Airport seeks legal clarification on night flying

[HX3]

they’d have to have it in the first place to protect it

 

[Statto]

The only way around it is to disprove the evidence submitted by LBA in some way. Irrespective of that, the airport have the right to appeal to the Minister and after that to court if they consider good evidence is being ignored for political purposes, which lets face it, is a distinct possibility. The Council would far rather be able to say 'dont blame us,' although if it went to court and the airport won their case, I imagine the Council would then end up with all costs to pay.

An appeal by LBA remains a distinct possibility for the two CLEUDs already refused. However I suspect they are waiting for the outcome if the other two first to assess the overall outcome and impact on future growth. They've already said the remain confident that their interpretation is the correct one and if their legal advisors think so too, then an appeal will hopefully happen

Correct. But the issue with the remaining CLUEDS is that they seem to still rely on an interpretation of the original planning condition. So yes, the airport can categorically prove that lots of QC 0.25 flights have happened at nights for 10 years. But did those flights actually breach a planning condition ? Well, that really depends on the interpretation of the condition (in my lay person’s opinion anyway). The 2 CLUEDs that have been decided so far were both about interpretation of planning conditions and obviously the council refused to accept the airport‘s interpretation. The councils argument was based on how a reasonable person would interpret the conditions and so I have no doubt they will adopt this stance for the others

 

[Aviador]

When it comes down to law it won't matter what a reasonable person thinks, it will be down to the interpretation of the wording in the original planning documents. An assumption of what something says won't wash in law. @JENNYJET might be able to shed some light on this as our forum legal guru.

 

[Snackbar]

Correct. But the issue with the remaining CLUEDS is that they seem to still rely on an interpretation of the original planning condition. So yes, the airport can categorically prove that lots of QC 0.25 flights have happened at nights for 10 years. But did those flights actually breach a planning condition ? Well, that really depends on the interpretation of the condition (in my lay person’s opinion anyway). The 2 CLUEDs that have been decided so far were both about interpretation of planning conditions and obviously the council refused to accept the airport‘s interpretation. The councils argument was based on how a reasonable person would interpret the conditions and so I have no doubt they will adopt this stance for the others

Not sure the Council can have it both ways on QC 0.25 flights and if the issue was that simple they would have simply dismissed the remaining two CLUEDS at the same time…..I suspect this one has quite a while to run and I doubt it will be decided by July!

 

[White Heather]

I consider myself to be not only a reasonable person, but one that's had some experience interpreting legal documents relating to planning/buildings and other areas of law, and having read the planning conditions and CLEUDs multiple times, it's clear to me what is intended and I totally agree with the airport's interpretation, not because I'm biased, but because of how it reads.

The planning approval includes reference to the NOTAM at the time which identifies aircraft Quota Counts, but crucially it includes reference to amendment by future NOTAMs. Had it not been intended that future NOTAMs should supercede the one in force at the time the planning consent was written, there wouldn't be a reference to it. You don't include such references to then ignore that reference when it suits for political reasons. I would defy any reasonable person to justify the inclusion of this reference if future NOTAMs which reflect aircraft engine development and diminished noise levels, are disregarded. Failure to update means even totally silent aircraft would still fall foul if the Councils outdated planning restrictions. To me, that's as far away from reasonable as it's possible to get.

 

[Statto]

I consider myself to be not only a reasonable person, but one that's had some experience interpreting legal documents relating to planning/buildings and other areas of law, and having read the planning conditions and CLEUDs multiple times, it's clear to me what is intended and I totally agree with the airport's interpretation, not because I'm biased, but because of how it reads.

The planning approval includes reference to the NOTAM at the time which identifies aircraft Quota Counts, but crucially it includes reference to amendment by future NOTAMs. Had it not been intended that future NOTAMs should supercede the one in force at the time the planning consent was written, there wouldn't be a reference to it. You don't include such references to then ignore that reference when it suits for political reasons. I would defy any reasonable person to justify the inclusion of this reference if future NOTAMs which reflect aircraft engine development and diminished noise levels, are disregarded. Failure to update means even totally silent aircraft would still fall foul if the Councils outdated planning restrictions. To me, that's as far away from reasonable as it's possible to get.

But the councils judgement has been published and is on the public access website and they see it differently. And they have quoted the legal precedents on which they have based their findings.

I’m only the messenger !

 

[White Heather]

But the councils judgement has been published and is on the public access website and they see it differently. And they have quoted the legal precedents on which they have based their findings.

I’m only the messenger !

I know and I wasn't having a go at you at all. Sorry if it seemed that way. But the council quote legal precedent to support their view and the airport also quoted precedent to support theirs, so the only solution is an appeal to a third party who should, on the face of it, be neutral.

My understanding is that with civil law, what a reasonably thinking person would think is used in determining these disputes. My point is that as a reasonably thinking person, having read the planning consent, I agree with the airport because the councils position seems to defy logic. As I said, if you put in a reference to future updates it is usually to enable those updates to become relevant when available and to 'future proof' the planning approval. If you want the consent to never be updated then you dont include any mechanism to do so.

 

[Finger66]

Maybe the council are that stupid to reject the applications because all they want to do is side with the NIMBYs because that’s what they have done for ever and a day. They then just can’t see that an LBA appeal could/would be successful and then they have costs to pay - something I am sure they can I’ll afford. As an additional question can the council appeal against the appeal should it go against them?

 

[Statto]

I know and I wasn't having a go at you at all. Sorry if it seemed that way. But the council quote legal precedent to support their view and the airport also quoted precedent to support theirs, so the only solution is an appeal to a third party who should, on the face of it, be neutral.

My understanding is that with civil law, what a reasonably thinking person would think is used in determining these disputes. My point is that as a reasonably thinking person, having read the planning consent, I agree with the airport because the councils position seems to defy logic. As I said, if you put in a reference to future updates it is usually to enable those updates to become relevant when available and to 'future proof' the planning approval. If you want the consent to never be updated then you dont include any mechanism to do so.

It didn’t seem that way, no need to apologise. I was mostly just trying to point out that the info I had shared in my last couple of posts had come from the councils own judgements on the 2 CLUEDs they have responded to so far.

in terms of the 2 remaining ones, it all boils down to what the airport are asking for immunity from.

1. Are they asking to be allowed to operate QC 0.25 aircraft between 23:00 and 07:00. Well that seems pretty straightforward. Even though 0.25 aircraft weren’t around when the planning permission was first granted, its reasonable to assume they should be allowed now. And anyhow, they have been operating for at least 10 years.

2. are the airport are asking for 0.25 aircraft to operate AND that these movements shouldn’t count towards the night movement quota?

I don’t know is the honest answer. I assume considering the answer to 1 seems straightforward and doesn’t give the airport anymore night flying capacity to play with, that they are really asking question 2. If you can shine any light on it, that would be great

 

[White Heather]

It didn’t seem that way, no need to apologise. I was mostly just trying to point out that the info I had shared in my last couple of posts had come from the councils own judgements on the 2 CLUEDs they have responded to so far.

in terms of the 2 remaining ones, it all boils down to what the airport are asking for immunity from.

1. Are they asking to be allowed to operate QC 0.25 aircraft between 23:00 and 07:00. Well that seems pretty straightforward. Even though 0.25 aircraft weren’t around when the planning permission was first granted, its reasonable to assume they should be allowed now. And anyhow, they have been operating for at least 10 years.

2. are the airport are asking for 0.25 aircraft to operate AND that these movements shouldn’t count towards the night movement quota?

I don’t know is the honest answer. I assume considering the answer to 1 seems straightforward and doesn’t give the airport anymore night flying capacity to play with, that they are really asking question 2. If you can shine any light on it, that would be great

The airport were claiming that:
a) QC0.25 aircraft must be allowed to operate at night as they have done for more than 10 years, even though they didn't exist when the planning approval was given so are not included in it, but also that:
b) the noise levels emitted by these aircraft falls below the dB limits imposed so do not count towards the night time quota.

Both of these requirements were included within the 4 CLEUDs but I've lost track now of which two have been rejected and which are yet to be determined, and therefore how these two claims by the airport are impacted.

What's certain is the airport will be very much restricted if they are unsuccessful with all 4 CLEUDs and on the face of it, there would be no more growth from based airlines, notably Jet2, where that growth is dependent on night time movements. In fact, to comply with the current restrictions, a reduction in night flights would be needed. The only way Jet2 could expand at all would be to reduce the number of summer flights but increase aircraft size to compensate, or increase the number of based aircraft but utilise them less, avoiding night operations, and that's not going to happen. So these CLEUDs are critical to future growth and it's difficult to see how LBA can grow to 7m passengers a year without a successful outcome.

Yes, more non based ops will help fill the daytime and increase passenger numbers accordingly, but we are talking a 3m pax increase, and it's hard to see that happening unless the night restrictions are lessened in some way, the obvious one being that QC 0.25 aircraft are exempt. The council are likely to do all they can to prevent that as it's perceived as a blueprint for unrestricted night flights, so I fear an appeal is the likely way forward.

If all 4 CLEUDs are refused, and the airport do not appeal, then the only other option is to submit a planning application to vary the night time period, something I'm certain the airport wish to avoid, because if they do, it opens the door for the council to impose a passenger cap or other restrictions that currently don't exist. The irony is of course that the airports new terminal scheme, which was canned, included the revised night hours that are now so vital. Including the change in hours within the new terminal application seemed a sensible option, wrapping it up with the new terminal that was hard to refuse (even for LCC), but the problem arose when the scheme was withdrawn and with it, the approved night time hours changes went out of the window.

The airport actually had everything it needed almost in its hands, but are now back to square one, trying to find a way past archaic planning restrictions.

 

[LBAYORKIE]

The airport were claiming that:
a) QC0.25 aircraft must be allowed to operate at night as they have done for more than 10 years, even though they didn't exist when the planning approval was given so are not included in it, but also that:
b) the noise levels emitted by these aircraft falls below the dB limits imposed so do not count towards the night time quota.

Both of these requirements were included within the 4 CLEUDs but I've lost track now of which two have been rejected and which are yet to be determined, and therefore how these two claims by the airport are impacted.

What's certain is the airport will be very much restricted if they are unsuccessful with all 4 CLEUDs and on the face of it, there would be no more growth from based airlines, notably Jet2, where that growth is dependent on night time movements. In fact, to comply with the current restrictions, a reduction in night flights would be needed. The only way Jet2 could expand at all would be to reduce the number of summer flights but increase aircraft size to compensate, or increase the number of based aircraft but utilise them less, avoiding night operations, and that's not going to happen. So these CLEUDs are critical to future growth and it's difficult to see how LBA can grow to 7m passengers a year without a successful outcome.

Yes, more non based ops will help fill the daytime and increase passenger numbers accordingly, but we are talking a 3m pax increase, and it's hard to see that happening unless the night restrictions are lessened in some way, the obvious one being that QC 0.25 aircraft are exempt. The council are likely to do all they can to prevent that as it's perceived as a blueprint for unrestricted night flights, so I fear an appeal is the likely way forward.

If all 4 CLEUDs are refused, and the airport do not appeal, then the only other option is to submit a planning application to vary the night time period, something I'm certain the airport wish to avoid, because if they do, it opens the door for the council to impose a passenger cap or other restrictions that currently don't exist. The irony is of course that the airports new terminal scheme, which was canned, included the revised night hours that are now so vital. Including the change in hours within the new terminal application seemed a sensible option, wrapping it up with the new terminal that was hard to refuse (even for LCC), but the problem arose when the scheme was withdrawn and with it, the approved night time hours changes went out of the window.

The airport actually had everything it needed almost in its hands, but are now back to square one, trying to find a way past archaic planning restrictions.

The airport must have known what would happen when they withdrew the planning application.

 

[White Heather]

The airport must have known what would happen when they withdrew the planning application.

Probably, yes, but it's not like they had much choice. The fact is that the project costs virtually doubled due to the impact of the pandemic whilst the income from passengers and airlines dropped to virtually nothing. Had they continued with that scheme (having first of all waited another year and then successfully got approval after a public inquiry), there was a real risk of the airport going bust. There was no way of knowing how quickly the passengers would return. It turns out they came back pretty quickly but even so, the cost of the new terminal spiralling wasn't affordable.

 

[LBAYORKIE]

Airlines operating larger aircraft albeit with refused frequencies may be part of a solution.

What types are you thinking of? We are currently at 4m pax. To reach the 7m figure presumably we would need aircraft of almost double the current size.

 

[Statto]

The airport were claiming that:
a) QC0.25 aircraft must be allowed to operate at night as they have done for more than 10 years, even though they didn't exist when the planning approval was given so are not included in it, but also that:
b) the noise levels emitted by these aircraft falls below the dB limits imposed so do not count towards the night time quota.

Thanks for the explanation, i had not appreciated the point about the dB limits. I assume the view from the committee today was that these remaining CLUEDs are still helpful if they are approved.

But overall, my general sense is that the airport must think the CLUED thing isn’t really that big of a barrier to growth otherwise they would have waited before investing £100m on the terminal. The (excellent by the way) committee update suggests they are planning on spending even more money, £50m on the runway alone, so that reinforces that view. They must have a plan B, C and D

A new planning consent that actually encourages 0.25 aircraft, is more restrictive towards qc 0.5 and differentiates between departures and arrivals is one option. There’s a big difference between the noise footprint of a landing 738max and a departing 737-300 for example. And an arrival at 11:30 has a different impact to a departure at 5:00am. So they could be quite creative, esp if they worked with the council and the local community. Perhaps the CLUEDs are all part of laying the ground work for that process. Worth bearing in mind as well that the council actually approved the application to change the night period to 6am, despite the hysteria from some quarters.

 

[JENNYJET]

I know and I wasn't having a go at you at all. Sorry if it seemed that way. But the council quote legal precedent to support their view and the airport also quoted precedent to support theirs, so the only solution is an appeal to a third party who should, on the face of it, be neutral.

My understanding is that with civil law, what a reasonably thinking person would think is used in determining these disputes. My point is that as a reasonably thinking person, having read the planning consent, I agree with the airport because the councils position seems to defy logic. As I said, if you put in a reference to future updates it is usually to enable those updates to become relevant when available and to 'future proof' the planning approval. If you want the consent to never be updated then you dont include any mechanism to do so.

Civil Law differs from the Criminal in that there are no guilty or Not guilty verdicts and no criminal records. Civil 'hearings', differ from 'trials' because they are typically non adversorial. They hear the facts laid before the bench who then weigh them on "the balance of probabilities" before coming to a decision. The scales of justice here are neutral until evidence or a convincing argument knocks them off balance. The vast bulk of legal study is that of the Law of Torts ( doing wrong to others ) and my courses majored upon Constitutional obscurities and latterly Ecclesiastical. A Tort basically is a breach of a rule agreed upon by parties, breach of contract or a condition of an agreement. Regrettably, being a reasonably thinking person is not enough for the people in black gowns and dusted wigs. The reasonability element is usually considered by a jury if one is appointed and only if suggested by a judge during the summing up process.

Hope this helps.

 

[Len Fish]

I tort so. Sorry!

 

[LBAYORKIE]

This is an extremely interesting article simplifying how the night time flying ban/quota works at Heathrow. Our quota system is often compared and contrasted with it so I felt it appropriate to post it here.

Simple Flying

Heathrow sees traffic around the clock, though limits operations during the nighttime hours. #Aviation

www.facebook.com

 

[Aviador]

This is an extremely interesting article simplifying how the night time flying ban/quota works at Heathrow. Our quota system is often compared and contrasted with it so I felt it appropriate to post it here.

https://www.***Links to other Socia...not permitted***-.com/share/SnYvRCDWSD5r5fDq/

I assume you mean this

https://simpleflying.com/london-heathrow-airport-airport-curfews-guide/

You may as well stop linking to other social media and just find the original article.

 

[Finger66]

I know the vast majority of us sleep, or try to sleep, at night but we are very much living in a 24 hour world these days so whilst I get operations shouldn't be unlimited there is still a very antiquated policy in place here. Plus as I know has been said numerous times below, LBAs night hours should be in line with elsewhere. Oh the joys of LCC

 

[LBAYORKIE]

I assume you mean this

https://simpleflying.com/london-heathrow-airport-airport-curfews-guide/

You may as well stop linking to other social media and just find the original article.

Im not that literate when it comes to social media. I assumed it was published only on Fbook. Thanks for re- posting it though.

I know the vast majority of us sleep, or try to sleep, at night but we are very much living in a 24 hour world these days so whilst I get operations shouldn't be unlimited there is still a very antiquated policy in place here. Plus as I know has been said numerous times below, LBAs night hours should be in line with elsewhere. Oh the joys of LCC

I agree but we have to be careful what we wish for. Heathrow is often quoted as the benchmark and their restrictions seems to be quite onerous.