R v Secretary of State for Transport, ex parte Richmond upon Thames London Borough Council and others (No 4)
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
 4 All ER 93,  1 WLR 1005
HEARING-DATES: 19, 20, 21 FEBRUARY, 8 MARCH 1996
8 MARCH 1996
Air traffic - Noise nuisance - Landing and take-off - Restrictions on landing and taking off to avoid, limit or mitigate noise - Secretary of State proposing new night flying restrictions at airports - Restrictions specifying aggregated seasonal limits - Restrictions for summer period allowing more noise than actually experienced under 1988 restrictions - Whether Secretary of State having to specify limits for each separate period within aggregate - Whether restrictions having to place further restraints on previous noise levels - Civil Aviation Act 1982, s 78(3)(b).
In August 1995 the Secretary of State, acting under powers conferred on him by s 78(3)(b) [a] of the Civil Aviation Act 1982, made an order imposing new night flight restrictions at Heathrow, Gatwick and Stansted airports for various periods from October 1995 to 1998. The decision was in line with proposals set out in a consultation paper issued on 9 June 1995, based on a comparison with noise levels in summer 1988, and imposed aggregated seasonal limits on the maximum number of aircraft movements permitted at each airport. The Secretary of State indicated that it was not possible to specify the maximum number of movements in respect of each separate period to which the order applied, since the demand for night movements varied regularly and not all such variations were foreseeable. The restrictions in respect of the summer periods allowed more noise than had actually been experienced in the summer of 1988, but less noise than had been permitted under the restrictions in force at that time. The applicant councils, which were the local authorities for the areas around the three airports, applied for judicial review of the Secretary of State's decision, contending, inter alia, that he had failed to specify the maximum number of movements in respect of each separate period to which his order applied as required by s 78(3)(b) and, further or in the alternative, that the power under that section could only be used to restrict further what had gone before.
a Section 78(3), so far as material, is set out at p 101 g h, post
Held - The application would be dismissed for the following reasons-
(1) The Secretary of State had power under s 78(3) of the 1982 Act to restrict the total number of night aircraft movements at designated aerodromes both by reference to individual specified periods and to the aggregation of specified periods and the power could be lawfully exercised without specifying the maximum number of movements in respect of each separate period. Having regard to the purpose of s 78(3)(b), the use of the word 'maximum' enlarged rather than restricted the statutory power to impose limits and indicated that periods might be aggregated so as to impose a maximum number of permitted movements in relation to that aggregate. Since the power conferred by s 78(3) was clearly divisible, the Secretary of State's restrictions were within his statutory powers (see p 102 a b e f, post).
(2) The power under s 78(3)(b) of the 1982 Act could only be used for the purpose of avoiding, limiting or mitigating the effect of noise vibration generated by aircraft movements which, but for the exercise of the power, might not be avoided, limited or mitigated; comparisons therefore had to be drawn not between what was proposed and what had been permitted by an earlier order, but between what was proposed and what the position would have been if there had been no order. In deciding what limits should be imposed, the Secretary of State had to balance a variety of interests which, at different periods, might have to be balanced differently. It followed that the Secretary of State was entitled to relax limits which had been imposed by an earlier order (see p 103 j to p 104 b, post).
For noise and vibration on aerodromes, see 2 Halsbury's Laws (4th edn reissue) para 1185.
For the Civil Aviation Act 1982, s 78, see 4 Halsbury's Statutes (4th edn) (1987 reissue) 201.
Cases referred to in judgment
Associated Provincial Picture Houses Ltd v Wednesbury Corp  2 All ER 680,  1 KB 223, CA.
Doody v Secretary of State for the Home Dept  3 All ER 92,  1 AC 531,  3 WLR 154, HL.
Liverpool Taxi Owners' Association, Re  2 All ER 589, sub nom R v Liverpool Corp, ex p Liverpool Taxi Fleet Operators' Association  2 QB 299,  2 WLR 1262, CA.
R v Civil Service Appeal Board, ex p Cunningham  4 All ER 310, CA.
R v Lancashire CC, ex p Huddleston  2 All ER 941, CA.
R v Secretary of State for Transport, ex p Richmond upon Thames London BC  1 All ER 577,  1 WLR 74.
R v Secretary of State for Transport, ex p Richmond upon Thames London BC (No 2) (1994) Times, 29 December.
R v Secretary of State for Transport, ex p Richmond upon Thames London BC (No 3) (1995) Times, 11 May.
Cases also cited or referred to in skeleton arguments
Padfield v Minister of Agriculture, Fisheries and Food  1 All ER 694,  AC 997, HL.
R v Brixton Prison (Governor), ex p Soblen  3 All ER 641,  2 QB 243, CA.
R v Governors of Haberdashers' Aske's Hatcham College Trust, ex p Tyrell (1994) Times, 19 October.
R v Greater Manchester Coroner, ex p Tal  3 All ER 240,  QB 67, DC.
R v Islington London Borough, ex p Trail  2 FCR 1261.
R v Lambeth London Borough, ex p Walters  2 FCR 336.
R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd  2 All ER 714.
Application for judicial review
Richmond upon Thames London Borough Council, Hillingdon London Borough Council, Hounslow London Borough Council, Surrey County Council, Windsor and Maidenhead Royal Borough Council and Slough Borough Council applied with leave granted by Sedley J on 31 October 1995 for judicial review of the decision of the Secretary of State for Transport announced in a press notice on 16 August 1995 to introduce new night flying restrictions at Heathrow, Gatwick and Stansted Airports. The relief sought was inter alia (i) an order of certiorari to quash the decision, (ii) a declaration that the decision was unlawful for failing to specify flight numbers in accordance with s 78 of the Civil Aviation Act 1982, (iii) further or alternatively, a declaration that the decision was unlawful for being contrary to statutory purpose and/or the applicants' legitimate expectations, (iv) further or alternatively, a declaration that the decision was unlawful for allowing noise levels during the night as a whole to increase over 1988 and/or 1993 levels, and (v) orders of mandamus and/or remission requiring the Secretary of State to reconsider his decision according to law. The facts are set out in the judgment.
Richard Gordon QC and Alan MacLean (instructed by Richard Buxton, Cambridge) for the applicants.; Ian Burnett and Dinah Rose (instructed by the Treasury Solicitor) for the respondent.
Cur adv vult
8 March 1996. The following judgment was delivered.
8 March 1996
PANEL: JOWITT J
JUDGMENTBY-1: JOWITT J.
The Secretary of State for Transport has power under s 78(3) of the Civil Aviation Act 1982 for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at aerodromes to make orders imposing restrictions on the number of occasions on which aircraft may take-off or land at an aerodrome during prescribed periods and on the type of aircraft which may take off or land during prescribed periods. It is his exercise of that power in respect of Heathrow, Gatwick and Stansted airports which gives rise to this application for judicial review, for which leave was given by Sedley J, though the applicants' submissions have been centred on the effect of the Secretary of State's decision on Heathrow airport.
It has been the practice of the Secretary of State to make proposals as to his exercise of this power at five-yearly intervals to cover the following five years and to embark upon a non-statutory consultation in respect of them, inviting responses from interested parties. Although the consultation process occurs at these intervals and the Secretary of State makes a decision to cover the five-year period, he does not always make a single order to cover that period.
The history of this matter begins with consultation papers published by the Secretary of State in November 1987 for the five-year period 1988-93 in respect of his proposals for future night flight restrictions at Heathrow and Gatwick airports. Both documents were in similar terms and the Heathrow paper contained the following passage:
'The restrictions as revised in 1981 phased out night flights by the older, noisier aircraft. This, and the airlines' investment in newer and quieter aircraft, has over the years brought about an improvement in the night noise climate around [Heathrow and Gatwick]. That is a significant achievement which we must not throw away. We are therefore determined to ensure that this improvement continues. We believe this can be done without seriously hampering those airlines which need to schedule services at night. The objectives which underlie the proposals in this paper are therefore:-to continue to improve the night noise climate so that disturbance of people asleep is further reduced; to allow airlines to produce some scheduled movements during the night periods; to enable the airport to continue to offer a twenty four hour service; to encourage airlines to continue to invest in quieter, modern aircraft.' (Secretary of State's emphasis.)
These proposals were referred to in a subsequent answer to a parliamentary question, as appears from a press notice of 10 February 1988.
'In answer to a Parliamentary question [the Secretary of State for Transport] explained that he was determined that night noise around Gatwick should be reduced over the next five years. At Heathrow he will cut back on the number of night flights allowed, first preventing any increase in disturbance. Mr Channon explained that both decisions were in line with the proposals published in last November's consultation papers with one important change: to ensure the improvement of the night noise climate at Gatwick he had undertaken to reconsider the quotas after two years if monitoring showed that the disturbance was getting worse.'
The press notice contained a quotation from the parliamentary answer (12 HC Official Report (6th series) written answers cols 247-248):
'On 6th November last year I published proposals for future night restrictions at the two airports. I set out then my objective-to improve the night noise climate around the airports without imposing unnecessary restrictions on the airline industry ... At Heathrow there is less demand for night flights than at Gatwick. The present quotas are not fully used and I can achieve my objectives in limiting the further growth of night movements by keeping them to their present level, as proposed in the consultation paper ... Take-offs by older, noisier aircraft will not be allowed in the small hours except for a small quota for those planned to take-off earlier which are unavoidably delayed. This should achieve a considerable improvement in the noise climate during this most sensitive period.'
The present application before me concerns the consultations for period 1993-98. A consultation paper was issued in January 1993 outlining the proposals for night flights at all three airports. It pointed out that Heathrow was the world's leading international airport and referred to its importance to the local and national economies. The proposals for 1993-98 were said to be made against this background. Stated objectives of the proposals were as follows. (1) To introduce common arrangements for night restrictions at all three airports. (2) To take account of the effect on UK airports and airlines of competition and of the employment and economic implication of any proposals. The aim was to strike a balance between different interests and the point was made that if the restrictions on night movements are too severe profits will be affected, airfares will increase and business will be lost to continental airports. (3) Striking this balance involved balancing the wish of airlines to operate night services and the desire of local residents to sleep peacefully. (It is obvious that an acceptable take-off hour in one part of the world can produce an unwelcome landing time in another part of the world and vice versa.)
The 1993 consultation paper reads:
'34. 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 [a reference to the answer in Parliament already referred to, read with the 1987 consultation papers] not to allow a worsening of noise at night, and ideally to improve it, it is proposed that the quota for the next five years based on the new quota system should be set at a level so as to keep overall noise levels below those in 1988. For Heathrow the proposed summer noise quota is 7,000 and for Gatwick is 9,000. The 1988 summer quota for Heathrow would have been about 8,000 if calculated on the new basis and the summer quota for Gatwick about 11,450.
35. At Stansted where no quotas have been previously set, it is proposed to introduce a quota linked to the permitted levels of the airports' development and on a pro rata basis with Gatwick ... On this basis the Stansted quota will not inhibit development of the airport but it will afford local communities protection from night noise on the same basis as people living around Gatwick and Heathrow. Having the same rules will prevent Stansted from becoming a dumping ground for noisy aircraft not allowed to operate at other airports.
36. It is proposed to continue the policy of applying separate quotas to the winter and summer seasons with the winter season being 5/7ths of the summer season one. This will remove the large difference that currently exists at Gatwick between the seasons to allow for the growth of year-round scheduled services and more winter charter operations.'
After the consultation process was concluded the Secretary of State announced his decision. There were prohibitions on night take-off and landing by aircraft which generated noise above a certain level (the measurement being known as a quota count (QC)). No complaint has been made about this aspect of the decision. A second aspect of control of night take-off and landing was, as foreshadowed in the consultation paper, through the imposition of a seasonal noise quota which was not to be exceeded.
Also, as foreshadowed in the consultation paper, a night quota period was introduced. This had the effect that, whereas during the period 1988-93 at Heathrow take-offs and landings in winter between 6 am and 6.30 am on Mondays to Saturdays and between 6 am and 8.00 am on Sundays had counted against the movements quota, noise generated during these periods by take-offs and landings did not count against the new permitted noise quota. The decontrol of these periods, save for the ban on take-off and landing of noisy aircraft, has been the bone of contention before me. In summer during the 1988-93 period take-offs on Sundays between 6 am and 8.00 am counted against the movements quota. The decision similarly decontrolled this period, but this aspect of decontrol has not been the subject of complaint before me. The summer and winter periods coincide each year with the operation of British Summer Time and Greenwich Mean Time.
The decision was announced on 6 July 1993. It stated that the quota levels at Heathrow (and Gatwick) were designed to keep overall noise levels below those in summer 1988. In an answer to a parliamentary question the Secretary of State said (228 HC Official Report (6th series) written answers cols 72-73):
'The central element of our consultation paper was a new system to maintain the protection offered to residents around Heathrow ... Responses to the consultation have clearly demonstrated the importance local people attach to night restrictions. My decisions have sought to maintain the essential balance between the aviation industry and local people. The aviation industry makes an important contribution to the economy and it is essential to preserve employment and business opportunities not only for the 100,000 people who work in it but also for the wider contribution it makes to the local and national economy. The new night noise regime will be tough on industry and is a challenge to them to maintain progress at introducing quieter aircraft. It will help to ensure that local people are able to enjoy a good night's sleep.'
The Secretary of State's decision resulted in a challenge by way of judicial review before Laws J by, among others, a number of the present applicants (see R v Secretary of State for Transport, ex p Richmond upon Thames London BC  1 All ER 577,  1 WLR 74). A number of challenges were mounted to the Secretary of State's decision, of which only one succeeded. I need not at this stage refer to any of the challenges which failed but it is necessary, as part of the history of this matter, to refer to the one which succeeded. Laws J accepted that while the Secretary of State's intention was, by means of noise quotas, to achieve the statutory purpose set by s 78(3), this was not a means which was open to him under the subsection. The power under the subsection was to place limits on the number of take-offs and landings during specified periods. Laws J granted a declaration that the decision was unlawful and therefore invalid.
The judgment of Laws J was given on 29 September 1993. There was little time left before the winter season began on 24 October. There followed a brief consultation period and a decision on 12 October 1993. This decision, while maintaining overall noise quotas for the winter season, introduced movement limits for take-offs and landings at the three airports.
Then, in November 1993, a further consultation paper was issued containing proposals for the remainder of the 1993-98 period. This referred to a new five-year policy for night restrictions as having been announced in the decision of 6 July 1993. It referred to the need for restrictions to protect local communities from excessive aircraft noise levels at night but without unnecessarily impeding the airline industry. It referred to the objectives of striking a balance which had been referred to in the consultation paper of January 1993. It also referred to other aspects of the demand for night movements not involving passengers.
The paper spoke of the outcome of that consultation exercise. One of the results was that aircraft which had been proposed to have a nil QC were now to be rated at 0 5. This had the effect of reducing the overall noise permitted by any noise quota. Movement quotas were proposed for winters and summers to apply to the periods to which noise quotas had applied in the decision overturned by Laws J but the noise quotas were retained in addition. There was therefore no change proposed to the controlled hours to which restrictions would apply. Comments were also sought on an alternative proposal, though in the event this proposal did not find its way into a decision.
The decision for the summer season of 1994 was announced on 1 February 1994. On 6 May 1994 the Secretary of State announced his decision for the balance of the five-year period. Both these decisions contained a movements quota supplemented by a noise quota and adopted the same controlled periods as in the July 1993 decision. The Secretary of State said he had given careful consideration to the responses he had received from interested parties during the consultation process and spoke once more of his aim to strike a fair balance between the different interests so as to protect local people from excessive aircraft noise at night without unnecessarily impeding the airline industry.
These three decisions made subsequently to the hearing before Laws J were in their turn subject to judicial review, this time before Latham J (see R v Secretary of State for Transport, ex p Richmond upon Thames London BC (No 2) (1994) Times, 29 December). Of the various challenges two were successful.
He accepted that properly understood the comparison made in the January 1993 consultation paper between what was proposed for the 1993-98 period and 1988 was on the basis of noise levels proposed for the new period and noise levels extrapolated from the take-off and landing figures which had been permitted for 1988. Mr Gordon QC for the applicants does not dispute this. The learned judge went on, though, to say:
'There was, however, one fundamental consequence of this approach which was not referred to in the consultation paper. The summer quota for Heathrow in 1988 was 2,750 movements. That was the basis upon which the consultation paper calculated that the quota count in 1988 would have been 8,000 in comparison with the proposed quota count of 7,000. In fact the actual number of movements for summer 1988 at Heathrow was 1,800: it was accepted on behalf of the respondent that the equivalent noise quota for that number of movements would in all probability be less than 7,000. In other words, far from there being an improvement over the noise levels experienced in 1988 the new summer quotas if fully utilised would produce an increase over the noise levels experienced in summer 1988, contrary to the apparent and expressed policy of the respondent.'
Latham J went on to point out that the applicants' representations had been made on the basis that the proposed measure would not have the effect of permitting more noise at Heathrow than had in fact been experienced in 1988 and that there was no clear recognition in the Secretary of State's documents that he appreciated that his department's own data showed his proposed measure would have this effect. The learned judge accepted that the applicants had been misled by the consultation paper and so had been deprived of the opportunity of making the point that the Secretary of State's proposals would be contrary to his policy, which was to effect an improvement in night-time noise levels. He went on to say:
'I do not consider that consultation based upon a document which can mislead in this way can be described as full and fair consultation in the sense that these applicants could legitimately expect. But the issue goes further than the consultation process. I have already said that the documents do not show that the respondent appreciated that the proposals had that effect. The press notice emphasised that noise levels would as a result of the proposals be below those in summer 1988. That can only sensibly be read as meaning noise levels experienced in summer 1988. I can see nothing to suggest that the respondent, in making the decision in question, took into account the fact that in respect of Heathrow the proposed quotas, if fully utilised, would probably result in an increase in the noise levels experienced in summer 1988 contrary to his expressed policy.'
Latham J held that for these two reasons the decisions attacked were unlawful. He made a declaration which expressed the unlawfulness in this way:
'... (a) the failure by the [Secretary of State] to provide a full and fair consultation process; (b) the failure by the [Secretary of State] to take into the account the fact that the said decisions would permit movements at Heathrow which would produce greater noise than that which was experienced at Heathrow in summer 1988 on the basis of his own calculations contrary to his expressed policy ...'
Following the judgment of Latham J, a further consultation paper was issued in March 1995. It was explained that the intention of paras 34 and 35 of the consultation paper of July 1993 was to explain that the proposal was to set noise quotas for the new five-year period at a level which would permit less noise than had been permitted by the movement quotas for summer 1988. The proposal was to adhere to the restrictions in the decision of 6 May 1994. Application was made for leave to challenge this consultation paper by way of judicial review. The application came before Sedley J on 5 April 1995 (see R v Secretary of State for Transport, ex p Richmond upon Thames London BC (No 3) (1995) Times, 11 May).
The first ground of challenge was that the Secretary of State had failed in his consultation paper to recognise and state that he had changed or departed from his announced policy. Sedley J concluded that despite the way in which the Secretary of State had expressed and sought to justify his stance (of which he was highly critical) the consultees knew what was proposed and what they had to deal with.
Of the three other challenges it is necessary to mention only one, being a challenge pursued in the present application. It was said that the Secretary of State should have placed a nightly limit on aircraft movements rather than simply a seasonal limit. Sedley J considered that until the Secretary of State had made his decision it would be premature to canvass this point in judicial review.
He refused leave. The applicants renewed their application to the Court of Appeal and were granted leave on the first ground to which I have referred and on a further ground which has not been pursued before me.
The Secretary of State was anxious to have a decision in place with as little delay as possible. Accordingly, he issued a further consultation paper and the applicants agreed to withdraw their application and did so. The new paper was issued on 9 June 1995. It contained no proposals to alter the night restrictions contained in the decision of 6 May 1994. The explanation for para 34 of the January 1993 consultation paper was repeated and it was explained that the Secretary of State believed it to be right to compare what was allowed in summer 1988 with what it was proposed to allow for summers under the new system. He had used as a reference point the levels of noise which it was considered reasonable to allow in summer 1988.
The paper acknowledges that the Secretary of State's policies and the proposals based on them allow more noise than was experienced from aircraft movements which counted against the quotas in summer 1988 at Heathrow. This was acknowledged by the Secretary of State to be contrary to the policy as expressed in para 34 and went on to say:
'For avoidance of doubt, it remains the case that what is proposed to the end of summer 1998 would permit less noise than was permitted at Heathrow and (Gatwick) for summer 1988.' (Secretary of State's emphasis.)
The decision was announced on 16 August 1995 and it is this decision which is challenged in the present application. In announcing the decision the Parliamentary Under-Secretary of State said that the objectives of the review were, inter alia, to introduce common arrangements for night restrictions at the three airports, to continue to protect local communities from excessive aircraft noise levels at night and to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account. The overall aim was to maintain a fair balance between the interests of local people and the airline industry, including its customers and that the decision, when all its elements were taken together, achieved the appropriate balance. It represented a sharing of the benefits so far achieved by quieter aircraft between local people and the airlines and their customers. In response to the suggestion by some of the consultees that there should be a nightly limit, the Parliamentary Under-Secretary of State said that the fundamental practical problem was that demand for night movements at each airport varied from night to night and from week to week, sometimes substantially. Not all these variations were foreseeable. He was not satisfied it would be possible to devise a workable regime of night flying restrictions incorporating a nightly limit.
The Parliamentary Under-Secretary of State (whose decision this was because of the proximity to Heathrow of the constituency of the new Secretary of State) said he had given careful consideration to all the responses received to the consultation papers of March and June 1995. He said he was unable to refer specifically to each of them in the space of his announcement and so had arranged for them all (save when the author had requested confidentiality) to be made available for inspection.
The applicants raise four challenges to the decision of 16 August 1995. Having regard to the conclusions I have reached, I propose to consider first the second and third of them, which both raise points on the construction of s 78(3)(b), which reads as follows:
'If the Secretary of State considers it appropriate, for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking-off or landing, or limit the number of occasions on which they may take-off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say ... (b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome (otherwise than as aforesaid) during periods so specified ...'
The second challenge
Mr Gordon, for the applicants, submitted that although the Secretary of State is entitled, as he has done, to restrict the total of aircraft movements for an aggregate of periods, he is required also to specify in respect of each separate period to which his order applies the number of movements which may not be exceeded in that period. Having failed to do so, his decision and any order made giving effect to it is unlawful. It is necessary, therefore, to consider the ambit of the power conferred by s 78(3)(b).
Mr Gordon submitted that the 'periods so specified' referred to in para (b) are the 'certain periods' referred to in the opening words of sub-s (3). I agree. He argues also that the words 'during periods so specified' should be read as meaning 'during each period so specified'. I do not accept the correctness of this suggested construction. It involves reading in an additional word which is not necessary to give the words a sensible meaning. Moreover, the inclusion of the word 'maximum' in para (b) has to be born in mind. Subsection (3)(b) has to do with imposing limits which may not be exceeded. A power to limit by specifying the permitted number of movements in respect of individual periods has no need of the word maximum. A reason for including the word is to be found if periods can be aggregated for the purpose of specifying a maximum number of movements for the aggregate number of periods. Nor need there be only one aggregate of periods attracting a maximum. For example, an order could specify different periods during a 24-hour day or different days of the week and provide different maxima for the separate aggregate of these different periods. Again, it could aggregate periods during a shorter time than the summer or winter season, for example by the week or the month and provide maxima for these.
In my judgment, to read the words 'periods so specified' in the way suggested by Mr Gordon would make the word 'maximum' surplus and would mean there was no power to aggregate different periods so as to impose a maximum number of permitted movements in relation to the aggregate.
Does the reference to maximum mean, then, that the power under sub-s (3)(b) can only be used in respect of aggregated periods and not in relation to individual periods? This was not suggested to be the case either by Mr Gordon or by Mr Burnett for the Secretary of State. Nor do I see any need to give the word this effect. It would cut down the ambit of the power conferred. In my judgment, though, having regard to the purpose of the statutory provision, the use of the word 'maximum' should be regarded as enlarging, rather than restricting, the statutory power to impose limits on the number of aircraft movements. I conclude, therefore, that there is power under sub-s (3)(b) to impose limits both by reference to individual specified periods and to the aggregation of specified periods.
Mr Gordon argued that since there is a power to impose limits in respect of individual periods, the power under the subsection cannot lawfully be exercised unless such limits are imposed. If this is right, then consistency would seem to require that to be lawful any exercise of the statutory power must impose limits both by reference to individual periods and to some aggregate of periods. I see no basis for Mr Gordon's submission and I reject it. The words which precede paras (a) to (c) in sub-s (3) allow the Secretary of State to do all or any of the things permitted by those paragraphs. Mr Gordon submitted these words have the effect that once the Secretary of State decides to exercise a power under one of the paragraphs, he must exercise every aspect of the power created by that paragraph; 'any' allows the Secretary of State to chose to act under one or more of the paragraphs but not to chose to exercise only a part of the powers in a chosen paragraph, the exercise being indivisible. I see no reason why this phrase should be read in this restricted way. An example will show how such a reading could work against the commonsense exercise of the power under para (a), which allows a ban to be placed on the take-off and landing of noisy aircraft. Apparently landing creates more of a problem with noisy aircraft than take-off. One could obviously, therefore, have a time of the day when a landing movement could be objectionable but not a take-off movement. It would be unfortunate and nonsensical if the power under para (a) had to be exercised in respect of both movements or not exercised at all in respect of the particular type of aircraft.
The construction of s 78(3)(b) was argued by Mr Gordon before Latham J and his argument was rejected. Mr Gordon submitted that the learned judge reached the wrong conclusion and, the matter having been re-argued before me, I have thought it appropriate to explain my own reasons for reaching the same conclusion as Latham J.
The third challenge
Mr Gordon submitted before me, as he did unsuccessfully before Laws and Latham JJ that the power under s 78(3)(b) can only be exercised so as effectively to impose further restraints on noise levels over what has gone before, the so-called ratchet effect. Consequently, since the effect of the decision challenged, though setting a permitted level of noise for the period 1993-98 which is less than the level permitted for the preceding period, is to allow more noise than the actual level for summer 1988, the decision is unlawful. This contention was decisively rejected by Laws J. Latham J agreed with him, and not simply for reasons of judicial comity. I also agree and in my turn, not simply for reasons of judicial comity. I propose to confine myself to dealing with one submission which Mr Gordon has made in support of this challenge and to add an example of my own to that given by Laws J in his judgment.
Mr Gordon drew my attention to s 78(5)(a) which imposes a duty on the Secretary of State before exercising the power under sub-s (3)(b) to consult any body appearing to him to be representative of operators of aircraft using the aerodrome in relation to which he proposes to exercise his power. Mr Gordon pointed out that the rationale for that duty of consultation is that the aircraft operators may be adversely affected by the exercise of the power and so are given the right to be consulted. There is, though, no statutory duty to consult others, for example local residents and the local government bodies representing them, who might be adversely affected by an exercise of the power which allowed a relaxation of the controls which had gone before. Therefore, submitted Mr Gordon, the power under sub-s (3) can only be used to restrict further what has gone before. Were it otherwise a statutory right to be consulted would have been provided. This argument is ingenious but quite fails to convince me. I can see a very good reason why Parliament should have singled out bodies representative of aircraft operators as being entitled to be consulted. Aircraft movements cannot sensibly be considered simply in terms of the time of take-off or landing at a particular airport in respect of which it is proposed an order should be made. Account has to be taken of where an aircraft is going to or coming from and of the time of landing or take-off at some other airport. Account has to be taken of passenger demand and of the need to have aircraft at the right places and at the right times. An aircraft may touch down at a UK airport en route between two other countries. One type of aircraft may be required for one flight and another for another flight. The complexities of all this are such that it is easy to see, on a practical basis, why aircraft operators may have an important contribution to make to the decision-making process, of which the Secretary of State might be largely unaware if there were no consultation.
It is clear that the power under s 78(3) can only be used for the purpose of avoiding, limiting or mitigating the effect of noise and vibration generated by aircraft movements which, but for the exercise of the power, might not be avoided, limited or mitigated. The comparison drawn by the subsection is not between what is proposed and what has been permitted by an earlier order, but between what is proposed and what the position would be if there were to be no order. In deciding what limits should be imposed the Secretary of State has to balance a variety of interests. At different periods the balance may have to be struck differently. And here I add my own example. Suppose there were to be a surge in demand for air travel, that is something the Secretary of State would be entitled to take into account which might lead him quite properly to conclude that a new order had to introduce a degree of relaxation of the limits imposed by an earlier order.
The first and fourth challenges
The first challenge is divided into two parts, the first relates to policy and the second to an alleged failure to give adequate reasons for the decision. The fourth challenge relates to an allegation that the applicants have been disappointed of their legitimate expectation to be consulted if there is to be a change of policy. I propose to consider first the policy point, together with the fourth challenge, and to come finally to the second part of the first challenge-the reasons challenge.
First challenge (policy) and the fourth challenge
Mr Gordon submitted that the 1998 undertaking remains and encapsulates the Secretary of State's policy, namely to introduce controls which will reduce the level of night noise at Heathrow below that actually experienced there in the summer of 1988. It follows he has acted with Wednesbury unreasonableness, in that while professing to adhere to this policy he has departed from it (see Associated Provincial Picture Houses Ltd v Wednesbury Corp  2 All ER 680,  1 KB 223). Alternatively, he argues, it is unclear what the Secretary of State's policy is and (as I understand Mr Gordon) there is no clearly enunciated policy by which to judge whether his proposals confirm to his policy.
Mr Gordon submitted that the Secretary of State has acted consistently so as to improve the night noise climate at Heathrow and this and the practice of consultation created a legitimate expectation that he would not depart from this objective without giving those affected an opportunity to make representations about it.
Latham J concluded that the 1988 undertaking covered only the 1988-93 period and that any undertaking or policy for the subsequent period must be found in the consultation papers for that period. Mr Gordon does not challenge this, but he submits that despite the passages in and the quotation from the consultation paper of 9 June 1995 which I have referred to and set out above, it is apparent from other material that the Secretary of State still adheres to the 1998 undertaking as representing his policy. He finds this material first in para 23 of Miss Duthie's first affirmation filed on behalf of the Secretary of State and second in an exchange of letters between the applicants' solicitor and the Treasury Solicitor of 23 and 28 June 1995.
In para 23 of Miss Duthie's first affirmation she says, referring to para 34 of the consultation paper of January 1993:
'It proposed that the noise levels permitted for summer seasons under the new regime should be lower than those permitted under the old regime and described this as "in keeping with the undertaking given in 1988 not to allow a worsening of noise at night and ideally to improve it".'
There, argues Mr Gordon, is the 1988 undertaking still alive and, if not well, still held out as representing ministerial policy. In my judgment this argument is unsustainable. It ignores what is said in the June 1995 consultation paper and lifts a single sentence from Miss Duthie's affirmation from the context in which it should be read.
The exchange of letters began with an inquiry from the applicants' solicitor. I set out his letter in full.
'Referring to the recent June 1995 supplement to the April 1995 consultation, I would be grateful if you clarify points regarding the S/S's policy. [The reference should be to March and not April.] It would appear from the new paper that the S/S's policy is not to allow an increase in permitted levels of noise over what was permitted at Heathrow (and Gatwick) for summer 1988. It is not clear however how that relates to the policy "not to allow a worsening of noise at night and ideally to improve it." You will recall that this policy was found by Sedley J to have been repeated in the 1993 and (April) 1995 consultation papers. Please would you clarify whether the S/S has now departed from that policy, ie whether now it is dead and the policy is now to allow an increase of noise; or whether the policy is still extant and the new proposals are merely recognised as a departure from the policy. In any event, the policy (as now appears) only relates to the night quota period (2330-0600). We have no idea what the S/S policy is in relation to the night period (2300-0700) which we understand to be the object of his controls (and presumably the subject of the 1988/93/95 policy/undertaking not to allow worsening of noise at night and ideally to improve it). Does one policy relate to the night quota period and the other policy to the night period? Is that why they are both still extant? What is the policy in relation to the night period and what is the effect of the controls overall on noise during the night period as a whole? I await your clarifications so that informed representations may be made on the S/S's proposals.'
The reply contained the following paragraph:
'The Secretary of State's position is clearly expressed in Sedley J's summary of the argument put by counsel for the Secretary of State at the leave hearing on 4th April-"Paragraph 7 of the 1995 paper now sets out a new policy, with the consequence that the proposals no longer conflict with it: the new permitted levels will exceed the past actual levels but will be less than the former permitted levels. The policy is now to make a legitimate comparison between one permitted level and another and the Secretary of State's stance is that to do so is in keeping with 1988 undertaking."'
Again, Mr Gordon argued that the reference to the 1988 undertaking shows it still represents the Secretary of State's professed policy. It seems to me that this amounts to asserting that it is still policy not to permit in the 1993-98 period a night noise climate at Heathrow which is worse than what was actually experienced (as opposed to permitted) in the summer of 1988. This has only to be said and considered in the light of other relevant material to demonstrate that the exchange of letters provides no shred of support for Mr Gordon's submission.
But he advanced a further possible meaning to be extracted from the reference to the 1988 undertaking. It is this: that the new policy of comparing proposed permission with past permission applies only to the night quota period, but the ban under sub-s (3)(a) on the take-off and landing of noisy aircraft for the night period (which is longer than the night quota period) will more than offset the cumulative adverse effects of the new limits fixed under sub-s 3(b) and of the winter decontrol of a weekly total of five hours, so achieving by the overall result compliance with the 1988 undertaking. I find this meaning to be so fanciful and tortuous as to have no appeal save to a mind seeking a means of avoiding the obvious. I reject it. The Treasury Solicitor's letter is doing no more than allude to the spirit of the 1988 undertaking. Moreover, the subject of this application for judicial review is the Secretary of State's decision and not the letter written by the Treasury Solicitor containing what might be open to criticism as a loose reference to a no longer extant undertaking.
I have no hesitation in saying that the 1988 undertaking has gone. It forms no part of the present policy and cannot be read in substitution for or as a qualification or addition to the policy stated in the consultation papers issued for the 1993-98 period as finally explained by the June 1995 paper. Nor, in my judgment, is there any room for any lingering uncertainty about the present position. I reject that part of the first challenge relating to policy.
Consultees reading the June 1995 paper and reading in the light of it the earlier papers, knew what the Secretary of State's policy was for the 1993-98 period. They knew the 1988 undertaking was not part of that policy. They knew what the Secretary of State's proposals were and they knew to what they should direct their representations. It was open to them, if so minded, to make their representations that the 1988 undertaking should be adhered to and that any policy contained in it should remain unchanged. There has been no failure to give effect to the legitimate expectation which is the subject of the fourth challenge and I reject this challenge.
First challenge (reasons)
Mr Gordon submitted that although there was no statutory duty upon the Secretary of State to consult the applicants, there was none the less a right to be consulted and therefore to be given reasons for his decision. He is content to base that right on the doctrine of legitimate expectation arising out of the Secretary of State's past practice to consult and to give reasons. Mr Burnett accepted that there may be a duty based only, he argued, on legitimate expectation but he asserted that the scope of a duty arising in this way is determined by the extent of the former practice, in accordance with the principles on which the doctrine of legitimate expectation is based.
Mr Gordon's arguments do not accept any such limitation. Once there is a duty to give reasons, however arising, it is a duty to give adequate reasons. He cited by way of support for this proposition a sentence from de Smith, Woolf and Jowell Judicial Review of Administrative Action (5th edn, 1995) p 468, para 9-053:
'Whatever standards are applied by judges to the adequacy of reasons under a duty, it seems likely that reasons given voluntarily-where there is no duty-will be reviewed in accordance with the same standards as are applied to compulsory reasons.'
A fortiori, Mr Gordon submitted, when there is a duty.
He argued that for reasons to be adequate they must satisfy four requirements. (1) They must explain any change of policy. I understand this to require more of the Secretary of State than to say simply that he has changed his policy and what the new policy is. The submission amounts to a requirement that there has to be a reasoned justification of a change of policy. (2) They must be such as to demonstrate that all material representations have been properly considered. It is not enough for the Secretary of State to say that he has taken account of them. (3) They must deal with all the relevant issues raised by the consultation process in order to demonstrate what decisions were made on issues about which the consultation process generated conflict and the reasons for those decisions. (4) They must set out any further basis for the overall decision not covered by (3). Mr Gordon accepted, though, that the reasons do not have to be detailed or elaborate. Relying on R v Lancashire CC, ex p Huddleston  2 All ER 941, he submitted that once leave to move for judicial review has been granted then even if no or no adequate reasons have been given a respondent owes to the court a duty to explain how the decision under review was arrived at so that the court may know whether it was lawful-as being within the four corners of any statutory power-and whether or not it is Wednesbury unreasonable. Ex p Huddleston was a decision of the Court of Appeal consisting of Donaldson MR, Parker LJ and Sir George Waller. I take the combined effect of the three judgments in that case as requiring that once leave has been given the decision-maker (in so far as this had not already been done) owes to the court a duty to provide the court with the reasons for its decision which are relevant to the grounds of challenge.
I have considered the analysis in the decision of the Court of Appeal in R v Civil Service Appeal Board, ex p Cunningham  4 All ER 310 of the factors which will often be material in deciding whether or not a requirement to give reasons will be implied by the common law where there is no statutory duty to give them. I accept there may be a tendency in recent decisions to add to the cases in which reasons are required. However, while I appreciate that the analysis may lead to the identification of cases requiring the giving of reasons not formerly recognised, I would for myself be hesitant to go beyond what was said in that case and find new factors calling for reasons. I say this fortified by the recent approval of Ex p Cunningham by the House of Lords in Doody v Secretary of State for the Home Dept  3 All ER 92,  1 AC 531. The applicants in the present case were not parties to any dispute with the respondent or to the resolution by him of any issue which would determine their rights and I find nothing in Ex p Cunningham (leaving aside legitimate expectation) to lead me to conclude that this is a case in which the common law should recognise a duty to give reasons.
Mr Gordon submitted, though, that wherever there is a duty to consult, for whatever reason, there is duty also to give reasons, because if no reasons are given it cannot be known whether the representations have been considered or not. He accepts the textbook writers do not suggest that a duty to give reasons can arise in this way and that no court has decided there is such a duty. But he submitted that a passage from the speech of Lord Mustill in Doody should lead to this conclusion (see  3 All ER 92 at 111,  1 AC 531 at 565). I do not agree. In my judgment, if the decision-maker says he has considered and taken into account the representations he has received his assertion must be taken at its face value unless there is material before the court (and there is none here) effectively to impugn his assertion. I do not think the receipt of representations can of itself impose a duty on the decision-maker which would not otherwise exist to say what conclusions he has reached concerning them and why. Decision-makers who are neither obliged to consult nor to give reasons not infrequently do decide to consult and the opportunity to make representations can be of value to both the decision-maker and the consultees. It seems to me that to say the fact of consultation automatically imposes a duty to give reasons could well lead to a reluctance on the part of decision-makers to engage in voluntary consultation. In the passage from his speech relied on by Mr Gordon Lord Mustill was not saying that consultation requires reasons. He was simply saying why on the facts a conclusion that reasons were required could be reached by the Ex p Cunningham route.
It follows that any duty to give reasons in this case must be based on the doctrine of legitimate expectation. What is legitimately expected must depend on previous practice and utterances by the decision-maker. I do not see that the doctrine can be applied differently to the giving of reasons so as to require a breadth or detail of reasons beyond the ambit of previous practice and utterances. Nor do I think that the paragraph from de Smith, Woolf and Jowell can be relied upon to enlarge the scope of the duty to give reasons. No material has been placed before me to suggest that the scope of the reasons given for the decision which is challenged in these proceedings was narrower than the scope of reasons given in the past. I would therefore hold that there has been no failure to give reasons which is open to challenge by way of judicial review. I propose, however, to review the adequacy of the reasons given by the Secretary of State on the further basis that the reasons which will be required in a case of legitimate expectation do not differ, regardless of previous practice and utterances, from those required when the duty to give them is imposed in the ordinary way by the common law.
Mr Gordon accepted that the Secretary of State's policy was to compare proposed limits with past limits (inconsistently, it might be thought, with his submission that the 1988 undertaking still represents his policy) but he complains the Secretary of State has not said why he considers this to be an appropriate approach to the exercise of his statutory power. And, Mr Gordon argued, the failure to explain why renders the change of policy unlawful because the absence of reasons prevents an examination of the lawfulness of his policy and there is a legitimate expectation that an opportunity will be given to examine the question of lawfulness.
I reject these submissions. There is no unlawfulness in the Secretary of State's new policy. It falls squarely within the four corners of his statutory powers. Nor is there the slightest basis for arguing that the new policy is Wednesbury unreasonable even if it strikes a different balance between competing interests from the balance in fact experienced in summer 1988. The Secretary of State has a lawful policy of balancing competing interests. He has to decide how that balance is struck before he makes any order under s 78(3). That is what he has done. Having done it he does not have to justify it, because the policy decision and how within that policy he will exercise his powers are matters for him and not for the courts. Consequently, in the absence of anything to indicate Wednesbury unreasonableness he does not have to justify himself and so does not have to give reasons on this aspect of the case. Quite simply there is in my opinion no duty to give reasons on a matter for which the decision-maker is not accountable to the courts. I consider this view is consistent with a passage from the judgment of Lord Donaldson MR in Ex p Cunningham  4 All ER 310 at 315:
'Those of us with experience of judicial review are very much aware that the scope of the authority of decision-makers can vary very widely and so long as that authority is not exceeded it is not for the courts to intervene. They and not the courts are the decision-makers in terms of policy. They and not the courts are the judges in the case of judicial or quasi-judicial decisions which are lawful. The public law jurisdiction of the courts is supervisory and not appellate in character.'
Mr Gordon submitted to Laws J that a policy change must be justified by reference to 'the overriding public interest' (words taken from the judgment of Lord Denning MR in Re Liverpool Taxi Owners' Association  2 All ER 589 at 594,  2 QB 299 at 308). Laws J dealt with the submission in these words ( 1 All ER 577 at 596-597,  1 WLR 74 at 94):
'But this latter condition would imply that the court is to be the judge of the public interest in such cases, and thus the judge of the merits of the proposed policy change. Thus understood, Mr Gordon's submission must be rejected. The court is not the judge of the merits of the decision-maker's policy. In fact Mr Gordon disavowed any such proposition; but if (as must be the case) the public authority in question is the judge of the issue whether "the overriding public interest" justifies a change in policy, then the submission means no more than that a reasonable public authority, having regard only to relevant considerations, will not alter its policy unless it concludes that the public will be better served by the change. But this is no more than to assert a change in policy, like any discretionary decision by a public authority, must not transgress Wednesbury principles. That, however, is elementary and carries Mr Gordon nowhere.'
Nor indeed could a duty to give reasons on this aspect of the case be imported by way of legitimate expectation. In my view there has to be some relevance in public law attaching to an expected event before it can become the object of a legitimate expectation. So, any legitimate expectation can only be of reasons which will have relevance in public law to the decision.
Paragraph 55 of the grounds begins at p 31 of form 86A and continues over the next five pages. Sub-paragraphs (d) and (e) are no longer relied on. In the rest of para 55, complaint is made that issues set out in these pages were not dealt with in any reasons contained in the decision. In considering this complaint it is legitimate to look not only at the decision, but at the evidence which has been filed in the successive judicial review proceedings and at the consultation papers. I do not accept Mr Gordon's proposition that it is impermissible to look at consultation papers to see what light they shed on reasons. A passage from a consultation paper, when read with a passage from the decision, may throw light on the reasons lying behind it.
Sub-paragraph (a) raises the question of the night quota period at Heathrow in winter and on summer Sundays. This was dealt with in the judgment of Latham J:
'The applicants point out that standardising the periods of restriction as proposed was bound to increase the number of early morning aircraft movements in particular. The respondent agrees, but points out that, in return, he has effectively prohibited the movement of the noisiest two categories of aircraft during the night period. He considered that in the overall context of the proposals this achieved a balance which would accord with his expressed policy. The applicants had full opportunity to make representations on this aspect of the proposals. I cannot say that the respondent's conclusions were irrational.'
I respectfully agree. It is said, though, that there was no evidence upon which Latham J could have come to his conclusion and there still is not. I disagree. Miss Duthie's second affirmation contains evidence on the point. To say that because there was no arithmetical calculation in respect of the counter-balancing factor of the ban on noisy aircraft there was no evidence on the point is to confuse a challenge on the merits with a challenge by way of judicial review. In sub-para (b) it is complained that the sleep prevention and health points are not dealt with. In fact a great volume of evidence was placed before Laws J dealing with these matters and he found against the applicants. I should add that research into this subject has continued but is not complete. It cannot be suggested that the Secretary of State has acted with Wednesbury unreasonableness because he has failed to take account of a piece of unfinished research.
Sub-paragraph (c) complains that the use of 'Leq' as a measure of noise has not been dealt with. Again, the controversy about this was canvassed before Laws J and the applicants' complaint was rejected.
Sub-paragraph (f) complains that the Secretary of State has not said why he considers his scheme is not detrimental to residents or if it is, why the detriment is irrelevant. It seems to me there are two answers to this complaint. Firstly, this is a matter of policy. Secondly, the Secretary of State has explained why he considers it appropriate to have a standard regime for all three airports and how he has sought to strike a fair balance and considers he has struck a fair balance between the various interests which are in play. It is appropriate at this point to remind myself of Mr Gordon's concession that reasons can be stated quite briefly.
Sub-paragraph (g) complains that the Secretary of State has not explained why he has decided to formulate his scheme for the control of noise during the night period by reference to the shorter night quota period. Again, the answer to this complaint is twofold. The decision is a policy decision. He has also given reasons for it. In reality the complaints in paras (a), (f) and (g) are different facets of a single theme.
Mr Gordon also made a complaint that the Secretary of State has not continued to keep the position under review until a time proximate to the making of his decision. This is perhaps simply another way of saying that he must consider all the material available to him when he makes his decision. However, my attention has not been drawn to any change in circumstances affecting the night noise climate at Heathrow which has occurred since the consultation process in respect of the 1993-98 period was first launched in January 1993. There is nothing in this point.
In my judgment, when the nature of the various issues is considered and the decisions are looked at with the benefit of such light as the consultation papers throw upon them and account is taken of the evidence offered by way of explanation in the various proceedings for judicial review, the complaint that the decision challenged is flawed by inadequacy of reasons is not made out.
Accordingly this application is dismissed.
I return to what I said earlier about the need for reasons to have a relevance in public law to the decision which they accompany. I have read with interest the paragraphs in de Smith, Woolf and Jowell pp 457 ff which discuss the right to reasons. It is interesting to note the general use in the discussion of terminology which is apt to refer to decisions which determine people's rights and which probably would be identified, following Ex p Cunningham, as needing to be accompanied by reasons. Thus the authors state (p 467, para 9-051):
'Some general guidance may be derived from a consideration of the purposes served by a duty to give reasons. Thus, reasons should be sufficiently detailed as to make quite clear to the parties-and especially the losing party-why the tribunal decided as it did, and to avoid the impression that the decision was based upon extraneous considerations, rather than the matters raised at the hearing.' (My emphasis.)
Decisions to which this kind of terminology is appropriate are unlike in substance and consequence the decision which has been challenged in these proceedings. Mr Burnett took me to the decision in Ex parte Cunningham to demonstrate that this is not a case in which, leaving aside legitimate expectation, the common law would recognise a duty to give reasons. I wonder to what extent, even with the help of legitimate expectation, reasons of the kind which Mr Gordon says were required do in fact have relevance in public law to a decision of the present kind. The point was not argued and I express no view about a point which forms no part of the basis for my decision.