DCOs and the need for development

The Court of Appeal recently refused an appeal against a High Court’s decision to dismiss a judicial review of the grant of development consent for Manston Airport. Barristers at Francis Taylor Building analyse the ruling.

In R (Dawes) v Secretary of State for Transport [2024] EWCA Civ 560 the Court of Appeal (Lewis, Jackson and Warby LJs) has dismissed an appeal against the decision of Mr Justice Dove to dismiss a judicial review of the decision of the Secretary of State for Transport to grant development consent for the development and reopening of Manston Airport in Kent as a dedicated air freight facility.

The Secretary of State granted development consent in August 2022 following the quashing of an earlier grant of development consent. A local resident unsuccessfully sought to challenge that decision in the High Court. The appeal to the Court of Appeal focused on the question of need for the development (the Appellant having been refused permission to appeal on the question of climate change).

The Appellant pursued five grounds of appeal:

1. There had been a breach of procedural fairness as the Secretary of State had relied on a report prepared by Azimuth Associates, on behalf of the applicant, in circumstances where commercially sensitive interview transcripts were not available.
2. Rule 19(3)(b) of the Infrastructure Planning (Examination Procedure) Rules 2010 applied to proceedings after an initial decision had been quashed.
3. That the High Court had erred in concluding that rule 19 would only apply if the new evidence was the reason, rather than a reason, for being disposed to disagree with the recommendation of the Examining Authority and in concluding that the IBA report had not made a difference to the Secretary of State’s conclusions.
4. That there had been a breach of procedural fairness as there had been no opportunity for the Appellant to comment on the IBA Report.
5. That the Secretary of State had been wrongly advised that the potential for expansion at other airports was not a material consideration.

The Court of Appeal dismissed the appeal. In summary, the Court of Appeal held that:

1. Neither the 2010 Rules, nor any common law principle of procedural fairness, required the disclosure of the transcripts.
2. The Interested Party, who was the applicant for the DCO, was entitled to rely on the Azimuth report, and the Secretary of State was entitled to take it into account, notwithstanding the fact that the transcripts of the interviews were not provided.
3. Rule 19(3)(b) of the 2010 Rules does apply to the further consideration of an application for a DCO following the quashing of an earlier decision.
4. The new evidence here, i.e. the IBA report, was not a reason for the disagreement with the Examining Authority’s recommendation. Rule 19(3)(b) did not, therefore, require interested parties to be allowed to make written submissions on the IBA report.
5. The Secretary of State was not advised that it was legally impermissible to take future potential expansion at other airports into account.

The decision of the Secretary of State was, therefore, upheld. The Court of Appeal has, however, usefully clarified the scope of the application of rule 19(3)(b). This will be of interest to other applications for DCOs where the Secretary of State is redetermining an application following the quashing of an earlier decision on that application.

Mark Westmoreland Smith KC and Mark O’Brien O’Reilly are barristers at Francis Taylor Building. Instructed by the Government Legal Department, they acted for the successful Secretary of State in both the High Court and the Court of Appeal. Michael Humphries KC and Isabella Tafur, also of FTB, acted for the developer, RiverOak Strategic Partners, instructed by BDB Pitmans.