Law Report: Proposed night flying restrictions unlawful: Regina v Secretary of State for Transport, Ex parte Richmond upon Thames London Borough Council and others - Queen's Bench Division (Mr Justice Laws), 29 September 1993

Measures to restrict night flights by aircraft must specify the maximum number of aircraft movements permitted, and cannot impose control by reference to maximum noise levels from aircraft.

Mr Justice Laws granted judicial review of the Secretary of State for Transport's press notice of 6 July 1993 announcing a 'tough new quota system of night flying restrictions to reduce noise at Heathrow, Gatwick and Stansted'.

Restrictions against night movements by aircraft have been in effect since 1962. The most recent set of measures, introduced in 1988 and authorised by section 78(3) of the Civil Aviation Act 1982 and due to expire in October 1993, limits the number of take-off and landing movements permitted at night. The new proposals will restrict night flying, not by reference to a permitted number of aircraft movements, but by means of a ceiling defined by quota points, which measure the noise from aircraft. Aircraft operators would be free to choose how the quota was to be distributed between noisier and less noisy aircraft.

Local authorities for the areas around the airports applied for judicial review of the press notice.

Richard Gordon (Richard Buxton; Wilson & Co) for the local authorities; Ian Burnett (Treasury Solicitor) for the Secretary of State.

MR JUSTICE LAWS said that a decision imposing lighter restrictions than those previously in force might be made under section 78(3) just as surely as one which imposed more stringent measures. The proposed scheme relied for its legality on section 78(3)(b) which provides that the Secretary of State may 'specify the maximum number of occasions on which aircraft . . . may be permitted to take off or land . . .'

The Secretary of State argued that the new scheme's terms implied specific maxima. However the maxima were purely notional and the mathematics involved in implying the potential maximum number of movements hardly bore contemplation. The concept of maximum number of movements had in practical fact no part to play in the Secretary of State's proposal. Yet under section 78(3)(b) it must be the linchpin of any order made. It followed that what was intended was not authorised by the subsection. On this issue the application must succeed.

The applicants' other arguments based on legitimate expectation, unreasonableness, relevant considerations being ignored and a want of natural justice, failed. The case illustrated the need for Order 53 of the Rules of the Supreme Court to allow the court to refuse leave on some grounds while granting it on others as its view of the application's merits dictated.

Ying Hui Tan, Barrister