London Borough of Wandsworth, R (on the application of) v Secretary of State for Transport

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:

Paragraph 2.2 said:

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.

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.

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:

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

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).

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.

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.

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.

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:

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:

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.

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

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.

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

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:

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:

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.

For these reasons I reject ground 3.

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:

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:

In paragraph 128 the court said:

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

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).

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.

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).

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:

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.

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 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:

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

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"):

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.

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."

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:

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.

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:

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:

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":

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

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 "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:

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

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?":

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

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

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

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:

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:

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

The witness statement concluded:

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 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.

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.

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:

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.

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.

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.

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.

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.

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.

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 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.

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.

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).

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.

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:

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.

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.

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).

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).

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.

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.

For these reasons I reject ground 1 of the challenge.

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

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.

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:

At page 600 Laws J said:

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

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.

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.

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.

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.

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:

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.

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.

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.

Even if the comparison is made, there is a dispute as to what adjustments would need to be made to the 87 dBA L_max 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.

For these reasons I reject ground 2.

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.

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)

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.