R (Wandsworth) and others v. Secretary of State for Transport

Transcript date:

Friday, May 23, 2008

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Sullivan J

Transcript file:

CO/7398/2006

Neutral Citation Number: [2008] EWHC 1292 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

 

Friday, 23rd May 2008

 

B E F O R E:

 

MR JUSTICE SULLIVAN

 

 

THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF WANDSWORTH

Claimants

 

v

 

SECRETARY OF STATE FOR TRANSPORT

Defendant

 

(Computer Aided Transcript of the Palantype Notes of

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Mr David Smith (instructed by Messrs Richard Buxton) appeared on behalf of the Claimant

Mr John Howell QC, Mr Martin Chamberlain and Ms Sarah Love (instructed by Treasury Solicitor) appeared on behalf of the Defendant

 

J U D G M E N T

(As approved by the Court)

 

Crown copyright©

MR JUSTICE SULLIVAN:

Introduction

1. In this application for judicial review the claimants challenge the lawfulness of certain decisions announced in a written statement by the defendant and set out in a document entitled "Night Flying Restrictions at Heathrow, Gatwick and Stansted", published by the Department for Transport on 6th June 2006 ("the document"). As indicated in its title, the document sets out the night flying restrictions at London's three busiest airports. The restrictions apply for the period from 29th October 2006 to 30th October 2012. Prior to the publication of the document there were three rounds of consultation. A preliminary consultation on certain issues in 2003 was followed by two further rounds of consultation, stages 1 and 2, each of which was initiated by a consultation paper published in July 2004 and June 2005 respectively. Paragraph 2 of the stage 1 consultation paper explained that the consultation was to be carried out in two stages, and that the matters stage 1 of the consultation would cover would include:

"• Detailed proposals relating to the classification of aircraft, the main focus of this first stage of the consultation; ..."

2. Paragraph 2.2 said:

"The issues relating to the way aircraft are classified for night restrictions purposes need to be resolved in stage one so that the effects of different options for the length of the night quota period, the size of the noise quotas and movement limits and the ratios between them, can each be assessed properly in stage two."

3. The claim form was issued on 6th September 2006. It sought a declaration that the document was unlawful on three grounds: (1) the "misclassified aircraft issue"; (2) the 9 EPNdB reduction issue"; and (3) the "bearing down issue". These three grounds were further explained in an "Amplified Statement of Facts and Grounds" dated 16th October 2006.

Background

4. Although the restrictions have since been reviewed and revised, the principal elements of the night flight restrictions regime that are relevant for present purposes, and in particular the Quota Count ("QC") system, were first introduced in 1993. It is unnecessary to rehearse the somewhat chequered history of the first decade of the regime in any detail in this judgment because it has been comprehensively set out in a series of judicial review challenges to the regime in R v Secretary of State for Transport, ex p Richmond upon Thames LBC [1994] 1 All ER 577, a decision of Laws J (as he then was) ("Richmond No 1"); R v Secretary of State for Transport, ex p London Borough of Richmond upon Thames [1995] Env LR 390, a decision of Latham J (as he then was) ("Richmond No 2"); R v Secretary of State for Transport, ex p London Borough of Richmond upon Thames [1995] Env LR 409, a decision of Sedley J (as he then was) ("Richmond No 3"); R v Secretary of State for Transport, ex p Richmond upon Thames LBC (No 4) [1996] 1 WLR 1005 (Jowitt J) and 1406 (Court of Appeal) ("Richmond No 4"); culminating in a decision by the Grand Chamber of the European Court of Human Rights in Hatton v United Kingdom, Application No 36022/97, dated 8th July 2003.

5. In December 2003 the Department for Transport published "The Future of Air Transport", a White Paper, which set out a strategic framework for the development of airport capacity in the United Kingdom over the next 30 years ("the White Paper"). The White Paper said in paragraph 3.12 that:

"The Government recognises that noise from aircraft operations at night is widely regarded as the least acceptable aspect of aircraft operations. We will bear down on night noise accordingly, but we must strike a fair balance between local disturbance, the limits of social acceptability and the economic benefits of night flights. This should be done on a case by case basis."

6. Paragraph 3.19 of the Stage 1 Consultation Document, published in July 2004, said that the Hatton judgment:

"... provides much needed clarity and has cleared the way for this thorough review of policy on night flights at Heathrow, Gatwick and Stansted."

7. The Stage 1 Consultation Document was challenged in judicial review proceedings: see R (London Borough of Richmond) v Secretary of State for Transport, Local Government and the Regions [2004] EWHC 3206 (Admin) ("Richmond No 5"). The decision of Forbes J deals only with the issue of costs because the parties had agreed an order which effectively disposed of those proceedings (see below).

8. The Stage 2 Consultation Document was also challenged in a claim for permission to apply for judicial review which was filed on 18th August 2005 ("Richmond No 6"). Those proceedings were withdrawn by the claimants (who included the first and second claimants in the present proceedings) by letter dated 25th November 2005, which explained the reasons why, and the basis upon which, the claim was being withdrawn.

9. I will consider the challenges to the Stage 1 and Stage 2 Consultation Documents in more detail below. It is convenient to deal with ground 3 - "the bearing down issue" - before embarking on a consideration of grounds 1 and 2.

Ground 3: "Bearing Down"

10. The claimants contend that the defendant has failed to comply with the policy set out in paragraph 3.12 of the White Paper - to "bear down on night noise" - because, they say, the overall effect of the decisions announced in the document on 6th June 2006 will be to perpetuate, rather than to reduce, the impact of night noise at Heathrow over the period from 2001 2012. It is unnecessary to consider whether the claimants' assessment of the overall effect of the defendant's decisions in the document is correct, because to put the matter in its simplest terms: whether the impact of night noise at Heathrow gets "better" or "worse" or remains broadly the same, there will have been no breach of the policy which was set out in paragraph 3.12 of the White Paper. As the first and second claimants themselves pointed out in their Statement of Grounds in Richmond No 6, the Oxford English Dictionary defines "to bear down" as "to approach in a meaningful or purposeful manner." The policy in paragraph 3.12 is, as a matter of first impression, reassuring, but when examined more closely it is fairly described as vacuous, since it commits the Government to doing no more than considering what to do about the problem, while leaving open all possible outcomes. However, it is not unlawful for governments to make such statements in White Papers. Whatever else might be said by the defendant's critics, it is plain that between 2003 and 2006, both he and the Department for Transport approached the issue of night noise in a manner that was both meaningful and purposeful, even if the final outcome was not to the claimants' liking.

11. On 14th February 2006, in answer to a written question as to how the Secretary of State for Transport planned to measure the effectiveness of the proposals to bear down on [night] noise, Ms Buck, replying on behalf of the Secretary of State, said:

"'Bearing down' on night noise from aircraft arriving at or departing from Heathrow, Gatwick and Stansted is expressed by the new proposed environmental and night noise abatement objectives for the airport on which we invited comments as part of the consultation on night flying restrictions."

12. Paragraph 6.1 of the Stage 1 Consultation Document had referred to the "broad aim" set out in paragraph 3.12 of the White Paper. The lack of any meaningful proposals in paragraph 3.12 was remedied by the Stage 2 Consultation Document. Chapter 4 of that document dealt with "Environmental and noise abatement objectives". Paragraph 4.2 referred to the aim set out in paragraph 3.12 of the White Paper, and paragraph 4.3 continued:

"We now move on, in the light of responses to Stage 1, to set out the proposed environmental objectives and noise abatement objectives for each airport." (Emphasis as in original)

13. The proposed environmental objectives and the noise abatement objectives for Heathrow, Gatwick and Stansted were set out in paragraphs 4.6 4.24, and paragraph 4.25 invited consultees' comments on the proposed objectives.

14. The defendant's "policy in relation to night noise" was summarised in paragraphs 7 and 8 of the document:

"7. The Secretary of State's policy is described at various levels of generality. The contextual framework for the two stage consultation on night flying restrictions (July 2004 September 2005) was explained in paragraph 6.1 of the stage one consultation paper). The policy described in The Future of Air Transport White Paper 'to bear down on night noise' was expressed at a level of generality, as were the other broad aims for the night restrictions including 'to strike a fair balance between the protection of local communities from excessive aircraft noise levels at night and the provision of air services at night where they are of benefit of the national, regional or local economy' in paragraph 6.2 of the stage one paper and repeated in paragraph 4.1 of the stage two consultation paper.

8. The Secretary of State has sought to explain in more specific terms how he will implement those new general policies by proposing environmental and noise abatement objectives for each of the airports under consideration. The setting of environmental and noise abatement objectives was required as a matter of law for the first time by Directive 2002/30/EC. Environmental objectives for each airport were formulated in the stage two consultation paper and noise abatement objectives proposed. The environmental objectives are more specific than the general aims, but (as was made clear in paragraph 4.6 of the stage two consultation paper) they are fixed with a view to the longer term evolution of the three airports up to a time horizon of thirty years or so and must accordingly leave some room for flexibility. The noise abatement objectives, on the other hand, are set for the 6 year period of the current restrictions and are much more specifically defined (in terms of a particular 6.5 hour 48dBA Leq contour for the winter and summer seasons combined). The Secretary of State's decisions on the particular environmental and noise abatement objectives for each airport, taken after considering the consultation responses, are set out below."

 

15. The environmental objectives and the specific noise abatement objectives for the three London airports are set out in paragraphs 35 37 and 38 44 of the document respectively.

16. The noise abatement objectives for Heathrow include an objective "to limit the 6.5 hour 48dBA Leq contour for the winter and summer seasons combined to 55 km2 by 2011 2012."

17. Noise quotas are set for each year from 2006 2012, for winter and summer, at each airport to help to achieve the noise abatement objectives (see paragraphs 45 47 for the Heathrow noise quotas). Movements limits are also set for each year from 2006 2012, for winter and summer, at each airport (see paragraphs 60 63 for the movements limits at Heathrow). Paragraph 63 of the document says that:

"After consideration, the Secretary of State has decided to retain the current movements limits for summer and winter at Heathrow as shown below. Taking account of quota reductions it will bear down on aircraft noise at night in a way which strikes the appropriate balance with economic and social considerations."

18. The document contains a number of decisions on other related matters. They include a decision to introduce a noise insulation scheme in respect of night time noise to be implemented with immediate effect. Paragraphs 84 and 85 of the document explain that:

"84. In the stage 2 consultation paper we outlined possible criteria which may be used for a noise insulation scheme to mitigate for night noise. The Secretary of State has decided that the following will apply ...

• The boundary of the scheme will be based on a noise footprint of the noisiest aircraft regularly operating at each airport as follows:

• At Heathrow, the arrival footprint of the 95th percentile of the noisiest variant of the Boeing 747 400 90dBA SEL footprint. ...

85 The Secretary of State has decided that the 90dBA SEL footprint is an appropriate footprint which represents a good indicator of the vicinity in which the probability of sleep disturbance from aircraft noise events becomes significant. The footprint boundaries were provided in the stage 2 consultation paper."
86

19. The claimants complain that the night flying restrictions contained in the document incorporate the defects identified in grounds 1 and 2 of this challenge (see above) and submit that the regime announced by the defendant does not therefore "bear down on night noise", in breach of the policy in the White Paper. That complaint is based upon the fallacious premise that to "bear down on" is to be equated with to "reduce the impact of". Whether or not the claimants' grounds 1 and 2 are well founded, the night flying restrictions set out in the document undoubtedly "bear down" on night noise from aircraft as promised in the White Paper. There has therefore been no breach of policy as alleged in ground 3. For the sake of completeness it should be noted that the claimants did not contend that there was any breach of a legitimate expectation on the basis of their "purposive interpretation" of the policy in paragraph 3.12 of the White Paper. The hopes of the claimants, and of many others, may have been raised by the White Paper, but whatever the claimants' understanding may have been when the White Paper was published in 2003, the manner in which the defendant proposed to "bear down" on night noise was clearly set out in the Stage 2 Consultation Paper (see above). Those who considered that the environmental objectives and the noise abatement objectives therein proposed were an inadequate response to the problem had ample opportunity to make representations to the Department for Transport to that effect.

20. For these reasons I reject ground 3.

Hatton

21. Before considering grounds 1 and 2 it is helpful to refer to the decision of the Grand Chamber of the European Court of Human Rights in the Hatton case. The court said in paragraphs 98 and 99 of its judgment:

"98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see the above mentioned Powell and Rayner judgment, § 41 and the above mentioned López Ostra judgment, § 51).

99. The Court considers that in a case such as the present, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the Government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision making process to ensure that due weight has been accorded to the interests of the individual."
100.

22. Having said that there were conflicting views as to the margin of appreciation which the State must be allowed on the substantive issue, the court said in paragraph 103 that the conflict could be reconciled only by reference to the context of a particular case. Having said that it was legitimate for the Government to have taken economic considerations into account in shaping the 1993 night flying restrictions (paragraph 121), the court said in paragraphs 122 124:

"122. The Court must consider whether the Government can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above) [i.e. a wide margin of appreciation].

123. ... whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.

124. ... [the court] finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8."

 

23. In paragraph 128 the court said:

"128. On the procedural aspect of the case, the Court notes that a governmental decision making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided."

24. The court's conclusion on Article 8 was contained in paragraph 129:

"129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."

25. The court concluded that there had been a breach of Article 13 because the domestic remedies by way of judicial review did not, prior to the entry into force of the Human Rights Act 1998, enable the High Court to consider whether the claimed increase in flights under the 1993 scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport (paragraph 141).

26. Although such a challenge to the night flying restrictions contained in the 2006 document, which apply from 29th October 2006 to 30th October 2012 - namely, that they represent an unjustified or disproportionate interference with the Article 8 rights of those, including the third claimant, who live in the vicinity of Heathrow airport - could now be made in judicial review proceedings following the enactment of the 1998 Act, it is not made by the third claimant in these proceedings for judicial review.

27. While there are differences of detail between the 1993 night flying restrictions which were considered in Hatton and the night flying restrictions set out in the 2006 document, it has not been suggested by the claimants that there has been any material change in the balance that has been struck by the Government "between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole" (see paragraph 129 of Hatton).

28. On behalf of the claimants, Mr Smith made it clear that they were not suggesting that there had been procedural unfairness in the manner in which the decisions set out in the document were reached. Grounds 1 and 2 challenge the "substantive aspect" of the decisions in the document in two particular respects. When considering "the substantive" as opposed to the "procedural aspects" of the night flying regime, the Contracting State must be allowed a wide margin of appreciation, even in an Article 8 case. The breadth of that margin of appreciation is emphasised in Fadeyeva v Russia, Application No 55723/2000, a decision of the European Court of Human Rights dated 30th November 2005:

"It remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities in striking a fair balance between the competing interests of different private actors in this sphere. However, the complexity of the issues involved with regard to environmental protection renders the Court's role primarily a subsidiary one. The Court must first examine whether the decision making process was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley v the United Kingdom ...), and only in exceptional circumstances may it go beyond this line and revise the material conclusions of the domestic authorities (see Taskin and Others v Turkey ...)."

29. Thus, even where a disproportionate interference with Article 8 rights by reason of the impact of noise from night flights is alleged (which it is not in this case), the test to be applied - "manifest error of appreciation" - may well be difficult to distinguish in practice from the more familiar domestic "Wednesbury unreasonableness" test.

30. Against this background I turn to consider grounds 1 and 2 of the claimants' challenge. First, it is necessary to outline the factual and procedural context within which the challenges are made.

Grounds 1 and 2: Context

31. Grounds 1 and 2 criticise two aspects of the QC system. The most convenient description of the QC system is to be found in Chapter 7 "Classification of Aircraft" in the Stage 1 Consultation Document:

"7.1 The present night restrictions regime recognises both a night period, 2300 0700 hours, and a night quota period, 2330 0600 hours. During the whole of the night period, the noisiest types of aircraft may not be scheduled to land or to take off and they are effectively banned from doing so (other than in the most exceptional circumstances) in the night quota period. In addition, during the night quota period aircraft movements are restricted by a movements limit and a noise quota, which are set for each season. The seasons change with the clocks.

7.2 For these purposes, aircraft are classified according to the Quota Count (QC) system which was specially designed for the night restrictions at Heathrow, Gatwick and Stansted and introduced in 1993. The QC classification system is based on aircraft noise certification data. Aircraft are classified separately for landing and taking off by reference to data which are determined according to internationally agreed conditions and standards with adjustments to take account of differences in noise measurement points. Propeller aircraft with maximum take off weight (MTOW) not exceeding 5700 kg (i.e. those not subject to such criteria) and older propeller aircraft also not subject to these criteria are classified according to assumptions based on available noise data. The aircraft are classified on the basis of their noise data (adjusted as appropriate) into six QC bands and the very quietest aircraft are exempt. The bands are

 

Certificated Noise Level (EPNdB) Quota Count

More than 101.9 16

99 101.9 8

96 98.9 4

93 95.9 2

90 92.9 1

Less than 90 0.5

Jet aircraft with a maximum certificated weight not exceeding 11,600 kg and propeller aircraft are exempt from the movements limits and noise quotas restrictions if their noise data are classified at less than 87 EPNdB.

 

7.3 Under the QC system, each aircraft type, including different versions of the same model, is assigned to a QC band according to its noise performance as determined by the ICAO noise certification process. For example, a Boeing 737 800 is classified as QC/0.5 on arrival and as QC/0.5 or QC/1 on departure (depending on its maximum certificated take off weight), whereas a much larger and older Boeing 747 200 will vary between QC/2 and QC/8 on arrival, and between QC/4 and QC/16 on departure, depending on engine fit and MTOW. The individual classification of each type of aircraft is set out in Part 2 of the Schedule to the Notice which is published each season (in a supplement to the UK Aeronautical Information Publication (UKAIP)) to give effect to the night restrictions.

Proposals

 

7.4 In general, this QC system has worked well over the past 10 years and we propose to retain it. Are you content?

 

7.5 ICAO Assembly resolution A33 7 and Article 4(4) of Directive 2002/30/EC, both require that restrictions which differentiate between types of aircraft should be based on the noise performance of the aircraft as determined in accordance with ICAO certification procedures (their 'ICAO noise certification data').

 

7.6 When the QC system was first proposed in 1993, the Government said it would use data collected in normal operational circumstances from the noise and track keeping system at the three airports to verify the QC classification of aircraft types. The results of the large scale 'EPNL' noise monitoring, published in ERCD Report 0205 Quota Count Validation Study; Noise Measurement and Analysis, show that most aircraft currently operating at night at Heathrow, Gatwick and Stansted have operational noise levels that accord with their present QC classification. They also show some types are noisier than their classification, and some quieter.

 

7.7 The key aircraft found to be noisier than its QC classification is the Boeing 747 400 powered by Rolls Royce (RR) engines which is the main type used by airlines in the NQP at Heathrow. This means that the aircraft has been making more noise than other aircraft with the same classification (QC/2 on arrival) and using up less of the available noise quota than it would have if ranked according to its operational noise. However, it does not necessarily mean that people living around Heathrow have experienced more noise than they would have if the aircraft had been reclassified earlier. That is because the noise quotas set in 1993 and 1999 took account of the original QC classification of aircraft - if the classifications had been different the size of the noise quotas set for those regimes might also have been different.

 

7.8 To the extent that the Quota Count Validation Study has highlighted differences between measured operational noise and the noise performance of aircraft as indicated by their 'ICAO noise certification data' (after taking account of differences bound to affect all aircraft in service compared with controlled certification conditions), these differences have been brought to the attention of the international technical experts currently examining the ICAO noise certification requirements. The UK Government believes in and supports the international system of noise certification. We are pressing for the certification requirements to be updated, to reflect modern operating procedures and

conditions, and to be made more rigorous.

 

7.9 However, Article 4.4 of Directive 2002/30/EC and Regulation 5(3) of SI No. 1742 preclude the use of any system of noise classification other than that based on 'ICAO noise certification data'. It follows that, although the UK (and other Member States) may choose how to use the noise certification data when imposing operating restrictions, it has no discretion to substitute measurements of operational noise as an alternative to the noise certification data. That would have the effect of decoupling the classification of the aircraft concerned from their noise certification data. We are, therefore, not consulting on this issue.

 

7.10 If we retain the QC system it is still possible to modify or extend it provided the classification remains based on noise certification data. With this in mind, we have considered possible changes arising from earlier commitments and the results of some technical studies, as already noted in paragraph 2.4 above.

 

7.11 The changes that we are considering taking forward are:

(a) whether to remove the weight limit on jet aircraft able to qualify as exempt but, at the same time, to introduce a new QC/0.25 band;

(b) whether to retain the minus 9 EPNdB adjustment for arrivals which takes account of the difference between the noise impacts of arrivals and departures; and

(c) whether to prohibit QC/4 aircraft from being scheduled or from operating in the present night quota period.

7.12 These are the key issues for this first stage of the consultation. We need to resolve them by the end of this stage, in the light of responses, in order to be able to present meaningful proposals on other aspects of the night restrictions, along with assessments of the likely costs and benefits associated with them, in stage two. Please would all consultees, particularly airlines and users of their services, include financial and other information that you consider relevant with your responses.

[Paragraphs 7.13 7.17 deal with question (a) in paragraph 7.11.]

...

(b) whether to retain the minus 9 EPNdB adjustment for arrivals which takes account of the difference between the noise impacts of arrivals and departures;

7.18 As explained in paragraph 7.9 above, whilst Directive 2002/30/EC requires Member States to use 'ICAO noise certification data', and none other, in classifying aircraft for operating restrictions, it leaves it to Member States to decide how to use those data. Under our QC classification system aircraft are classified separately for departure and for arrival. The movements limits and noise quotas are not subdivided between departures and arrivals, allowing airlines to make best use of what is permitted; the relative environmental impact of their choices is reflected by the classification of their aircraft and the amount of noise quota used. The purpose of the adjustment is to take account the difference between the noise impacts of departures and arrivals, due to the different measurement points and the larger size of departure noise footprints and thus the number of people likely to be affected. It thus allows departures and arrivals to be counted against the noise quotas on broadly equivalent terms.

 

7.19 The adjustment has been criticised on various grounds, chiefly that:

• the improved climb performance of modern twin engined jet aircraft is likely to have led to a shrinkage in the average size of departure footprints since the adjustment was calculated;

• equating the footprint areas ignores the fact that a substantial part of the departure footprint falls on airport land (unlike approach noise) and will therefore have little or no effect on the local population;

• and even when their footprint areas are equal in area, noise levels inside the arrival footprints can be greater and the disturbance caused will therefore also be greater.

7.20 In view of this the Environmental Research and Consultancy Department of the CAA were commissioned to reanalyse how certificated take off and landing noise data compare with the noise impact on the local population, and to assess whether the minus 9 EPNdB adjustment was still appropriate. That assessment has been published as ERCD Report 0204. The main conclusions are summarised as follows:

1. The method by which aircraft QC classifications are determined from official certificated noise levels remains appropriate.

2. The areas within which noise levels under the approach path exceed those reached under the departure path are close to the airport and relatively small.

3. The use of operational sound exposure levels in the 1991 analysis (instead of the certificated effective perceived noise levels) distorted the difference between arrivals and departures.

4. The percentage of noise generated which falls on airport land is greater for take offs than landings. Adjusting the levels of noise impact to account for this reduces the difference between the community impact of arrivals and departures.

5. The effects of 3 and 4 tend to cancel each other out.

6. Improvements in departure noise achieved by modern aircraft have not been matched by equal noise reductions on approach. This closes the gap by around 2 EPNdB.

7. As a consequence of factors 3 - 6 above, the actual difference between the impact of arrivals and departures is now calculated to be equivalent to 9 EPNdB. This is the differential currently used to calculate QC values, but less than the differential of 11dB measured in the 1991 study, prior to the introduction of the QC system.

7.21 We accept these findings and propose to retain the minus 9 EPNdB adjustment for arrivals. Are you content?

 

[paragraph 7.22 deals with question (c) in paragraph 7.11]

...

7.23 If in the light of responses to the above proposals, we decide to proceed with them, we intend at stage two,

(a) to propose to reduce the departure noise limit that applies between the hours of 2330 0600, from 87dBA to 84dBA;

(b) to propose new night time noise insulation criteria that take account of the actual operational noise of the noisiest aircraft that would still be likely to be operating at night. At Heathrow, for example, this would probably be the B747 400 with Rolls Royce engines. A map of the area around Heathrow with 90 SEL landing footprints for this aircraft type superimposed at each end of each runway is at Annex G, together with an explanation of how they have been calculated, for information; and

(c) to consider whether QC/4 aircraft should still be allowed to operate in the time periods 2300 2330, 0600 0630 and 0630 0700, if any such times were to be brought within the night quota period, and, if so, on what basis. For example, would it be practical to phase them out over the six year period of the next regime, or would it be an issue for a subsequent review?

You may wish to bear these points in mind when commenting on the proposals at 7.4 to 7.22 above."

 

32. Article 4.4 of Directive 2002/30/EC ("the Directive") provides that:

"Performance based operating restrictions shall be based on the noise performance of the aircraft as determined by the certification procedure conducted in accordance with Volume 1 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993)."

33. That provision is transposed into domestic law by regulation 5(3) of The Aerodromes (Noise Restrictions) (Rules and Procedures) Regulations 2003, SI 2003 No 1742 ("the Regulations"):

"(3) When adopting operating restrictions at a relevant airport based on an aircraft's noise performance, the competent authority shall base those restrictions on the noise performance of the aircraft as determined by the certification procedure conducted in accordance with Annex 16."

Both the Directive and the Regulations prohibit measures which discriminate on the grounds of nationality or the identity of the air carrier or aircraft manufacturer.

34. Inverted commas should be put around the word "misclassified" in ground 1 because it is common ground that the B747 400s are correctly classified QC2 upon the basis of their noise performance as determined by the certification procedure conducted in accordance with Annex 16. The complaint is that their QC2 rating does not properly reflect the noise that they actually make when operating at night at Heathrow.

35. In Richmond No 5 the claimants (the first and second claimants in these proceedings) challenged the Stage 1 Consultation Document on the basis that the defendant had misinterpreted Article 4.4 and Regulation 5(3) by treating himself as being bound to maintain a noise classification system which did not depart from the ICAO certification data, and as being unable to add "a weighting to those measurements in respect of ... particular types of aircraft to reflect operational performance."

36. As mentioned above, those judicial review proceedings were generally stayed by order on 14th December 2004, upon the parties recording their agreement in a schedule to the order that:

"1. The Defendant is entitled to have regard to the operational noise of aircraft (and not merely to ICAO Certification Data) in formulating operating restrictions

Provided that:

In respect of performance based operating restrictions at any given airport, aircraft with the same ICAO certificated noise levels are to be treated in the same way.

 

2. For the avoidance of doubt

(i) the above interpretation of article 4.4 of Directive 2002/30/EC does not depart from that advanced in the consultation paper and should not be taken as qualifying the content of the consultation paper

(ii) nothing said by or on behalf of the Secretary of State in this order or in these proceedings should be taken as any indication of the outcome of the consultation paper

(iii) the Secretary of State will consider any further representations from the Claimants in relation to Stage 1 of the above interpretation so long as they are received by the Department by the 24th December 2004 in addition to any representations they made in relation to Stage 2 of that process."

The consultation period for stage 1 had closed on 29th October 2004.

37. Shortly before the hearing of Richmond No 5, which was due to take place on 14th December 2004, the claimants had filed a witness statement dated 8th December 2004 of Mr Stanbury, an Environmental Health Consultant and principal in the firm of CST Environmental and Acoustic Consultants.

38. Having described the QC scheme and referred to the report by Environmental Research and Consultancy Department "Quota Count Validation Study: Noise Measurements and Analysis ("ERCD Report 0205"), a copy of which he produced as exhibit, Mr Stanbury said in paragraphs 22 27:

"22. Paragraph 5.4 of the April 2003 DT consultation represented Quota Count Validation Study as showing that 'most' aircraft currently operating at night at Heathrow, Gatwick and Stansted have operational noise levels that accord with their present QC classification; it is also indicated some types are noisier than their classification, and some less noisy.

23. This was literally true in the sense that the Quota Count Validation Study did show that most types of aircraft are correctly categorised. However the April 2003 consultation did not mention the highly significant fact that the Validation Study shows that Boeing 747 400 aircraft powered by Rolls Royce engines, generate far more noise than other aircraft afforded the same number of QC points. I quantify the differential below. Boeing 747 400s form a very significant proportion, indeed, the clear majority, of arrivals at Heathrow during the Night Quota Period. Since, therefore, the QC rating under represents the noise of a very significant number of night flights at Heathrow, the Validation Study shows that the Quota Count overall gives a misleadingly low impression of the noise generated by night flights around Heathrow.

 

24. The Department was somewhat more explicit about the findings of the Quota Count Validation Study in the July 2004 consultation, which is the subject of the present challenge. This consultation acknowledges that the Department's own Study shows that in fact Boeing 747 400 aircraft powered by Rolls Royce engines are consistently bad noise performers. Paragraph 7.7 of the present Consultation Paper informs consultees that:

 

The key aircraft found to be noisier than its QC classification is the Bowing 747 400 powered by Rolls Royce (RR) engines which is the main type used by airlines in the N[ight] Q[uota] P[eriod] .......

It follows, therefore, that any scheme (whether QC based or not) which treats aircraft noise as having been definitively stated in the ICAO certification figures will be founded on data that understate that noise.

 

Quantifying the noise underestimate

 

25. It may assist the Court to have some evidence as to the extent of the scale of the 'unmeasured noise' at Heathrow which results from the under representation, in the QC count, of noise generated by RR Boeing 747 400 engines.

 

26. First, as the Department indicates at 7.7 of the Consultation Paper, the clear majority of night flights at Heathrow are RR Boeing 747 400s. The tables at CS 1 p.112 are taken from a HACAN publication 'Night Flights at Heathrow - questions and answers (for 8th July 2003 figures) and my own personal observations close to Heathrow airport on 24th June 2002. Both tables show the NQP movements for the periods in question. These dates have been selected because there is nothing unusual about them: they show a representative patten of early morning arrivals. On 24th June 2002 ten out of the fourteen arrivals between 04:40 and 05:56 were Boeing 747 400 aircraft powered by Rolls Royce engines. On 8 July 2003 nine out of the thirteen arrivals in the NQP were Boeing 747 400 aircraft fitted with Rolls Royce engines.

 

27. Secondly, the QC count significantly under represents the noise generated by RR Boeing 747 400s: it is not a marginal problem. Figure 8 on p.32 of the Quota Count Validity Study ERCD 0205 shows how significantly the actual EPNL generated by RR B747 400s exceed the assumed noise upon which their QC ratings have been calculated. I draw attention to the dot in this figure, which indicates certificated level of noise generated by the RR B747 400, and the square symbol intersected by a 95% confidence level line, which shows the actual noise generated. This figure shows that, by reference to the actual noise which they generate, far from being classified as QC 2 all RR B747 400s should be classified as at least QC 4, with one variety being QC 4/8 (ie even noisier, on the margins of the higher band)."

 

39. That evidence was answered in a witness statement dated 10th December 2004 by Mr White of ERCD, who was the lead author of ERCD Report 0205. Having taken issue with Mr Stanbury on certain matters of detail which are not relevant for present purposes, Mr White said this about the Boeing 747 400 aircraft:

"9. At paragraph 23 of his statement, Colin Stanbury purports to summarise the results of the ERCD study. although it is correct to say that the ERCD study shows some Boeing 747 400 aircraft with Rolls Royce engines generate more noise than their classification suggests, this is not true of all such aircraft. The results in the ERCD report indicate that, because of their average operational noise levels, some 747 400s would be better placed in the QC/4 category rather than QC/2. However, the report shows that 2 variants of the 747 400 meet their QC/2 rating. Those are the 747 400s operated by British Airways, which make up the majority of relevant landings that were monitored during the ERCD study.

10. The quotation at paragraph 24 of his statement from the Consultation Paper omits two important words from the end of the sentence. The full quotation from paragraph 7.7 of the Paper is: 'The key aircraft found to be noisier than its QC classification is the Boeing 747 400 powered by Rolls Royce engines which is the main type used by airlines in the NQP at Heathrow'. This is important because, whilst 737s make few night time movements at Heathrow the same is not true of Stansted for example, where they comprised a significant proportion of the movements made during the NQP. This is significant because the data contained in the ERCD report indicates that Boeing 737 aircraft could be reclassified to a lower QC classification.

 

11. Colin Stanbury is wrong when at paragraph 27 of his statement, he cites the ERCD Report as justifying the conclusion that 'all RR B747 400s should be classified as at least QC/4'. The measurements for two of the five B744/RR variants shown in Figure 8 of the ERCD Report do not fall entirely inside the QC/4 band, and have therefore not (in the view of the authors of the ERCD Report) exceeded their QC classifications.

 

12. Importantly, the two quieter B744/RR variants, which are operated by British Airways and which (just) meet their QC/2 rating, account for the majority of the night time B747 arrivals at Heathrow that were monitored during the ERCD study. The 3 noisier B744/RR variants shown in Figure 8 are operated by Cathay Pacific, Qantas and South African Airways respectively. As indicated in CS 1 p.112, Cathay Pacific and Qantas regularly operate only one aircraft each per night during the NQP. Thus, on average, and based on the results of ERCD Report, more than 75 percent of the night time B744/RR operations at Heathrow do not exceed their current (QC/2) classifications. It follows from this that Colin Stanbury's recalculated 'noise dose' values (as set out in paragraph 28) are overestimates (because they are based on the erroneous assumption that the ERCD Report suggests that all the B747/RR aircraft should be reclassified as QC/4)."

 

40. Mr Stanbury returned to the fray with a second witness statement on 12th December 2004, in which he said, in respect of "The extent of the B 747 RR problem":

"3. Mr White downplays the practical problem that has caused these proceedings. I understand that the precise extent of the problem is not a matter for this judicial review. However, it is a significant problem and I ask that the court takes it seriously.

4. Put briefly Mr White says that most B 747s with RR engines are in the QC2 category. The only basis for this assertion is, so far as I can see, one unsubstantiated footnote to Table 1 on p.22 of the Quota Count Validation Study (QCVS). It will be seen that QC values for these aircraft can depend upon their weight, with actual noise levels dependant on operating procedures. I cannot see any other justification in the QCVS or the July 2004 consultation which would leave consultees assured that the relevant B 747s are QC2. Indeed, the consultation itself says:

 

'The key aircraft found to be noisier than its QC classification is the Boeing 747 400 powered by Rolls Royce (RR) engines which is the main type used by airlines in the NQP at Heathrow' (emphasis added).

 

5. It is also surprising because other information in the QCVS is firmly to the effect that the aircraft in question are all noisier than their rating suggests. It will make it easier to understand the comments below to remind the court of three points."

 

Mr Stanbury makes three points, and then exhibits items from the study and draws certain conclusions from them.

41. The disagreement between Mr Stanbury and Mr White was not resolved because two days later those judicial review proceedings were stayed.

42. On 22nd December 2004 the claimants' solicitor wrote to the Department for Transport. The letter referred to the claimants' criticisms of the QC scheme and concluded:

"The central conclusion to be taken from this response is that it may not be rational for the Secretary of State to come forward with a Stage 2 that contemplates a QC system unless it in practice fairly adjusts for aircraft that have been misclassified."

43. The "Classification of aircraft" was dealt with in Chapter 5 of the Stage 2 Consultation Document. Paragraphs 5.4 5.6 of that Consultation Document said:

"5.4 In the Stage 1 consultation paper, we made clear that, although not obliged to do so, we proposed to retain the QC system. Consultees were asked for their views. Some suggested that the QC system should be jettisoned in its entirety in favour of a system based entirely on numerical movements limits. However, over 80% of consultees who expressed a view on this point said that the QC system should be retained. In the light of that response, we have decided to retain the QC system as part of system of common arrangements across the three designated airports.

5.5 Some of the consultees suggested that the QC system should be altered so as to take account of measurements of operational noise in so far as these differed from ICAO certification data. But the consultees who suggested changes were far from unanimous as to what the changes should be. No suggested system was both consistent with the Government's legal obligations (as set out in paragraphs 3.11 and 3.12 above) and superior, in our view, to that currently in place.

 

5.6 Various aspects of the QC system had been examined as part of the Department's earlier review15 of the QC system, as noted in part 7 of the Stage 1 paper. For the reasons discussed, we are not taking forward the idea of an unbanded system. In the light of some comments received on Stage 1, we further considered whether to shift the boundaries of the QC bands (which was not considered in depth in the Review). Taken separately from the question of what the effective noise quotas should be, upon which we consult below, the main potential effects would be in relation to (a) the relative weightings on arrivals and departures; and (b) the number of aircraft (types) which would be subject to the QC/4, /8 and /16 scheduling and operating restrictions. Issue (a) is addressed below in the context of the minus 9EPNdB adjustment. Turning to (b), a reduction in the band ceilings would for example have brought aircraft types currently permitted to be scheduled at night into the banned category, irrespective of their respective empirical noise performance relative to their certificated values. We have concluded that such a change would not be fair, conducive to orderly fleet planning, or necessary in order to help achieve the environmental and noise abatement objectives for the airports."

 

44. Paragraphs 5.18 5.22 dealt with the "Retention of minus 9 EPNdB adjustment for arrivals":

"5.18 Paragraphs 7.18 to 7.21 of the Stage 1 consultation document explained the system of adjusting the approach certification value by a deduction of 9 in order to make it broadly comparable with the departure noise value, which is an average of the flyover and sideline values. We went on to summarize the findings of the CAA's ERCD Report 0204, which in our view appeared to justify keeping the adjustment factor.

5.19 Some consultees favoured introducing separate movements limits and/or noise quotas for arrivals and departures, instead of using 9 EPNdB or any other adjustment factor to aggregate arrivals and departures in a combined QC control. Arguments put in favour of this proposition included that different people were affected, and that no simple adjustment factor could capture the difference in character between approach and departure noise. It is also true by definition that separate movements limits or noise quotas for arrivals and departures, adding to the same overall totals, would over time represent a more stringent control than a single combined (arrivals and departures) movements limit or noise quota.

 

5.20 Consultees did not advance any arguments which, in our view, contradicted ERCD's technical findings.

 

5.21 Having considered these arguments, the Secretary of State has concluded that proposals for a system of separate controls for arrivals and departures should not be taken forward, and that the 9 EPNdB adjustment is a reasonable and pragmatic method for combining them, while taking account of the particular patterns and characteristics of arrivals and departures in setting the limits themselves for each airport.

 

5.22 We have therefore decided to retain the 9 EPNdB adjustment within a system of combined movements limits and noise quotas each covering arrivals and departures together."

 

45. In a pre action protocol letter dated 27th July 2005 the solicitor for the claimant (at that stage only the first claimant in these proceedings) said, under the subheading "Concluded issues?":

"(i) 'Misclassified aircraft'

We note from paragraph 5.5 of the consultation paper that you are not proposing to adjust the classification of aircraft which are classified as being quieter than they actually are (based on the ICAO classification), and which, we understand, form a substantial proportion of the arrivals at Heathrow during the night quota period. If this is the case, then there is plainly an extremely serious problem, since the proposed controls on night flights will not accord with avowed government policy to encourage the use of quieter aircraft at night and bear down on night noise. In particular, it does not sit with the proposal to ban the scheduling of QC 4 aircraft during the night quota period, on the assumption that these cause too much disturbance. Please can you clarify the basis of your current thinking on this issue, to enable our clients properly to respond."

 

46. Under the heading "Retention of the QC system and '9 EPNdB reduction'", (ii) and (iii) respectively, the letter said:

"The Stage 2 consultation makes two further assertions (at paragraphs 5.4 and 5.22) which might be regarded as concluded decisions upon which no consultation responses are sought. The first is that the Quota Count (QC) system will continue under any new scheme for controlling night noise. The second is that the 9 EPNdB reduction to classification levels will continue to apply to landing aircraft."

47. The letter continued, under the heading "Dealing with the QC system and the 9 EPNdB reduction":

"We have set out, in past proceedings and correspondence, our reasons for considering that these two decisions are unlawful. If these are indeed concluded decisions, upon which no further representations will be considered, it may be appropriate for our clients to commence judicial review proceedings in the near future.

...

Therefore, we ask you, in relation to misclassified aircraft, the QC system and the 9 EPNdB issues, whether, or not, the Secretary of State will be prepared to consider representations in the course of the consultation as to measures that should be taken in consequence of what might be regarded as his 'decisions' on these points.

...

If he does consider these to be open questions, then it would seem more efficient from everyone's point of view if our clients were to reconsider their position in the light of the Secretary of State's final decision on the present consultation. If, however, he does not, then this letter is to put you on notice that our clients would be minded to challenge these decisions now."

 

48. The Treasury Solicitor replied on behalf of the defendant on 11th August 2005:

"Adopting the numbering and headings in your letter, the Secretary of State's response is as follows:

(i) 'Misclassified aircraft': As you know, the extent to which the Secretary of State is able, consistently with the requirements of 2002/30/EC, to take account of operational noise measurements in formulating operating restrictions is agreed between your client and ours. Your client agreed (in terms set out at para. 3.12 of the stage 2 consultation document) that the agreed interpretation did not depart from that set out in the stage 1 consultation document. The question whether the QC system should be altered was the subject of consultation at stage 1. Responses to that consultation (including by your clients) were considered carefully. The conclusions reached in the light of the consultation responses are set out at paragraph 5.5 of the stage 2 consultation document. That paragraph makes it clear that the Secretary of State has decided not to alter the current QC system so as to reflect operational noise measurements where these differ from ICAO certification data. Paragraph 5.6 sets out, and succinctly explains, the Secretary of State's decision not to alter the band ceilings to take account of operational noise. The Secretary of State did not invite further representations because such representations had already been sought at stage 1.

...

(ii) Retention of the QC system: Paragraph 5.4 of the stage 2 consultation document sets out the Secretary of State's decision to retain the QC system as part of a system of common arrangements across the three designated airports. Consultees were not invited to make further representations because, as was spelled out in that paragraph, they had already been asked to do so in the stage 1 consultation.

 

(iii) 9 EPNdB reduction for landing aircraft: Retention of the 9 EPNdB adjustment for landing aircraft was the subject of consultation at stage 1. Paragraphs 5.18 to 5.22 of the stage 2 consultation document set out and explain the decision, made in the light of the consultation responses, to retain the adjustment.

 

Concluded issues? The passages set out above make quite plain that the Secretary of State considers the decisions on the above issues to be concluded. I also refer you to paragraph 2.2 of the stage 1 consultation document in which it was explained that the issues relating to the way aircraft are classified for night restrictions purposes needed to be resolved before stage 2. The Secretary of State does not believe that any further clarification of his thinking beyond that already set out in the consultation documents is necessary or appropriate."

 

The letter continued to make it clear that "Unlike issues (i) to (iii) above", certain other matters were still open to consultation.

49. The challenge by the first and second claimants in these proceedings (and another individual claimant) to the Stage 2 Consultation Paper was filed on 18th August 2005 (Richmond No 6). The Statement of Grounds identified the decisions which were the subject of that application. They were the decisions:

"i. To retain the quota count (QC) system as a method of controlling the effects of noise generated by night flying at Heathrow (paragraph 5.4 of the consultation paper);

ii. To maintain the artificial 9 EPNdB reduction in the classification of aircraft on arrival at Heathrow (paragraph 5.22 of the consultation paper);

iii. To continue to use the classifications of aircraft by ICAO unadjusted, notwithstanding the Secretary of State's acceptance that these are substantially inaccurate (paragraph 5.5 of the consultation paper).

These decisions were published on 10 June 2005 in the stage 2 consultation paper"

 

50. In respect of decision (iii), the Statement of Grounds cross referred to the witness statement of Mr Buxton, the claimants' solicitor, for an explanation of why the "ICAO classifications of aircraft" were said to be inaccurate. Mr Buxton in his witness statement referred to "the 'misclassified aircraft' challenge" in Richmond No 5, and said:

"28. Stage 1 of the consultation also recognised the fact that certain aircraft, which happen to make up a large proportion of the aircraft arriving at night at Heathrow, have historically been mis classified with the effect that the scheme operates on the basis that they make less noise than they actually do. The effect of this is that up to twice as many such aircraft are allowed to land than would be the case, under the existing QC scheme, if the classification for the purposes of that scheme related to the noise actually generated by particular aircraft rather than the inaccurate ICAO classification. (The actual effect of the misclassification is a matter of dispute: the claimants believe it is in the region of an additional 74%; during Richmond No. 5, the Secretary of State claimed it is a much lesser figure; in any event, it is substantial and of grave concern)."

51. Mr Buxton's witness statement also dealt with "the minus 9 EPNdB adjustment":

"46. A key element of the Secretary of State's QC scheme is the so called 'minus 9 EPNdB adjustment' for arriving aircraft. The theory behind this adjustment is that because aircraft are flying lower on approach compared with take off, the footprint of noise (i.e. the number of people affected) is less than on take off. Therefore, the Secretary of State argues, the noise energy values (for the purposes of his scheme, QC points) should be reduced to make them comparable with departure noise where the area affected by a given level of noise is greater. The deduction of 9 EPNdB, however, has the dramatic effect of allowing eight times the number of aircraft to land than would be the case were there no adjustment.

47. A further problem is that the noise levels thus reduced bring them to levels which are acceptable to the Secretary of State, whereas noise levels unadjusted, at least in relation to aircraft of rating QC 2 and above breach noise limits which (in the case of departures) would be subject to infringement penalties.

 

48. It is not the claimants' case that if one was concerned with fine tuning a noise energy scheme, so as to make the total noise energy received on the ground approximately comparable, that the Secretary of State's scheme is irrational. However, it is their case that dealing with a scheme which is supposed to protect individual residents on the ground, who are not concerned with whether noise energy is or is not spread out over a wider area, the deduction is wholly inappropriate."

 

52. The witness statement concluded:

"60. The claimants have considered whether it would be appropriate to refrain from challenging these errors now, pending further consideration of the Secretary of State's final decision on Stage 2 of the consultation, whenever that may (presumably some time in the autumn). However on analysis not only the 'decisions' impugned now, but also the current consultation points are so fundamental that they need to be resolved before the Secretary of State can sensibly consider the matter further. The claimants' position is therefore that they await the Secretary of State's views in his acknowledgement of service and confirm that they would support expedition of the matter should the Secretary of State seek it."

53. As mentioned above, the challenge to the decisions in the Stage 2 Consultation Paper was withdrawn by letter dated 25th November 2005. That letter said, so far as material for the purposes of grounds 1 and 2 in the present proceedings:

"The 9 EPNdB reduction

There are two aspects to this, noise exposure and absolute noise levels. We will turn to the issue of noise exposure later in this letter in context of discussion of the proposed new contour.

As discussed in the appendix, it is plain that the 9 EPNdB reduction is as such flawed. This is because it permits aircraft to fly which are in fact 9 EPNdB louder than their adjusted classification suggests. In other words, aircraft that supposedly do not awaken, i.e. of 80 dBALmax or 95 EPNdB, are in fact much louder (89 dBALmax or 104 EPNdB) and at levels that the government accepts does cause awakenings. Put another way, aircraft of QC 2 and above should really be counted as QC 16 for their effects.

This difficulty lies at or close to the root of all the problems associated with night flights at Heathrow. On one hand the Secretary of State accepts that flights over 80 dBALmax or QC2 and above do disturb, yet pretends they do not because he artificially reduces the classification by 9 EPNdB.

...

Assuming however that, for good or bad reasons, the Secretary of State is entitled to have his 9 EPNdB reduction, he must recognise that the actual noise experienced by people on the ground is so much louder than his scheme pretends. The reduction itself is entirely unrelated to that which the Secretary of State is supposed to regulate, namely the effects of noise on people.

 

To deal with this, having been open with the actual noise the aircraft in question make, the Secretary of State should consider whether it is right (given their by now acknowledged capacity to disturb, being in excess of not just 80 dBALmax but being in excess of 89 dBALmax) either to ban them, or very severely to restrict them, whether by reclassification, quota, financial penalty, compensation to individuals affected, or otherwise. ...

...

We urge the Secretary of State to consider the appropriate approach for compensating for the 9 EPNdB reduction in relation to absolute noise levels when making his final decision on the matter. ...

Mis classified B 747s

...

In the context of a scheme that it is supposed to bear down on noise, and indeed expressly contemplates banning the scheduling of QC 4 aircraft at Heathrow during the night quota period, we cannot understand why the Secretary of State contemplates allowing aircraft misclassified as QC 2 when they should be QC 4 to be scheduled to fly nevertheless. There is no reason why he should not contemplate banning such aircraft at night, just as he has with other unacceptably noisy aircraft.

...

We appreciate that the Secretary of State has said that he has considered this issue, and has found no better way to do it than in relation to noise insulation and a new noise contour (to which we return below). However, this is simply not good enough and we expect the Secretary of State during his further consideration of the scheme and final decision to come up with a rational solution.

 

For example, it would not offend directive 2002/30/EC to ban aircraft with the particular offending engine type (RB 211). This would not be in breach of either article 4.3 or 4.4 of the directive.

 

Alternatively it would comply if the Secretary of State were to ban not only QC 4 aircraft but also QC 2 aircraft. After all, aircraft of this type are also well above the limit of 80 dBALmax that the Secretary of State himself accepts are disturbing (once the artificial 9 EPNdB deduction is added back on again).

 

Considering the effort we went to in the December 2004 proceedings to point this problem out to the Secretary of State we are surprised he has not come up with a solution that addressed the problem (rather than the geographical reach of the problem, the contour, to which we turn below). Nevertheless, we reluctantly consider that this is a matter which it is best for the Secretary of State to have the opportunity to consider the matter further, rather than impugn his consultation at this stage. As was always accepted in Richmond No. 5, even if the Secretary of State chose to treat aircraft with the same ICAO classification in the same way for some purposes, it would still be open to him to adopt compensatory measures or adjustments so as to ensure that the true noise position was reflected in the night flights regime. That opportunity remains."

 

54. The appendix to the letter amplified the claimants' criticisms of the defendant's decisions in respect of both the "Misclassified B 747s" and "the 9 EPNdB reduction". It was against this background that the defendant on 6th June 2006 took the decisions which are set out in the document.

Ground 1: "The Misclassified B 747 400s"

55. Although the claimants' evidence and skeleton argument contains a mass of technical detail, it was accepted by Mr Smith during the course of his submissions that this ground boiled down to a contention that the defendant could not reasonably have reached the conclusions which are set out in the final sentence of paragraph 13 of the document.

56. Under the subheading "Background: decisions announced in the stage two consultation paper", the defendant summarised the proposals in the Stage 1 Consultation Document, including retaining the QC system and the minus 9 EPNdB adjustment (paragraph 11), and then said in paragraphs 12 14:

"12. Consultees were asked for their views. Of those who expressed a view, 80% said that the QC system should be retained. Some consultees expressed the view that the system was inherently flawed because the raw input data it used measures sound energy rather than noise effects. Some consultees also suggested that the ICAO noise certification data (upon which operating restrictions are required, as a matter of European law, to be based) substantially underestimated the actual noise generated by certain Boeing 747 400 aircraft with Rolls Royce engines.

13. The Secretary of State considered those points. As to the QC system itself, he decided to accept the view advanced by the majority of the respondents that the system had worked well and should be retained as a useful way of encouraging the use of quieter aircraft at night. As to the classification of Boeing 747 400s, he considered carefully whether the available data justified an adjustment to the QC system (within the limits allowed by European law). The research on operational noise recorded by the Environmental Research and Consultancy Department of the CAA in ERCD Report 0205 showed that most aircraft currently operating at night at Heathrow, Gatwick and Stansted have operational noise levels that accord with their present QC classification, though some types are noisier and some quieter. But, even looking just at Heathrow, it was far from clear that all Boeing 747 400s with Rolls Royce engines were noisier than their classification suggests, or even that a majority of them were.

 

14. The Secretary of State decided that the case for an adjustment of the QC system (within the limits allowed by law) to take account of operational noise had not been made out. In the stage two consultation document, he announced his decision to that effect, noting (at para. 5.5) that no suggested alternative system was 'both consistent with the Government's legal obligations... and superior to that currently in place'. That conclusion was among those challenged in judicial review proceedings in the autumn of 2005, but the challenge was withdrawn. The decision therefore stands."

 

57. Mr Smith accepted that the data in ERCD Report 0205 did show that most aircraft currently operating (as distinct from operations) at night at Heathrow, Gatwick and Stansted did have operational noise levels that accorded with their present QC classification, although some types were noisier and some were quieter. The claimants took issue with the final sentence in paragraph 13 and contended that the data in ERCD Report 0205 demonstrated that all of the B747 400s with Rolls Royce engines (the B747 400 RR aircraft) that operated at night from Heathrow were noisier than their QC2 classification suggested.

58. By reference to the approach of the European Court of Human Rights in paragraph 28 of the Hatton decision (see above), Mr Smith accepted that in commissioning ERCD Report 0205 and engaging in the two stage consultation process, the defendant had carried out "appropriate investigations and studies". However, he submitted that having received those studies the defendant had wrongly interpreted the results and had thereby reached conclusions that were perverse.

59. The difficulty with that submission is that in expressing the view in the final sentence of paragraph 13 of the document that looking just at Heathrow it was far from clear that all, or even a majority, of the Boeing 747 400 RRs were noisier than their classifications suggested, the defendant was not setting off on some frolic of his own. The defendant's view accorded with that expressed by the lead author of ERCD Report 0205, Mr White (see paragraph 39 above). Mr Stanbury and Mr White disagreed as to the conclusions to be drawn from ERCD Report 0205, and their disagreement has been maintained, and the justification for their respective positions has been amplified, in yet further evidence filed in the course of these proceedings.

60. Having considered that evidence, I am left in no doubt that if Beaconsfield had been subjected to aircraft noise in the 19th century, Disraeli would have added a fourth, and even more reprehensible category - aircraft noise calculations - to his three kinds of lies: "lies, damned lies and statistics"; but it is impossible to elevate what is, in effect, a professional disagreement with Mr White's view (which was endorsed by the defendant) as to the conclusions that can properly be drawn from his Report 0205, into a material error of established fact, much less is it possible to conclude that there has been an error of law on the ground of Wednesbury unreasonableness. Reasonable people may draw different conclusions from the report depending upon the manner in which they choose to interpret the data contained within it. Which interpretation is to be preferred is pre eminently a matter of judgment, not fact.

61. In a witness statement dated 30th April 2007, filed in response to this application for judicial review, Mr Capstick, the Head of Aviation Environmental Division in the Department for Transport, explained that, while there had been no response from Mr White to Mr Stanbury's second witness statement in Richmond No 5, that was because the second witness statement was served very shortly before the hearing at which the proceedings were disposed of by way of an agreed order (see above). Mr Capstick's witness statement explained that, although Mr Stanbury's second witness statement had been considered by the Department in consultation with Mr White, the latter did not accept Mr Stanbury's evidence. Mr White explained why that was so in a witness statement dated 27th April 2007. The battle between the two noise experts continued with a further witness statement from Mr Stanbury dated 30th November 2007. That witness statement exhibited a great number of documents which had been provided by the defendant and by the Aircraft Noise Monitoring Committee ("ANMAC"). Mr Stanbury analysed the data and presented the results in a summary table ("ST"). Mr White responded in two further statements dated 14th and 18th April 2008. In summary, while he did not dispute the calculations contained in the ST, he vigorously refuted Mr Stanbury's criticisms of the methodology employed in Report 0205, and the extent to which the report had been seen and approved (or not dissented from) by ANMAC.

62. The end result of these lengthy exchanges of highly technical evidence is that both experts have maintained their respective positions. The difference between them arises because, for reasons that are explained at some length by Mr White, the data for the aircraft studied in the report was pooled. Thus, daytime data was pooled with night time data, summer data was pooled with winter data, data from Gatwick (the 747 400 RRs did not use Stansted) was pooled with data from Heathrow. In this respect, as in respect of all the other calculations (for example, 95 per cent confidence intervals and whether they should fall entirely clear of the QC band limits before the results could be considered to lie outwith the band) in Report 0205, the B747 400s were treated no differently from any of the other aircraft considered in the report.

63. In his witness statement dated 27th April 2007, Mr White acknowledged that the analysis of raw scientific data can in principle be done in a number of ways. However, he emphasised that:

"... it is important to any robust interpretation of such data to decide upon an interpretation methodology at the start of the process, and then ensure that the methodology is applied consistently."

64. It is important to appreciate that the methodology adopted by ERCD in preparing the report was subject to scrutiny by ANMAC. ANMAC was established in 1988 to advise the Department for Transport on aircraft noise at the three London airports, including the interpretation of the results of any noise monitoring. ANMAC is chaired by the Department for Transport and comprises representatives from the airlines, the airports and the Airport Consultative Committees, which include residents' representatives and the technical advisors of the various representatives. Although Mr Stanbury questioned the extent to which ANMAC had approved ERCD's methodology in various respects, the proof of the pudding is that neither ANMAC nor any of its constituent representatives have raised any objection to the methodology adopted in Report 0205, or to the conclusions that the defendant drew from the report.

65. What Mr Stanbury has done in the ST is to disaggregate the pooled figures, so that one can see, for example, that in the summer of 2002 the 747 400s using Heathrow at night exceeded the upper threshold for QC2.

66. It is true that if the figures are disaggregated in this way, and one looks simply at the figures for the 747 400s using Heathrow at night, they all exceed the QC2 threshold. Equally, if one looks at the pooled figures for the day and the night and for both Gatwick and Heathrow, summer and winter (i.e. adopting the methodology used in Report 0205), the variants of the 747 400 which are flown by British Airways, which make up the majority of the flights at night from Heathrow, do fall within the QC2 band (or more accurately, using the approach adopted in the report, it cannot be shown with sufficient confidence that they fall outside the QC2 band).

67. In considering the lawfulness of the defendant's decision, it would not be appropriate to pluck the final sentence of paragraph 13 of the document out of context and consider its meaning in isolation. In the remainder of that paragraph the defendant specifically referred to Report 0205. The conclusions in the final sentence of paragraph 13 are correct, if the data in the report is interpreted in accordance with the methodology used in the report. It was not "unreasonable" for the defendant to interpret the report in that way and, having done so, to draw the disputed conclusions.

68. For the sake of completeness on this issue, I should mention that as part of his submissions under ground 1, Mr Smith submitted that the defendant had, in paragraph 13 of the decision letter, failed:

"to address the question behind the monitoring of classifications exercise, namely whether or not any given aircraft or aircraft type produces noise levels significantly higher than the average for its category." (emphasis added)

Those words are taken from the consultation paper for the 1993 scheme.

69. The monitoring was proposed to be overseen by ANMAC. Whatever may have been the expectation in 1993, events had moved on 10 years later with the coming into force of the Regulations implementing the Directive (see above). The ERCD Report 0205 looked at the matter afresh and it is that report, not the 1993 consultation document, that was the starting point for the two stage consultation exercise which led to the present restrictions.

70. Even if I had concluded that there was a material error or some unreasonableness in the views expressed in the final sentence of paragraph 13 of the document, I would have refused to grant the declaratory relief sought by the claimants on the ground that, as the document makes clear, paragraph 13 is merely reiterating a decision on the "misclassified B747 400s" which had been announced in the Stage 2 Consultation Paper in June 2005.

71. The claim form in these proceedings was not issued until 6th June 2006, some 15 months later, and it would clearly be very detrimental to good administration, and would, inevitably, substantially prejudice the rights of all those, including the airlines and airport operator, who relied on the lawfulness of the consultation process if the court was now to decide, long after the event, that the decision was unlawful. It was made clear in the Stage 1 Consultation Document, not merely that the consultation was to take place in two stages, but that it would be necessary for the defendant to resolve certain issues at the conclusion of stage 1, so that the matters to be consulted upon at stage 2 could be properly assessed (see paragraph 2 above).

72. Having said on 22nd December 2004 that a QC system which did not adjust for the "misclassified" aircraft may be irrational, the claimants' solicitor on 27th July 2005 specifically asked the Treasury Solicitor whether the "misclassified aircraft" issue had been concluded in the Stage 2 Consultation Document and was told, in unequivocal terms, that it had been (see paragraph 48 above).

73. In the ensuing challenge in August 2005, which was subsequently withdrawn, the claimants recognised that the decisions then impugned in respect of the misclassified aircraft and the minus 9 EPNdB adjustment were "so fundamental" that they needed to be resolved before the defendant could sensibly consider the matter further. When the challenge was withdrawn, it was upon the basis that the defendant still had an opportunity to adopt "compensatory measures or adjustments so as to ensure that the true noise position was reflected in the night flights regime." The defendant did consider whether he should make the "compensatory measures and adjustments" suggested in the withdrawal letter dated 25th November 2005 - banning aircraft with a particular type of engine, the RB 211, or extending the scheduling band to all QC2 as well as QC4 aircraft. He did so in paragraph 25 of the document. It is unnecessary to set out the defendant's reasons for rejecting the claimants' suggestions because they have not been the subject of any criticism by the claimants in these proceedings.

74. Having recognised the fundamental importance of the decision taken by the defendant on the "misclassified aircraft" issue in the Stage 2 Consultation Document, having challenged the lawfulness of that decision and then having withdrawn that challenge in November 2005, it was an abuse of process for the claimant in September 2006 to re present what is, in reality, a root and branch attack on the decision that was announced in June 2005, rather than an attack on the defendant's refusal, in paragraph 25 of the document, to adopt the claimants' suggested "compensatory measures" for that earlier decision.

75. For these reasons I reject ground 1 of the challenge.

Ground 2: The 9 EPNdB reduction issue

76. The defendant dealt with this issue in paragraphs 16 18 of the document:

"16. Since the QC system was first introduced, it has included a minus 9 EPNdB adjustment for arrivals. The purpose was take account of the difference between the noise impacts of arrivals and departures thus allowing arrivals and departures to be counted against the noise quotas on broadly equivalent terms. When the decision was first taken to introduce the adjustment (in the early 1990s) it was challenged in judicial review proceedings. The challenge failed on this point and the adjustment was retained.

17. Since then, the case for retaining the adjustment has been re assessed in ERCD Report 0204. On the basis of the findings in that report, the Secretary of State proposed in the stage one consultation paper that the adjustment should be retained. Of the consultees who responded on this point at stage 1, 43 agreed with the proposal to retain the adjustment and 28 disagreed. Of those who disagreed, some said that there should be separate noise quotas for arrivals and departures.

 

18. The Secretary of State decided that splitting the noise quotas for arrivals and departures would be administratively very difficult for airport and slot managers. He concluded, having considered the consultation responses and the findings of ERCD Report 0204, that the 9 EPNdB adjustment should be retained. He announced that conclusion in the stage two consultation document. That decision, like the decision to retain the QC system, was the subject of challenge in judicial review proceedings in the autumn of 2005. The challenge was withdrawn and the challengers conceded that the decision to maintain the 9 EPNdB adjustment was not per se unlawful. The decision therefore stands."

 

77. The conclusions set out above in respect of delay, prejudice to good administration, substantial prejudice to the rights of third parties and abuse of process, all apply with equal, if not greater, force to the complaint raised in ground 2. I say "with greater force" because while the complaint relating to the "misclassification" of the B747 400s has been made for some years (an appendix to Mr Smith's skeleton argument shows that concerns were being expressed about that issue as early as 1999), it is not in dispute that the minus 9 EPNdB adjustment was part of the QC system from the outset, and was the subject of essentially the same criticism that is now being advanced as the claimants' principal complaint under ground 2, from the very beginning. If the adjustment is legally flawed it has been so since 1993. The adjustment equalises the noise "footprints" for arrivals and departures. The claimants' principal complaint is that while the areas affected by landing or take off noise are thus equalised, the populations affected by the noise of aircraft arrivals are very much greater than the populations affected by the noise of aircraft departures: by a factor of 2 or 2.4:1, depending on whether one considers those living to the east or west of the airport respectively.

78. This feature of the 9 EPNdB reduction was challenged in both Richmond No 1 and Richmond No 2. In the former Laws J summarised the claimants' submissions at page 589:

"Mr Gordon submits that these explanations do not in fact offer any rational basis for the 9 EPNdB deduction. He says, and this is the burden of the assault mounted in his evidence, that it leaves entirely out of account the fact that whereas the main noise impact of take off is over the airfield, the noise effects of landing are felt at a distance from the airfield; nor does it take on board the fact that at Heathrow some 70% of landings are from the east, an area five times more densely populated than the usual take off route. So his case is that this deduction has been arrived at by leaving wholly out of account the fact that there is a significant number of people who will be more affected by landings than take offs. He points to the fact, as the evidence shows, that without this deduction the permitted noise levels for landings would be unacceptable on the Secretary of State's own policy ..."

79. At page 600 Laws J said:

"In my view this is another area where the complaints advanced raise no point of law. If their effect is that in the result the quota points system is, to say the least, rough and ready because there is no symmetry between the numbers of people affected by the noise of landings and take offs respectively, or because some people are or may be more affected by landings than by take offs, those are arguments as to the merits; if I gave effect to them as arguments of law, I would pro tanto be substituting my view as to what a sensible and effective measure under s 78(3) ought to contain for that of the Secretary of State. So I reject Mr Gordon's submission."

80. In Richmond No 2 Latham J said, at pages 407 408:

"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 9 EPNdB 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. ..."

 

81. Although it was not discussed in the judgment of the Grand Chamber of the European Court of Human Rights, the 9 EPNdB reduction was an integral part of the 1993 night noise restrictions which were considered to strike a fair balance overall in Hatton. Nothing has changed in respect of the 9 EPNdB reduction since then. I appreciate that, following the Hatton decision, there was a "thorough review of policy on night flights" (see paragraph 3.19 of the Stage 1 consultation, above), and a fresh decision was taken in paragraph 5.22 of the Stage 1 Consultation Document to retain the reduction, but there was all the more reason, if the old "footprint does not equal population" argument was to be revived, for it to be done promptly following the fresh decision in June 2005.

82. The letter withdrawing the Richmond No 6 proceedings accepted that "for good or bad reasons" the defendant was entitled to retain the 9 EPNdB reduction, but urged him to consider "the appropriate approach for compensating for [it] in relation to absolute noise levels when making his final decision" (see paragraph 53 above). Once again, there has been no attempt by the claimants to challenge the other decisions in the document which are based on "absolute noise levels", for example, the noise contours or the noise insulation scheme.

83. As Mr Howell QC, who appeared on behalf of the defendant, pointed out, the claimants' criticism of the 9 EPNdB reduction is based on a fallacy: that the QC system, including the 9 EPNdB reduction, which is applicable to all three London airports is, or should be, designed of itself to control not merely the level of exposure to aircraft noise at night, but also the numbers of those affected by such noise at any one of the three airports and how they might be affected by that noise.

84. As Mr White explained in paragraph 44 of his witness statement dated 27th April 2007, the effects of aircraft noise at night on people are primarily addressed by other means, such as the size of the noise quotas and movements limits for each individual airport; by restricting the noisiest types of aircraft (QC4 and above) from operating at night; and by the noise insulation scheme.

85. By looking at one particular aspect (the 9 EPNdB reduction) of one element of the night flying restrictions in isolation, the claimants re erect an Aunt Sally (by now a somewhat aged Aunt Sally) which they proceed once again to knock down. In making that observation I do not overlook ERCD Report 0204 "Review of the Quota Count (QC) System: Re Analysis of the Differences between Arrivals and Departures" which, notwithstanding its conclusion that the system remained appropriate (see paragraphs 5.1 5.3), was relied upon by Mr Smith in his submissions in support of ground 2. Once again, it was a case of the claimants plucking one sentence out of a paragraph in the report:

"Impact is the aggregate adverse effect of the noise on people and it is quantified by taking account of noise exposures and the numbers of people affected" (paragraph 2.1).

86. It was submitted that since it was a Government requirement that, in order to enable exchangeability between arrivals and departures, any classification, whether for an arrival or departure, should have the same footprint area (paragraph 2.8), the study had lost sight of the fact that footprint did not equal people affected by noise.

87. That submission is wholly unrealistic. The characteristics of the QC system and the 9 EPNdB reduction were well known when Report 0204 was published in 2002. They had been the subject of criticism by the claimants and others for many years on this very point: that footprint was not to be equated with population. In concluding that the 9 EPNdB reduction should be retained in the QC system, the defendant did not lose sight of the underlying reason for imposing night flying restrictions at Heathrow, to limit the adverse effects of aircraft noise on people, so as to strike a fair balance between their Article 8 and other interests. He struck that balance by making a number of decisions, of which the 9 EPNdB reduction was only one.

88. In view of that conclusion, it is unnecessary to address in any detail what was said to be a further illustration of the defendant's perversity in concentrating on equalising areas (footprints) rather than addressing the effect of noise on people, namely the claimants' contention that the deduction of 9 EPNdB in a QC system permits arrivals at noise levels which are "excessive" by comparison with departure noise limits. There is a dispute between the parties as to whether the comparison is valid in any event. For reasons which were endorsed by ANMAC, there are no night time noise limits for approaching aircraft. Instead, there is a code of practice, first published in 2002 and subsequently updated.

89. Even if the comparison is made, there is a dispute as to what adjustments would need to be made to the 87 dBA Lmax departure noise limit to convert it into an equivalent maxima arrival noise measured in EPNdB. Mr Smith confirmed that this point was not being put forward as a separate ground in its own right, and it is difficult in any event to see why, even if it was established, it would illustrate the perversity of either the QC system or the 9 EPNdB reduction which is part of that system.

90. For these reasons I reject ground 2.

Conclusion

91. It follows that this application for judicial review must be dismissed.

 

MR HOWELL: I invite your Lordship to order that the claimants pay the defendant his costs, to be taxed if not agreed.

MR JUSTICE SULLIVAN: You cannot resist that Mr Smith, can you?

MR SMITH: My Lord, no.

MR JUSTICE SULLIVAN: Yes. Any other application? No.

MR SMITH: There was just one matter.

MR JUSTICE SULLIVAN: Yes.

MR SMITH: My Lord, both my learned friend and I looked at each other when, in part of my Lord's judgment, my Lord spoke of "busy aircraft".

MR JUSTICE SULLIVAN: "Busy", did I?

MR HOWELL: I think you may have meant "noisy" at one point.

MR JUSTICE SULLIVAN: People are nodding, so obviously I did. Obviously "busy" means "noisy".

MR HOWELL: It may be we misheard.

MR JUSTICE SULLIVAN: It has been a long afternoon and I am not speaking very clearly. Thank you very much for pointing that out, Mr Smith.

92. What I must do, I just realised that I did not include a page in my clip of documents from the Hatton judgment. I just want to get that out now, otherwise it is going to cause problems. So rather than make a dignified exit immediately, if people would sit tight for a moment I shall find it. (Pause)

93. That is it. Thank you all very much. I hope you all have a very good holiday, free not merely of aircraft noise calculations, but also aircraft noise.