R v Secretary of State for Transport ex parte Richmond upon Thames LBC (No.4)

Friday, 26 July 1996

This case is all about aircraft noise at Heathrow at night. Parliament has given the Secretary of State power to exercise control in this matter if he thinks fit, and controls of this kind have been exercised in one way or another since 1962. In 1988 when he came to exercise this power, which is to be found in section 78(3) of the Civil Aviation Act 1982, he decided to limit aircraft movements at night to 2,750 during what he called the summer period and 3,000 during the winter period. For this purpose the night was generally defined as lasting between 11.30pm and 6am, being extended to 6.30am on winter weekdays and 8am for winter Sundays and for summer Sunday departures. A complete ban was imposed on scheduled movements of certain noisier aircraft between 12.30am and 5am. This decision controlled the position between 1988 and 1993.

In fact only about 1,830 aircraft movements (as opposed to the 2,750 permitted) took place in the summer period of 1988, and it is this difference between the permitted level and the actual level of movements which has fuelled much of the litigation on this topic in the last 18 months.

Ever since 1993 the minister has been concerned to set a new level for the next 5 year period, which ends in 1998. The first decision he made, in July 1993, was set aside two months later by Laws J (see his decision reported in [1994] 1 WLR 74) on the basis that the way in which he purported to exercise his powers did not comply with the requirements of the statute. He then made two short-term decisions, covering the periods between October 1993 and March 1994, and between March 1994 and October 1994 respectively, before making a long-term decision in May 1994 which was to embrace the period between October 1994 and the end of the summer season in 1998. These decisions, too, were declared to be unlawful, on this occasion by Latham J (see his decision reported in [1995] 1 Env LR 390) in December 1994.

In 1995 the minister tried again. He issued a short Consultation Paper in March 1995, in which he endeavoured to correct the deficiencies identified by Latham J. This led to a further challenge, on this occasion to the legal validity of the new consultation process, which the Court of Appeal, differing from Sedley J, considered to be properly arguable. Rather than wait for the outcome of a further substantive hearing, the minister published a short supplemental Consultation Paper in June, and came to a further decision, in relation to the next 3 years, on 16th August 1995. It is this decision which is the subject of the present challenge. Six local authorities whose inhabitants are to a greater or lesser extent affected by aircraft noise at Heathrow were parties to the new application, and when this was dismissed by Jowitt J in March 1996, two of them, the London Borough of Hillingdon and the Slough Borough Council, appealed to this court, and at the hearing of the appeal the court granted leave for the other four original applicants to be joined in the appeal. The appeal was expedited by order of Schiemann LJ, given at the same time as he granted leave to appeal.

It is an important feature of this case that since 1993 new arrangements have been used as the basis for deciding how many nighttime aircraft movements the minister should permit.

Under this new scheme there is a weighting system which differentiates between different aircraft depending on the noise they emit. For all practical purposes the lowest weighting is 0.5 (a level associated with so-called Whisper Jets like the BAe 146), and subsequent categories are weighted at 1, 2 and 4—and then at 8 and 16 for the two noisiest types. The large aircraft used for night flights to and from the Pacific Rim are said to be mostly in the 2–4 band: Concorde has a weighting of 16. The Department of Transport has calculated that if this banding system had been in operation in 1988, the permitted number of "quota count points of noise" at Heathrow in the summer period of that year would have been about 8,000, and the number actually experienced was just over 5,200: the comparative figure for the summer of 1992, when the movements quota was almost fully taken up, but by quieter aircraft, was 5,430. In the intervening summers the number would have been higher. At Gatwick, on the other hand, the permitted number of movements was for all practical purposes taken up, so that these differences between actual and permitted numbers did not exist.

The minister's decision in August 1995, like all its immediate predecessors, introduced a new permitted level of 7,000 "quota count points of noise" at Heathrow in the summer and 5,000 in the winter. A new "night quota period" between 11.30pm and 6am was introduced, and the new limits were to be applied to this period only. There was also to be a maximum limit on the number of permitted movements, on which nothing turns. In what have been called "night shoulder periods", between 11pm and 11.30pm, and between 6am and 7am, there were now to be no limits on movements of aircraft categorised as Quota Count (QC) 4 or lower, but controls were still to be in place for the noisier aircraft categorised as QC8 or 16: no scheduled landing or take-off was to be permitted for any aircraft in these categories between 11pm and 6am, or for QC16 aircraft between 6am and 7am. In addition, a longstanding rule that aircraft must be flown between 11pm and 7am in such a way that they did not exceed a noise level known as 102 PNdB (which is said to cover QC16 aircraft and most QC8 aircraft) remained firmly in place.

For all except the noisiest aircraft, therefore, the new regime removed the controls that had previously existed between 6am and 6.30am (on winter weekdays) and between 6am and 8am (for winter Sundays and summer Sunday departures): among other things, there was now to be no control on QC8 aircraft which could comply with the noise limit requirement from 6am onwards. It also changed the position between 11.30pm and 6am. For this period it had the effect of reducing the maximum number of permitted movements as compared with what had been allowed in 1988, but it permitted significantly more "quota count points of noise" than had actually been experienced in the summer of that year. As I have said, no scheduled movements of the two noisier categories of aircraft were to be permitted for a longer period than had existed under the previous regime.

Of the five points of challenge originally presented to Jowitt J, three survive for our consideration. These arise from arguments founded on the doctrine of legitimate expectation, on alleged inadequacy of reasons, and on alleged irrationality. Arguments based on the interpretation of the minister's statutory powers have been abandoned. In order to understand the points that are now being put, it is necessary to say something first about the historical context in which this application is set.

Aircraft noise at night is a topic which rouses considerable passions among those who live close to major airports. The English common law does not give them a right to sleep as such, but in the ordinary way their comfort and health is protected by the law of tort, which regulates conduct as between neighbours by such mechanisms as the law of nuisance (which is based on the concept of a reasonable amount of give and take) or the law of negligence (which creates duties of care to avoid unreasonable amounts of noise which may cause foreseeable injury to health). If, however, the noise-creator's activities are sanctioned by statute (for example by ministers acting under statutory powers) the common law right to damages, or the equitable right to seek injunctive relief, are removed (see, in the present context, s 76(1) of the Civil Aviation Act 1982).

In a more overtly rights-based system of law, such as that created by the European Convention on Human Rights, the balance between the rights of the individual and the rights of the State (which represents more extensive public interests) is achieved through different mechanisms. This was illustrated in the case of Powell and Rayner v United Kingdom (European Court of Human Rights, judgment of 21st February 1990, Series A No 172 4 at p 18). The court then accepted, in the context of an application made under Article 8(1) of the Convention, that noise generated by aircraft in the vicinity of airports can affect "the quality of [a person's] private life and the scope for enjoying the amenities of his home". However, although Article 8(1) recognises "the right to respect for [everyone's] private and family life, his home…", this is qualified by Article 8(2) which permits such "interference by a public authority with the exercise of this right…as is…necessary…in the interests of…the economic well-being of the country". The final effect, therefore, is the same, although the route is different. The United Kingdom is bound by Treaty to observe the European Convention on Human...