Jenny Dawes granted permission to appeal to the Court of Appeal against the dismissal of her application for judicial review of the 2nd Manston Airport DCO.
On 7 February 2024, the Rt Hon Lord Justice Warby granted Jenny Dawes permission to appeal to the Court of Appeal against the dismissal of her judicial review application challenging the decision of the Secretary of State to make a development consent order (DCO) for the re-opening of Manston Airport. In his Order, Lord Justice Warby reasoned that certain aspects of the High Court decision warranted appellate scrutiny and that the remaining arguments relating to “need’ were properly arguable with a reasonable prospect of success. Those pushing for the re-opening of the airport claim that something that could be seen as “critical infrastructure” should not be delayed by legal challenge. In fact, there are serious questions about the “need” for this airport. In 2019 the Examining Authority ultimately concluding that a DCO (Development Consent Order) should not be granted as there was no need for it, with other factors also weighed against the development, including climate change. As well as the need argument, the impact on Manston of the potential growth of other London airports must be considered.
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Permission to appeal granted!
By Jenny Dawes
Feb.12th 2024
On 7 February 2024, the Rt Hon Lord Justice Warby granted me permission to appeal to the Court of Appeal against the dismissal of my judicial review application challenging the decision of the Secretary of State to make a development consent order (DCO) for the re-opening of Manston Airport.
In his Order, Lord Justice Warby reasoned that certain aspects of the High Court decision warranted appellate scrutiny and that the remaining arguments relating to “need’ were properly arguable with a reasonable prospect of success.
The following day, a partner at BDB Pitmans, (RSP’s solicitors) Mustafa Latif-Aramesh, posted a commentary on BDB Pitman’s website that was picked up and echoed in posts by RSP, Sir Roger Gale MP, Craig Mackinlay MP, and by airport supporters.
The thrust of these various attacks on the reasoned decision of an experienced judge of the Court of Appeal, is largely based in the argument that because Manston Airport is ‘critical infrastructure’, it shouldn’t be delayed by legal challenge. In the case of BDP Pitmans, Mr Latif-Aramesh further suggested that, since “people have had their fair go”, access to justice had been served and Aarhus costs protection (whereby the liability of the Claimant to pay the costs of the other side if they lose is capped at £5,000 for an individual and £10,000 in other cases, and the costs of the Defendant and Interested Party are likewise capped at £35,000 each) should no longer apply.
Sir Roger Gale MP, supported by Craig Mackinlay MP, is proposing to complain to the Lord Chancellor, seemingly on the basis that the Court of Appeal has dared to decide that there are valid legal questions to consider.
A DCO facilitates the compulsory purchase of land. Ann Gloag acquired Manston Airport – and its debts – in 2013. When early attempts to persuade her to sell it on failed, an American company, RiverOak Investment Corp (ROIC) tried to push the local district council to affect a compulsory purchase. When that failed, ROIC applied for a DCO before handing over to the newly formed RiverOak Strategic Partners Ltd (RSP).
The statutory examination of RSP’s application ran from January 2019 to July 2019. It is true that many people had their say through this process, which concluded with the Examining Authority ultimately concluding that a DCO should not be granted because there was no need case for Manston Airport and there were various factors that weighed against the development, including climate change.
The Secretary of State at the Department for Transport (DfT) did not agree with this expert advice but failed to give proper reasons why, when granting the first DCO in July 2020. Following an application for judicial review of this decision, the DfT conceded that the decision was unlawful and the DCO was quashed in February 2021. It is worth noting that, had RSP thought the Secretary of State’s decision was defensible, they could have continued to defend the decision in the High Court. They chose not to do so.
A second DCO was granted in August 2022. This time, the decision not only went against the recommendations of the Government’s own Planning Inspectors, but also against the opinion of the Independent Aviation Expert appointed by the Secretary of State.
To find support for the case for expansion where no independent advisors thought it existed, the Government relied on outdated and untested evidence collected by RSP’s expert and on a report submitted at the eleventh hour and not open to public comment.
So, while most of the evidence relating to this development has been subject to intense scrutiny, and on the basis of that evidence, the experts and government advisors concluded it should not go ahead, the Government clung to two pieces of evidence that were not opened to proper public scrutiny to get round this unwelcome advice. To put it another way, the essence of this case is that people have not had “their fair go”.
In these circumstances, it is hard to see how anyone can object to proper legal scrutiny through the courts, including the Court of Appeal. Especially given that the same processes are also available to the Defendant and to the Interested Party.
Opposition to the Secretary of State’s decisions has been funded by hundreds of people, some of whom could only afford to give £5 while a few have been able to contribute several thousand pounds. The one thing they all have in common is that they do not believe Manston Airport counts as “critical infrastructure“, nor that RSP’s proposals amount to “a significant investment in the National Interest”. Our opponents have deep pockets; the DfT is funded by the public purse while RSP is funded by anonymous “investors”.
Removing Aarhus costs protection would effectively amount to pricing individuals out the justice system. To do so would prevent a legitimate challenge being raised in the courts about an infrastructure project that is not supported by the Government’s own expert advisors. Such an argument would prevent access to justice, precisely what Aarhus was set up to avoid.
https://www.crowdjustice.com/case/support-judicial-review-of-sec
By Jenny Dawes
Feb. 7th, 2024
The Rt Hon Lord Justice Warby has granted permission to appeal on the “need” grounds but refused permission to appeal on the “climate change” issue.
The “need” grounds, approved by Mrs Justice Lieven in March last year, are:
Ground 1(a) which is that it (1) was procedurally unfair to rely upon the Azimuth Report without having the underlying evidence or submitting that evidence to scrutiny by Interested Parties (2) the reliance on the IBA* report which the IPs were not afforded the opportunity to comment on.
Ground 1(c) irrationality – i.e. that in determining whether there is a need for the development, the Defendant irrationally relied on qualitative, rather than quantitative evidence, despite having asked for quantitative need to be demonstrated in his Statement of Matters.
Ground 1(d) which is there was an error of law as to treatment of potential growth at other airports; the minister erred in law because he was unlawfully advised in the briefing that the potential for growth at other airports was not a material consideration.
See earlier:
Application to appeal against Manston airport court decision denied
An appeal, by Ms Jenny Dawes, against a court decision not to quash the development consent order (DCO) for Manston airport has been rejected. A bid for a Judicial Review into the decision to give the Manston airport project the go ahead was dismissed last month but claimant, Ramsgate resident Jenny Dawes, then appealed that judgement. Now Mr Justice Dove has refused the appeal application and notice of the refusal was sent by the Judge’s clerk on October 9th. The DCO was initially granted in July 2020 when the Department of Transport approved the application to create an air freight hub at the site. Ms Dawes may now apply to the Court of Appeal for permission to appeal. This would ask the court to overturn Mr Justice Dove’s decision and his refusal to allow an appeal of that decision. Ms Dawes has 21 days to apply to the Court of Appeal for permission to appeal.
Click here to view full story…
JR application to stop Manston airport Development Consent Order denied by judge
An application for Judicial Review of the Manston airport DCO has been rejected by a judge. The DCO was initially granted in July 2020 when the DfT approved the application by RiverOak Strategic Partners to make the airport an air freight hub. That was refused in the High Court in February 2021 following a legal challenge by Ramsgate resident Jenny Dawes and supporters which resulted in the DfT Secretary of State conceding the decision approval letter issued from the Minister of State did not contain enough detail. The DCO was granted for a second time in August 2022 by then Transport Minister Karl McCartney. In response Jenny launched a 2nd JR application, trying to stop the airport plans. The application was initially dismissed by Mr Justice Lane in January but then allowed on partial grounds in a review by Mrs Justice Lieven in March. The latest hearing was before Honourable Mr Justice Ian Dove in July. Jenny plans to appeal the judgement, and remains “firmly of the view that the government’s decision to proceed with Manston Airport, in the face of expert evidence to the contrary and in the context of the worsening climate crisis, is nonsensical.”
Click here to view full story…
Permission for a second judicial review granted, challenging plans to become a freight airport
23.3.2023, By Michael Keohan, BBC News
A judge has granted a judicial review for plans to turn Manston Airport into an air freight hub. The government granted permission for the project last year, after the High Court ordered the Department for Transport to reconsider its decision to give the go-ahead for the works in 2021. The site’s owners said the development could face further delays. North Thanet MP Sir Roger Gale said the news was “bitterly disappointing.” At an appeal hearing at the Royal Courts of Justice, judge Mrs Justice Lieven granted the review on three points, and asked for one on climate change to be addressed in writing within a week. This is the second time a development consent order for Manston Airport has faced a judicial review. Tony Freudmann, the director of RiverOak, which owns the site, said the review could delay plans to get flights taking off in 2026. Sir Roger said the announcement was “simply wasting time”. Manston Airport closed in May 2014.
https://www.bbc.co.uk/news/uk-england-kent-65054928
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