R v Secretary of State for Transport, ex parte London Borough of Richmond upon Thames
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
The Times 29 December 1994, The Independent 5 January 1995, CO/3586/93, (Transcript: John Larking)
HEARING-DATES: 20 December 1994
20 December 1994
R Gordon QC and A McLean for the Applicant; I Burnett and M Shaw for the Respondent
PANEL: Latham J
JUDGMENTBY-1: LATHAM J
LATHAM J: In these two combined applications, the Applicant Local Authorities (the Applicants) seek Judicial Review of the decisions of the Secretary of State for Transport (the Respondent) in relation to night flying restrictions at Heathrow, Gatwick and Stansted airports. The first application challenges a decision dated 12 October 1993 as to the restrictions to be imposed from 24 October 1993 to 27 March 1994. The second application relates to two decisions, the first of 1 February 1994, relating to restrictions from 27 March 1994 to 23 October 1994, and the second of 6 May 1994, relating to restrictions to be imposed from the 27th of October 1994 up to the end of the summer season 1998. The Applicants accept that as to the decisions of October 1993 and February 1994 they are only entitled to ask the Court for declarations that the decisions were unlawful. As to the third decision, they ask for an order for a declaration in the same terms, and mandamus requiring the Respondent to reconsider the decision in so far as it affects restrictions from 27 March 1995.
These decisions were taken in order to give effect to proposals set out in a consultation paper published in January 1993. The original decision taken to give effect to those proposals was dated 6 July 1993. This decision was challenged in judicial review proceedings commenced on 30 July 1993, which were heard by Laws J in September 1993. He decided that the means adopted by the Respondent to give effect to those proposals was unlawful, and that the decision was therefore invalid. This judgment is reported as R v Secretary of State for Transport ex. p. Richmond Upon Thames London Borough Council and others  1 All ER 577,  1 WLR 74. The decision was based upon a simple point of statutory construction. Although it is fully set out in the report of the judgment of Laws J, it may be helpful to set out at the beginning of this judgment the relevant statutory provision pursuant to which the decisions of the Secretary of State were taken in order to understand both the points made before Laws J, and those made before me.
The relevant statutory provision is s 78 of The Civil Aviation Act 1982. Subsection (3) provides as follows:
"If the Secretary of State considers it appropriate, for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land at the aerodrome during certain periods, he may by notice published in the prescribed manner, do all or any of the following, that is to say:
(a) Prohibit aircraft of description specified in the notice from taking off or landing at the aerodrome (otherwise than in emergency of a description so specified) during periods so specified;
(b) Specify the maximum number of occasions on which aircraft of description so specified may be permitted to take off or land at the aerodrome (otherwise than as aforesaid) during periods so specified;..."
By subsection (5) it was provided as follows:
"The following supplementary provisions shall have effect for the purpose of subsection (3) above, that is to say:
(a) It shall be the duty of the Secretary of State, before he makes a determination in respect of an aerodrome in pursuance of paragraph (c) of that subsection, to consult an body appearing to him to be representative of operators of aircraft using the aerodrome;
(b) A notice under that subsection may make, in relation to a designated aerodrome, provision as respects any period notwithstanding that the period is included in or that there is included in the period, any other period as respects which provision relating to the aerodrome is made by the notice or by another notice under that subsection;..."
Before 1993, the powers given under this Section had been exercised by reference to the number of aircraft movements which were to be permitted during periods of restriction. This was refined only to the extent that at Gatwick the permitted number of movements was divided between aircraft categories based upon their noise characteristics. This was progressive, so that the number of movements for the less noisy aircraft was increased each year at the expense of the numbers for aircraft in noisier categories. The 1993 proposals for the three airports were intended to be a less crude form of control. Every aircraft type was given a quota count dependant upon its noise characteristics of either 0 (amended after consultation to 0.5), 1, 2, 4, 8, or 16. The latter two, being the noisiest aircraft, were effectively prohibited from flying during the night period at all; as to the remainder, the limit was to be based upon a total quota count figure for the summer (March to October) or winter (October to March) seasons. So, for example, the Heathrow figures were to be 5,000 for the winter season, and 7,000 for the summer season. The maximum number of permitted aircraft movements for the winter season would therefore be a maximum of 10,000, if every movement was by an aircraft falling into the category for which the quota was 0.5, and 1,250 if all the movements were by aircraft falling within the category for which the quota count was 4. Laws J held that the decision based upon these proposals was unlawful on the basis that it did not "specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land" which was the power granted under s 78(3)(b).
The decisions which are the subject of the present applications retain the concept of the quota count but seek to meet the objection of Laws J by adding an overall maximum number of occasions upon which aircraft movements can take place at each airport during relevant periods. The Applicants say that these decisions are unlawful as a matter of statutory construction and unlawful or irrational because they were taken for purposes other than the statutory purpose. The Applicants also say that the decisions were irrational because the quotas were determined, in part, by the calculation of noise levels for aircraft which were to be permitted to land at night, without appreciating that the noise levels of those aircraft were such that their movements at night were prohibited by the Respondent under his general powers of controlling noise levels of individual night movements. But the main area of debate during the hearing has been to the effect that the decisions broke a promise or undertaking given by the Respondent that he would only use his powers under s 78 to improve the noise climate around the airports or at least ensure that it was not made worse. The primary argument is that the promise or undertaking gave a legitimate expectation to the Applicants that the proposals would have that effect, and that the Courts will enforce that legitimate expectation as a substantive right. A secondary argument is based on the Applicants' assertion that until they received the affidavit of Roberta McWatt on behalf of the Respondent in these proceedings, dated 25 August 1994, they had not appreciated that the basis of calculation of the quota counts for Heathrow, far from improving noise, would inevitably result in an increase over noise levels experienced in 1988. They say that they had a legitimate expectation of a full and fair consultation process, and that they were misled. As a corollary of this argument, the Applicants say that there is no indication that the Respondent himself appreciated that this would be the effect of the proposals; they say that the proposals would not meet his objectives or his declared policy, and that it would therefore appear that the decisions were reached without taking into account a material consideration.
The Respondent, not unnaturally, complains that this challenge, save in so far as it relates to the allegations that the particular decisions in question are unlawful as a matter of statutory construction, are mere repetition of arguments dealt with, and rejected, by Laws J, or were arguments which were available to the Applicants had they wished to raise them at that time and that it is too late to do so now. Whilst there is bound to be a place in judicial review proceedings for the application of the general principle that there should be an end to litigation, that principle has to be approached with caution in the public law field. The present case presents a good example. Before Laws J a wide variety of arguments were deployed by the Applicants, including arguments which are similar to, if not precisely the same as, some of the arguments presented to me. All save one were rejected by Laws J But that single argument, namely the statutory construction argument in relation to the decision in point before him was fatal to the Respondent. As a result, the Applicants were in no position to appeal. If I were to hold, by reason of the application of principles such as issue estoppel that the Applicants were not entitled to raise arguments which were the same as or similar to arguments rejected by Laws J, they would effectively be deprived of the opportunity to have those arguments considered on appeal. It seems to me that the correct approach is that I should permit the arguments to be raised, and in so far as they are arguments which were dealt with by Laws J, to follow his reasoning as a matter of judicial comity, unless satisfied that he was plainly wrong: R v Greater Manchester Coroner ex. p. Tal  1 QB 67,  3 All ER 240.
In relation to the "legitimate expectation" arguments, the Applicant's case is in two parts, as I have indicated above. In so far as it relates to the promise or undertaking that noise levels would be reduced, or at least made no worse, this was rejected by Laws J as a matter of principle. The Applicants seek to re-argue the question of principle, but on a somewhat different basis of fact. In so far as the argument relates to the entitlement to consultation, that has been reformulated to take account of the fact that the Applicants assert that they were misled as to the basis upon which the proposals were put forward for consultation in January 1993. As a result, application was made at the commencement of the hearing before me for leave to re-amend the Form 86A The Respondents objected to this application. I gave leave, on the basis that, so far as matters were already dealt with in the judgment of Laws J, I should not preclude the Applicants from re-arguing them, for reasons I have already given: in so far as the re-amendment sought to raise new issues, they were based on the proposition that the Applicants had been misled by the consultation paper, and not made aware of its true meaning and intent until they received Miss McWatt's affidavit. If the Applicants are correct, then there was a good reason for the delay, and it would be unjust to prevent them from raising the issues: if on examination, the arguments have no merit, no injustice will have been done by reason of permitting them to be raised.
Despite the fact that the history of the matter was set out in some detail in the judgment of Laws J, it will, I think, be helpful if I reiterate those parts of the history which are relevant to my decision, as this will avoid the need for cross referencing. The Applicant's "legitimate expectation" arguments, in particular, require a careful analysis of what was said and done on behalf of the Respondent from 1987 onwards.
In November 1987, the Respondent published proposals for future night flight restrictions for Gatwick and Heathrow airports. These proposals were contained in two separate consultation papers. The Respondent's objectives were set out in identical terms in both consultation papers. I shall quote as did Laws J, from para 4 of the Heathrow paper:
"The restrictions as revised in 1981 phased out night flights by the older, noisier aircraft. This, and the airlines investment in newer and quieter aircraft, has over the years brought about an improvement in the night noise climate round Heathrow. That is a significant achievement which we must not throw away. We are therefore determined to ensure that this improvement continues. We believe this can be done without seriously hampering those airlines which need to schedule services at night. The objectives which underlie the proposals in this paper are therefore: (original emphasis)
To continue to improve the night noise climate so that disturbance of people asleep is further reduced.
To allow airlines to provide some scheduled movements during the night periods.
To enable the airport to continue to offer a 24 hour service.
To encourage airlines to continue to invest in quieter, modern aircraft."
In both papers, that objective, namely to ensure that the night noise climate continues to improve, is used as the justification for the proposals that were made for each airport. As far as Heathrow was concerned, the proposal was simply to reduce the quota of night flights from 3,650 to 2,750 in summer, and from 3,150 to 3,000 in winter, and to ban planned movements of noisier aircraft between 0030 and 0500 hours. This reduction was in one sense more apparent than real. The previous quota had not been fully utilised: the new quota was set at about the level of night flights in fact taking place in 1987. As far as Gatwick was concerned, a more sophisticated scheme was proposed. Put broadly, aircraft, other than the noisiest aircraft which were forbidden from making night movements, were divided into two categories. The quota was set at approximately the level of usage for 1987 for each category, with the quota for the noisier aircraft reducing annually over the five years, and the quota for the quieter aircraft increasing gradually over the five years. It was clear that the Respondent was uncertain as to whether this would in fact improve the noise climate, so he indicated that if monitoring showed that there was a consistent trend for the night noise to deteriorate rather than improve as a result, he would consider whether further reductions in the quotas were necessary.
The restrictions which were to apply from 1 April 1988 were first announced in answer to a Parliamentary question, and that answer was set out in a press notice of 10 February 1988. The relevant parts of the press notice read as follows:
"In answer to a Parliamentary question... (the Secretary of State for Transport) explained that he was determined that night noise around Gatwick should be reduced over the next 5 years. At Heathrow he will cut back on the number of night flights allowed, thus preventing any increase in disturbance. Mr Channon explained that both decisions were in line with the proposals published in last November's consultation papers; with one important change: to ensure the improvement of the night noise climate at Gatwick he had undertaken to reconsider the quotas after 2 years if monitoring showed that disturbance was getting worse."
The press notice then quoted from Mr Channon's written answer:
"On 6th November last year I published proposals for future night restrictions at the two airports. I set out then my objective - to improve the night noise climate around the airports without imposing unnecessary restrictions on the airline industry. ...
I am determined that at Gatwick night noise disturbance should be reduced over the next 5 years. ...
At Heathrow there is less demand for night flights than at Gatwick. The present quotas are not fully used, and I can achieve my objectives in limiting the further growth of night movements by keeping them to their present level, as proposed in the consultation paper. ...
Take offs by older, noisier aircraft will not be allowed in the small hours except for a small quota for those planned to take off earlier which are unavoidably delayed. This should achieve a considerable improvement in the noise climate during this most sensitive period."
The Applicants argue, as they argued before Laws J, that this material establishes that the Respondent was giving a clear assurance or undertaking that the policy which would be applied would have as its objective an improvement in the night noise climate around Gatwick and Heathrow airports and that therefore any steps taken in the future would have as their objective a reduction in noise levels. I accept that the consultation papers, taken together with the press notice and Parliamentary answer could justify an argument that the Respondent gave an assurance that that would be the policy for the 5 years covered by the proposals and that the quotas would not be changed during that period contrary to that policy. But in my view nothing in the 1987 and 1988 documents gave any assurance, either express or implied, as to what was to happen in 1993. There were, in fact, no changes of policy during that five year period, nor was there any change in the night quotas which were set by the Respondent in February 1988. It follows that no issue arises as to the effect in public law of such an assurance.
The proposals in 1993 had as their objectives, as set out in the consultation paper of January 1993 the following:
"a. To revise and update the arrangements (as to night flights at Heathrow Gatwick and Stansted airports) as appropriate;
b. To introduce common arrangements for night restrictions at the 3 airports;
c. To establish further restrictions at Stansted as promised in the 1985 White Paper;
d. To continue to protect local communities from excessive aircraft noise levels at night;
e. To ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account."
Apart from the fact that a uniform scheme was to be applied to all 3 airports for the first time, there were two fundamental changes proposed. First, the hours during which particular restrictions were to be imposed were to be standardised as between the airports, and throughout the year. Secondly, it was proposed that the quota system should no longer be based on aircraft movements, but should be based on a quota count depending on an aircraft's noise characteristics, as I have explained earlier in this judgment.
At the time of the 1993 consultation paper, the hours of restriction were as follows:
a. At Gatwick:
i. Summer: 2330 to 0600 for all aircraft every day;
ii.Winter: 2330 to 0630 on weekdays and until 0800 on Sundays.
b. At Heathrow:
i. Summer: Departures 2330 to 0600 on weekdays and until 0800 on Sunday; Arrivals 2330 to 0600 every day;
ii. Winter: 2330 to 0630 on weekdays and until 0800 on Sunday.
c. Stansted: As for Gatwick.
In the consultation paper, it was said that these differences were causing difficulties for the airlines, and it was therefore considered appropriate to standardise the hours covered by the quota. As a result, the proposal was to divide the night period, defined as the hours from 2300 to 0700 into three.
i. Between 2300 and 2330: aircraft in the noisiest two categories were not to be scheduled to land or take off;
ii. Between 2330 and 0600: this was defined as the night quota period: aircraft in the two noisiest categories were not to be permitted to land or take off: aircraft in all other categories were to be permitted to land or take off, but each such aircraft movement would carry the number of quota counts assigned to the noise category in which the aircraft fell;
iii. 0600 to 0700: aircraft in the noisiest category were not to be scheduled to land or take off.
The consequence of these proposals was to prevent, subject to dispensations, take offs and landings of aircraft in the two noisiest categories for the whole of the 8 hour period. On the other hand, the proposals removed from the quota period all winter movements between 0600 and 0630 on weekdays, and 0600 and 0800 on Sundays.
As far as the size of the quota was concerned, the consultation paper proposed as follows:
"34 Since 1988, more of the quieter types of aircraft have been acquired by airlines, improving the night noise climate. In keeping with the undertaking given in 1988 not to allow a worsening of the noise at night, ideally to improve it, it is proposed that the quota for the next 5 years based on the new quota system should be set at a level so as to keep overall noise levels below those in 1988. For Heathrow the proposed summer noise quota is 7,000 and for Gatwick 9,000. The 1988 summer quota for Heathrow would have been about 8,000 if calculated on the new basis, and the summer quota for Gatwick about 11,450. ...
36 It is proposed to continue the policy of applying separate quotas to winter and summer seasons with the winter season quota being five sevenths of the summer season ones. This will remove the large difference that currently exist at Gatwick between the seasons to allow for the growth of year round scheduled services and more winter charter operations. The proposed noise quotas are set out in full in the table below."
In the table the winter quota for Heathrow was to be 5,000 and the summer quota 7,000, and for Gatwick the winter quota was to be 6,450 and the summer quota 9,000. The table then went on to deal with Stansted, but no issues arise as to the way in which the quota was arrived at for Stansted.
The only other references to the Respondent's existing or future policy were contained in two passages. First, in para 9 of the consultation paper, it was said:
"The proposals set out below aim to strike a fair balance between the different interests and do, in the Government's view, protect local people from excessive aircraft noise at night."
Second, in App 1, referring to the policy underlying the restrictions imposed in 1988, it was said:
"The present restrictions at Heathrow and Gatwick were designed to prevent an increase in night noise at Heathrow and to secure an improvement at Gatwick."
Before Laws J, it was argued that para 34 either indicated a change of policy, contrary to the assurances which the Applicants sought to establish from the 1987 and 1988 documents, or a misinterpretation or misunderstanding of that policy. The new material before me, that is the Gatwick Consultation Paper, explains what is said in para 34, and in the Appendix. It can be seen that in the case of Gatwick the policy was deliberately tailored to reduce the proportion of noisy aircraft using the airport during the night. This could be expected to produce improvement, although it was appreciated by the Respondent at the time that that might not be the case, hence the undertaking to monitor. At Heathrow, night flights were capped to the existing 1987 figure in terms of aircraft movements; and it was hoped that improvement would occur naturally as airlines used quieter aircraft. To that extent, the new material relating to the Gatwick consultation document provides justification for the way in which the previous policy was expressed, and supports the conclusion of Laws J with which I agree, that the Respondent did not materially misstate or misunderstand his earlier policy.
The Applicants, not unnaturally, submit that the phrase "in keeping with the undertaking given in 1988..." establishes that what was said in 1987 and 1988, against the general background of assurances on behalf of Government about ameliorating the environmental impact of aircraft, can only sensibly be construed as meaning that the Respondent considered that he had given an undertaking, by which he was bound, not to allow a worsening of noise at night, and ideally to improve it. This appears to me to be a misunderstanding of the nature of a consultation document such as this. I have already expressed my view that nothing which had been said or done before 1993 could support the conclusion that the Applicants or any of those on whose behalf they act had the benefit of any promise or undertaking beyond 1993. The consultation document in 1993 set up policy objectives for the next period, and the means of achieving those objectives. It seems to me clear that para 34 refines the objective set out in para 4 of the consultation paper, that is to continue to protect local communities from excessive aircraft noise levels at night, by stating that the policy was not to allow a worsening of noise at night, and ideally to improve it. The consultation paper enabled those to whom it was addressed to comment on the policy and on the proposals.
It is at this stage, and in my judgment at this stage only, that the doctrine of legitimate expectation has any relevance. The Respondent, before exercising any of his powers under s 78 of the Civil Aviation Act 1982 is required by Subsection (5)(a) to consult representatives of operators of aircraft. The Respondent has, however, in the past consulted with a wide range of local authorities and amenity bodies in areas likely to be affected by noise from aircraft. That practice had developed to the extent that those bodies, which included the Applicants, had a legitimate expectation that they would be consulted. That entitled the Applicants to have the proposals put to them fully and fairly so that they could make informed representations which would be considered by the Respondent before he came to his decision. As a matter of principle this is not controversial; and the Applicants duly made their representations which were considered by the Respondents.
These representations could and did comment on the policy, on the extent to which the proposals, as described, would affect local inhabitants, and on the extent to which the effects of the proposals, as understood, would be consistent with the policy. The obvious criticism, which was forcefully made, was that the proposals took as their starting point the 1988 quotas, which did not take into account the amelioration of noise levels since then. A further obvious criticism related to the relaxation of controls resulting from the standardisation of the night restriction periods. Substantial technical criticism was made of the methodology employed to determine quota counts, and of the general premise that the use of quieter aircraft could justify a significant increase in the number of aircraft movements.
The decision was announced by the Respondent in a written answer to a Parliamentary question dated 6 July 1993. The Respondent said:
"The central element of our consultation paper was a new system to maintain the protection offered to residents around Heathrow and Gatwick and extend similar protection for the first time to those around Stansted..."
The press notice on the same date stated as follows:
"A tough new quota system of night flying restrictions to reduce noise at Heathrow Gatwick and Stansted will come into force from October 1993... The decision follows widespread consultation and incorporates stricter controls to meet the concerns expressed by local people, particularly around Heathrow.
The quota levels at Heathrow and Gatwick are designed to keep overall noise levels below (original emphasis) those in summer 1988, when the current restrictions were introduced..."
In general, the Respondent had retained the scheme proposed in the consultation paper. This had, however, included a proposal that certain of the quietest aircraft should be given a quota count of zero: in other words their movements were entirely unrestricted. In response to objections, including objections from many of the applicants, the Respondent amended this quietest category so that each aircraft movement was given a quota count of 0.5.
This was the decision which was challenged by the Applicants before Laws J As can be seen from his judgement a very substantial part of the argument before him related to the technical disputes as to the validity of the methodology adopted to produce the quota count, and the justification for concluding that there was sufficient amelioration in the night noise climate produced by quieter aeroplanes as to justify a relaxation of the restriction in relation to numbers of aircraft movements which were said to be inherent in the proposals. These were arguments which were rejected by Laws J on the basis that they raised no issues of public law.
He dealt at some length with the argument as to legitimate expectation, as a matter of principle. I do not propose to go into the interesting problem raised as to whether or not the doctrine of legitimate expectation can ever give rise to a substantive as opposed to a procedural right. I recognise that Simon Brown LJ in R v Devon County Council ex. parte Baker and Johns (1994) 6 Admin. LR 113 considered that the phrase can denote an entitlement which the claimant asserts cannot be denied him. He referred to R v Secretary of State for the Home Department ex. p. Khan  1 All ER 40,  1 WLR 1337 and R v Secretary of State for the Home Department ex. p Ruddock  2 All ER 518,  1 WLR 1482. There is no doubt that it may be necessary in some cases to consider with care the extent to which what could be called a substantive right has been created by way of a legitimate expectation. But in my view the statement of the general policy objective, which in my view is all that the decision, properly construed, amounted to, cannot in this case be transformed into an enforceable promise by use of the doctrine of legitimate expectation. Neither Khan nor Ruddock (supra) could justify such a conclusion.
In preparation for these applications, the Applicants have carried out a substantial amount of monitoring work in relation to aircraft movements and noise which have resulted from the decisions which they challenge. In itself, the evidence which has been produced takes the Applicants nowhere, in these proceedings. So far as it establishes that there are significantly more night flights, and that the result is that the noise climate at night round Heathrow is worse, that of itself cannot render the decisions unlawful, in the absence of an enforceable promise that the decisions would not have that effect. This evidence is in any event disputed, not in so far as the number of movements is concerned, but as to the overall effect in noise terms. It is clear that this is an area of substantial controversy. There is no way in which I can make sensible findings on these issues on the material before me.
But in answering this evidence, Miss McWatt on behalf of the Respondents has stated that the comparisons made were based on a false premise. She said in an affidavit of 25 August 1994 that the quotas overall, that is for winter and summer, were calculated by reference to the noise levels which would have been expected by extrapolation from the quotas for the summer of 1988 at Heathrow and Gatwick. She made the point that, carefully examined, paras 34 and 36 of the 1993 consultation paper made this plain. The Respondent's case before me was to the same effect, namely that, properly read by those to whom the consultation document was intended, it was, or should have been clear that all the calculations had been based upon the summer 1988 quotas, and that the winter quotas had been determined by a simple mathematical calculation, that is by dividing by five sevenths. It was argued that the consultees were all either sophisticated in the issue of aircraft noise levels, or would have sufficient access to bodies who had such expertise as to enable them to understand that that was the basis of the document. I accept that the words used do bear that meaning.
There was, however, one fundamental consequence of this approach which was not referred to in the consultation paper. The summer quota for Heathrow in 1988 was 2,750 movements. That was the basis upon which the consultation paper calculated that the quota count in 1988 would have been 8,000 in comparison with the proposed quota count of 7,000. In fact the actual number of movements for summer 1988 at Heathrow was 1,800: it was accepted on behalf of the Respondent that the equivalent noise quota for that number of movements would in all probability be less than 7,000. In other words, far from there being an improvement over the noise levels experienced in 1988 the new summer quotas if fully utilised would produce an increase over the noise levels experienced in summer 1988 contrary to the apparent and expressed policy of the Respondent. It is said that the Applicants were not only in a position to appreciate that that was the consequence of the proposals, but that they did. I have read with some care the extracts from the representations that were made by the Applicants to the Respondent during the consultation exercise. There is nothing to suggest that any of them clearly appreciated that this was the consequence of the proposals.
I can see that there is force in the suggestion that the Applicant's representatives were concerned to make the points that the 1988 levels were being used at all, that the methodology was flawed and that there would be a significant increase in the number of aircraft movements. These were all matters which were put before the Respondent in order to persuade him inter alia that the proposals would not meet his stated policy. The Respondent has been able to show in the evidence before Laws J and before me that on the material which he had he was entitled in relation to those issues to come to the conclusion that the purposes did accord with his policy. In respect of each of those issues, the proposals were therefore based on facts or opinions which were capable of supporting the view that there would not be an increase in the overall level of noise at night by reason of the implementation of the proposals.
Only one of those issues was canvassed in any detail before me. The Applicants point out that standardising the periods of restriction as proposed was bound to increase the number of early morning aircraft movements in particular. The Respondent agrees, but points out that, in return, he has effectively prohibited the movement of the noisiest two categories of aircraft during the night period. He considered that in the overall context of the proposals this achieved a balance which would accord with his expressed policy. The Applicants had full opportunity to make representations on this aspect of the proposals. I cannot say that the Respondent's conclusions were irrational.
There is however no doubt that the Applicants did not make representations based on the argument that implementation of the proposals for Heathrow would permit an increase in noise levels over those experienced in 1988 by reason of the simple fact that the 1988 quota figure was being used as opposed to the actual movements figure. I can find no clear recognition in any of the Respondent's documents that he appreciated that the proposals would have that effect, on his department's own calculations.
In my view the Applicants, and others who were consulted, were entitled to assume, in the context of para 34 and the consultation paper as a whole, that the comparison between the proposed quota of 7,000 and the 1988 figure of 8,000 was intended to provide a real comparison. The figures for Gatwick did provide such a comparison: the Gatwick quota for 1988 was fully used. It may be that some of the consultees, for example aircraft operators, appreciated these nice distinctions. It may also be that Travers Morgan, instructed on behalf of Hillingdon Borough Council (one of the Applicants) understood. But there is nothing before me to suggest that it was brought home to the Applicants generally. The consultation paper was materially misleading in this respect. I do not consider that it is sufficient answer to say that it was a document intended for a sophisticated audience. The Applicants say, and I accept, that they were misled. This deprived them of the opportunity of making, in respect of Heathrow, the important point which is not in my view a merely forensic point that on the Respondent's own calculations, his proposals would not only not achieve, but would be contrary to, his expressed policy objective. I do not consider that consultation based upon a document which can mislead in this way can be described as full and fair consultation in the sense that these Applicants could legitimately expect.
But the issue goes further than the consultation process. I have already said that the documents do not show that the Respondent appreciated that the proposals had that effect. The press notice emphasised that noise levels would as a result of the proposals be below those in summer 1988. That can only sensibly be read as meaning noise levels experienced in summer 1988. I can see nothing to suggest that the Respondent, in making the decisions in question, took into account the fact that in respect of Heathrow the proposed quotas, if fully utilised, would probably result in an increase in the noise levels experienced in summer 1988 contrary to his expressed policy. As I shall explain later in this judgment, the Respondent is perfectly entitled to decide to depart from a previously expressed policy, provided that he makes a rational decision which has taken into account relevant considerations. Those considerations must necessarily include a recognition that he is making a decision which apparently departs from that policy. It may well be, for all I know, that the number of actual movements for summer 1988 was so unrepresentative as to be an unrealistic basis for the decision. But that is not what the Respondent has said in any of the documents. I do not consider that I would be justified in assuming that that was the basis of his decision, contrary to what was expressed in the Press notice.
For these two reasons, the decisions in question are in my judgment unlawful. It is however necessary for me to deal with the other arguments advanced by the Applicants.
The argument that the Statute did not empower the Respondent to make the decisions in question depends upon consideration of the notice which has now been made to give effect to the last of the decisions. The first point to make is that the Civil Aviation Act 1982 is a Consolidating Act. Section 78 in its previous incarnations was used to restrict flight movements by seasons in exactly the same way it was used in 1988. The preamble to the current Notice under s 78 states that the restrictions are to have effect: "during periods specified in this Notice throughout the periods specified as the winter season 1994 to 1995 in this Notice." The periods identified in the Notice are:
i. The night period, defined as the period from 2300 to 0700;
ii. The night quota period, defined as the period from 2330 to 0600;
iii. The specified period, defined as the sum of the night quota periods throughout the winter season 1994 to 1995, itself defined as 23 October 1994 to 26 March 1995.
By paras 4 and 5 of the Notice, the Respondent set out the periods during which aircraft of quota counts of 8 or 16 were prohibited from taking off or landing. These are all expressed in periods during particular nights. As I understand it, the Applicants do not argue that these prohibitions are unlawful. The maximum number of occasions on which aircraft are to be permitted to take off or land are expressed both as to the total number of movements, and the quota, by reference to "the specified period". As defined, this is an aggregate of periods over a season, in exactly the same way as limitations have been imposed in the past. The Applicants' argument is that the only period which can properly be used on a true construction of the Act is a night period, or a night quota period, in other words an individual or singular period during a day. This argument is understandable. The system of aggregating periods enables airlines to utilise their quota count and the maximum numbers by concentrating on particular nights or particular seasonal periods which could produce temporarily intolerable conditions. But it seems to me that s 78 permits the Respondent complete discretion to determine what the "periods" of limitation are to be. From the legislative history it is to be inferred that Parliament had considered it to be permissible for a period to be defined for the purpose of the statute in terms of an aggregate of an individual period. Section 78(5)(b) in effect acknowledges that a period can be defined by reference to an aggregate of periods, and that the Respondent is entitled to make different provision for any period within such an aggregate of periods. As a matter of construction, the Respondent was entitled to make the decisions challenged in these applications.
The Applicants repeat the submission which was made before Laws J that the purpose of the Statute is to ensure amelioration of noise levels, so that any action taken pursuant to s 78 which as has its effect an increase, or a risk of an increase, in noise levels is contrary to the purpose of the Statute and therefore unlawful. This submission is misconceived for the reasons given by Laws J The Act gives the Respondent a power. If he exercises the power, it obviously has to be for the purpose of ameliorating the noise effects of aircraft. In other words he is not entitled to exercise his power in order, for example, to benefit British Airways, or to prefer one airport against another except on noise amelioration grounds. But there is no duty upon him to exercise the power. If he exercises it, he is entitled, and indeed bound, to take into account the interests of the airport authorities, the aircraft operators, local industries, and the national interest as well as the welfare of the local inhabitants. All these are relevant considerations, as is acknowledged in the consultation paper. It follows that provided that he has taken into account all relevant and material considerations, and has followed the proper procedures, he would be entitled to exercise this power in such a way as would result in an increase in the noise effects on local inhabitants. Such considerations would include the fact he may thereby be departing from his expressed policy to the detriment of a substantial number of people. Provided that he has properly taken such matters into account, he could lawfully come to a decision which had that result. It is because of procedural impropriety, and the Respondents failure to take into account the fact that his proposal departed from his expressed policy that I consider the decisions in question to be unlawful, not because the decisions are outwith his powers.
That leaves one final argument, which is that the decisions were irrational because, it is said, the quotas were determined in part without appreciating that the basis of calculation was such as to include in the quota aircraft whose noise levels were such that their movement at night was prohibited by the Respondent under his general powers of controlling noise levels of individual night movements. This same point was made before Laws J The starting point is the individual noise limit, which is that between 2300 and 0700 aircraft are required to be flown so that they do not exceed 102 PNdB after take off at the relevant monitor. Categorisation for the quota count uses an internationally accepted classification of aircraft by reference to the unit of measurement known as EPNdB As I understand it, the difference between the two units of measurement is that the latter takes into account duration of noise, as well as perceived levels of noise. Every certificated aircraft is given a noise rating in EPNdB Quota counts are based on deducting 9EPNdB from this noise rating. The evidence before Laws J was that this deduction was made to take account of the way in which the EPNdB figures are calculated, and in order to obtain a more realistic noise profile.
After deducting 9 EPNdB, the EPNdB figure for QC2 aircraft is 93 to 95.9, and for QC4 aircraft 96 to 98.9. The Applicants say that it is therefore self evident that these are aircraft which should not be moving at night. Laws J accepted that the quota count system was a rough and ready, but permissible method of estimating the overall effects of the noise of particular aircraft because there was no symmetry between the numbers of people affected by the noise of landings and take offs. He pointed out that the Applicants had had every opportunity to put forward their arguments in this respect as a result of what was set out in the consultation papers. He took the view that the arguments went to the merits. These seem to me to be sufficient answers to the complaint made by the Applicants before me. In addition, it should be noted that by comparing PNdB with EPNdB, the Applicants are not comparing like with like. And if and in so far as the consequence is that some aircraft falling within a quota count category permitted to land or take off at an airport were to fall foul of the restrictions on take off noise, that is of itself no reason for refusing to allow them to land or to exclude them from the quota.
For all these reasons, I consider that the Respondent was empowered to make Orders limiting aircraft movements in the form that he has, but that the decisions must be declared unlawful by reason of his failure to provide a full and fair consultation process, and for failing to take into account the fact that the decisions would permit movements at Heathrow which would produce greater noise than that which was experienced at Heathrow in Summer 1988, on the basis of his own calculations, contrary to his expressed policy.
I will consider the final form of the order when the parties have had an opportunity to address me.