R. v. Secretary of State for the Environment exp. London Borough of Richmond

Transcript date:

Friday, July 26, 1996



Court of Appeal

Judgement type:



Leggatt, Morritt, Brooke LJJ






Royal Courts of Justice


London WC2

Friday, 26 July 1996

B e f o r e:




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In the matter of an application for judicial review


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(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR C GEORGE QC with MISS H MOUNTFIELD (Instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant

MR I BURNETT with MR M SHAW (Instructed by The Treasury Solicitors, London SWH 9JS) appeared on behalf of the Respondent

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(As approved by the Court)

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©Crown Copyright

Friday, 26 July 1996


LORD JUSTICE BROOKE: 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 Rights, and although it is not part of our national law ministers must be presumed to have intended to comply with its requirements when exercising powers conferred on them by Parliament unless there is evidence of a clear Parliamentary intention to contrary effect (R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696).

In its 1985 White Paper on Airports Policy (1985, Cmnd 9542) the Government had refused to contemplate a complete ban on all aircraft movement at night, although this had been recommended in the recent report on development proposals relating to Stansted and Heathrow Airports. Although it sympathised with the intention which lay behind the Inspector's recommendation, it considered that such a major step should not be taken without the fullest consideration of its effects on the aviation industry, and in particular on charter airlines and their passengers.

The Government said in the White Paper that it was committed to mitigating as far as practicable the effects of aircraft noise and other disturbance and that its objective continued to be to bring about progressive reductions in aircraft noise at night at these airports, allowing only movements by quieter aircraft. It said that its policy on night noise was firmly based on research into the relationship between aircraft and sleep disturbance, and that in order to preserve a balance between environmental and aviation interests this should continue to be the basis for decisions. It added that it was committed to doing everything practicable to ensure that the noise climate improved, and that it would continue to support the operational measures that were necessary: in particular the continued use of quiet take-off and landing procedures and runway alternation.

Government policy in this matter between 1988 and 1993 was founded on the objectives set out in a Consultation Paper published in November 1987. This revealed a four-point strategy:

(1) To continue to improve the night noise climate so that disturbance of people's sleep was further reduced;

(2) To allow airlines to continue to provide some scheduled movements during the night period;

(3) To enable the two airports to continue to offer a 24-hour service;

(4) To encourage airlines to continue to invest in quieter modern aircraft.

This paper set out the history of night flight restrictions at Heathrow since 1962. When quotas were last set, for a 7-year period, in 1981, these had had the purpose of phasing out night flights by the older noisier aircraft and, as had been promised at that time, the Government had undertaken a further review of night restrictions, which was now complete. It considered that it was important that Heathrow's facilities should be available during the night to meet essential minimum needs, and although the demand for night flights was not great, especially in the small hours, it believed that it was necessary that the airport should continue to be able to offer night movements to airlines who needed to accommodate particular schedules, and to cope with emergencies.

The airlines had wanted the night period to finish at 6am every day, winter and summer. They had also wanted modern quieter aeroplanes to be allowed to fly at night without restrictions. The Government rejected both these requests. The existing summer and winter quotas at Heathrow were not then being fully used, and the Government was not convinced that the benefits to the airlines of the extra flights would justify the disturbance they would cause. Although in this paper the expression "the night noise climate" referred to the period between 11pm and 7am, the language of paragraph 41 of that paper shows that the Government was then using the expression "the night period" as meaning the concept that was later to be described as "the night quota period", whereas in the January 1993 paper a different meaning was adopted for this expression. This was another matter which gave rise to later difficulties.

At that time aircraft were banded into three categories, depending on the amount of noise they emitted. I will call these bands A, B and C. Band A were to be banned at night completely, takeoffs by Band B aircraft (identified as aeroplanes previously categorised as "quieter", such as the B747) were to be banned between 12.30am and 5am, and the night noise limit of 102 PNdB was to continue. This apart, a simple quota of 2,750 (summer) and 3,000 (winter) was proposed for Bands B and C night movements at Heathrow. These quotas were described as being set at about the present level of usage (and therefore smaller than the present quota of 3,650/3,250) to provide the flexibility to schedule a modest number of flights at night.

Following consultation, these proposals formed the basis of the minister's decision on 10th February 1988 which covered the period between 1988 and 1993. From the terms in which he announced his decision to Parliament can be gleaned what was later described as his undertaking "not to allow a worsening of noise at night and ideally to improve it". There is no reason to suppose that when he referred to the "night noise climate" he was not referring to the period between 11pm and 7am.

In January 1993 the Government published a new Consultation Paper in which it published its proposals for restricting night flights at Heathrow, Gatwick and Stansted for the 5-year period beginning in October 1993. It pointed out that the first two of these airports had enormous importance for not only the local economies but the national economy as well, and it mentioned at the outset the arrangements being made in a European context to phase the older, noisier aircraft out completely by the year 2002. The competing pressures are clearly identified in the last two of the five objectives set out at the start of the paper:

"(d) continue to protect local communities from excessive noise at night;

(e) ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account."

In paragraphs 5 to 23 of the paper were set out, in summary form, the different considerations the Government believed it would need to take into account. It repeated that the underlying principle behind the night flying restrictions had remained unchanged since 1962: to strike a balance between airlines wishing to operate services at night and people living round the airport who did not want their sleep disturbed by aircraft noise. It mentioned the technological developments which had led to aircraft becoming progressively quieter, and the extensive research project that had been commissioned in 1990 to provide information on sleep disturbance. Paragraphs 8 and 9 reflected awareness of local people's concerns that night flights at these airports should be further restricted, if not banned altogether. Paragraphs 10-15, on the other hand, described the demands being made for night flights.

The paper set out the argument that if UK restrictions meant that some flights were not as convenient or that their costs were higher than competitors abroad could offer, passengers would prefer alternatives that better suited their requirements. In this context mention was made of three major European airports, at Paris, Amsterdam and Frankfurt, which either had no restrictions or less onerous ones than Heathrow and Gatwick. Quite apart from the immediate loss of business, concern was expressed about the consequential diminution in status of UK airports and airlines, which in turn would diminish the attractions of London and the United Kingdom generally for investment and international commerce.

Three types of service were singled out for particular mention. The first were flights from the Asia-Pacific region, a major growth area, which used to land early in the daytime after stopping en route, and were now able to complete their journeys non-stop and therefore sought to land during the night period. The second related to the special needs of charter companies who were operating in a highly competitive, price sensitive market and whose commercial viability depended on the high utilisation of their aircraft. The third was the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive cargoes such as newspapers and perishable goods.

After mentioning certain anomalies in the present A, B and C system of classification, and the way in which airlines' scheduling difficulties were exacerbated by the changes in the definition of "night" between the winter and summer seasons and between weekdays and Sundays in winter, the paper described the results of the recent research into sleep disturbance. This was said to have been the most comprehensive of its kind ever conducted. It found that external noise levels below 80 dB(A) (if measured outside the home, about the same noise as would be heard at nearly 500 feet from an Intercity train travelling at 95 mph) were very unlikely to cause any increase in the normal rate of disturbance in someone's sleep, and with noise levels in the range of 80-95 dB(A) the likelihood of the average person being awakened was about 1 in 75. The research was said to have established that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates.

In paragraph 24 of the paper the Government said that it was in the light of these considerations that it had developed its new night quota proposals which I have set out earlier in this judgment. EPNdB is a specialised noise unit used for aircraft noise certification testing, and at the consultation stage the Government was proposing to give a nil weighting to aircraft whose noise level was below 90 EPNdB (which equated to a peak noise level of about 75 dB(A)): it was later persuaded that these aircraft should each count 0.5 towards the new quotas. The Government's proposals were set out very clearly, but unhappily the paper contained in paragraph 34, immediately under the heading, "Size of New Quota", the following passage:

"Since 1988, more of the quieter types of aircraft have been acquired by airlines, improving the night noise climate. In keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to improve it, it is proposed that the quota for the next 5 years based on the new quota system should be set out a level so as to keep overall noise levels below those in 1988. For Heathrow the proposed summer noise quota is 7,000. The 1988 summer quota for Heathrow would have been about 8,000 if calculated on the new basis ..."

No mention was made in this paragraph of the fact that the actual number of night movements at Heathrow that summer would have represented a noise quota of only just over 5,200, so that if all the new permitted movements were taken up, overall noise levels at Heathrow during the summer would increase significantly.

I need not dwell very long on the history of the matter between January 1993 and June 1995. As I have said, Laws J set aside the minister's original decision because the new restrictions did not "specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to land" (as required by s 78(3)(b) of the 1982 Act) but only sought to impose control by reference to levels of exposure to noise. Latham J, for his part, declared the next three decisions unlawful because the minister had failed to provide a full and fair consultation process (because of the misleading effect of para 34 of the Consultation Paper) and had failed to take into account the fact that his decisions would permit movements at Heathrow which would produce greater noise than that experienced there in 1988, contrary to his expressed policy. And the Court of Appeal considered that the challenge to the March 1995 Consultation Paper was properly arguable because the Secretary of State had failed to acknowledge in it that he had in any way departed from the policy announced by his predecessor in 1988.

The March 1995 Consultation Paper had been a brief, 6-page document in which the numbers were again set out and it was said that the proposal "was to impose noise quotas so that the maximum level of noise generated would be less than the level which could have been generated by aircraft operating to the full extent permitted in summer 1988, assuming the same mix of aircraft types as actually operated at night at those airports in summer 1988".

In the June 1995 paper, which was issued as a supplement to the March paper, the Secretary of State accepted the Court's view that paragraph 34 of the January 1993 paper had been misleading in relation to Heathrow. He now set out in very clear terms the comparison he was using. He said that he believed that it was right to compare what was allowed in summer 1988 with what it was proposed to allow for summers under the new system. And he made it clear that his policies and the proposals based on them did in fact allow more noise than was experienced from aircraft movements that counted against the quotas in summer 1988, and acknowledged that this was contrary to the policy as expressed in paragraph 34 of the 1993 paper.

On 16th August 1995 the minister announced his decision that all the details of the new night flying restrictions regime would remain as previously announced. He said that the Government was committed to achieving and sustaining the objectives identified in January 1993, and that the responses received to the two recent Consultation Papers continued to show the polarisation to which his predecessor had referred the previous year. He also described measures other than the night restrictions regime which were being pursued as means of reducing disturbance for people affected by aircraft noise.

The first ground of challenge to this decision is based on the doctrine of legitimate expectation. This case has been put before us in a rather different way to the way it was put before the judge. The Appellants rely on the second of the four broad categories of case identified by Simon Brown LJ in R v Devon County Council ex p Baker [1995] 1 All ER 73 at p 88. In this class of case the claimant has an interest in some benefit which he or she hopes to retain, and the expectation arises because his or her interest in it is one that the law holds protected by the requirements of procedural fairness. The law recognises that the interest cannot properly be withdrawn without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision.

An example of this type of case is to be found in the judgment of Roch J in R v Rochdale MBC ex p Schemet (1993) 91 LGR 425. A local education authority had announced the abandonment of its policy of paying travelling expenses to the parents of children who attended schools maintained by a neighbouring authority, and although the council had never made any promise to such parents and the applicant had received no assurance from the council, Roch J held at pp 445-6 that the parents of children at "extra district schools" already receiving travel passes "had a legitimate expectation that that benefit would continue until there had been communicated to them some rational grounds for withdrawing it on which they had been given an opportunity to comment".

In ex p Baker (supra) Simon Brown LJ sought at p 90 to identify the interests which the law recognises to be of a character which require the protection of procedural fairness. He found the answer in Lord Diplock's speech in CCSU v Minister for the Civil Service [1985] AC 374 at p 408, namely cases where a claimant had in the past been permitted to enjoy some benefit or advantage. Simon Brown LJ added:

"Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court's view of what fairness demands in all the circumstances of the case ... In short, the concept of legitimate expectation when used ... in the category 2 sense seems to me no more than a recognition and embodiment of the unsurprising principle that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit."

The way that the Appellants put their case under this head of their argument is to say that the effect of the 1985 policy as reinforced by the 1988 undertaking has been that the inhabitants of their areas suffered fewer aircraft movements at night (legalised trespass) and less noise at night (legalised nuisance) than would otherwise have been the case. Even though the 1988 decision was expressed to cover only the next five years, the 1995 decision, involving as it did an increase in aircraft movements and noise, constituted the withdrawal of a benefit or advantage (ie the benefit of the previous policy) which they could legitimately expect to be permitted to continue to enjoy. They do not claim any right to its continuance, but merely that it should not be withdrawn "until there has been communicated to them some rational grounds for withdrawing it on which they had been given the opportunity to comment" (CSSU (supra), per Lord Diplock at p 408).

They maintain that the consultation documents do not set out rational grounds sufficient to satisfy this test. They base this contention on five main grounds. First, those documents do not explain the reasons for the change of policy which permits more noise than was previously experienced, nor how the new proposals were still consistent with the Secretary of State's previous policy. Secondly, they do not explain what the new policy is. Thirdly, they do not explain how the proposals would "maintain the essential balance between the interests of the airline industry and local people": the Appellants quote extracts from the 1987 Consultation Paper to advance their point that arguments which were at that time being rejected were now being accepted without explanation of the change of attitude. Fourthly, they do not explain how the noise climate in the night period (11pm-7am), as opposed to the night quota period (11.30pm-6am), was likely to change, especially since the Secretary of State had reduced the length of the latter by his decontrols. And, fifthly, they did not explain why a different conclusion in respect of decontrolling the "early morning shoulder period" (6-7am) was proposed, compared with that reached in 1987 when such a change had been ruled out "because of increased disturbance during the early morning period".

In the context of these complaints, the Chief Executive of the London Borough of Richmond-upon-Thames had written to the Department in May 1995 asking how the noise climate for the whole of the night period was likely to change, and on 5th July he reiterated this request. He included in that letter the results of local research which suggested that noise levels in 1993-94 had increased by 30% during the night period and by 15% during the night quota period, as compared with the base year of 1988-9. He did not receive a substantive reply to these letters.

The judge rejected the Appellants' complaints quite briefly. He said that consultees knew what the Secretary of State's policy was for the 1993-98 period, and that what had been called the 1988 undertaking was not part of that policy. They also knew what the Secretary of State's proposals were, and they knew the matters to which they should direct their representations. The Appellants retort that the status of the 1988 undertaking (and of the 1985 White Paper policy) and the nature of the Secretary of State's policy in regard to the night period were wholly unclear, and that they were and are still entitled to further reasoning and a further opportunity to make representations in the light of that reasoning before the Secretary of State reaches his final decision.

When considering the Appellants' arguments, it is reasonable to observe that the documents placed before the court reveal a fairly continuous thread of broad Government policy ever since 1985, viz:

1985 To continue to bring about progressive reductions in aircraft noise at night, allowing only movements by quieter aircraft;

Research into the relationship between aircraft and sleep disturbance would continue to be the basis for decisions on night noise.

1987 To continue to improve the night noise climate so that disturbance of people's sleep was further reduced;

To allow airlines to continue to provide some scheduled movements during the night period.

1988 Not to allow a worsening of noise at night and ideally to improve it.

1993 To continue to protect local communities from excessive noise at night;

To ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account.

In the context of planning law, which has a very complex statutory framework, it is well established that the appropriate authority must have regard to any relevant policy and that if it is going to depart from such a policy it must give clear reasons for doing so in order that the recipient of a decision may know why it is being made as an exception to the policy and the grounds upon which it was made. If the authority fails to understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy in the first place (see Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, per Woolf J at p94). Mr George observed to us that people are likely to take "locational" decisions about where to live and where to develop their businesses after studying published development plans and the official circulars that contain planning policy guidance, and that they are entitled to expect, as a general rule, that published policies will be followed.

It is always unwise to transfer principles established in one branch of administrative law too slavishly into another. In the present context there is no comparable statutory framework and it is clear from the evidence that the Secretary of State, as the decision-maker, was in the practice of taking decisions covering predetermined periods (since 1981, of 7 years in the first instance, and then of 5 years at a time). It follows that what was important, in the context of the way he exercised his s78(3) powers, was that people should be able to understand the policy objectives he identified when he began the decision-making process covering the next predetermined period and that they would have a chance of making informed submissions to him about the way in which he should exercise his powers against that policy background. It would, of course, be important for a planning inspector to be able to identify the broad aims of Government policy on aircraft noise at night (as currently in the case of the Inspector at the Inquiry into the proposed Fifth Terminal at Heathrow, who has set aside a discrete period of his inquiry next year to consider noise issues), but in my judgment in the present context it is sufficient for the minister to have identified with adequate clarity the policy objectives which are to guide him when making his decision for the next finite period: it is Parliament, not the courts, which should hold him accountable if it wishes to query or challenge the policies he has chosen.

The main thrust of the Appellants' criticism is that the 1993 Consultation Paper failed adequately to spell out how the proposal to change the regime in the night shoulder periods, and particularly the introduction of a broad measure of decontrol between 6 am and 6.30 am on winter weekdays, was consistent with Government policy. In my judgment, however, the policy considerations which have impelled this change are reasonably clear from a careful reading of that consultation paper, and the representations we have seen make it equally clear that two, at least, of the appellant councils knew exactly what was being proposed and took the opportunity to comment very fully on the proposals.

Nobody reading that paper, for instance, could have been in any doubt that in certain respects things had moved on since 1987. For example, certain types of aircraft were now quieter (because of technological advances), certain types of aircraft could now fly direct to England non-stop from South Asia and the Pacific Rim countries (for the same reason), air movements to and from those destinations were likely to be a growth area over the next 20 years, and recent research had revealed quite favourable findings in relation to the extent that external noise caused sleep disturbance. The Consultation Paper also showed that the Government was now inclined to put more emphasis on economic factors than had perhaps been evident in its 1987 White Paper.

All these matters would have been evident to anyone reading that paper, and the later Consultation Papers published in March and June 1995 successfully, in my judgment, cancelled out any misleading impression that might have been obtained from reading paragraph 34 of the original paper. It was now clear that the minister was intending to proceed by comparing the permitted noise climate in the basic 1988 summer "night quota period" with the noise climate he was willing to permit in the summer night quota period under the future arrangements. In other words the expression "not to allow a worsening of noise at night" should be taken to refer to the level of noise which had previously been permitted, as opposed to that which had actually been experienced.

Ms Duthie, who is the head of the division of the Department of Transport which has responsibility for night flying, has also explained on affirmation that one of the minister's objectives in 1993 was to achieve identical night flying restrictions at all the three airports: under the 1988-93 regime there was the special rule banning departures at Heathrow between 6am and 8am on Sunday mornings in the summer which was now being abrogated. This consideration apart, she added that Paragraph 19 of the January 1993 Consultation Paper furnished an explanation for the reduction of the length of the night quota period. This reads:

"Airlines' scheduling difficulties are also exacerbated by the changes in the definition of "night" between the seasons and between weekdays and Sundays in winter. With scheduled services increasingly following a common pattern week by week throughout the year, it would be appropriate to standardise the hours used."

Although Latham J recorded in his judgment the minister's view that the extra restrictions on the noisiest two categories of aircraft during the night period were seen as offsetting the reduction in the time covered by the quota periods, particularly in the early morning, Ms Duthie said that this counter-balancing was not subject to any arithmetical calculation and that it was not being suggested that there was an exact correlation between these two features.

In my judgment, these passages in the Consultation Paper sufficiently identified the matters the Government would be likely to consider, when balancing the fourth and fifth objectives it had identified at the start of that paper, and the policy context in which they would be considered, and I do not consider that the Appellants' criticisms in this regard are well-founded. Although they complain that the desirability of standardising the schedules was only adverted to by one airline and by the British Airports Authority in their responses to the consultation, it is for the minister, not the court, to determine what weight to give to the advantages of making this change.

As to the Appellants' complaint that the Government ought to have explained how the noise climate in the whole of the night period was likely to change, there is in my judgment a limit to the amount that it is reasonable to require a statutory authority to spell out in a consultation document. The fact that changes were being proposed to the length of what are now being called "the night shoulder periods", and the restrictions they would contain, was completely clear in the 1993 paper, and the way was open to objectors to do their own calculations to try to persuade the minister that the increased noise level he would be permitting was such that the balance he was seeking to strike should be struck in some different way. Similarly, both the 1987 and the 1993 Consultation Papers were public documents, and the way was open to objectors to argue that the same reasons that had held good for restricting decontrol should still hold sway, albeit in different circumstances, in 1993-8.

Because the Appellants complained that they were taken by surprise by the judge's finding that the 1988 undertaking was now a dead letter, we permitted them to put before us the 1985 White Paper and some of the evidence recently given by the Department's principal witness on noise policy at the ongoing public inquiry into a Fifth Terminal at Heathrow. The effect of this evidence was that the Government's approach to tackling aircraft noise which was set out in Section 8 of the 1985 White Paper had not changed in essence since then. The Inspector was told that the Government was concerned to strike a balance between various interests in the various measures it adopted to reduce noise and to encourage noise mitigation and the use of quieter aircraft. He was also told that although there was always an element of `balance' in policy, the emphasis now being given to the need to balance consideration of environmental impacts alongside economic benefits was an area in which policy had developed rather than changed substantially.

I can see nothing in this evidence to deflect me from the view that the Secretary of State understood what Government policy was and that he had made clear the extent to which he was consciously departing from previous policy in the proposals he was making in the 1993 Consultation Paper. No doubt, if he had had wind of the complaint now being made (which did not surface in all the voluminous complaints made in the course of the earlier applications to which I have referred) he would have made clear in the 1995 papers the extent to which he was well aware that by ending the night quota period at 6am throughout the year, there might have been a smaller difference between the permitted winter "quota count points of noise" in 1988 and those permitted in 1993. I do not, however, consider that he was under any legal duty to point out the obvious. He has now made it clear that he appreciated that paragraph 34 of the 1993 paper was misleading and that he is aware that his proposals involve, at Heathrow, a worsening of the noise climate to some extent.

I do not consider it useful, in this context, to enter into a semantic argument as to whether respondents to the consultation paper should have appreciated that the 1988 undertaking was dead, as the judge held, or whether it was still alive in principle, but subject to the interpretation that the noise climate meant the permitted climate, not the actual climate, which is what the evidence suggests. Nor do I consider it useful to analyse the explanations being given by the Department's lawyers in the spring and summer of 1995: the text of what is complained of is set out in the judge's judgment (now reported at [1996] 1 WLR 1005 at p 1018A-C) and I need not repeat it here. I agree with the judge's interpretation of this explanation at p 1018C-D, and the matter does not justify any further exposition.

For all these reasons I consider that the Consultation Papers set out the proposals fairly and rationally in an intelligible policy context, and although as I have said the matter was not put in the same way before the judge, I agree with his view that this part of the Appellants' challenge should be dismissed.

The Appellants' second head of challenge is based on inadequacy of reasons. Section 78(3) of the 1982 Act does not require the Secretary of State to give reasons, and the Appellants accept that the law does not at present recognise a general duty to give reasons for an administrative decision (R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 per Lord Mustill at p 564E). They derive, however, from the decision of this court in R v Kensington and Chelsea RLBC ex p Grillo [1996] 8 Admin LR 165 the principle that a duty to give reasons may be implied in appropriate circumstances. In that case the court approved a dictum of the Divisional Court in R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 at p 263A-C, to the effect that "where the subject-matter is an interest highly regarded by the law (for example, personal liberty)", fairness required that reasons, at least for particular decisions, should be given as of right: where, on the other hand, a decision appears aberrant, fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent.

The Appellants put their case on adequacy of reasons in two main ways. First, they say that a fundamental right was being interfered with, and since there was no remedy for their inhabitants at common law or under the European Convention of Human Rights, and their only protection was by way of judicial review proceedings, they contend that the need for adequate reasons was manifest. Quite apart from the significance of the fact that the proposals involve their inhabitants being subjected to an increased nuisance by noise of which they have no legal right to complain, they argue that the Court of Appeal now recognises that "the human rights dimension" is part of the relevant background to the formulation and exercise of administrative policy (R v Ministry of Defence ex p Smith [1996] 2 WLR 305, at pp 340B, 345C-D and 346B-C), and that proper justification should be given for a decision which involves an infringement of such rights.

Alternatively, the Appellants give three reasons for contending that this is a case in which a decision should be regarded as aberrant. First, because although the Secretary of State has acknowledged that his new proposals were contrary to the previous policy, he has never explained why, when and to what extent the 1988 undertaking was altered. Secondly, because the new proposals are contrary to the still extant noise policy set out in the 1985 White Paper. And, thirdly, because the statements made by the Department's legal representatives in the course of 1995 were so incomprehensible as to introduce aberrancy to the minister's eventual decision: I have already averted to this last point, which does not call for any further treatment.

The Appellants developed their arguments on the inadequacy of reasons under the same five heads they had used to support their contentions on legitimate expectation. First, although the minister admitted a change of policy in the June 1995 Consultation Paper, no reference to this change was made in the August decision letter (which said that in certain respects the 1987 policies were being continued), and no explanation was given for the admitted change of policy. Secondly, the minister did not explain what his new policy was.

Their third contention is that although the decision letter contained the concept that the proposals "represent[ed] a sharing of the benefits so far achieved by quicker aircraft, between local people and the airlines and their customers" it did not explain how this had been achieved. Although it had been said that there was a balancing between decontrol of previously controlled periods and additional controls on noisier aircraft, the Appellants maintained that this had not taken place, and the minister now admitted that there was no exact correlation.

Fourthly, the Appellants complain that no explanation has been given of how the noise climate in the night period (as opposed to the night quota period) was likely to change, even though the Secretary of State maintained that one of his policy objectives was to continue to protect local communities from excessive aircraft noise at night. And, finally, no explanation at all had been given for the different decision on de-controlling the night shoulder period, or for the altered balance now being struck between "the economic well-being of the country" and the right of the Appellants' inhabitants to respect for their home, private and family life.

In support of their arguments based on inadequacy of reasons the Appellants rely on the well-known passages in the speech of Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at pp 165B-C and 166F-G. In the first of these passages Lord Bridge described as "particularly well expressed" a passage in the judgment of Phillips J in Hope v Secretary of State for the Environment (1975) 31 P&CR 120 at p 123:

"... the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues."

In the second passage Lord Bridge said that he:

"certainly accept[ed] that the reasons should enable a person who is entitled to contest the decision to make a proper assessment as to whether the decision should be challenged."

The judge dealt with this challenge by saying that any duty to give reasons in this case must be based on the doctrine of legitimate expectation, and that he did not see that that doctrine could be applied differently to the giving of reasons so as to require a breadth of detail of reasons beyond the ambit of previous practice and utterances.

In analysing the Appellants' arguments I begin by observing that they accepted that where reasons for an administrative decision are required they do not have to be detailed or elaborate, and that it is sufficient if they explain why the decision was reached. They also do not quarrel with the judge's view that a passage from a Consultation Paper, when read with a passage from the decision, may throw light on the reasons lying behind the decision. Even in a case where the relevant statutory scheme expressly required the minister to have regard to every material consideration and to give reasons for his ultimate decision, the House of Lords defined the scope of the duty to give reasons in these terms:

"What the Secretary of State had to do was to state his reasons in sufficient detail to enable the reader to know what conclusion he had reached in the `principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

See Bolton MBC v Secretary of State for the Environment [1995] JPL 1043 per Lord Lloyd of Berwick (with whose speech the other four law lords agreed), at p 1046. A little earlier, at p 1045, Lord Lloyd had said:

"There was nothing in the statutory language which required him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the Inspector's report. He had to have regard to every material consideration; but he need not mention them all."

Here the statute has prescribed no particular procedures for the decision-making process, no express duty to have regard to every material consideration, and no specific duty to give reasons. In so far as duties may be introduced by rules of natural justice, the governing principles are to be found in the speech of Lord Bridge in Lloyd v McMahon [1987] AC 625 at p 702:

"Rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic or administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular it is well established that when a statute has conferred on anybody the powers to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

The present case is concerned, among other things, with the right of people living near Heathrow Airport to enjoy reasonably quiet nights (a right linked, as I have said, to the rights recognised by Article 8(1) of the European Convention of Human Rights). The procedure the Secretary of State decided to adopt, both to ensure the attainment of fairness and also to accommodate such people's legitimate expectation that they would be entitled to make representations to him before he made any changes to the regime for restricting night flying at Heathrow, was to issue a Consultation Paper (with later supplements to accommodate decisions of the courts or the complaints of the Appellants and others), and later, when he had had a chance to consider all the representations he had received, to publish a short Press Notice announcing his decision and giving brief reasons for it. No doubt if Parliament had not been in recess in mid-August, his decision would have been furnished to Parliament, whether in the form of a Written Answer or otherwise, and he would always be liable to be called to Parliament to account for his decision and to give reasons to explain it further.

This is not, therefore, a case in which a decision-maker has given no reasons (contrast R v Civil Service Appeal Board ex p Cunningham [1992] ICR 816 and R v Mayor, Commonality and Citizens of the City of London ex p Matson [1995] Admin LR 49). The minister has given reasons, albeit brief ones.

The question the court has to decide, therefore, is whether the reasons in fact given by the minister enable the reader to know what conclusions he has reached on the principal important controversial issues.

A procedure in which a minister starts a decision-making process by publishing a full Consultation Paper which contains his own provisional proposals is different from a procedure in which he passively awaits the report of an Inspector on the merits of a proposal made by a third party, and in any scrutiny of the adequacy of the minister's reasons for his decision in such circumstances it is in my judgment appropriate to read his reasons alongside the Consultation Paper which defined the main issues which were likely to inform his choice. The "principal important controversial issues" he had to decide were:

(1) whether to go ahead with his new scheme based on noise quotas, and if so how large should the new quotas be, and what period of the night should they embrace;

(2) whether to continue with extended restrictions for all aircraft movements from 6am onwards on winter weekdays (till 6.30am), winter Sundays (till 8am) and for summer Sunday departures (till 8am) or to introduce new arrangements (and if so what) banning noisier aircraft during some or all of those periods;

(3) what restrictions he should impose on scheduled movements of noisier aircraft, and whether he should extend them to a time (and if so what) earlier than 11.30pm.

In his announcement on 16th August 1995 the minister gave his answers on all these points. He also restated the five policy objectives which had informed the pre-1993 review and said that the Government was committed to achieving and sustaining those objectives. He restated the Government's aim to maintain a fair balance between the interests of local people and the airline industry including its customers. He said that differences between the new regime and the 1988-93 regime represented a sharing of the benefits so far achieved by quieter aircraft, between local people and the airlines and their customers. And he said in terms that he had given careful consideration to all the responses he had received to the two recent Consultation Papers, which were being made available for public scrutiny for a six-month period. He also made it clear that he had ensured that the maximum possible level of noise which could be generated against the new movements limits would be less than the level which could have been generated by aircraft operating to the full extent permitted in the summer of 1988.

Mr Burnett, who appears for the minister, contends that the minister has by this means fulfilled his legal obligations. I now turn to consider the Appellants' grounds for maintaining that he has not.

I consider first the complaints that he has changed his policy without giving reasons or explaining what his new policy is. In my judgment these complaints are not well-founded in law. On the face of it Parliament has given the Secretary of State an unfettered discretion as to how he will exercise his powers under s 78(3) of the 1982 Act. He has chosen to go about the decision-making process in the way I have described, and in advance of making a relevant decision he has published the policy objectives which will inform his choice and has invited interested parties to make representations to him, in particular on the issues he has identified. Once the problems created by paragraph 34 of the first paper were resolved, everyone would know that his policy objectives were those set out at the start of the 1993 paper subject to the caveat that the permitted noise levels for the periods when noise quotas were in operation would not be allowed to increase. He does not have to repeat this all over again when he gives reasons for his eventual decision.

The Appellants' complaint about the lack of reasons being given to show how the proposals would maintain the essential balance between the interests of the airline industry and local people is, in my judgment, equally ill-founded. As I have said, the 1993 Consultation Paper showed how things had changed on a number of fronts since 1987 and I know of no principle of law which would require a minister to go back to an earlier Consultation Paper and explain, item by item, why he is now taking a different approach to that taken by his predecessor. He has set out the competing considerations. He has set out his policy objectives. He has allowed time for representations to be made and he has carefully considered them. And he has announced his decision, which involved balancing competing and often irreconcilable interests, with express reference to all these matters. In argument before Latham J, for instance, counsel for the Secretary of State had accepted that standardising the periods of restriction was bound to increase the number of early morning aircraft movements, but he pointed out that in return the Secretary of State had effectively prohibited the movement of the two noisiest categories of aircraft during the night period (at least until 6 am). In my judgment the law does not require the Secretary of State to go further than he in fact went when giving reasons for his decision in this regard.

The next complaint relates to his failure to explain the likely effect of the relaxation of restrictions from 6am onwards compared with the previous regime. It would no doubt have been courteous for the minister to have furnished Richmond's chief executive with the information he sought, but he was not in my judgment obliged to do so as a matter of law. He had explained quite clearly what his proposals and his policy objectives were, and the contemporary arguments for relaxing the regime to some extent from 6am onwards, to accommodate no doubt the three types of special case identified in the Consultation Paper and the request for standardised schedules, were all quite evident. He had also, eventually, made it clear how he intended to make comparisons between the night noise climate at different times. The way had been open to the Appellants to persuade him, by force of argument and no doubt by other means available to them in the political forum, to reach a different conclusion from that which he proposed from 6am onwards, but I do not consider that he went wrong in law in failing to give this matter specific attention in his decision-letter. The Appellants' real complaint is that he did not give their side of the case the favourable attention they believed it deserved. That is not a matter for the courts.

The Appellants' next specific complaint is that the minister has reached a different decision as to de-controlling the shoulder period, as compared with that reached in the 1987 White Paper, without explaining why. To a great extent this is a specific rehash of earlier more generalised complaints. Nobody reading the 1993 Consultation Paper alongside the 1987 Paper could fail to notice that greater weight was now being given to economic factors and that in this respect, as I have already said, there were a number of important new considerations which could well attract more weight than had been given to similar considerations in 1987. Moreover the Government had always made it clear that its decisions in this area would be informed by the results of research into the relationship between aircraft noise and sleep disturbance, and the new research evidence mentioned in the 1993 paper was a new factor which could influence a decision-maker in taking a slightly different decision, even if it is correct that this evidence did not specifically embrace the issue of "sleep prevention" between 6 and 6.30 am in the wintertime. For reasons similar to those I have given already I do not consider that the minister was under any legal duty to spell out the reasons why he eventually confirmed his earlier proposal to prefer one set of arguments to another.

I turn now to the argument that insufficient justification has been given of the infringement of the "right to sleep" that this decision entailed. In R v Ministry of Defence ex p Smith [1996] 2 WLR 305 Sir Thomas Bingham MR accepted, as an accurate distillation of the principles laid down by the House of Lords in R v Secretary of State for the Home Department ex p Bugdaycay [1987] AC 514 and R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696, the following submission by counsel:

"The court may not interfere with the exercise of an administrative decision on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

Well-known passages in the speech of Lord Bridge (at p 514) in the first of these cases and in the speeches of Lord Bridge (at pp 748-9) and Lord Templeman (at p751) in the second are the source of this clear exposition of the current state of the law. It is instructive in the present context to note that in ex p Smith the former Master of the Rolls rejected a submission by the Ministry of Defence that a test more exacting than the Wednesbury test of irrationality was appropriate in the context of a policy decision by ministers. He said at p 337H:

"The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the courts must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden ... nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations."

The right to respect for one's home and family life (carrying with it in this context the connotation of the right, acknowledged by the common law, to the enjoyment of nights at home undisturbed by unreasonable nuisance from noise) is of course quite different from the rights to life and liberty or the rights of homosexuals which the Master of the Rolls went on to consider in the next passage of his judgment. But it is a right of a type which the courts are increasingly willing to recognise as worthy of specific attention within the framework of the approach now helpfully identified in ex p Smith.

Using this approach, I am satisfied that the minister furnished sufficient justification for his decision, albeit that it impinges on the rights of people to enjoy nights undisturbed by unreasonable nuisance from noise, particularly from 6am onwards, and that his decision cannot be impugned on this ground.

I am also satisfied that the decision cannot properly be described as aberrant, and in that sense calling for further reasons by way of justification than the minister has been willing to supply. Once the arguments based on an alleged confusion of policy have been set on one side, the minister's reasons are in my judgment sufficiently clear and the decision does not warrant that pejorative epithet. I accept the cogency of the Appellant's criticism of the way in which the minister, through his lawyers and otherwise, sought to maintain for a long time his stance that his policy was completely consistent with earlier policy statements, but so far as the present decision is concerned, in my judgment the minister has given adequate reasons and sufficient justification for his conclusion that it is reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at nights because of the other countervailing considerations to which he has now been willing to give greater weight.

I turn finally to the third ground of challenge. If rational reasons are set out for a proposal to change a scheme for restricting aircraft movements, and adequate reasons are given for the eventual decision, a challenge based on irrationality faces formidably high hurdles (see R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 per Lord Ackner at pp 757F-758A and Lord Lowry at pp 764G-765H). I accept Mr George's submission that these three heads of challenge may be mutually independent of one another, and that an attack may succeed on any one of these grounds when it has failed on one or more of the others (see, for example, Matson (supra), where the challenge failed on irrationality but succeeded on the absence of reasons). In the present case, however, there is such a large overlap between the Appellants' arguments based on irrationality and their arguments on the other heads of challenge that I can deal with this part of the case quite briefly.

In so far as Mr George attacks the decision for what he calls "policy-related irrationality" I have set out my reasons for rejecting this ground of attack. Although to a great extent the Secretary of State was the author of his own misfortunes by including paragraph 34 in the original Consultation Paper and by accompanying that paper with a Press Notice in somewhat tendentious terms, these errors had in my judgment been successfully eradicated by June 1995 at the latest, and I agree with the judge that there is no basis now for arguing that the new policy is Wednesbury irrational.

I have also set out already my reasons for my conclusion that it was not irrational to give greater weight in 1993 than in 1987 to the arguments in support of an earlier end to the night quota period in winter, or to consider that that part of Government policy which consisted of phasing out or restricting the noisier aircraft could properly be put in the balance when considering whether the benefits so far achieved by quieter aircraft were indeed being shared between local people and the airlines and their customer. As to the absence of evidence from research on the effect of noise on "sleep prevention" (ie when someone wakes up in the early morning and cannot get to sleep again) I accept Mr Burnett's submission that the minister could not reasonably be criticised for not relying on evidence that did not at present exist and that the present state of the research evidence on sleep disturbance was a factor he could reasonably take into account.

For all these reasons, although the Appellants' case was put rather differently in certain respects, and we had the benefit of the additional policy evidence to which I have referred, I am satisfied that their challenge fails on all the three surviving grounds and that the judge was right to dismiss it. I would accordingly dismiss the appeal.



ORDER: Appeal dismissed with costs; leave to appeal to the House of Lords refused.