewing 25 in changed circumstances. 83 1 So Parliament completely cognisant of all of those 2 things, nonetheless built into section 10(3), seen 3 through the prism of 10(2) for sustainability objective, 4 a different focus to those things. It was not simply 5 focusing on statutory climate change targets as they 6 have been amended from time to time during the course of 7 the process. 8 That is not to downplay of course the centrality and 9 the importance of the Climate Change Act. Indeed that 10 would be an odd submission for Friends of the Earth 11 since they were prime movers in lobbying for it in the 12 first place. It is simply to recognise that in this 13 statutory context the Climate Change Act is not very 14 specifically the last word. 15 Again, none of that is changed, and another of 16 Mr Maurici's point, by the section 104(4) provisions in 17 the Planning Act, the opportunity at the DCO stage to 18 argue that what is being contemplated is contrary to 19 international obligation and therefore the Secretary of 20 State shouldn't follow the NPS that was put in place. 21 Again, Parliament was entirely aware of the 22 existence of that provision and went ahead nonetheless 23 with its choice of language. 24 In any event, if we are looking at it in the context 25 of Paris that wouldn't help us as it happens because 84 1 Paris doesn't contain the kind of obligations that were 2 potentially under section 104(4). 3 But even if one were to say somehow that Parliament 4 had in mind possibly that the 104(4), the international 5 obligations was a safety-valve, for want of a better 6 word here, what Parliament didn't say, and we say would 7 have said if it had wanted this to be the case, in 8 section 10(3), was have regard to the desirability of 9 mitigating climate change other than in ways affected by 10 international obligations. It didn't carve that out. 11 The simple point is there are no carve outs, there 12 are no carve outs from the clear plain wording of 13 section 10(3) in relation to any of those elements for 14 review, or amendment or later consideration. The words 15 are plain and clear and we say different to and wider 16 than the obligations under section 5(8). 17 Mr Maurici relies on some Hansard materials. It is 18 not entirely clear on what basis and to what effect. He 19 disavows any suggestion of there being a Pepper v Hart 20 ambiguity, rightly so. We say the language is clear. 21 He on the other hand has to say it is clear in his 22 favour. As I have indicated it is certainly not clear 23 in his favour. 24 But in any event, what he relies on that material 25 for, it seems, is to identify the mischief of the 85 1 provisions. Insofar as that gets him anywhere, what he 2 says is that these amendments, pair of amendments in 3 relation to what became section 5(8) and 10(2) and (3) 4 were produced by the government in response to back 5 bench concerns to make clear a link between the 6 Planning Act and the Climate Change Act. 7 It is not by any means clear from the materials that 8 we get to that place. Let me assume that that is indeed 9 the mischief and that is indeed the causation. The 10 difficulty with that for Mr Maurici is that 11 section 10(3) in its wording plainly goes beyond that 12 mischief. When the government came to introduce the 13 government amendment which then became the legislation, 14 it did not simply make a link back to the Climate Change 15 Act provisions and Climate Change Act targets. In 16 section 10(3) it very clearly chose other wording and 17 must be taken to have been done so designedly and 18 deliberately so. 19 Mr Maurici then suggests -- a slightly different 20 point -- that there is an oddity to our approach, an 21 oddity, he says, in that what it would mean is that 22 current government climate change obligations addressed 23 through 5(8) would be the subject of a reasons 24 explanation in the ANPS. He says that's odd because why 25 would you give reasons for addressing current government 86 1 climate change policy but not for this different, as 2 Friends of the Earth say it is, mitigation obligation? 3 His point fails very easily and simply because section 4 5(7) includes a general reasons giving obligation. So 5 there is a reasons giving obligation in relation to both 6 current government climate change policy and in relation 7 to how the decision-maker has dealt with the 8 desirability of mitigating climate change. 9 That is indeed partly why we focused -- I won't take 10 you back to it, but within the ANPS you will recall the 11 submissions I made about the footnotes and the way in 12 which different passages within the ANPS were 13 specifically aligned through footnotes to particular 14 parts of section 5(8) on the one hand and section 15 10(3)(a) on the other, but in relation to the 10(3)(a) 16 passage that was only dealing with the adaptation part 17 of 10(3)(a) and not the mitigation part. That is why we 18 have a reasons obligation. That is why we look at those 19 reasons and we see that that is where the Secretary of 20 State failed. 21 My Lords, we are also very plainly not here guilty 22 of backdoor incorporation. We are not saying that 23 somehow this makes Paris enforceable. This is not 24 a constitutional crisis of the kind Mr Maurici seems to 25 think. We are simply saying that, as it happens, Paris 87 1 and the other factors we identify enhance or potentially 2 enhance the desirability of mitigating climate change, 3 not disputed by the Secretary of State from the 4 concession, and therefore they went to the statutory 5 question. That is not making Paris enforceable. It is 6 simply recognising what Paris recognises, the enhanced 7 desirability of mitigating climate change. 8 The overall point, therefore, my Lord, on our case 9 in relation to ground 2 is simply different obligations 10 pointing to different things and, as the Secretary of 11 State says, if we are right on the law we succeed in our 12 case. 13 The Secretary of State nonetheless gives you 14 a series of cases on general discretions: Brind, Hurst 15 and those other cases. I will come to those very, very 16 briefly in a moment. 17 They simply don't arise here because of the earlier 18 concession workings. If we are right on the law, you 19 don't get any further. What the Secretary of State is 20 somehow asking you to do is to say, had I approached 21 a question which I didn't know I needed to address by 22 reference to a legal framework which I had 23 misunderstood, then I might have reached a different 24 answer or I wouldn't have reached a different answer, 25 depending on how he put his submission. We say that 88 1 simply doesn't arise here because of the way the 2 concession works. This is a backdoor attempt to get 3 around the concession. 4 Nor, just to make clear, we are not saying if we are 5 wrong on our construction argument, we are not relying 6 on some general discretionary argument about the 7 Secretary of State taking into account factors through 8 his general analysis in relation to the ANPS. 9 So, my Lord, you simply don't get to those cases. 10 As it happens none of them help you anyway. I am not 11 going to take time on them because we say you don't get 12 to them. The one, my Lord, Mr Maurici took you to in 13 argument was Hurst but you have Brind to similar effect. 14 They are about attempts, they are resisting attempts to 15 argue that international obligations, most particularly 16 in the European Convention before it was incorporated by 17 the Human Rights Act, that international obligations are 18 somehow mandatory considerations. They were cases about 19 backdoor attempts to incorporate. We are not in that 20 territory. 21 The other cases, my Lords are all about the general 22 exercise of discretions. They are not about the focus 23 on a specific statutory question, a mandatory statutory 24 question, desirability of mitigating climate change. 25 My Lords, they get you nowhere. 89 1 Can I just very, very briefly on two of the elements 2 which we have identified that have fallen out of the 3 mix, you have plenty on Paris, can I just give you very, 4 very briefly non-CO2. Can I just give you the reference 5 to that. It is the 2009 climate change committee report 6 core bundle 13, tab 11, page 119, chapter 6, page 135 of 7 that document. What it made clear was that: 8 "A comprehensive framework for reducing the climate 9 change effects [insert aviation] should account for 10 non-CO2 effects." 11 That is not tentative or uncertain in the way that 12 Mr Maurici would have it. That is the CCC saying that 13 the framework should account for the non-CO2 effects of 14 aviation. We say therefore they are plainly in play 15 when you come to consider desirability of mitigating 16 climate change. 17 On timescales my Lords, you will recall my 18 submissions to the effect that this arose because the 19 development exceeds 2050. This is not contrary to what 20 Mr Maurici seems to think a separate sustainable 21 development argument. We get to it though through the 22 NPPF understanding of sustainable development. You have 23 that, core bundle 13, tab 32, page 306, tab 7. It 24 brings into account generational questions. Plainly 25 things going on beyond 2050 have an intergenerational 90 1 effect. That is only 32 years ago. And you have within 2 Paris and in the development arrangements things which 3 plainly go beyond 2050. We say again desirability of 4 mitigating climate change on any view required 5 consideration of matters going beyond 2050 in relation 6 to this development and in relation to climate change 7 generally. 8 My Lord, that is ground 2. Ground 3, can I remind 9 the court that recital 1 of the SEA Directive requires 10 a precautionary approach and Article 1 of that directive 11 is aspiring to a high level of environmental protection. 12 Those things inform a purposive approach to the 13 directive. 14 We are, my Lords, let me remind you within 15 annex 1(e). We are concerned with objectives 16 established at a ... international level which are 17 relevant ... and the way in which those objectives and 18 any environmental considerations have been taken into 19 account. 20 My Lord, that is the trigger point. My Lord, that 21 is informed by the annex 2 considerations. As I showed 22 them to you the other day, on any view climate change 23 hits those considerations with the greatest possible 24 force. I will come back to Article 5 insofar as it is 25 relevant, if I may, in a few moments. That is the legal 91 1 context. 2 We of course adopt, if necessary, what Mr Pleming 3 says about a different or more advanced test, but our 4 case was and is happy to be proceeding on the basis of 5 a more conventional approach which you have seen through 6 Mr Justice Beatson in Shadwell, a case relied on both by 7 us and the Secretary of State. He posed the question of 8 whether the specified matters have been addressed rather 9 than considering the quality of the address. We agree 10 with that. We are not concerned with the quality of the 11 addressing of Paris. We are concerned with the failure 12 to address Paris. 13 Insofar as one then gets into an evaluative exercise 14 and the court is scrutinising perhaps the decision to 15 include or exclude something, my Lords, can I re-inject 16 an element of procedural rigour. My Lords, I showed you 17 the Secretary of State's skeleton dealing with this 18 point. It is core bundle 10, tab 5, page 164, 19 paragraph 129. In that the Secretary of State explains 20 the Secretary of State's approach to relevance. Was 21 Paris a relevant international obligation? That is 22 a question under annex 1(e). It is not the question 23 under Article 5. The Secretary of State does not claim 24 that what was in play here was reasonably required under 25 Article 5. My Lord, the court cannot substitute for 92 1 that evaluation, cannot look to what might have been 2 done under Article 5. 3 This is an annex 1(e) question of relevance the 4 Secretary of State was addressing. Whilst we agree with 5 a comment made by my Lord, Mr Justice Holgate, that in 6 the end the question of whether this is a relevant 7 agreement is a matter for the court, but of course the 8 Secretary of State nonetheless addressed it. 9 As I have identified to you, this is his skeleton, 10 footnotes 101 and 102. He took you to materials 11 addressing that question. 12 You will recall, I showed you in that context, the 13 scoping report. That is a document relied on very 14 heavily by the Secretary of State. You will recall that 15 I showed you appendix A to it, core bundle 8, tab 1, 16 page 1. That listed what were called the relevant plans 17 policies and programmes, PPP, as seen by the scoping 18 process, March 2016. 19 My Lords, the scoping document itself -- I didn't 20 show you this passage, but I will give you the 21 reference -- explained how the drafters of that process, 22 the operators of that process, Ms Stevenson and others, 23 applied their filter. This is core bundle 11, tab 17, 24 page 390, paragraph 3.1.1. 25 They included within their PPP filter those things 93 1 "which had the potential to influence aviation 2 capacity". That was the filter they applied. That 3 filtered in Kyoto and the UN framework convention. At 4 that point, Paris was very new. They didn't filter it 5 in, inexplicably so. Their filter plainly would have 6 filtered it in, and we say that is the inevitable 7 result. 8 My Lords, no answer either, in the process of 9 statutory consultation, on the draft scoping document. 10 My Lords, regulation 4.1 of the domestic regulations 11 lists the statutory consultees. They are essentially 12 environmental protection bodies concerned about local 13 effects. They are not concerned about global climate 14 change issues, and they certainly don't contain the 15 climate change committee. 16 Ms Stevenson then offers -- this is paragraph 3.128 17 of her witness statement -- what can only be an after 18 the event explanation because she refers to 19 the October 2016 climate change committee advice to try 20 and explain a scoping decision in March and April of 21 2016. That cannot help. 22 My Lords, Mr Maurici says: the scoping document is 23 a living document. Things move on. 24 There is nothing in Ms Stevenson's witness statement 25 that says, "We revisited or reconsidered this", at any 94 1 point. It reads like -- and in our submission it is -- 2 an after the event characterisation. 3 As my Lord, Mr Justice Holgate, raised with me when 4 I made my submissions earlier, in any event it 5 completely fails to understand the true import of the 6 2016 climate change committee recommendations. It 7 focuses on the climate change committee saying, "Don't 8 change the targets now", and completely fails to pick up 9 the remaining 90 per cent of their materials, which 10 explains the potential need to change the targets in the 11 future, and is very much not saying: take your foot off 12 the gas on climate change. 13 My Lords, Article 5(2), this is the reasonably 14 required consideration. Not part of the Secretary of 15 State's case. Can I emphasise that: not part of the 16 Secretary of State's case. 17 The court cannot, in my submission, salvage it for 18 him. 19 Anyway, let me just remind you, section 5(2), the 20 reasonably required requirement, focuses on specific 21 identified factors. Reasonably required taking into 22 account current knowledge, method of assessment, content 23 and level of detail, stage in decision-making, extent to 24 which more appropriately addressed at different levels 25 to avoid duplication. 95 1 None of those would have been a basis even if that 2 had been the Secretary of State's consideration for not 3 including Paris at this point. It was plainly hitting 4 all of those buttons. That was not a basis -- even if 5 the Secretary of State had addressed the point, which he 6 hasn't claimed to -- to pull Paris out of the 7 consideration. 8 As for the relationship -- this is the final point 9 on ground 3, between ground 3 and ground 2 -- they are 10 freestanding legal points. They raise different legal 11 questions, although of course had Paris been in the AOS, 12 the environmental report by reference to our ground 3, 13 then the material would have been there for 14 consideration underground 2, but ground 2 does not 15 depend upon any of that. 16 My Lords, can I re-emphasise there is no section 31 17 highly likely to have been the same point raised in 18 relation to ground 3, just as there is no similar point 19 raised in relation to ground 2. 20 Finally, very briefly, if I may, ground 1, turns on 21 section 5(8), the obligation to give reasons. This, if 22 you like, is an application in the first instance of 23 what the court said in the Tesco, Hopkins line of case. 24 You have Hopkins legal materials bundle 5, tab 132, 25 paragraph 26: 96 1 "Recourse to the courts may sometimes be needed to 2 resolve issues of law." 3 There are issues of law here about the meaning of 4 the NPS, the ANPS. Whether you choose to look at them, 5 as the exchanges earlier in the day may have thought 6 about, in context of other documents that were produced 7 at the same time, the consultation response document, 8 and so on, goes to the second question of whether there 9 were sufficient reasons and lawful reasons to explain 10 the way in which the Secretary of State dealt with 11 government climate change policy. 12 If the court finds it easy to resolve those issues 13 of meaning it will no doubt say so and then our ground 14 will fail. We say it is not an easy exercise. We say 15 in some instances it is not a possible exercise, so our 16 reasons and challenges are made out, but the first step 17 on the way to that is the court considering the legality 18 and meaning of the relevant aspects of the ANPS, and we 19 have identified five factors. I won't go back through 20 them, they are set out in our skeleton and, indeed, the 21 debate is set out fully in our skeleton as to why we say 22 they are not clear. 23 Finally, finally, on ground 1, Mr Maurici handed up 24 to the court another NPS, which uses similar language to 25 the test in 5.82. The material difference paragraph. 97 1 Let me just make the obvious point that document is 2 2014. It precedes any of the types of considerations we 3 are concerned with here. It is also dealing with 4 a question which raises far narrower issues. It doesn't 5 raise any of the complications raised by aviation, which 6 as you have seen are the bread and butter of our 7 concerns about the meaning of this ANPS, and of course 8 we are not here concerned with -- and I have no idea 9 whether there was at the time -- a challenge to the 10 legality of that NPS. 11 The existence of that NPS cannot save this one. Our 12 challenge is to this NPS and we say, for the reasons 13 I have given, it is unlawful. 14 I don't think I need to say any more about relief, 15 other than what we have already said, which is: we don't 16 think we can possibly face a relief argument. 17 Mr Pleming is left slightly hanging in the air, but 18 there is nothing that has even been said by way of a 19 factual kicking off point for a relief argument. If we 20 are right on our legal points in our submissions, we 21 have to win. 22 Can I take a moment just to turn around? 23 (Pause) 24 My Lords, unless I can assist further. 25 MR JUSTICE HOLGATE: Can I ask one question? It arises 98 1 underground 2, and you mentioned the DCO process in 2 section 104(4). It is about page 82 of the transcript 3 when we come to re-read that. You said: 4 "The Paris Agreement does not contain the sort of 5 obligations which would bite under section 104(4)." 6 You didn't, according to my note, say why. Can you 7 just tell us, please, why the Paris Agreement doesn't 8 contain obligations of the kind which would bite under 9 section 104(4)? 10 MR WOLFE: Because it sets objectives, which, as it were, 11 the world is to move towards, or signatories at least of 12 the Paris Agreement are to move towards. It is hard to 13 see how, at the DCO stage, one could be saying in 14 relation to the UK's commitment or lack of it to that, 15 that there is a breach of the international obligation 16 by the UK. That is not in -- which is what section 17 104 -- 18 MR JUSTICE HOLGATE: So, another way of putting that point 19 is to say it requires translation of the national level 20 by all the signatories to the agreement, international 21 figures, national targets. 22 MR WOLFE: Yes, it does, and in the UK, translation 23 "international figures", it requires action by signatory 24 states, part of which may well be translation into 25 national figures and our Climate Change Act provides 99 1 a framework for doing it, but it is not the only 2 framework. 3 That is why our argument on 10(3) is so important, 4 because what Parliament has chosen to do is not simply 5 reference statutory climate change targets, it has not 6 made that the only mechanism by which decision-makers 7 have to have consideration to the desirability of 8 mitigating climate change. It has created 9 a freestanding obligation. So, the process of 10 translating -- if that is the right word -- from 11 international to domestic in our structure is done at 12 least two -- there may be others, for all I know -- 13 ways. 14 Centrepiece, Climate Change Act, no difficulty with 15 that. But, in context of making an NPS, section 10(3) 16 is not focused uniquely on those considerations and 17 requires consideration of the other elements. 18 MR JUSTICE HOLGATE: Thank you. 19 LORD JUSTICE HICKINBOTTOM: Thank you very much. 20 Submissions by MR CROSLAND 21 MR CROSLAND: My Lords, we have some ground to get through 22 in the next half an hour and perhaps it is going to 23 assist the transcriber and the court to have hard copies 24 of our speaking note again. 25 LORD JUSTICE HICKINBOTTOM: Certainly. That may speed 100 1 things up. That is very kind. 2 (Handed) 3 MR CROSLAND: My Lords, before turning to the main issue 4 between us and the Secretary of State, which is the 5 Paris Agreement, we have two preliminary issues arising 6 out of the Secretary of State's submissions. The first 7 relates to his submissions on the sustainable 8 development duty. The second to his assertions 9 regarding Plan B's position on airport expansion 10 generally. 11 The sustainable development duty, under 10(2) of the 12 Act, requires the Secretary of State to exercise his 13 functions with a view to contributing to the achievement 14 of sustainable development. That is not defined in the 15 Act. It is commonly understood to mean: 16 "Development that meets the needs of the present 17 without compromising the ability of future generations 18 to meet their own needs." 19 That is the definition from the Bruntland report, 20 and it is hard to see what else it could mean. 21 The Secretary of State argues -- and this is 22 expressed in his detailed grounds of resistance to 23 Friends of the Earth, page 591 of bundle 1: 24 "The claimant provides no legal foundation at all 25 for the argument that the sustainable development duties 101 1 set out in section 10 of the Act required the Secretary 2 of State to assess potential impact on future 3 generations." 4 He then goes on to suggest a similarity between 5 Friends of the Earth's arguments on section 10 and 6 Plan B's historic ground 4 relating to the Equality Act, 7 public sector equality duty. 8 My Lords, although we withdrew that ground due to 9 the constraints on court time, may I remind you of what 10 it said. This is bundle 2, 24/25: 11 "Like the Secretary of State we noted the 12 inter-relationship between section 10 of the Act and the 13 Equality Act. We said, in particular, the Secretary of 14 State ought to have had due regard to the fact that the 15 young disproportionately bear the burden of climate 16 change. This is particularly so given that section 10 17 of the Act requires the Secretary of State to exercise 18 his functions with the objective of contributing to the 19 achievement of sustainable development. A concept which 20 specifically invokes the concept of intergenerational 21 equity." 22 We go on to say: 23 "Climate change is further liable to lead to poor 24 relations between in particular the young, who bear the 25 burden of climate change, and the older generations, 102 1 whom the young blame for having caused the problem and 2 failing to tackle it in time." 3 My Lords, those words were written just months 4 before the emergence of the school strike movement in 5 the UK. We ask the court to take judicial notice of the 6 tens of thousands of young British people who were on 7 school strike on Friday, while we were here in court. 8 I also ask you to take judicial notice of the comments 9 that Antonio Gutteres, the UN secretary general, on 10 Friday, in response to the school strike. He said: 11 "These school children have grasped something which 12 seems to elude many of their elders. We are in a race 13 for our lives and we are losing. The window of 14 opportunity is closing. We no longer have the luxury of 15 time and climate delay is almost as dangerous as climate 16 denial. My generation has failed to respond properly to 17 the dramatic challenge of climate change. This is 18 deeply felt by young people. No wonder they are angry." 19 My Lords, in our submission, the Secretary of 20 State's position that he has no obligation to consider 21 the impact of the ANPS on future generations, that it 22 made sense to the select the option for the ANPS with 23 the greatest possible adverse consequences for the 24 environment, and that the Paris temperature limit, which 25 is vital to the future of current and future generations 103 1 is irrelevant, is inconsistent with his obligation under 2 section 10(2) of the Act, not to mention his ongoing 3 obligations under the Equality Act. 4 Second, I must say something about the generic 5 position the Secretary of State ascribes to Plan B 6 regarding aviation. We heard this from Mr Maurici 7 yesterday. It is perhaps best captured in his skeleton 8 argument, section 151: 9 "Friends of the Earth and Plan B oppose any airport 10 expansion, but do not challenge chapter 2 of the NPS, 11 which sets out the need for expansion and estimates 12 losses of up to 45 billion to the UK economy." 13 Mr Maurici told the court he read this on our 14 website. I am flattered he is a visitor to our website, 15 but he should read it more carefully. 16 My Lords, Plan B has no position on aviation other 17 than that it should be consistent with the government's 18 policy on climate change, the linchpin of which is the 19 Paris Agreement temperature limit. 20 In relation to the claimed economic benefits of the 21 ANPS, the only reason we have not said anything about 22 them is because, in our submission, they have just not 23 been relevant to the particular issues that we raise. 24 But since Mr Maurici raises that point, I ask my Lords 25 to recall the evidence that we referred the court to 104 1 last Wednesday from some of the countries leading 2 economies, including Lord Stern, formally chief 3 economist to the World Bank, Mark Carney, the governor 4 of the Bank of England, both of whom emphasised the 5 grave risks to the economy if climate change is not 6 changed to agreed limits. 7 The government makes the same point in its Clean 8 Growth Strategy, and I would turn my Lords' attention to 9 bundle 13/147. It is here in the speaking note. This 10 explains how those economic risks may manifest in 11 reality. It is a report of the Environment Agency's 12 assessment: 13 "Home owners living near rivers and the coast face 14 losing up to 40 per cent of the value of their homes as 15 flood risk makes them uninsurable. More than a million 16 homes and 300,000 businesses are at risk, including 17 those in parts of London, Southend, Brighton, Reading, 18 Birmingham ..." 19 And the list goes on. 20 My Lords, the collapse of property prices due to 21 uninsurable flood risk on the scale envisaged by the 22 Environment Agency would not be good for the economy. 23 It is clear that such risks and the costs of 24 adapting to climate change generally were simply not 25 considered by the Secretary of State in the course of 105 1 this assessment, and unless and until the climate change 2 impacts are properly addressed in accordance with the 3 Act, including in relation to adaptation, and until the 4 words of the governor of the Bank of England regarding 5 the tragedy of the Horizon are taken into account, the 6 claimed economic benefits, in our submission, must be 7 treated with some caution. 8 My Lords, I turn now to the Secretary of State's 9 submissions on the core issue between us, the Paris 10 Agreement. 11 As Mr Maurici explained, really, the overarching 12 submission of the Secretary of State on this point is 13 that the Paris Agreement is an unincorporated treaty 14 that doesn't have direct effect. Therefore, on ordinary 15 principles of public law, not something the Secretary of 16 State would be expected to have regard to. 17 My Lords, let me remind you what the government 18 itself says about the importance of implementing the 19 Paris Agreement. Bundle 13, page 252, this is their 20 25-year plan for the environment. It says: 21 "It is vital for future environmental security that 22 we implement the Paris goals." 23 Vital for the security of the country. We have seen 24 that the Foreign Office says very similar things. 25 The best defence that the Secretary of State can 106 1 come up with is that safeguarding the country's vital 2 interests is not a legal obligation; that there is no 3 legal obligation on the government to do what it 4 considers necessary for our future security. 5 My Lords, we dispute the Secretary of State's 6 proposition that, on ordinary principles of public law, 7 the Secretary of State would not be expected to have 8 regard to something the government expressly considers 9 to be vital. We say it is an unattractive proposition, 10 perhaps one of the most unattractive the court has ever 11 been presented with. 12 Further, my Lords, the Secretary of State's 13 principal line of argument here is a straw man argument. 14 We have made it clear to the Secretary of State at every 15 stage that our claim does not relate to the legal status 16 of the Paris Agreement. We emphasise this in our 17 skeleton argument at 10.71 of the bundle, section 6. We 18 said: 19 "It may be convenient in the interests of clarity to 20 mention one argument on which we do not rely. We don't 21 suggest the Paris Agreement is legally enforceable in 22 domestic law, nor do we ask the court to engage in an 23 exercise of interpreting international law." 24 Our claim is not and has never been that the 25 government is bound to implement the Paris Agreement as 107 1 a matter of law. Our claim is that the government has 2 chosen to commit to the Paris temperature limit as 3 a matter of policy because it considers it vital to do 4 so. 5 The starting point for government policy on climate 6 change, as my Lords noted on Wednesday, whether on 7 mitigation or adaptation is the temperature limit. That 8 is the starting point. 9 The question for the court is not, as Mr Maurici 10 suggests, the legal effect of the Paris Agreement. It 11 is the factual question of whether the basis for 12 government policy is the historic 2-degree limit or the 13 Paris temperature limit. How should the court approach 14 the question of whether it is now government policy to 15 implement the Paris temperature limit? 16 In our submission, that is not a difficult question. 17 We say the court need only look at government policy 18 documents on climate change. It is the obvious place to 19 look for government policy on climate change. 20 Mr Maurici concedes that the Clean Growth Strategy, 21 which is published under the Climate Change Act, under 22 sections 12 and 14, is government policy on climate 23 change. My Lords, the Paris Agreement is stamped all 24 over it: the Prime Minister's forward; the minister's 25 forward; the main text. I won't take you to the text 108 1 again now, but you will recall it says: 2 "The Paris Agreement should define decisions on the 3 economy and government decisions for generations to 4 come." 5 It explains precisely why the government has 6 abandoned the 2-degree limit. It talks about the risks 7 of 2 degrees, why it is necessary to aim for something 8 less. That is in published government policy on climate 9 change. 10 In our submission, it is difficult to see how any 11 reasonable reader of the Clean Growth Strategy could 12 come to the conclusion that the Paris Agreement is not 13 fundamental to current government policy on climate 14 change. It is the same with the government's 25-year 15 plan. It is the same with the FCO's responses in 16 Parliament. It is the same with the government's own 17 statements in Parliament. 18 Every climate change committee's statement, every 19 government statement on climate change highlights the 20 centrality of the Paris Agreement. Mr Maurici ignores 21 it all and he reverts to his straw man argument about 22 the legal effect of the Paris Agreement. 23 LORD JUSTICE HICKINBOTTOM: Mr Crosland, just give me one 24 moment. 25 (Pause) 109 1 Mr Crosland, it is 1 o'clock. We have about 2 a quarter of an hour of your time to go, and Mr Spurrier 3 has 30 minutes. So, we are going to break now. I know 4 we said we'd try and finish by lunchtime, but we will 5 have to have a break I think for the transcriber in any 6 event. I think it is only right that we break now and 7 then we deal with the remaining three quarters of an 8 hour properly at 2 o'clock. 9 2 o'clock, thank you. 10 (1.00 pm) 11 (Luncheon adjournment) 12 (2.00 pm) 13 MR CROSLAND: We got three and a half pages in the 14 15 minutes before lunch, I just need to do the same 15 again. 16 LORD JUSTICE HICKINBOTTOM: Yes, thank you. 17 MR CROSLAND: Mr Maurici's secondary submission, which is 18 related to the first is that the Paris Agreement doesn't 19 become a relevant consideration. It doesn't become part 20 of government policy unless and until it has worked its 21 way through the machinery of the Climate Change Act and 22 come into domestic law. That, in essence, is his 23 submission. 24 My Lords, I would like to make the same 25 clarification that Mr Wolfe made. We accept entirely 110 1 that the Climate Change Act is an important component of 2 government policy on climate change. Our position is 3 precisely the position of the climate change committee, 4 whose position is that you need to look at both. 5 My Lords will remember the discussion we had around that 6 letter, and what Lord Deben and Baroness Brown meant. 7 What the committee urged the Secretary of State to 8 do was to consider both, the climate change target under 9 the CCA and the Paris Agreement. It goes back to the 10 position they set out so clearly in 2016, where they say 11 now is not the right time to make the changes, we need 12 the evidence from the IPCC. But, in the meantime, we 13 know that change is coming, we know that government has 14 already committed to a net zero target in light of the 15 Paris Agreement, we know the 2050 target is likely to 16 require amendment, so what we have to do is maintain 17 flexibility to go further because otherwise we end up 18 shutting the stable door after the horse has bolted. We 19 end up locking in emissions that we can't do anything 20 about. That is the position of the climate change 21 committee and that is our position; you need to look at 22 both in conjunction. 23 MR JUSTICE HOLGATE: Yes. 24 MR CROSLAND: In our submission, Mr Maurici's position, that 25 you look only at the Climate Change Act to the exclusion 111 1 of the Paris Agreement, that is plainly false. If ever 2 there was a moment in our constitutional history when 3 the distinction between government policy and the will 4 of Parliament should be clear, it is now. 5 Parliament, in 2008, could have made the link 6 between planning and climate change policy in 7 section 5(8) in one of two ways. The first option, it 8 might have tied the legislation to the will of 9 Parliament, changes to the Climate Change Act. The 10 second option, tie it to government policy, whether or 11 not that policy has been implemented by Parliament. 12 My Lords, you can imagine that there are pros and 13 cons to the different approaches. The obvious 14 disadvantage of option one is that risk of shutting the 15 stable door after the horse has bolted. 16 It is common ground that climate change is an urgent 17 matter, that the picture is changing first. The delay 18 between a change in government policy and the passage of 19 legislation would create a window during which projects 20 jeopardised by climate change policy might be rushed 21 through. 22 Be that as it may, the plain fact is that Parliament 23 did not choose option one. They chose option two, which 24 prevents the horse from bolting and requires the 25 Secretary of State to take account of government policy 112 1 as soon as there has been a change in government policy 2 and prior to a change in the legislation. 3 Our third point relates to the credibility of the 4 Secretary of State's position. Much of that we covered 5 in opening. 6 The fundamental point, my Lords, is that the 7 position that the Secretary of State now advances, that 8 the Paris Agreement is irrelevant, was new to these 9 legal proceedings in January. It was not his original 10 position and it was not his position as set out in the 11 ANPS. That gives him this basic problem that the 12 reasons he gave in the ANPS originally, under 13 section 5(8), that did not state the Paris agreement was 14 irrelevant, but gave every impression that international 15 obligations had been considered, these are not the 16 reasons he now gives to the court. So, they can't both 17 be right. 18 The credibility of his position we say is further 19 undermined by his subsequent position. My Lords, 20 13/404A of the bundle, these were the new documents we 21 were alerted to last Wednesday. We see, as part of the 22 aviation consultation, the Department for Transport has 23 published a document: 24 "International aviation and the Paris Agreement 25 temperature goal." 113 1 That gives rise to the question: if Paris 2 temperature goal was irrelevant to the ANPS because 3 there hadn't been a change to the Climate Change Act, 4 why has it suddenly become relevant to Aviation Strategy 5 when there still has not been a change to the Climate 6 Change Act? If it is not relevant, what's the Secretary 7 of State doing commissioning research on it? 8 My Lords will recall the point we made on Wednesday, 9 that really it was pretty clear what the implications of 10 Paris were because everybody from the IPCC to the 11 European Parliament, to the Mayor of London, to the 12 government itself recognised that it applies net zero 13 emissions by 2050 at the latest. We say it is no 14 surprise that when the Secretary of State finally 15 commissions this work, the conclusion of Mr Lee is: 16 "Any continued emissions of CO2 from aviation, using 17 fossil fuels beyond around 2050 will be inconsistent 18 with the Paris Agreement goals in the absence of extra 19 measures." 20 We say the Secretary of State can't hide behind the 21 fact that this document was published only in December. 22 It was his choice when to commission it. We say this is 23 the sort of thing that should have been commissioned as 24 part of the ANPS. It had been obvious since 25 December 2015 that the Paris Agreement had implications 114 1 for Heathrow. 2 Mr Wolfe has covered the attempt to go behind the 3 concession made to this court in January, where the 4 position of the Secretary of State was either the Paris 5 Agreement is relevant or it is not, therefore, neither 6 Plan B's, nor Friends of the Earth's application for 7 disclosure about the implication of the Paris Agreement, 8 that those should both be refused. The applications 9 were refused on that basis. The Secretary of State now 10 seeks to invoke the climate change committee's legal 11 submissions from a permission hearing while ignoring all 12 the other evidence of the Committee's published position 13 and government statements to Parliament, which he says 14 he acknowledges he didn't take into account. 15 But, My Lords if one just looks for a moment at that 16 term that he highlights "potentially consistent". 17 My Lords, in our submission it is clear that is a legal 18 construction. What that means is it might be 19 consistent, it might not be consistent. When we are 20 talking about the boundary between unacceptable risks 21 that's really of very little comfort to anybody, and 22 that is why in their published positions the climate 23 change committee says, "We need a review. We urge the 24 government to carry out a review. It is why government 25 tells Parliament we are doing everything we can to get 115 1 the economy to zero by 2050". 2 My Lords will remember on Wednesday we said there 3 are just two basic propositions to Plan B's case. The 4 first is that the Paris temperature limit was a relevant 5 consideration which the Secretary of State was bound to 6 take into account. The converse of that, the historic 7 discredited 2-degree target was an irrelevant 8 consideration, which the Secretary of State ought not to 9 have taken account of. 10 We pointed out, and made it clear to the Secretary 11 of State, that so far in the proceedings in his 12 pleadings, in his skeleton argument, he had simply not 13 addressed that second point at all. He has given the 14 court no answer to it. 15 We say it is a difficult point for the Secretary of 16 State because if his position is that the only relevant 17 source for determining government policy is the Climate 18 Change Act, that leaves him unable to explain his 19 reliance on a 2-degree target because that is not 20 contained in the Climate Change Act. It is not 21 contained in any extant government policy at the time of 22 the designation of the ANPS. 23 By June 2018, the government had published a number 24 of documents explaining why the 2-degree target had been 25 rejected. 116 1 My Lords, the Secretary of State leaves this court 2 in the position where he has simply failed to explain 3 why, as of 2018, he was still using the discredited 4 dangerous 2-degree target as the benchmark for assessing 5 the ANPS. 6 My Lords, we say, taking that approach of the 7 climate change committee, that pending the process set 8 out in the Climate Change Act, an eye needed to be kept 9 on what the implications for Paris were, so that 10 flexibility was maintained to go further. We say the 11 Secretary of State should have had an eye to everything 12 that was going on around him, all the evidence that 13 emissions would need to be zero globally, in Europe, in 14 the UK by 2050 and to consider the implications of that 15 for the ANPS. 16 My Lords, we don't need to go so far as to say that 17 37.5 million tonnes of carbon dioxide from UK aviation 18 in 2050 is inconsistent with the Paris agreement. All 19 we need to say is if you know that your scheme involves 20 that level of emissions by 2050, the whole world is 21 saying emissions need to be zero by 2050. That gives 22 you a question that demands to be answered: how do we 23 reconcile those two things? 24 The Secretary of State doesn't even turn his mind to 25 that. Doesn't turn his mind to the question of the 117 1 flexibility to go further, and that is what we say he 2 needed to do. 3 My Lords, Mr Maurici sought to imply that our 4 position on section 5(8) is an isolated one, not 5 supported by parties with legal representation. 6 I simply remind the court of the correct position, which 7 is that there are seven other claimants in this case who 8 are very well legally represented who support our 9 position on section 5(8), describing the Paris Agreement 10 as a "key aspect" of government policy. You have seen 11 the Mayor of London has actually implemented policy 12 based on bringing London emissions in line with the 13 Paris Agreement, has put his money where his mouth is. 14 In our submission, the government is now in an odd 15 position in relation to these proceedings. Naturally it 16 hopes to prevail in this case, but in other respects it 17 would be surprising if the government were to welcome 18 a ruling from this court to the effect that the Paris 19 Agreement is no part of government policy on climate 20 change, and that the 2-degree temperature limit is the 21 relevant basis for assessment. 22 My Lords, may I remind the court of the FCO's 23 evidence to Parliament, 13/28/287: 24 "Climate change is an existential threat, but also 25 an opportunity to drive a global clean revolution. Our 118 1 diplomats and climate envoys are working with BEIS and 2 international partners to ensure international 3 implementation of the Paris Agreement, commitments and 4 project UK leadership, including our Clean Growth 5 Strategy and green Industrial Strategy." 6 My Lord, a ruling from this court that the Paris 7 Agreement was irrelevant to government policy on climate 8 change, a ruling that will be studied around the world 9 by all those interested in these global issues would be 10 a major blow to the country's diplomatic efforts, 11 a major blow to its claims to climate leadership and a 12 major blow to its hopes of inducing its partners around 13 the world to act on the Paris Agreement and to take it 14 into account in major economic decisions. 15 If the UK Government and its courts consider the 16 Paris Agreement irrelevant to a decision on this scale, 17 one of the parties that was so instrumental in the Paris 18 Agreement, that drove the Paris Agreement, then why 19 should other countries take it seriously? Our future 20 depends on what they do as much as anything that happens 21 here. 22 My Lords, those are our submissions, unless I can 23 assist you further. 24 LORD JUSTICE HICKINBOTTOM: Thank you very much, 25 Mr Crosland. 119 1 Submissions by MR SPURRIER 2 MR SPURRIER: I don't know whether it would be of 3 assistance, My Lords if I gave you a copy of -- 4 LORD JUSTICE HICKINBOTTOM: If you have something, 5 Mr Spurrier, we'll have it. Thank you very much. 6 MR SPURRIER: I have. 7 (Handed) 8 My Lords, thank you very much. I would like to 9 address you on three matters which I dealt with before. 10 In connection with climate change, I would like to refer 11 you to Mr Maurici's note. I say that this gets the 12 Secretary of State absolutely nowhere, and that he is 13 still in default in this obligation. If I may, I'll 14 come to that. 15 The issues that I have raised are not whether 16 a technical judgment exercised by the Secretary of State 17 is correct. The issues are, firstly, whether or not the 18 Secretary of State has adopted a rational approach and, 19 secondly, whether he has considered matters which he 20 ought to have considered. 21 In my submission, it is not rational to disregard 22 likely impacts that could have very long and harmful 23 consequences simply because they have not been 24 addressed. 25 I will come to my previous submissions on air 120 1 quality. 2 If you recall, my Lords, these were specifically -- 3 I am not crossing the grounds of the boroughs, who 4 I entirely agree with, but on the possible damage to air 5 quality from the planes themselves. 6 I have produced to the court three well respected 7 research projects that are referred to by the DEFRA Air 8 Quality Expert Group. Their report was uploaded on to 9 their website on 27 July 2018. That is one month and 10 two days after the ANPS was designated. The contents 11 must have been well-known before the designation of the 12 ANPS and, in any case, the specific reports go back to 13 2014. 14 Just to remind you, my Lords, the section in the 15 DEFRA report, or one of the sections, says: 16 "For example, a location such as Heathrow Airport 17 where aircraft tend to approach the airport from the 18 east, flying over the London conurbation, there is 19 potential for considerable exposure to UFP from 20 aircraft." 21 If I may, I will clarify one point about the UFPs 22 that was raised in my last submission. In the website 23 statement of the Queen Mary's Hospital report on 24 particulates and the placentas of expectant mothers -- 25 that is at volume 13, tab 8, page 99 -- it is said that 121 1 as yet there is no specific evidence of the transfer of 2 particulates from the placenta to the foetus. However, 3 I would draw your Lordships' attention to the statement 4 that there is actual harm done to the foetus directly 5 from the particulates that have made their way into the 6 placenta. 7 I refer my Lords to page 100, in volume 13, tab 8, 8 which says: 9 "We do not know whether the particles we found could 10 also move across into the foetus, but our evidence 11 suggests that this is indeed possible. We also know 12 that the particles do not need to get into the baby's 13 body to have an adverse effect because if they have an 14 effect on the placenta, this will have a direct impact 15 on the foetus." 16 It goes on, my Lords. 17 We have discussed the precautionary principle which 18 is to apply. We know that there is respected medical 19 opinion that particulates in the body do pass on to the 20 next generation. That respected opinion says that there 21 will -- not might -- be harm to the foetus. We also 22 have DEFRA saying that particulates emitted from planes 23 in the air are likely to be blown downwind away from the 24 point of emission over the population of London. There 25 are three research studies specifically referred to by 122 1 DEFRA that back this up. Increasing harmful 2 particulates to the population and to subsequent 3 generations through development would be contrary to the 4 principle of sustainability contained in the 5 government's own planning policy, as set out in the 6 national planning framework. That is taken from 7 resolution 42/187 of the United Nations General Assembly 8 of 1987. 9 Just to remind us, my Lords, the principle is: 10 "Sustainable development can be summarised as 11 meeting the needs of the present without compromising 12 the ability of future generations to meet their own 13 needs." 14 The Secretary of State is not having any regard to 15 the precautionary principle. Indeed, I would submit it 16 is more of a gung-ho principle. He has not acknowledged 17 my claim in respect of the particulates and nitrogen 18 dioxide being transmitted downwind from planes in the 19 air. I pleaded it in paragraph 38 of my statement. The 20 Secretary of State did not address that part of my 21 claim. I raised it in my skeleton argument, and again 22 it was not addressed. I have addressed you on it, 23 my Lords, and again the Secretary of State has not 24 responded to it, save saying that my claim is 25 unarguable. 123 1 There may be very little he can say. 2 The Secretary of State through his counsel, 3 Mr Maurici, has said that I cannot raise this because it 4 is simply challenging expert judgments. On that point, 5 my Lords, I would like to make three submissions. 6 Firstly, the case of Mott. This has been referred 7 to by the Secretary of State on a number of occasions, 8 including his defence to my claim. It is at volume 2, 9 tab 41. 10 The case states the principle: 11 "It is not the function of the court to form its own 12 view as between views of different experts in 13 a technical area." 14 That, my Lords is paragraph 70, on page 4359. That 15 is the internal numbering. 16 But, my Lords, at paragraph 56, 17 Lord Justice Beatson, at page 4355 states: 18 "The proper time for a public body which is 19 a defendant in judicial review proceedings to explain 20 the reasons and justification for a decision is before 21 the hearing of the application for judicial review. It 22 is the duty of such a body to assist the court with full 23 and accurate explanations of all the facts relevant to 24 the issue the court must decide." 25 I am not asking the court to decide between two 124 1 technical issues. I am saying that a vital piece of 2 information is missing, and the Secretary of State 3 should have assisted. It is illogical not to take 4 account of this information. Do particulates and/or 5 nitrogen oxides from aircraft spread downwind flowing 6 into the lungs of people up to 20 or 40 kilometres 7 downwind or not? If not, why not, in the light of the 8 research projects referred to by DEFRA? 9 The Secretary of State, I submit, has breached Mott 10 by offering no assistance or comment on this. 11 Secondly, I refer to the case of Claire Stephenson v 12 Secretary of State for Housing and Communities and local 13 government of 2019. That, my Lord, I think has been 14 inserted into your authorities volume 2, at tab 42B. It 15 is a fracking case. Mr Justice Dove referred, in 16 paragraph 34 of his judgment, to a previous judgment of 17 my Lord, Lord Justice Hickinbottom, in R (Jayes) v 18 Flintshire County Council and Hamilton concerning: 19 "The duty of the decision-maker to take all 20 reasonable steps to acquaint himself with relevant 21 information." 22 Whether we are going to be infected with ultrafine 23 particles and nitrogen oxides blown downwind is very 24 relevant in this context, I would submit. To that 25 I remind your Lordships of paragraph 36 of 125 1 Caroline Low's second witness statement, at page 321 of 2 volume 4, in which she says: 3 "Unlike NOx and particulate matter, UFPs [ultrafine 4 particles] are not currently the basis of air quality 5 legislation and not the subject of air quality 6 modelling." 7 I say that is not precautionary. Indeed, I would 8 say it is wrong in law since they are PM 2.5s under the 9 2008 EU regulations. Effectively, Caroline Low says: I 10 don't know, I will not enquire, and the answer is nil. 11 Ground 1 in Stephenson, the contention was that the 12 defendant Secretary of State had unlawfully failed to 13 take into account material considerations, in that case, 14 certain scientific and technical evidence. That ground 15 was considered to have been made out, as on the evidence 16 of the Secretary of State, relevant material had not 17 been considered. 18 Thirdly, in the Secretary of State for Education and 19 Science v Tameside Metropolitan Borough Council, 20 House of Lords case 1997, and that, my Lords, is at 21 volume 2, tab 42A, Lord Diplock said, concerning the 22 Secretary of State for Education's requirement to 23 introduce comprehensive education, at pages 1064 and 24 1065, that's section H, at the bottom of 1064, and A and 25 B over the page: 126 1 "It is not for any court of law to substitute its 2 own opinion for his; but it is for a court of law to 3 determine whether it has been established that in 4 reaching his decision unfavourable to the counsel he had 5 directed himself properly in law and had in consequence 6 taken into consideration the matters which upon the true 7 construction of the Act, he ought to have considered and 8 excluded from his consideration the matters that were 9 irrelevant to what he had to consider ... Or, to put it 10 compendiously, the question for the court is, did the 11 Secretary of State ask himself the right question, and 12 take reasonable steps to acquaint himself with the 13 relevant information to enable him to answer it 14 correctly." 15 In my submission, it is neither rational nor in 16 accordance with the dictum of Lord Diplock to disregard 17 these likely very serious health impacts simply because 18 they have not been assessed. 19 There is an unassessed very substantial risk of 20 harm, and the risk of passing that harm on to the next 21 generation. We are at least entitled to be told the 22 truth, I submit. The Secretary of State has produced no 23 contradiction of any sort to the evidence of 24 transmission of ultrafine particles and nitrogen dioxide 25 downwind and the consequential harm. At present, the 127 1 only presumption, in my submission, can be that the 2 evidence referred to by DEFRA is correct and that the 3 ANPS is therefore unlawful for the reasons that have 4 been discussed. 5 Both the duty of candour and the duty to assist the 6 court, as set out in Mott, should have ensured that the 7 evidence of DEFRA was disclosed, addressed and, if 8 rejected, reasons given. 9 Counsel for the Secretary of State said last 10 Friday -- and that is at page 138 of the transcript -- 11 quoting from paragraph 6411 of the 2017 plan update to 12 air quality re-analysis, that is volume 8, tab 5, 13 page 225: 14 "Implementation of the real driving emissions 15 legislation should minimise the risks that Heathrow 16 options would impact on the compliance of the Greater 17 London zone in any potential opening year." 18 That, my Lords, I submit, may or may not be the 19 case, but Heathrow may well be responsible for some of 20 the emissions in Central London, or the towns and 21 villages to the west, for the reasons set out. 22 Next, my Lords, I will come to the submissions on 23 noise if I may. I hope I am not crossing the other 24 people who have spoken, but I am referring to noise 25 specifically at night and the World Health Organisation 128 1 night time noise guidelines, particularly the amount of 2 sleep that people should have. 3 As no response has been given by the Secretary of 4 State, I ask to find that the WHO night time limits and 5 sleep requirements are appropriate. I ask that the ANPS 6 is quashed for not providing enough sleep time in 7 accordance with the WHO guidelines and an unreasonably 8 high minimum noise level of either 54 decibels or 9 51 decibels, LOAEL, and even at 45-decibels, night time 10 LOAEL referred to in the air navigation guidance of 11 2017, but which will not be implemented because a night 12 time ban is not proposed for eight hours or the ten 13 hours recommended by the WHO. That ten hours, my Lords, 14 is recommended on the basis that enough sleep should be 15 afforded to 80 per cent of the population. 16 I remind your Lordships of the 11 decibel difference 17 between the WHO LOAEL at 40 decibels at night and the 18 51 decibels of the DfT and SoNA study research. That 19 provides 360 per cent or some 360 per cent more flights 20 at night than the WHO guidance. That, my Lords, is 21 based on the -- and in my statement I set out one 22 paragraph for the noise metrics and there is a doubling 23 of noise intensity, albeit not a loudness to the human 24 ear, the doubling of intensity for every 3 decibels and 25 when you have an LAeq, the equivalent, averaging out the 129 1 equivalence than a 3 decibel increase is likely to 2 equate to the doubling of the noise events. 3 I also remind your Lordships of the WHO finding that 4 the risk of heart attack from night time noise rises 5 after 50 decibels, and that is below the level at which 6 the SoNA investigation stopped even recording. I also 7 refer your Lordships to the WHO guidelines and the 8 process of developing the guidelines which is on page 8 9 of volume 13 of the bundle. Your Lordships will see 10 there the extensive range of consultees, including 11 stakeholders from industry, government and 12 non-government organisations. And I ask you to compare 13 that to the small range of consultees by the CAA with 14 the SoNA survey. 15 Again, Mr Lotinga on behalf of the Secretary of 16 State has offered scant assistance to the court on this 17 huge difference. Again, my Lords, the precautionary 18 principle and rationality on this vast difference 19 between the WHO on the one hand and DfT SoNA on the 20 other. It simply is not rational to have such 21 a discrepancy or to run the risks of extra heart disease 22 on such a wide area of the population. 23 Climate change. My Lords, you will recall that 24 I mentioned in my submission that there was no 25 apportionment or apportionment table provided in the 130 1 ANPS to show how the budget, carbon budget or greenhouse 2 gas of budget was going to be shared out amongst the 3 regions and London. 4 The Secretary of State has emphasised in his 5 response to both Friends of the Earth and Plan B that 6 this is a national policy statement. It therefore needs 7 to have the climate change consequences related to the 8 national allocation of aviation carbon or other 9 greenhouse gases, assuming that other greenhouse gases 10 are accepted to be included. 11 My Lords, I have been handed, and I feel I have been 12 slightly ambushed by this because I originally raised 13 this point in my statement of claim and it was perfectly 14 open to the Secretary of State to respond to it but he 15 didn't, but the Secretary of State, in essence, in his 16 note here is saying that he did deal with it. I haven't 17 got time, my Lords, to go through everything that he has 18 said here. But, for example, if we go over the page to 19 5.4 the consultation response also deals with possible 20 impacts on regional airports, and then he gives a whole 21 load of paragraph numbers. I will just take one out of 22 the hat, which I have taken, which is 8.52. 8.52, 23 my Lord, which I think is at page 535 of core bundle 8, 24 says: 25 "The Airports NPS sets out the carbon scenarios used 131 1 by the commission in their work to address uncertainties 2 over the future policy treatment of international 3 aviation emissions. It also confirms the government's 4 conclusion that expansion via the northwest runway at 5 Heathrow can be delivered within the UK carbon 6 obligations. The government considers that growth in 7 the sector, including at Gatwick and regional airports, 8 is compatible with the UK's climate change obligations 9 even a Carbon Cap scenario. The commission showed that 10 passenger numbers would continue to grow at Gatwick and 11 regional airports. In such a scenario the government 12 would take a national view of the best way to meet 13 a cap." 14 My Lords, I would say to that, well, yes, that's all 15 very nice but how is it going to be shared out and is 16 the government seriously going to say that £17.6 billion 17 is going to be spent expanding Heathrow only to have 18 Heathrow then having to restrict its use or not use the 19 expansion because regional airports need to expand? It 20 just doesn't add up. 21 And if I may, my Lords, if I could refer you to 22 volume 13 and it is page 133. There the Committee on 23 Climate Change in 2009 did a report. You may recall, 24 my Lord, at that time the then Labour Government was 25 considering Heathrow expansion, it wasn't quite the same 132 1 scheme but there was some -- the expansion was intended 2 to be some 702 hundred thousands air traffic movements 3 and there is a table there, ES2B. 4 Then the Committee on Climate Change suggested that 5 various airports would have to restrict their growth or 6 their capacity utilisation, as it is called there, 7 should expansion go ahead. 8 At the top of the chart you will see Heathrow, 9 maximum runway capacity, 702 hundred thousand. Capacity 10 utilisation, 100 per cent. Gatwick has a lower 11 capacity. That was also 100 per cent. Stansted was 12 66 per cent. London City, 100 per cent. Bristol, 13 56 per cent. Manchester, 90 per cent. Edinburgh, 14 50 per cent, and other UK airports, 31 per cent. 15 That was an example then, my Lords, but that sort of 16 division and application of the carbon budget is what 17 I would expect to be shown on an ANPS which is 18 a national policy statement and something that the 19 Secretary of State has stated in his submission that it 20 is national. And it is national. I mean, it is 21 intended to be a hub airport, whether one thinks that's 22 right or wrong. 23 Without that, my Lords, and without that 24 apportionment I submit that neither section 10 nor 25 section 5(8) have been complied with. We simply don't 133 1 know how this is going to work in line with other 2 airports. 3 I think, my Lords, I have probably come to the end 4 of my allotted time. I thank you very much indeed for 5 listening to me and if there are any questions, 6 my Lords, I would be pleased to answer them. 7 LORD JUSTICE HICKINBOTTOM: Thank you, Mr Spurrier. 8 Submissions by MR MAURICI 9 MR MAURICI: My Lord, there were a number of new authorities 10 cited by, in particular the Boroughs. My Lords, what we 11 have done, and I have shared this with my learned 12 friends earlier this morning, is we have done a short 13 note responding to the seven new authorities on habitats 14 they referred to. Can I hand them up? 15 LORD JUSTICE HICKINBOTTOM: Yes. (Handed) 16 MR MAURICI: I'm in your Lordship's hands about how to deal 17 with it. I am very happy for your Lordships to take it 18 away or I am happy to deal with some of the key points. 19 There were seven new authorities referred to in the 20 habitats note and we have really just given a paragraph 21 on each of them and why we say they don't assist. 22 The two most relevant ones really, because they were 23 the two that Mr Jaffey referred to orally, are at 24 paragraph 3, we deal with case 1, which is Commission v 25 Austria. Then the only other one that Mr Jaffey went to 134 1 in his oral submissions is at paragraph 8 which is 2 Lumsden and we deal with that at paragraphs 8 and 9. 3 I am happy to run through those or leave the note 4 with your Lordships. I am in your Lordship's hands as 5 to which ... 6 LORD JUSTICE HICKINBOTTOM: Just give us one minute. 7 (Pause) 8 I think Mr Maurici, we can just take these away. 9 MR MAURICI: I am grateful. There were some other cases 10 mentioned but I don't need to respond to those. I think 11 there is one on bias but I am content I don't need to 12 make any further response on those. 13 Thank you, my Lords. 14 LORD JUSTICE HICKINBOTTOM: Thank you all for your 15 submissions over the last week or so. We obviously 16 reserve the judgment and hand it down almost certainly 17 I think with the judgment from the fifth judicial review 18 which we begin tomorrow. In the usual way we will 19 circulate drafts of the judgments for typographical 20 corrections and then the hand down will simply be 21 a formal hand down at which nobody need attend. 22 As I say, thank you all for all of the work you have 23 done to enable us to get through this in line with the 24 timetable, which was a fairly challenging one. 25 There is only one other thing that I'd like to 135 1 raise, probably with Mr Maurici. Tomorrow we move into 2 the fifth judicial review. 3 MR MAURICI: Yes, my Lord. 4 LORD JUSTICE HICKINBOTTOM: We'll obviously have to 5 reconstitute the court to an extent. We have to find 6 room for Mr Justice Marcus Smith for one thing. 7 In terms of the documents that we have used over the 8 last week or so, I assume that the authorities bundles 9 won't be required, that is bundles 1 to 6, won't be 10 required for the next three days. And what about the 11 core bundles and the supplementary bundles? Do we need 12 all of those? We need some of them. 13 MR MAURICI: My Lord, you are going to need some of them. 14 MR JUSTICE HOLGATE: I think some of the six authorities, 15 bundle 6 towards the end is relevant as well I believe. 16 MR MAURICI: Also potentially, there may be some 17 submissions -- you also have in bundle 2 and 3 standard 18 of review which may be relevant and also Article IX is 19 going to obviously be an issue in Hub. You have those 20 authorities in volume 3 I think. 21 MR JUSTICE HOLGATE: And we may need 1. 22 MR MAURICI: In terms of the authorities I suspect -- 23 LORD JUSTICE HICKINBOTTOM: We will need some. 24 MR MAURICI: Probably the majority of them unfortunately. 25 And core bundles. There are amongst the core bundles up 136 1 to volume 9. There are a number of documents which 2 I think are relevant also to Hub. I am not sure about 3 the supplementary bundles though. I think in the 4 supplementary bundles there's a further supplementary 5 bundle 14 which is all Hub so you probably don't need 6 the supplementary bundles. 7 LORD JUSTICE HICKINBOTTOM: There are five supplementary 8 bundles on Hub. 9 MR MAURICI: I understand there also be a need to have 10 a supplementary bundle 13 also required apparently by 11 Hub. 12 LORD JUSTICE HICKINBOTTOM: I think the answer is that we 13 can't -- 14 MR MAURICI: Dispense, my Lord. 15 LORD JUSTICE HICKINBOTTOM: Dispense -- 16 MR MAURICI: My Lord. I tried to dispense with a couple and 17 I have been told around the room that we can't dispense. 18 LORD JUSTICE HICKINBOTTOM: If we dispense with one document 19 that will be the one document that ... that is helpful 20 in identifying what we can and what we can't do. 21 MR MAURICI: Yes, I am sorry I can't help you to dispense 22 with any of those. 23 LORD JUSTICE HICKINBOTTOM: We'll get Mr Justice Marcus 24 Smith in somehow. 25 Is there anything else? 137 1 MR MAURICI: No, thank you, my Lord. 2 LORD JUSTICE HICKINBOTTOM: Thank you all very much. 3 (2.47 pm) 4 (The court adjourned until the following day at 10.15 am) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 138 1 INDEX 2 Housekeeping .........................................1 3 Submissions by MR JAFFEY .............................8 4 Submissions by MR PLEMING ...........................47 5 Submissions by MR WOLFE .............................75 6 Submissions by MR CROSLAND .........................100 7 Submissions by MR SPURRIER .........................120 8 Submissions by MR MAURICI ..........................134 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 139