Neutral Citation Number:  EWHC 3206 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Tuesday, 14 December 2004
B E F O R E:
MR JUSTICE FORBES
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THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF RICHMOND
SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS
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Computer-Aided Transcript of the Stenograph Notes of
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MR D ANDERSON QC & MS H MOUNTFIELD (instructed by Richard Buxton) appeared on behalf of the CLAIMANT
MR I BURNETT QC & MR M CHAMBERLAIN (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE FORBES: This is an application for costs made by both parties to these proceedings, the substantive application having been resolved by agreement in the course of today's hearing and having resulted in an agreed order disposing effectively of the entire proceedings.
2. The proceedings themselves are concerned with the claimants' challenge to the Secretary of State's consultation paper entitled "Night Flying Restrictions at Heathrow, Gatwick and Stansted: Stage 1 Consultation on Restrictions to apply from 30 October 2005". That consultation document was issued by the Secretary of State on 21st July 2004.
3. If I were to go into all the background circumstances of this matter, it would mean that I would be effectively delivering a judgment in the substantive application. That would be inappropriate, given that the substantive application itself was only part-heard when the parties reached agreement as to an appropriate disposal of the proceedings. However, for the purposes of understanding the decision that I have reached on the two applications for costs, it is necessary to refer to paragraph 7.9 of the consultation paper, which is in the following terms:
"7.9 However, Article 4.4 of Directive 2002/30/EC and Regulation 5(3) of SI No. 1742 preclude the use of any system of noise classification other than that based on 'ICAO noise certification data'. It follows that, although the UK (and other Member States) may choose how to use the noise certification data when imposing operating restrictions, it has no discretion to substitute measurements of operational noise as an alternative to the noise certification data. That would have the effect of decoupling the classification of the aircraft concerned from their noise certification data. We are, therefore, not consulting on this issue."
4. These proceedings were mainly concerned with the decision-making that resulted in that particular paragraph being included in the consultation document. The claimants' case was that, in that paragraph, the Secretary of State had to all intents improperly fettered his discretion with regard to his decision-making in respect of the appropriate operating restrictions applicable to night flights.
5. A central feature of the claimants' case was that certain of the aircraft that would be flying into Heathrow have the benefit, if I can call it that, of ICAO noise certification data findings that are unduly favourable in noise terms. It is fair to say that the evidence suggests that many of the aircraft flying into or leaving Heathrow at night have been appropriately assessed in noise terms by the ICAO noise certification data. However, the claimants' concerns were with regard to those aircraft that are -- so it is said -- significantly noisier than the ICAO noise certification data. The claimants' concern was that the Secretary of State's approach to the ICAO noise certification data is, to use the expression of Sullivan J when considering the application for permission on paper, to regard it as the "the be-all and end-all" of matters relating to noise for the purposes of performance-based operating restrictions to be applied in the period considered by the consultation document. The interpretation that the claimants placed on paragraph 7.9 is succinctly stated in paragraph 9 of the skeleton prepared by Mr Anderson QC on behalf of the claimants, where he says this:
"Because he has wrongly directed himself as bound to treat the ICAO figures as accurate, the defendant has expressly failed to consult on the issue of how noisy these aircraft actually are and therefore on the consequences to be drawn from their actual noise levels at stage 2."
6. The position adopted by the Secretary of State in the run-up to these proceedings, and as set out in a letter from the Treasury Solicitor, is perhaps most conveniently to be seen at page 35 of the core bundle, which is part of a letter from the Treasury Solicitor dated 19 October 2004, in which this is said:
"Article 4.4 is consistent with that objective [that is to say the need for operating restrictions to be introduced in a consistent manner across the European Union] and clear in its terms. Member States must use ICAO volume 1 chapter 16 in drawing up their performance-related noise restrictions and that they may not substitute other noise data. The department does not agree that the Secretary of State has misinterpreted Article 4.4." [Quote unchecked.]
7. It was Mr Anderson's submission that the Treasury Solicitor's position was close to the position he argued as being unlawful. That is to say, that the Secretary of State was treating the ICAO data as, in effect, the "be-all and end-all" of the noise considerations. Mr Anderson argued that the point remained much the same in the summary grounds of defence, as indicated by paragraph 15 of that document: see page 87 of the core bundle.
8. However, in the course of the hearing before me this morning I indicated that the way in which the claimants had characterised paragraph 7.9, as summarised in the final part of paragraph 9 of the claimants' skeleton to which I have earlier referred, did not seem to me to be justified. It seemed clear to me that the Secretary of State was not directing himself that he was bound to treat the ICAO figures as accurate; rather that he was making it clear that the ICAO figures had to form the basis of the appropriate assessments and that the figures themselves could not be altered, although the Secretary of State could nevertheless go on and consider other relevant information with regard to appropriate noise measurements in relation to relevant aircraft.
9. It then became apparent that the difference between the parties was not as clear-cut as appeared to have been the case by reference to the original grounds of challenge and, for example, the way in which the Secretary of State's case was being presented by the Treasury Solicitor as indicated in that paragraph to which I have earlier referred. Rather it seemed that the case was one in which there was a degree of misunderstanding between the parties.
10. When that position started to emerge, I invited counsel to consider whether it was possible for the matter to be resolved by agreement. Both counsel very properly indicated that it might be possible and so I gave the parties time to consider whether such a result could be achieved. As a result, the parties have managed to agree an appropriate order. It is not necessary for me to read out the whole of the order in this short ruling. The order is a general stay of the proceedings, following agreement having been reached between the parties and expressed in the following terms (as embodied in the order):
"1. The Defendant [that is to say the Secretary of State] is entitled to have regard to the operational noise of aircraft (and not merely to ICAO Certification Data) in formulating operating restrictions."
11. As it seems to me, the terms of the agreement are very similar to the terms of the first declaration sought by the claimants in these proceedings. It is obviously an agreement which meets the concerns that the claimants had that the Secretary of State had fettered his discretion with regard to operating restrictions by, in effect, treating the ICAO certification data as the "be-all and end-all" of the matter. Having said that it is also clear that the way the claimants were approaching the matter during the earlier part of today's hearing, as reflected in the claimants' skeleton argument, did involve a degree of misunderstanding of paragraph 7.9 of the consultation document. As it seemed to me, paragraph 7.9 did not raise a serious suggestion that the Secretary of State was going to direct himself as bound to treat the ICAO figures as accurate.
12. Accordingly, the proceedings had reached a point at which I detected what seemed to me might be an important flaw in the claimants' position. As a result, it then became apparent that there was a possibility that the matter could be resolved by agreement. Happily the matter was resolved by agreement. However, it is important to stress that I did not hear full argument by both sides on the dispute that had arisen between the parties as to whether paragraph 7.9 of the consultation document did improperly fetter the Secretary of State's discretion. As it seems to me, there was still ammunition on both sides and I am not in a position to say how the argument would have gone eventually if I had heard it to the very end. In those circumstances, it being a case where I cannot say which way the argument would finally have gone, it would be inappropriate for me to make an order for costs which reflects the merit of either party's position.
13. Given that the parties have managed to agree a satisfactory resolution of the matter which involves some degree of concession on each side, I am satisfied that the appropriate order in all the circumstances is that each side should bear its own costs, and I so order.
14. MR ANDERSON: My Lord, I am very grateful. May I ask that we could put an order before the court once it has been agreed for your Lordship to sign.
15. MR JUSTICE FORBES: Yes. I am sorry for that slightly lengthy ruling. All I was trying to say was that I can see arguments on either side at the moment. I am not yet in a position to say which way I would have gone at the end of the day. I think both of you very sensibly took the opportunity when I offered it to you to resolve it by agreement which involves a certain amount of concession on either side. I am not in a position to say where the merits would have fallen eventually at the end of the day, hence my order.
16. MR ANDERSON: My Lord, we are all, I am sure, very grateful to your Lordship and we will attempt to agree an order and put it before your Lordship as soon as may be.
17. MR JUSTICE FORBES: Very well. Thank you both very much. You are, I think, to be congratulated for managing to revolve it by agreement, both parties, and I am grateful for the efforts made by counsel in furthering that process, and for those who took the time to consider the matter and give you appropriate instructions. It is obviously, I think, the most sensible way of disposing of the matter in all the circumstances and of course it does have the additional advantage of dealing with it today and disposing of it today so that the matter can go forward without any further delay. Thank you both very much.
TEXT OF TOMLIN ORDER:
Text of Schedule to Order of Forbes J of 14.12.04:
Application to be Stayed Generally as to the parties agreeing
1. The Defendant is entitled to have regard to the operational noise of aircraft (and not merely to ICAO Certificate [Certification] Data) in formulating operating restrictions
In respect of performance-based operating restrictions at any given airport, aircraft with the same ICAO certificated noise levels are to be treated in the same way.
2. For the avoidance of doubt:
(i) the above interpretation of Article 4.4 of Directive 2002/30/EC does not depart from that advanced in the consultation paper and should not be taken as qualifying the content of the consultation paper
(ii) nothing said by or on behalf of the Secretary of State in this order or in these proceedings should be taken as any indication of the outcome of the consultation paper [process]
(iii) the Secretary of State will consider any further representations from the claimants in relation to Stage 1 of the above interpretation [of the consultation process] consistent with the above interpretation so long as they are received by the Department by the 24th December 2004 in addition to any representations they made [make] in relation to Stage 2 of that process.
Note: there are various typographical errors in the court order. The correct wording is in [square brackets] above.