Night flights at the London Airports

Hatton was the last in a series of cases running from 1994 to 2003 over government proposals which would have increased night flying at the London airports. At Heathrow landings from around 4 am are a major nuisance for residents. The net result was to keep the number of flights as they were. An attempt to ban them altogether was unsuccessful.

Night flying is the bane of lives for those under flight paths. This is most obviously so at Heathrow where the two landing paths approach are predominantly over central London and aircraft become highly intrusive as they approach the airport over Richmond and Hounslow. Windsor and Slough are affected with approaches from the west. Until 2004 there had been a fixed number of flights allowed to land during the “night quota period” (11.30pm to 6am, 6.30am in the winter). In 2004 the Department of Transport proposed a scheme whereby there would instead be points allocated to the night period which could be used up by the airlines depending on the noise ratings of the aircraft used. Noisier aircraft would count more points so in theory less noisy aircraft would be encouraged. The problem was that this could lead to a huge increase in the number of flights, and the experience of residents tended to be that the less noisy aircraft were not necessarily less disturbing at night than the noisier ones – they were awakened and kept awake notwithstanding. The issues and considerations were complex but the government’s proposals were quashed in the first case brought by a consortium of local authorities R v Secretary of State for Transport exp LB Richmond upon Thames on the basis that the points system led to the possibility of the scheme involving half a flight, which the Court found to be irrational.

The government consulted again and made a fresh decision, which was challenged. tried again. In R v Secretary of State for Transport exp LB Richmond upon Thames (No.2) [1995] Env LR 390 its scheme was quashed for the Secretary of State conducting a misleading consultation process and for failing to appreciate that noise levels would increase, contrary to his expressed policy.

The government consulted again. This was challenged in R v Secretary of State for Transport exp LB Richmond upon Thames (No.3) but permission for judicial review was refused despite the Judge (Sedley J) describing what it was saying as “a farrago of equivocation”.

A fourth challenge (to the decision following that consultation) R v Secretary of State for Transport exp LB Richmond upon Thames was unsuccessful before the High Court and Court of Appeal. The local authorities were refused leave to appeal by the House of Lords leaving it open to apply to the European Court of Human Rights. This must be made by individuals (government bodies cannot be “victims” for human rights violation purposes). An application based on Article 8, right to home and family life, by Ruth Hatton and other residents on flight paths either side of Heathrow came before the Third Section of the Court in Strasbourg in 2001 (Application 36022/97) and by judgment of 2.10.2001 was successful. The Court in effect found that there was a human right to sleep. The government however appealed to the Grand Chamber which on 8.7.2003 decided that that governments in these types of environmental regulatory situations have a wide margin of discretion and that the scheme was therefore lawful. However, the ECtHR did find that there was a violation of Article 13, right to an effective remedy, in relation to shortcomings in judicial review procedure to enable establishing whether the increase in night flights was justified (and awarded the applicants their costs in relation to that).