As the legal battle continues over whether a government order granting permission for the development of Manston airport was legally sound, the owners of the former MoD airfield say a reform of planning laws is needed.
RiverOak Strategic Partners (RSP) want to create an airfreight hub at the site but say the process has become “mired in legal challenge after legal challenge.”
How the government decision for the airport scheme was made has been hotly contested in the courts through a Judicial Review and a number of appeals, arguing that it was flawed on grounds including need for the facility not being proven.
It is also a political wrangle with Conservative MPs and councillors, plus Thanet Independents, backing the scheme while Labour and Green members are firmly against.
It has been almost 10 years since the airport was shut down by former owner Ann Gloag in May 2014. The Stagecoach tycoon had bought the site from Infratil for a nominal £1 in 2013, although this came with the baggage of accepting £23 million worth of outstanding loans.
A majority stake was then sold later that year to developers Chris Musgrave and Trevor Cartner of Discovery Park, who created a Stone Hill Park development scheme for business, leisure and housing. A £7million offer from US firm RiverOak Corporation had been refused. The payment was offered in a deal where Ann Gloag was asked to leave £2million in the owning company Skyport bank account making a net £5million offer.
A long journey followed which has included council CPO plans launched and then ditched, a Transport Select Committee hearing, an independent review, housing and business proposals for the site, deals for lorry parking and a row over retaining aviation use only at the site that eventually decimated Thanet’s UKIP council.
DCO and appeal journey
In 2018 RiverOak Strategic Partners Ltd, a UK registered body that bought the redevelopment project from its American namesake, applied for a Development Consent Order from government to get its airport plans off the ground.
This was followed by a Planning Inspectorate examination from January 2019 through to July 2019. The panel concluded that sufficient need for the project had not been demonstrated.
However, the government minister disagreed and the DCO was granted in July 2020.
It was quashed in the High Court in February 2021 following a legal challenge by Ramsgate resident Jenny Dawes and supporters which resulted in the Secretary of State conceding the decision approval letter issued from the Minister of State did not contain enough detail.
The DCO was redetermined and then granted for a second time in August 2022 by then Transport Minister Karl McCartney.
In response a second Judicial Review application was launched. That was initially dismissed by Mr Justice Lane in January 2023 but then allowed on partial grounds in a review by Mrs Justice Lieven in March.
At a hearing before Honourable Mr Justice Ian Dove in July 2023 the focus was on the process for two areas -whether need for the airport was correctly assessed and whether due consideration was given to what impact the scheme might have on the Government’s ability to meet its future carbon reduction targets.
Mr Justice Dove issued a lengthy judgement dismissing the application in October.
Ms Dawes then applied for permission to appeal against the judgement, but this was also denied.
The application for permission to appeal to the Court of Appeal was then lodged and has now been granted on the ground of need.
If the claim is dismissed, Ms Dawes could appeal to the Supreme Court.
RSP, who paid £16.5 million to buy the airport site from Stone Hill Park in 2019, say the airport project “remains in suspended animation” and the years of wrangles “have served to highlight serious frailties in the UK planning system, which are seriously damaging investor confidence in the UK, preventing Manston from delivering on its strategic economic value to the nation and making a mockery of planning laws.”
Ms Dawes has said she is “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, and the procedure followed by the Secretary of State was deeply flawed.”
RSP say the Government should reform planning laws ‘to provide a more efficient and defined process for the interrogation of major infrastructure planning applications.’ Manston is the first aviation DCO to be designated a Nationally Significant Infrastructure Project by the UK Government.
In a statement RSP say: “RSP and its investors, which have collectively already spent more than £42 million on the project, call upon the Government to reform the major infrastructure planning laws.
“It is vitally important that the determination of nationally significant infrastructure projects should not be delayed for years through endless litigation and uncertainty, to the detriment of all involved – not least the defendant (in this case the Government and therefore the British public), and the relevant markets, economies and regional communities relying on the project’s investment in creating better transport infrastructure and employment opportunities.”
Ms Dawes says the process for granting the DCO was “procedurally unfair” and the appeal will argue that there should not have been reliance on the Azimuth Report without having the underlying evidence or submitting that evidence to scrutiny by Interested Parties and in determining whether there is a need for the development, the Defendant irrationally relied on qualitative, rather than quantitative evidence.
The appeal will also claim there was an error of law, saying the minister was unlawfully advised in the briefing that the potential for growth at other airports was not a material consideration.
RSP say the proposed airfreight hub at Manston would help the UK trade across the globe – importing vital and time-sensitive goods, including fresh fruit and medical supplies, providing air freight operators with “a realistic alternative to the overcrowded London airports, and easing the considerable road congestion caused by lorries carrying freight through the channel tunnel to European airports.”
They say the project will create around 650 construction jobs, and 2,000 permanent jobs once the airport is fully operational, as well as a chain of indirect jobs and that “several international investors are prepared to invest £800 million” in the scheme.
Opponents say the hub will have a damaging effect on tourism, health and climate and the UK already has existing freight capacity without Manston.
RSP has expressed frustration at the legal process, saying: “International investors cannot understand how the same issues can be litigated again and again, why there are so many stages to litigation in the UK and why each one takes so long.
“Although the integrity of the judicial system in the UK remains highly respected, the multitude of stages, the lengthy delays taken and the ability to challenge the same issues repeatedly have resulted in a significant loss of faith in the UK’s ability to support infrastructure development and inward investment effectively.”
North Thanet Conservative MP Sir Roger Gale has said he is “determined to ensure that the legal absurdities of this case are brought to the attention of the Lord Chancellor.”
South Thanet MP Craig Mackinlay has voiced disappointment at the latest appeal decision, branding it as “simply another delaying tactic.”
Response – ‘pull the plug’
Ms Dawes, 77, has responded by saying it is time to ‘pull the plug’ on the project.
In a rare response to media requests for comment, she said: “Why are they complaining? There are very valid questions to answer. The appeal has been granted on the grounds of need for the airport. Reports by aviation experts – and the government’s own Planning Inspectors – already concluded that there is no need for the development.
“The government Examining Authority report clearly states: ‘the Applicant [RSP] has failed to demonstrate sufficient need for the Proposed Development.’ If the airport is not needed, then the jobs, the economic benefits and the profits will never happen.
“The political promise of prosperity can’t be delivered. Our local MPs are unfairly filling the people of Thanet with false hope. If independent aviation experts like Ove Arup – commissioned by the Department for Transport – agree the airport is not needed, then why are they being ignored?
“Airport owners RiverOak Strategic Partners (RSP) are not aviation experts. The airport has never worked commercially. It has failed three times and was more profitable as a lorry park than it was in 15 years as an airport. Throwing money at something doesn’t make it more viable. The investment figures the developers are quoting are absurd. No serious investor would touch this.”
Ms Dawes, who previously ran a grant making charity in London, says ‘too much time and money’ has been spent on the airport issue, adding: “RSP had an £8.5 million handout from the Dept for Transport for delays that didn’t materialise to a development that is not needed. It’s time for the government to pull the plug. It’s time for MPs Roger Gale and Craig Mackinlay to stop misleading the electorate and start encouraging more realistic and sustainable investment in the area.”
The current position
In October Mr Justice Dove ruled there was no proper basis, within either of the grounds provided by Ms Dawes and her team, upon which permission to appeal could be granted.
However, this month Rt. Hon. Lord Justice Warby ruled that one ground was arguable, saying: “The judge’s approach to the significance of the International Bureau of Aviation report (supporting the need for Manston), the need for consultation upon it, and the proper interpretation of the ministerial briefing all seem to me to merit appellate scrutiny.
“I am not convinced that all the sub-grounds of Appeal Ground 1 have equal force. That said, each of the sub-grounds is properly arguable with a realistic prospect of success.”
He concluded there was no compelling reason for the court to hear an appeal on climate change grounds.
UPDATE: Appeal hearing
The appeal date has been set for one day at the Court of Appeal on April 24th.