Summary of the hearings into the legal challenges against DfT approval of Heathrow 3rd runway
The hearings at the High Court, into the legal challenges against the government’s decision to press for a 3rd Heathrow runway, were complicated. They were hard to follow, even with daily transcripts – as there were constant references to text in documents in “bundles” that the public are unable to see. Neil Spurrier, who individually brought one of the legal challenges, and is a solicitor, has done a user-friendly summary of some of the key points that came up. Four of the challenges were largely on environmental grounds (the 5th was a rival runway builder, Heathrow Hub). Neil gives a brief summary of some of the points on noise, air pollution, carbon emissions, and economic benefit including comments on the response by the government’s barristers and their attempts to brush aside the criticisms. The judges may make their judgement in about May – there will probably be a few days notice before hand. As well as the summary, there are some notes made during the hearings, to help clarify some points.
Part of the Résumé is copied below:
One of the Government’s early defences was Parliamentary Privilege. Parliament is supreme in English law and the courts cannot challenge Parliament. Not only that, parties to a case cannot rely upon opinions expressed in Parliament. The reasoning is that anyone seeking to rely upon anything said in Parliament might put his opponent at a disadvantage since the opponent might not be able to reply without criticising Parliament. Therefore, opinions expressed in parliament cannot be submitted in evidence. All the assurances and representations of Grayling were therefore off limits as was the evidence given to the Transport Committee. The proceedings were served upon the speaker’s counsel for speaker’s counsel to respond and some of the material was objected to. One thing that the speaker did not object to was the Government’s responses to the Transport Committee recommendations, since these were published in a separate document outside Parliament. As a result, all claimants including Neil came to an agreement with the Speaker and the cases proceeded with minor deletions to the statements of claim. The Government continued to object but the Court went ahead and heard the cases upon the amended documents agreed with the Speaker. Parliamentary Privilege dates back to the Bill of Rights 1688 being contained in Article IX.
The Claims and the grounds of challenge:
- The Boroughs
Their grounds for challenging the Airports National Policy Statement “ANPS” were:
- Surface access; the Boroughs claimed that the Secretary of State “SST” had grossly underestimated the demands upon the road access and that this would have serious and damaging consequences. In addition, the demands upon the public transport upgrades had been underestimated. TfL and the Mayor joined in this. The Government disputed the claim saying (as it did with many of the other claims) that all the Government had to do was show that the scheme “could” be delivered on the estimates. Everything else could be dealt with at Development Consent Order “DCO” stage. Various errors were set out by the Boroughs.
- Air Quality; the Boroughs claimed that the air quality would continue to breach the EU limits as it does now. This was even more likely as the surface access demands had been underestimated by the SST. The SST relied upon the analysis of WSP, who carried out the Appraisal of Sustainability and who claimed that by 2026 the air quality could be compliant although they assessed the risk of non-compliance as “High”. There was a dispute as to the meaning of “High”. The Mayor’s counsel, Ben Jaffey QC, claimed that the text set it out as an 80% risk. The Government retorted that the 80% applied to risk factors and that WSP had set out a probability of compliance, not a risk factor. The probability of compliance was that air quality would be within 10% of the limit. The court did not make a finding of who was correct, and it is not clear what the difference might be. The SST’s proposed mitigation measures were challenged by the Boroughs
- The Habitats Ground; the EU Habitats Directive provides for the protection of various species of animals, birds and plant life. There are various degrees of protection but in essence, the presence of a protected species restricts or prevents development. Major projects should have an assessment of habitats and consider alternative sites. An initial assessment predicted that there might be a rare species of orchid in the Mole Gap, which would prevent the development of the necessary accessway to Gatwick with a second runway. Gatwick would not be an “alternative site” therefore. Gatwick Airport did a survey, which concluded that it was extremely unlikely that such orchids did exist in the Mole Gap. Gatwick’s analysis was put to the SST’s advisors, WSP. WSP concluded that Gatwick were probably correct and that the orchids did not exist after all. That meant that from being excluded as an alternative to Heathrow on habitat grounds, Gatwick was back in the frame as an alternative. At the time that WSP responded that orchids probably did not exist, the SST altered the importance of the hub status requirement, so that from a hub being one of the desirable factors as set out by the Airports Commission, hub status now became critical to the SST’s plans. Being a critical requirement Gatwick ceased to be a viable alternative to Heathrow under the Habitats Regulations, since it did not have a vital requirement – namely hub status. This ground of the Boroughs is that the hub status was not a genuine requirement, but rather a ruse to get Gatwick excluded. There were chuckles in the Courtroom after the submissions of Ben Jaffey QC, on behalf of the Mayor, at the thought that the whole ANPS might be quashed because some non-existent orchids, that were thought might be in a place, were not in fact there!
- The Strategic Environmental Assessment – “SEA” ground; it was claimed that an insufficient strategic environmental assessment was carried out. An Environment Impact Assessment is something less and does not go into the required detail set out in the SEA Directive. Insufficient screening analysis was done, and the effects of noise were insufficiently studied, it was claimed. Part of the SEA (as well as a principle in public law for large projects) is the “Precautionary Principle”. The “Precautionary Principle” implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result. The Boroughs, Plan B and Neil have all referred to this in their Skeleton arguments and submissions.
- Consultation failings; it was claimed that the SST had made up his mind prior to the consultation and that the consultation was therefore not in accordance with required procedures and objectives. That includes a set of principles called the “Gunning Principles” (a consultation must be carried out properly and with an open mind with due consideration to the responses)
- a) Their first ground was that the ANPS did not explain as required how it took account of climate change
- b) Their second ground was that the ANPS breached the duty to contribute to sustainable development and in particular the duty “to have regard to the desirability of mitigating and adapting to climate change” cannot be limited to simply an analysis of how the ANPS policy relates to existing policy and legal obligations. The details in their claim included a complaint that the SST had failed to take into account the Paris Agreement (Paris does not provide for a target greenhouse gas reduction in the way that Kyoto does as also does our own Climate Change Act 2008. Rather, Paris provides for a target warming reduction to 2° above pre-industrial levels with a preference for 1.5° That 1.5° level was subsequently uprated to a necessity by the IPCC (The Intergovernmental Panel on Climate Change)).
- c) Unlike Plan B, FoE conceded to the Government that the Climate Change Act 2008 does not require us to operate to reduce to 1.5°, but that Paris needed to be considered in order to comply with the Planning Act 2008 requirements
- Plan B
Plan B also considered climate change but went further than FoE arguing that it was now government policy that warming should be restricted to 1.5°. They referred to various statements of Government in support of this. With this in mind they argued that:
- The ANPS was ultra vires (beyond the powers of the SST) since it failed to explain how the development would be carried out within the Government’s anti-climate change policy.
- As a result of the above they claimed that the ANPS was irrational (irrationality is a public law ground for challenging an executive decision)
- The third ground was that the resulting damage to the earth and suffering to people was a breach of human rights.
The reasoning of the Paris Agreement was explained in detail together with the legal basis and the Dutch case of The Urgenda Foundation v. Kingdom of the Netherlands, District Court of the Hague  was considered
There were a number of grounds:
- Failure in consultation and in particular failure to consult the public and failure to take account of the recommendations of Parliament through the Transport Committee.
- The ANPS was biased since it followed the Airports Commission, which was itself biased as its chair person, Sir Howard Davies, was right up to his appointment an employee of one of Heathrow’s biggest shareholders. Neil also argued that the decision to choose Heathrow was illogical since it did not give the most value when calculated using the Government’s webTag analysis
- The extra noise and pollution would be a breach of human rights
- The extra pollution would breach the EU Air Quality regulations
- Expansion would breach our climate change obligations and the SST had not explained how the policy would take account of climate change and the SST had not had due regard to climate change. Part of the ground was that there was no allocation of possible greenhouse gas emissions between the south east and all the regions
In order to fall into line with others, Neil restricted his arguments to:
- Air Quality rules being breached by emissions from aircraft themselves and this not being considered at all following Caroline Low’s admission that the Government did not take account of Ultra Fine Particles. This was developed to include the DEFRA report on Ultra Fine Particles “UFPs” and the three studies mentioned in the DEFRA report (Hudda, Keuken, and Riley). No one else considered emissions from aircraft. Neil referred to the Precautionary Principle and the failure of Caroline Low to find out about UFPs, while at the same time ignoring them from the modelling of emissions that she carried out – effectively finding on behalf of the Government that UFPs from aircraft do not exist.
- Bias due to Sir Howard Davies’ prior position with the Heathrow shareholder
- Noise at night and the WHO guidelines versus the Government’s recommendations and SoNA, and also the difference of the night-time LOAEL of 40dB (WHO) and 51dB (DfT/SoNA). That represents a 360% in noise events
- The absence of any comparison table for allocating greenhouse gas emissions budgeted throughout the whole country
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