Court of Appeal judgment in second Manston Airport challenge

On 21 May 2024, the Court of Appeal handed down judgment in R (on the application of Dawes) v Secretary of State for Transport & Anor [2024] EWCA Civ 560. The Court of Appeal dismissed Ms Dawes’ appeal against the High Court’s dismissal of her judicial review, which challenged a (second) development consent order permitting the re-opening of Manston Airport in Kent.

Manston Airport, a former military aerodrome on the Isle of Thanet in Kent, has been disused since it was formally closed on 15 May 2014.

At first instance ([2023] EWHC 2352 (Admin)), Dove J dismissed Ms Dawes’ claim. The first instance judgment is available here.

The issue at the crux of the appeal was whether the Secretary of State lawfully handled evidence on need when he concluded, contrary to the views of his Examining Authority (for a second time) and Independent Aviation Assessor, that there was a need for the re-opening of Manston Airport. 

On appeal, Ms Dawes contended that:

a.    First, that Dove J (at first instance) had erred in concluding that the Secretary of State had not breached his common law duty of fairness by taking into account a report commissioned by the developer (‘the Azimuth Report’), addressing need, without enabling the underlying evidence to be scrutinized by interested parties. The Azimuth Report’s demand projections relied upon information derived from interviews, but the interview transcripts were not disclosed. 

b.    Secondly, that the Secretary of State accepted and relied upon a further report submitted by the developer, at a late stage of the redetermination process (the International Bureau of Aviation (“IBA”) Report). Interested parties were not afforded the opportunity to make representations in response to the IBA Report. Dove J erred in concluding:

i.    First, there was no breach of rule 19(3)(b) of the Infrastructure Planning (Examination Procedure) Rules 2010, which provides that if the Secretary of State takes into consideration any new evidence (or new matter of fact), and is for that reason disposed to disagree with a recommendation made by the ExA, the Secretary of State must not come to a decision which is at variance with that recommendation without: (i) notifying all interested parties of the Defendant’s disagreement and the reasons for it; and (ii) giving them an opportunity of making representations in writing in respect of any new evidence (or new matter of fact). 

ii.    Secondly, and in any event, Dove J erred in concluding that it was procedurally fair under common law principles.

c.    Thirdly, Dove J erred in finding that the Secretary of State was lawfully advised not to take account of future capacity at other airports in reaching his decision.

In particular, in respect of the Infrastructure Planning (Examination Procedure) Rules 2010 and the IBA Report, Dove J concluded that ‘rule 19 is not of application at the stage of proceedings after an initial decision has been the subject of a quashing order’ ([72]). Ms Dawes argued that this conclusion was an error of law, and that rule 19 did continue to apply after a quashing of an initial decision.  

Dove J had further held, in the alternative, that if rule 19 did so apply, the requirement to invite representations was not engaged by the IBA Report ([73]). 

The Court of Appeal dismissed the appeal. In summary, Lewis LJ (giving the leading judgment, with which Warby LJ and Peter Jackson LJ agreed) held that:

a.    The Azimuth Report: Dove J was entitled, and correct, to conclude that the principles of procedural fairness did not require the provision of the underlying transcripts. There was therefore nothing to prevent reliance on the Azimuth Report. The statutory scheme governing the consideration of an application for a development consent order for a nationally significantly infrastructure did not require the disclosure of confidential or commercially sensitive information. Interested parties were able to make submissions on the Azimuth Report, including in respect of its adequacy and reliability. Accordingly, ‘the weight, or reliance, that the decision-maker placed on the report was a matter for the decision-maker unless it was irrational for him to do so’ (at paras 41 to 44).

b.    The applicability of rule 19(3) in principle: In principle, rule 19 is capable of applying to the further consideration of the application following the quashing of the initial decision. Dove J was wrong, therefore, to conclude that rule 19 did not apply:

i.    First, the wording of Rule 19 is ‘clear’. On the ordinary and natural reading of the words in rule 19 ‘the obligations imposed by that rule are still capable of applying at any time after the completion of the examination and before a decision on the application is reached if the circumstances specified in rule 19(3) arise’ (at para 52). 

ii.    Secondly, the interpretation contended by the Appellant reflected the purpose underlying the rule, namely: to ensure procedural fairness. The aim of the rule applies with equal force to the process of further consideration after the quashing of a legally flawed decision, as it does to earlier stages of considering the application. Indeed, the circumstances addressed by rule 19 may arise at any stage after the completion of the examination (at paras 53 to 54). 

iii.    Thirdly, rule 20 does not limit the application of rule 19. Rule 19 and 20 ‘deal with different circumstances, and impose different procedural obligations reflecting those different circumstances. There is nothing inherent in the structure of the Rules to suggest that rule 19 applies for a limited period only, i.e. until a legally flawed decision is quashed and rule 20 applies’ (at para 55).

iv.    Finally, the fact that interested parties will have seen the report of the Examining Authority by the time that an unlawful decision is quashed does not mean that rule 19(3) cannot be triggered. Rather, the ‘trigger for the obligation in rule 19(3) is that the Secretary of State takes a different view of facts material to the conclusions or has considered new evidence or facts and, for that reason, is disposed to disagree with a recommendation’ (at para 56).

c.    Did rule 19(3)(b) apply on the facts of the case?: Reading the decision letter as a whole, the reason that the Secretary of State disagreed with the Examining Authority’s recommendation was the different weight he attached to the forecasts in the Azimuth Report. The IBA Report, although referred to, did not have a causative effect resulting in his disagreement. Rule 19(3) was therefore not triggered in the circumstances of the case. 

d.    The advice to the Minister: Read fairly, the ministerial advice did not instruct the Minister not to take account of future capacity at other airports, because it was legally impermissible for him to do so. Rather, read fairly the advice was that airport capacity was not a matter that should influence the outcome of the decision because there was no certainty that such capacity would become available. In other words, ‘the consideration is not material in this case, or that little or no weight should be given to it, or that it should not be taken into account – not because it is legally impermissible to do so, but because the uncertainty means that it is not, to put it neutrally, appropriate to ascribe any significance or relevance to that factor when considering the application’ (at para 74). Accordingly, the Minister was lawfully advised, and not misled about the approach that he was required to take.

39 Essex Chambers members Richard Harwood OBE KC and Gethin Thomas acted on behalf of Ms Dawes in respect of the appeal, and second judicial review claim. They were instructed by Susan Ring and Alice Goodenough of Goodenough Ring Solicitors. 

The Secretary of State's first decision was quashed pursuant to a consent order in February 2021, after permission for a judicial review challenging it was granted (also brought by Ms Dawes). More information on the first claim is available here.