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 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 – a process expected within a three week timespan – 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.
Her update 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.”
County Councillor Karen Constantine said: “First we had the Chris Grayling’s ferry fiasco at the Port of Ramsgate and now we have yet another U-turn by Conservatives. Grant Shapps the Transport Minister has been very much in favour of the Manston air freight hub even though the planning inspectors’ clear conclusions were ignored. The decision to disregard the planning inspectorate also ignored the Heathrow airport third-runway judgement where the Court of Appeal rejected an application for an extension on environmental grounds.
“Many of us have been of the opinion that this air freight project would never take off. We argued that the facts were clear, Manston is located in the wrong part of the UK, has too much competition from established air freight operators and that it would never be able to become a commercially viable airfreight hub. Since Covid-19 aviation has massively declined meaning another nail in our RSP’s coffin. In addition a huge number of people objected to living under a flight path.
“Given the facts I think it is misleading of Sir Roger Gale MP to say that the judicial review has hampered the development of the airfreight hub, especially as to-date there’s been no sign of the necessary investment of £300m. It simply hasn’t materialised.
“It was utterly cynical of the government to impose a DCO and the cash strapped, hard-pressed people of Ramsgate have had to dig very deep to find £88,000 to fund a Judicial Review. I do wonder if the government should now take full responsibility and refund all of those that contributed to the JR in good faith. Being as they know from outset this was the project was doomed to failure. It’s a high price for our community to pay for the Governments inept interference.”
Cllr Constantine the site should be used to drive economic regeneration through business and training and social housing if an application to develop is made in the future.
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.