Court quashes market approach to airport noise control

Transport Secretary John MacGregor exceeded his legal powers in attempting to introduce a market-based approach to controlling noise from night flights at London's three airports, the High Court has ruled.

Under section 78 of the Civil Aviation Act 1982, the Secretary of State is empowered to make schemes prohibiting or limiting landing and take-offs to aircraft at certain designated airports under his control. The existing 1988 scheme at Heathrow and Gatwick was due for expiry this year, and the Secretary of State had proposed a new scheme covering Heathrow, Gatwick and Stansted to come into effect from 24 October.

The existing scheme was based on a simple numerical limit on aircraft movements. In contrast, the new scheme was aimed at reflecting the different noise levels from different aircraft by placing a limit on cumulative noise levels rather than on total aircraft. Each aircraft type was given a quota count ranging from 0.5 for the quietest to 16 for the noisiest, and each of the three airports was then given a maximum number of quota points. Heathrow, for example, had 7,000 for summer months and 5,000 for winter months.

The new scheme reflected the Government's preference for market-based approaches to pollution control. Within an overall bubble, operators would have had a degree of freedom to assign their quota as they thought fit. The use of quieter aircraft would have been encouraged since this allowed them a larger number of movements.

Several local authorities concerned at the implications of the scheme challenged the decision by way of judicial review in R v Secretary of State for Transport ex parte Richmond upon Thames London Borough Council and others (Times Law Reports, 12 October 1993).

The main issue which concerned the court was whether the section 78 powers actually permitted such a scheme. The terms of the relevant sub-section permit a scheme to specify "the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land."

The High Court accepted that the Secretary of State's motives for making the scheme fell within the express statutory purpose of reducing or mitigating noise effects, but held that this was not the critical question. One had to ask whether the means he had chosen fell within the methods provided for in the Act.

The Act referred to specifying a maximum number of aircraft, and the Government argued that with the quota system there would be an ultimate limit on the number of movements. But the Court held that in truth the concept of a maximum number played no part in the scheme; the maximum numbers implied "involved such an enormous number of possible combinations of movements among the quota count classes that the exercise of expressing them was wholly unreal."

Ten days after the High Court's ruling, the Department of Transport announced revised proposals to set ceilings on the number of night movements at the three airports, with the quota points system being retained to provide back-up protection against noisier aircraft. A consultation paper setting out proposals for the longer term has also been promised. These may require primary legislation, providing an opportunity for the Government to implement the revised arrangements for controlling airfield noise generally which it announced earlier this year (ENDS Report 218, p 34 ).

The case also raised an interesting issue of court procedure. Local authorities had raised other arguments to challenge the decision, but these were rejected by the court. The case was by way of judicial review, and under the rules of the court a filter system operates by requiring initial leave from the court. The decision to grant leave is essentially a yes/no result, and Mr Justice Laws was concerned that the material before him had run to hundreds of pages. Several of the issues raised he considered to be unarguable, and the case had turned on a fairly narrow point of construction which could have been dealt with in just a few pages. As a result, he called for a revision of the court rules which would allow a court to refuse leave on some grounds but to grant it on others.

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