Manston airport development DCO approval ‘to be quashed’ by government – with decision for refusal, by Planning Inspectorate, to be re-examined later
A hearing in February set for the legal challenge over the government’s decision to give permission for the development of Manston airport into an air freight hub will now not take place. The Secretary of State for Transport has said they will not contest the case. The substantive hearing – which involves the lodging of evidence from the defendant, and interested party (RiverOak Strategic Partners Ltd) – was to assess whether the Government followed correct procedure in reaching the decision to approve the DCO for the landowners, even though this overturned the recommendation of the Planning Inspectorate (PI). Now the DfT has acknowledged that the decision approval letter issued from the Minister of State did not contain enough detail about why approval was given against the advice of the PI. This means the DCO approval for Manston airport will be quashed. It the development of Manston airport is to happen, it will require a new decision to be issued, after a re-examination of the Planning Inspectorate evidence. RiverOak Strategic Partners Ltd, will not be defending their claim. The Treasury Solicitor will now draft an order disposing of the case. The order will have to be approved by all parties and submitted to the Court to be sealed – this final step may take several weeks.
Manston airport Photo Frank Leppard
A hearing set for the legal challenge over the government’s decision process in granting permission for the development of Manston airport into an air freight hub will not take place after the Department for Transport/ Secretary of State said the case would not be contested.
The substantive hearing – which involves the lodging of evidence from the defendant, and interested party -was due to take place at the High Court on February 16-17 and was to look at whether the Government followed correct procedure in reaching the decision to approve the DCO for landowners RiverOak Strategic Partners.
But, the Department of Transport has now acknowledged that the decision approval letter issued from the Minister of State did not contain enough detail about why approval was given against the advice of the Planning Inspectorate.
It is understood this means the DCO approval for Manston airport will be quashed and a new decision will need to be issued after a re-examination of the Planning Inspectorate evidence.
The JR bid challenging the approval decision was launched by Ramsgate Coastal Community Team chairperson Jenny Dawes with a crowdfunder raising some £86,000 in pledges to pay the legal costs.
But today she has revealed that the JR will be disposed of after a letter from the Treasury said the case had been conceded.
The Judicial Review of Manston airport webpage, from Jenny Dawes, says (2nd December 2020)
ITS NOT OVER YET BUT …
Jenny says: “Yesterday my solicitors received a letter from the Treasury Solicitor, acting on behalf of the Secretary of State for Transport, which said “my client has agreed to concede this claim on the basis of ground 1(b), namely that the Secretary of State did not give adequate reasons in his decision letter to enable the reader to understand why he disagreed with the Examining Authority Report on the issue of need for the development of Manston Airport”.
“We subsequently learned that the Interested Party, RiverOak Strategic Partners Ltd, will not be defending their claim.
“My lawyers set out three grounds of challenge to the decision to grant a Development Consent Order for the re-opening and development of Manston Airport:
Ground 1: Need
Ground 2: Breach of Procedural Requirement/Unfairness
Ground 3: Net Zero Duty
“The Treasury Solicitor will now draft an order disposing of the case. The order will have to be approved by all parties and submitted to the Court to be sealed – this final step may take several weeks.
“This update is couched in very formal language but I’m enormously relieved to have got this far and bowled over by all the support I’ve received. It’s been a joint effort!”
A statement from North Thanet MP Sir Roger Gale, who has backed the airport plan, says: ““=The future of Manston Airport has been subjected to further delay in the light of the application for Judicial Review.
“The Department of Transport has acknowledged that the Minister of State`s decision letter could have contained more information as to reasons.
“That being so the Department has conceded these grounds and will no doubt wish to afford all parties the opportunity to make further submissions before re-visiting the DCO and issuing a further and more detailed letter of determination in due course.”
It is understood that a fresh decision on the development order cannot be issued while the legal process of a JR is taking place.
A statement by RiverOak Strategic Partners says: “Naturally the Department for Transport’s decision not to contest the Judicial Review is disappointing, although it may in fact save time. It is a feature of the DCO process that, in order for more information to be provided by the Secretary of State on the reasons for his decision, the decision must be re-taken, and so the project is effectively back to the final decision stage.
“We faced a similar situation two years ago when we withdrew our DCO application, to provide additional information, before successfully resubmitting it for acceptance. It’s important that this is done correctly, in order that Manston can deliver on its full potential, and we welcome the Government’s decision being put on as robust a basis as possible.
“RSP remains confident in our proposals and of the increasing need for Manston to support the UK’s freight handling capabilities, post-Brexit and to aid the economic recovery from COVID-19. We will make additional representations, when invited to do so, with evidence from across the last 18 months (since the DCO examination stage closed) – and look forward to publication of the Secretary of State’s comprehensive assessment of the basis for granting the DCO, early in 2021, so that we may begin works to restore the airport to operational use.
“In the meantime, we continue the CAA airspace change process to determine the future flightpaths for Manston and we have, this week, also reached agreement for Manston to be used as a temporary Customs outpost, until July 2021.”
Full text of Ground 1(b): Failure to Give Reasons:
- S.116 of the 2008 Act and Regulation 30 of the EIA Regulations both impose a duty on the Defendant to give reasons for granting a DCO. In South Buckinghamshire DC v Porter  UKHL 33, the House of Lords confirmed that any such reasons must be adequate and intelligible, and enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues.
- As to the quality of the reasons for disagreeing with the ExA on “need”, given that the Defendant asked himself entirely the wrong question, falsely eliding “need” with “benefit”, his reasons for disagreeing with the ExA on need are, inevitably, inadequate, improper and unintelligible. An informed reader of the DL is wholly unable to discern:
- Why the Defendant considered that there was a “clear case of need” for the development which existing airports (Heathrow, Stansted and EMA) could not meet.
- Upon what basis the quantum of anticipated need for freight had been assessed by him.
- Upon what basis the capacity of existing airports within the south east to accommodate that quantum of need had been assessed by him.
- Whether, and if so why, he considered those existing airports (Heathrow, Stansted and EMA) not to be preferred locations to meet that quantum of need.
- To what extent he considered need could not be met in the bellyhold of passenger flights to and from those existing airports.
- Whether, and if so why, he considered that facilities could not be constructed at those existing airports to meet that quantum of need.
- Upon what basis the Defendant disagreed with the expert evidence produced by York Aviation, and others, against the need case.
- These issues were all addressed in detail in the ExA’s report, but were not mentioned, let alone grappled with, in the Defendant’s perfunctory and dismissive DL.
The Treasury Solicitor will now draft an order disposing of the case. The order will have to be approved by all parties and submitted to the Court to be sealed – this final step may take several weeks.
This update is couched in very formal language but I’m enormously relieved to have got this far and bowled over by all the support I’ve received. It’s been a joint effort!
4th December 2020 update from Jenny Dawes – who brought the legal challenge against the government’s decision
Following the quashing of the Manston Airport Development Consent Order 2020 by the Court, the Secretary of State will write to all interested parties, setting out key issues and inviting further written representations on those issues.
Interested parties include the applicant, the local authority and anyone who previously registered by filling out a Relevant Representation form at the inquiry stage (and had it accepted as valid).
The Secretary of State will make a decision based on the Examining Authority’s Report and the further representations. The Secretary of State has three months to make a decision but this can be extended.
The decision could be either a refusal to make a Manston Airport Development Consent Order or a decision to grant such a Consent Order.
If a DCO is refused, RiverOak Strategic Partners (RSP) may wish to bring a judicial review. I would be an Interested Party in any such challenge.
If a DCO is granted, another judicial review can be brought on the existing grounds and any further grounds that may arise on review of the decision letter.
Update on Judicial Review of Manston Airport DCO.
The Court has now listed a 1.5 day substantive hearing for 16-17 February 2021, of the case which has been brought by the remarkable Jenny Dawes. Info about the case at https://www.crowdjustice.com/case/support-judicial-review-of-man/
Manston airport judicial review: permission granted for legal challenge
A judge has granted permission for a legal challenge against the government’s decision to reopen Manston airport. The crowdfunder set up to help pay for a judicial review has now reached more than £80,000. Now the application for the review has been granted, the Secretary of State’s decision in July to approve a development consent order to open Manston as a freight cargo air hub will be challenged in court. The legal battle was launched by Jenny Dawes, the chair of Ramsgate Coastal Community Team. Solicitors Kate Harrison and Susan Ring of Harrison Grant are acting for her, and instructing barristers Richard Wald QC and Gethin Thomas. The reasons for opposing the reopening of the airport for freight are partly due to the noise, as the arrival flight path is directly over Ramsgate, near the airport. There are also strong arguments on air pollution and the UK’s climate targets. The advice of the Planning Inspectorate was to refuse permission for DCO. Jenny said: “According to the government’s own experts, re-opening the airport will damage the local economy and impact negatively on the UK’s carbon budget and our commitments to the Paris climate agreement.”
Click here to view full story…
Well done to the No Night Flights Over Ramsgate group, and all those who have worked hard to bring this about & everyone who has contributed ££.
Challenge to Manston airport DCO – barristers from 39 Essex Chambers, and Harrison Grant solicitors
Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas are instructed by Kate Harrison and Susan Ring of Harrison Grant LLP in a judicial review of the Secretary of State for Transport’s decision to approve the re-opening of Manston Airport, as a dedicated freight airport. In so deciding, the Secretary of State overturned the recommendation of the Examining Authority [the Planning Inspectorate] to refuse development consent. They act on behalf of Jenny Dawes, a local resident who participated in the examination. Manston Airport has been disused since it was formally closed in 2014. The claim, issued on 19th August, contends that the Secretary of State’s analysis of the need for the development was flawed, and that moreover, the Secretary of State failed to discharge his duty to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline (“Net Zero”), under section 1 of the Climate Change Act 2008.
Click here to view full story…
19th August 2020
Judicial review challenge to Manston Airport DCO issued today – Kate Harrison & Susan Ring of @HGLegal instructing Paul Stinchcombe QC, Richard Wald QC & Gethin Thomas in Judicial Review of Sec State’s decision to approve re-opening of Manston Airport, as dedicated freight airport.
The claim has today been issued at the High Court: the Defendant & Interested Party (RSP) now have until 11 Sept to file an acknowledgement of service indicating whether they wish to contest the claim and, if so, setting out their summary grounds for doing so
Pre-action letter urging Secretary of State to overturn Manston Airport decision is rejected
A pre-action letter demanding the government’s decision to reopen Manston Airport be overturned has been rejected by the Secretary of State for Transport. Campaigner Jenny Dawes, who has launched a bid to stop the former airfield near Ramsgate becoming a freight cargo air hub, sent the letter to MP Grant Shapps, but he has refused to reverse the approval.
She says in light of this, she is now preparing for a legal battle, with her team – solicitors Kate Harrison and Susan Ring of Harrison Grant – getting ready to submit an application next week for a judicial review. If the review is granted, the decision by Mr Shapps to approve a development consent order to open Manston as a cargo hub will be challenged in court.
A crowdfunder launched by Ms Dawes last month to help fund the fight has reached £65,120 in pledges.
She says the pre-action letter setting out the draft grounds for judicial review was sent to the Secretary of State, who had 14 days to respond. “The next step is to issue the claim at court and apply for permission to bring proceedings,” she said. “This will be served on the Secretary of State as the Defendant and the developer as an Interested Party. All this must be done by August 20.” To see the crowdfunder click here.