Manston DCO decision postponed to May – but would be the first since the Appeal Court ruling on climate impact
Though it has not had much publicity outside east Kent, the application to turn Manston (which has been closed as an airport since May 2014) into a freight airport could be an important case. It was the first airport to have to take its plans through the DCO (Development Consent Order) process, dependant on the Airports National Policy Statement (ANPS). Manston is a crazy place to have a freight airport, being at the north eastern tip of Kent, miles from anywhere. It always failed as an airport in the past, largely due to its location. The Heathrow runway has been blocked by the Court of Appeal, which ruled (27th March) the ANPS is illegal, as it did not take carbon emissions into account properly. That has implications for Manston’s plans. Already before the Court judgment, the Manston DCO had been delayed from 18th January, to 18th May. The initial DCO application had nothing on carbon emissions. Something was finally added, because of pressure from local campaigners. Now lawyers say the decision about Manston’s DCO could have implications for other airport DCOs in future including Gatwick and Luton, as well as Heathrow.
HIDING IN PLANE SIGHT – MANSTON: THE AIRPORT EXPANSION STORY NO-ONE IS TALKING ABOUT … AND WHY, PERHAPS, THEY SHOULD
By Emma Montlake (Environmental Law Foundation, ELF)
While Heathrow Airport Ltd ponders its next move in light of the historic judgment of 27 February 2020, the first big test of the Government’s resolve as regards airport expansion in light of the Paris Agreement – and NetZero – is already deep into its final stages. A decision is due on the UK’s first ever airport Development Consent Order (DCO) on 18 May 2020.
This follows an announcement earlier this year – with very little fanfare – from the Department for Transport of a delay in the Development Consent Order (DCO) decision on Manston Airport, with plans to turn the current lorry park and former airfield into a new dedicated air cargo hub.
As this is the UK’s first ever airport DCO – the process which the Planning Act 2008 sets out for Nationally Significant Infrastructure Projects (NSIPs) – decisions made for the Manston DCO could have implications for other airport NSIPs to follow, including Gatwick, Luton and – yes – Heathrow.
Response from the media and even airport expansion and environmental campaigners has been muted. In a list of 21 airport expansion schemes around the UK highlighted by Extinction Rebellion’s call-to-action on Twitter, posted 48 hours after the DfT announcement, the plans to develop Manston were completely ignored and not included in the list. Nor was it featured in Carbon Brief’s recent study of UK airports currently seeking to expand.
This is as surprising as it is concerning – and not just for the locals who have fought an extraordinary campaign against the developer’s proposals. Buried at number 22 of the 30 issues where the Secretary of State is seeking further clarification before deciding on the Manston DCO, there’s the small matter of climate change. Specifically, whether the carbon emissions contribution from the airport development – proposed somewhat fancifully as “Nationally Significant” – might impact on the UK’s commitment to meet Net Zero emissions by 2050.
Crucially, when the High Court initially found in favour of the Government against campaigners who launched a judicial review of the Airports National Policy Statement and Heathrow’s third runway on climate change grounds, paragraph 648 of the May 2019 judgment ruled that “at the DCO stage this issue will be re-visited on the basis of the then up-to-date scientific position”. The February 2020 Court of Appeal judgment does not change this – in fact, it asserts at para 275 that “it is incumbent on the Government to approach the decision-making in accordance with the law at each stage”, (our emphasis), “not only in the current review of the ANPS or at a future development consent stage”.
Whilst there is much to celebrate in the Court of Appeal judgment of 27 February, the conclusion of the Lords Justice was very clear at para 285 that “we have not decided, and could not decide, that there could be no third runway at Heathrow”.
In essence, the recent judgment has removed – pending review – policy support for Heathrow, but DCO applications will still continue. In this respect, the DCO examination process remains our last line of defence, (judicial reviews on the Secretary of State’s DCO decisions notwithstanding).
As the UK’s first ever proposed airport development to go through the DCO examination process, Manston is the first time the government’s resolve will have been tested post-Heathrow judgment and on the “up-to-date scientific position” of the NetZero report, published a little over mid-way through the six month examination. Which makes the lack of attention from environmental groups and media alike all the more surprising, especially given the latest ruling and impact this may have on airport expansion schemes across the UK – including any prospective Heathrow DCO application.
Bizarrely, when the UK Planning Inspectorate set out the list of Principal Issues to be examined in the Manston DCO during the Preliminary Hearing in January last year, climate change did not even make the list, with the Examining Authority claiming it would instead “conduct all aspects of the Examination with these objectives in mind”. Only the intervention of local campaigners during that hearing ensured climate change was added as a Principal Issue in its own right, with the necessary weight and focus that this entails.
The Manston DCO applicant, Riveroak Strategic Partners, (RSP), was represented in the latter stages of the DCO hearings by the same QC who represented Heathrow Airports Ltd during its two most recent judicial review hearings. And that set alarm bells ringing in our heads that, perhaps, there may be a bigger game at stake here, especially with the approach the Applicant took on the climate change issue during those DCO hearings.
Seeking, perhaps, to avoid any further discussion or investigation of the issue, the argument was put forward that “Government explained during those [Heathrow] judicial reviews its decision and those grounds of challenge to the Airports National Policy Statement failed,” adding that “it’s not the function of this examination … to re-examine Government policy”.
Essentially, the Applicant appeared to be arguing that the climate change issue as it relates to aviation emissions had already been set down by Government, decided in the original Heathrow judgment of May 2019 and needed no further examination during the DCO hearings. Needless to say, the exact opposite approach was taken during the recent Heathrow Court of Appeal case, with the February 2020 judgment reporting at para 275 the Heathrow argument that:
“… it is unnecessary and inappropriate to grant a remedy in these proceedings because policy in the ANPS requires the applicant for development consent to provide evidence of the carbon impact of the project “such that it can be assessed against the Government’s carbon obligations” .
So how was the carbon impact and assessed against the Government’s carbon obligations during the first airport DCO? In the entire examination, only four written questions were asked by the Examining Authority specifically on the Principal Issue of climate change. Every single one of them was related to the proposed development’s approach to climate change adaptation. In other words, how the developers proposed mitigating against the impact of climate change on the airport rather than the other way around. A further written question was asked under the General and Cross Topic heading, specifically relating to energy consumption and dependency on road surface access. At no point were any questions asked relating to aviation emissions during the Examination – until the Secretary of State’s most recent question in January this year.
The lack of attention on Manston is perhaps hardly surprising from Government. On the one hand, there’s the fact that the DfT has spent millions converting the Manston site into a lorry park for Operation Brock/Stack and may not want to draw attention to the idea of now turning it back into an airport. On the other, the DfT’s often preferred airport consultants, York Aviation, submitted reams of evidence during the DCO process questioning the credibility of the applicant, the strength of their need case and the viability of their proposals. In response to the Secretary of State for Transport’s recent call for Comments and Further Information in its follow-up Consultation, York Aviation again confirmed its reports from 2013 and 2015 “do not, as was made clear in our subsequent reports, support the case for a new dedicated freight airport in Kent”.
Coming so soon after FlyBe, this has all the hallmarks of, at best, another regional airport bail-out waiting to happen and, at worst, Grant Shapps’ very own Seabourne Freight fiasco in the sky, (Skyborne Freight?).
But as the DfT comes under criticism in yet another legal challenge for a culture that has been “highly resistant to openness and transparency”, it must be said that this is not the issue here. The DCO process, for all its flaws, is predicated on these principles, with every single one of the record-breaking 1,997 documents submitted and 648 pages of questions asked made publicly available on the UK Planning Inspectorate website, along with high quality recordings of every single hearing.
Yet openness and transparency are meaningless where there is an almost total lack of external scrutiny. So far, this has been the case here from anyone other than the 2,000+ local individuals and organisations who fed into the DCO process. That’s ten times higher than the national average for any DCO – and the second highest ever – but the weighty voices of the larger national campaign groups and NGOs are not amongst them, save for the local branch of the CPRE.
Tempting though it may be to write this off as yet more evidence that the Applicant’s vision for Manston isn’t nearly as “nationally significant” as they claim it to be, there is a real danger lurking.
If the Manston DCO is refused – as it most surely must be – it will be because the Applicant has failed to present a credible case. Amongst the many issues – besides the climate change/NetZero question – the Applicant provided no credible evidence of financial backing or previous airport development or operational experience, the airport site has poor surface access and previous attempts to operate commercial services – including freight – from previous incarnations of Manston Airport ended in repeated failure and closure of the site in 2014. Since then, numerous industry experts have repeatedly made clear that there is no need for a new dedicated freight airport in this corner of Kent.
This being the case, if a DCO application this wanting is granted, it will be because we just weren’t paying enough attention and let this one slip through.
This could set a dangerous precedent for all the other airport DCOs to follow – including Heathrow, Gatwick and Luton – and the environmental groups who seek to set limits on exponential airport expansion.
Having made contact with the Environmental Law Foundation (ELF), the significant issues around the proposed development and reopening of Manston Airport – and their potential impact on other airport DCOs to follow – are now being brought further into light through the very much-welcome and vital support of the organisation. With the DCO decision deadline extended until 18 May, following the Secretary of State for Transport’s recent call for Comments and Further Information on a range of matters – including climate change – the ELF sought and submitted a legal opinion on this issue on behalf of local campaigners, which has now been included within their own submissions. (See ELF submission here, from page 4-20).
The importance of this is made clear at paragraph 42 of the ELF submission, which notes:
“…this is the first DCO process for an airport expansion, and will be likely to be followed by others. As such, this approach to the assessment of climate change will provide an invokable precedent” (emphasis added).
While the cost of the Manston DCO will be all too visible, breathable, smellable and audible in the historic town of Ramsgate – with 40,000 residents sitting directly under the flight path just over a mile from the runway and with overflying planes at a maximum altitude of 700 feet – the wider threat of rampant airport expansion, new airports and the environmental impact on us all is hiding in plane sight.
Delay till May for Shapps to decide whether to allow Manston Development Consent Order (“DCO”)
The decision by the DfT on whether to re-open Manston as an airport again for air cargo has been delayed for four months. It had been expected on 18th January. The airport has been closed since 2014. RiverOak Strategic Partners, the consortium behind the scheme, had applied for the airport to be considered as a nationally significant infrastructure project. Having had 3 months to digest the Planning Inspectorates’ report, the DfT now want more information from RiverOak by 31 January. The Secretary of State (SoS) Grant Shapps has set a new deadline of 18 May 2020 for the decision to be made. The Aviation Strategy is expected before summer recess, with the DfT consultation on climate imminent, so the DfT are giving themselves until May to avoid shooting themselves in the foot on carbon, as they did with Flybe. RiverOak are trying to argue that Manston could be successful on cargo, as “the air freight market is ripe for an alternative to the overcrowded London airports system”. Some people in the area are hoping Manston could provide jobs; others are deeply concerned about the noise from old freighter aircraft during the night, flying over residential areas (the approach path is right over Ramsgate).
Manston airport decision before long, after Planning Inspectorate sends recommendation to Grant Shapps
Government planners, the Planning Inspectorate (PINS) , have made their decision on whether a bid to reopen Manston Airport as a cargo hub should be backed. The recommendations have been sent to Transport Secretary of State (SoS) Grant Shapps, who has 3 months to decide whether to grant planning permission to site owners RiverOak Strategic Partners (RSP) in the form of a Development Consent Order (DCO). The decision is made the SoS because the airport re-opening is considered a Nationally Significant Infrastructure Project (NSIP) which is not decided by a local authority. It the SoS approves the plans, the owners RSP will probably use the airport primarily for air cargo. In July Stone Hill, the site’s previous owners, agreed to sell the land to RSP for £16.5m, instead of their plan to build up to 3,700 homes on it. The tonnage of air freight has risen by only 11% in the UK in the past 10 years, with most going through Heathrow. But RSP says “there has been continuing growth in the air freight cargo market, driven chiefly by the increase in e-commerce and … e-fulfillment…” Manston re-opening will be strenuously opposed by local people, largely to noise over Ramsgate, from old, noisy freighters, often at night.
Manston airport has another possible chance to take cargo planes in future
Manston, once named as Kent International, was shut down four years ago. Plans to turn it into a cargo airport will be subjected to a public inquiry. An application to upgrade the airfield and reopen it primarily as a cargo airport was accepted by the government’s Planning Inspectorate. Its ambitions to be a cargo airport come from the days when it was touted as a viable alternative to Heathrow, Gatwick and Stansted when, for a time, it traded under the name Kent International Airport. It was used by old, noisy and often clapped-out planes, that caused serious noise nuisance to residents of Ramsgate, where houses are situated on the approach path, almost up to the airport – and planes flew at night. The plans put forward by Riveroak Strategic Partners, Manston’s proposed operator, must first be subjected to a public inquiry in which local people can express their views. Cargo could perhaps be transferred onto the road system, from the airport. But its location, so far out to the north east of Kent, is far from ideal for any sort of airport. In 2012, Flybe and KLM launched services from Manston in the mistaken belief that it could be a passenger airport.