Support Judicial Review of Manston Airport DCO
Support Judicial Review of Manston Airport DCO
Latest: Sept. 13, 2022
THIS PAGE HAS CLOSED - A NEW ONE HAS OPENED
The new page can be found at CrowdJustice: Manston 2 where we are working towards Judicial Review of the Second Manston Airport Development Consent Order.
This is a local issue of major national significance.
Kent’s Thanet coastline and a number of towns and villages are facing disaster, the effects of which will be felt much further afield.
The disused airport at Manston has been given permission by the Government to re-open as a highly-polluting cargo hub. This is against the advice of the Government’s own planning experts, which sets a worrying precedent in the face of climate change.
According to the Government’s own experts, re-opening the airport will damage the local economy and impact negatively on the UK’s carbon budget and our commitments to the Paris climate agreement.
The campaign, described in the Case Updates, has progressed from an initial application for Judicial Review, to the point where the Secretary of State for Transport is to re-determine the application for an order granting Development Consent for the re-opening and development of Manston Airport.
Please help by donating towards the legal battle today.
Manston Airport sits 0.3 miles from Ramsgate in Kent, in the far south-east corner of England. A former military airfield, this short-lived commercial airport closed in 2014 having failed under three previous owners.
In 2018 an application was made to the Government for a Development Consent Order (DCO) to turn the disused site into a dedicated cargo airport.
After two years’ rigorous investigation, the Examining Authority (EA) (comprising a panel of four Planning Inspectors) appointed by the Secretary of State to conduct an examination of the application reported that the airport would: “have a material impact on the ability of Government to meet its carbon reduction targets”.
The EA also noted that, due to demand being met elsewhere, a new cargo airport is not needed, either locally or nationally. The EA said: “the levels of freight that the Proposed Development could expect to handle are modest and could be catered for at existing airports” and that the would-be airport developer had: “failed to demonstrate sufficient need for the Proposed Development.”
The EA concluded that ‘on balance the benefits of this proposal would not outweigh its impacts’ and recommended that the Government should NOT grant development consent.
The Government has ignored this conclusion and given Manston Airport DCO the go ahead.
Please help challenge an irrational and damaging decision.
The cargo-first development at Manston will handle the noisiest and most polluting type of aircraft, planes not even allowed at Heathrow. These are also the most expensive way of moving freight.
The opening of a dedicated cargo hub will cause irreparable harm to the people, the natural environment and the economy of East Kent. Residents in the seaside towns of Ramsgate and Herne Bay, and in surrounding villages, will be living under low-flying, heavy-duty, highly-polluting aircraft. Some will be a mere 500ft below the flight path.
It will ruin our health and well-being as well as blighting the tourist industry on which so many depend. This will not only be a disaster for local people and our towns and villages, but also for the climate change obligations of the UK.
Who Am I?
I chair Ramsgate Coastal Community Team. Set up as part of a government initiative in 2016, it's a local partnership with an understanding of the issues facing our area and charged with developing an effective forward strategy for the whole of Ramsgate.
I was born in Kent and now live in Ramsgate on the Isle of Thanet. I’m not alone in saying this is a very special place and many other people feel just as strongly about the area and the damaging effects of this government decision to grant the go-ahead for an airport that isn’t needed.
With the support of those affected, I’m launched an application for a Judicial Review of the Secretary of State’s decision, an action that led to the quashing of the original DCO. My aim now is to ensure that the Secretary of State has the necessary information to re-determine his decision and refuse the application for a Development Consent Order for the re-opening and development of Manston Airport.
The fundraising target stands. The re-determined decision is not likely to be the end of the process; I need your support to be able to respond quickly to whatever the Secretary of State may decide.
Solicitors Kate Harrison and Susan Ring of Harrison Grant have agreed to act for me and to instruct barristers Richard Wald QC, Paul Stinchcombe QC and Gethin Thomas of 39 Essex Chambers.
On 1 May 2022, Harrison Grant transferred its practice to Hodge Jones & Allen. Kate Harrison, Susan Ring, Alice Goodenough and Magdalena Grey have joined the Environmental Justice Team at Hodge Jones & Allen.
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Sept. 13, 2022
THIS PAGE HAS CLOSED - A NEW ONE HAS OPENED
The new page can be found at CrowdJustice: Manston 2 where we are working towards Judicial Review of the Second Manston Airport Development Consent Order.
Sept. 2, 2022
A new funding cycle has begun
A huge 'Thank You!' to everyone who contributed to the successful Judicial Review of the first Manston Development Consent Order.
It is disappointing that the Secretary of State has chosen to ignore the advice of both the Examining Authority and the Independent Assessor and has issued a second development consent order for the re-opening and re-development of the former Manson Airport.
My legal team at Hodge Jones & Allen consider there are sufficient grounds to begin the step-by-step process of applying for permission for Judicial Review of the Manston Airport Development Consent Order 2022 and have instructed barristers Richard Harwood OBE QC and Gethin Thomas, both of 39 Essex Chambers.
Any residual funds from the first CrowdJustice appeal have been transferred to the solicitors and will be rolled forward. A new funding page has been set up and can be found at CrowdJustice: Manston
Aug. 18, 2022
MANSTON DCO GRANTED - AGAIN
The decision to once again allow the Manston Airport Development Consent Order has just been announced.
Full details can be found at PINS.
May 7, 2022
Watching the grass grow...
Spring is rapidly moving towards summer and still no decision from the Department for Transport.
However, there has been one recent development: on 1 May 2022 , Harrison Grant transferred its practice - and clients - to Hodge Jones & Allen, a larger firm with a similar ethos.
Kate Harrison, Susan Ring and Alice Goodenough, who have all done so much in support of the campaign to overturn the DCO to upgrade and re-open the former Manston Airport, have now joined HJA's Environmental Justice team. This was the team that acted for Rosamund Adoo-Kisi-Debrah during the groundbreaking inquest into the death of her daughter, Ella, when, for the first time, air pollution was listed as a cause of death.
You can learn more about HJA's focus on Environmental Justice here: HJA Environmental Justice
March 14, 2022
Dotting i's and crossing t's?
Late on Friday afternoon, the DfT posted a letter on the PINS website: PINS. RSP has been asked to provide updated information on air quality assessments, environmental impacts, and on changes to the Book of Reference. The deadline for RSP to respond is 28 March 2022.
The letter also offers a final opportunity for anyone who submitted correspondence outside the consultation periods to resubmit it as "re-determination correspondence" with a deadline of 28 March 2022.
None of this gives any indication of what the final decision might be or when it will be announced. However, it does suggest the DfT is endeavouring to minimise opportunities for any further legal challenge.
March 8, 2022
In case you were wondering...
More than a year has passed since the Development Consent Order for the re-opening and development of the former Manston Airport was quashed.
There is still no decision from the Secretary of State for Transport on the application by RiverOak Strategic Partnership - and no indication of when a decision might be announced.
This funding appeal will continue to roll over, month by month, until the outcome is known.
Jan. 12, 2022
In October, the Secretary of State for Transport invited representations from Interested Parties on the Independent Aviation Assessor's report and other matters, including the publication of "Decarbonising transport: a better, greener Britain'" and " Jet Zero consultation: a consultation on our strategy for net zero aviation".
All responses have been uploaded to the National Infrastructure Planning website and can be found at: PINS
There is no further information on when the Secretary of State will announce his decision on RiverOak Strategic Partnership's application for a Development Consent Order for the re-opening and Development of Manston Airport.
Dec. 4, 2021
THE STORY SO FAR...
In October 2019 the Examining Authority (ExA) found there was no need for Manston Airport and concluded the Development Consent Order should not be approved. They recommended that there was no need case for the development and their Report of Findings and Conclusions said:
Given all the above evidence, the ExA concludes that the levels of freight that the Proposed Development could expect to handle are modest and could be catered for at existing airports (Heathrow, Stansted, EMA, and others if the demand existed). The ExA considers that Manston appears to offer no obvious advantages to outweigh the strong competition that such airports offer. The ExA therefore concludes that the Applicant has failed to demonstrate sufficient need for the Proposed Development, additional to (or different from) the need which is met by the provision of existing airports." (E.R 5.7.28).
Nonetheless the Secretary of State approved the order. Just over a year later he conceded that adequate reasons for his decision had not been given and the order was formally quashed in February 2021.
An independent aviation assessor (IAA) was then appointed to advise the Secretary of State on matters relating to the need for the development.
On 21 October 2021 - two years after the original decision, post-Brexit, post-COP26, and in the middle of a world-wide pandemic - the Independent Aviation Assessor's conclusion was that:
"there have not been any significant or material changes of policy or the quantitative need case for the Proposed Development since July 2019 that would lead to different conclusions being reached (compared with the previous ExA conclusions) with respect to the need for the Manston development." (M.A.A.R 6)
Also on 21 October 2021, the Secretary of State for Transport invited representations from Interested Parties on the Independent Aviation Assessor's report and other matters, including the publication of "Decarbonising transport: a better, greener Britain'" and " Jet Zero consultation: a consultation on our strategy for net zero aviation". The extended deadline for responses was 23.59hrs on Friday 3 December 2021.
The money raised through this page made it possible for me to submit a Further Representation with input from Harrison Grant Solicitors, 39 Essex Chambers and York Aviation Ltd.
The full text will be published on the National Infrastructure Planning website in due course but here is the report by York Aviation Ltd that formed part of my representation:
Nov. 16, 2021
New deadline for submissions
The Department for Transport has issued a letter notifying Interested Parties that the Secretary of State has extended the deadline in which to respond to his latest consultation of 21 October 2021.
The deadline for any response is now 23:59 on 3 December 2021.
Please see the letter for more details:
Oct. 21, 2021
Independent Aviation Assessor's Report
The Manston Airport Assessor's Report, commissioned by the Department for Transport, was published today. It supports the conclusions reached in the Examining Authority's report dated 18 October 2019.
The conclusions of this latest report are reproduced below. The full report can be found at: https://infrastructure.planninginspectorate.gov.uk/projects/south-east/manston-airport/?ipcsection=docs
Conclusions on the Need Case for Development
The ExA Report recommended that there was no need case for the Proposed Development, summarised in their Report of Findings and Conclusions:
“Given all the above evidence, the ExA concludes that the levels of freight that the Proposed Development could expect to handle are modest and could be catered for at existing airports (Heathrow, Stansted, EMA, and others if the demand existed). The ExA considers that Manston appears to offer no obvious advantages to outweigh the strong competition that such airports offer. The ExA therefore concludes that the Applicant has failed to demonstrate sufficient need for the Proposed Development, additional to (or different from) the need which is met by the provision of existing airports.” (E.R 5.7.28)
Overall, the Independent Assessor concludes that there have not been any significant or material changes to policy or the quantitative need case for the Proposed Development since July 2019 that would lead to different conclusions being reached (compared with the previous ExA conclusions) with respect to the need for the Manston development. In particular:
The changes to policy, notably the withdrawal and reinstatement of the ANPS and adoption of the Thanet Local Plan, do not significantly change the policy context that was in place at the time of the Examination;
The recent growth in e-commerce sales is not driving a demand for additional runway capacity for dedicated air freighters in the South East;
Although there have been short term changes in the balance between bellyhold freight and dedicated freighter activity during the Covid-19 pandemic, these changes are not expected to be permanent, notwithstanding growth in e- commerce and changes to the UK’s trading patterns post-Brexit;
There is unlikely to be a significant reduction in bellyhold freight capacity (once the passenger market recovers) due to the introduction of narrow-bodied twin-engine aircraft;
Despite the uncertainty concerning the timescale for the Heathrow Airport Third Runway, changes since July 2019 as described do not lead the Independent Assessor to reach a different conclusion on the need case for Manston Airport. East Midlands Airport has sufficient capacity to handle additional dedicated freighter services should the market demand them, while the planning determination at Stansted confirms that significant freight capacity remains available; and
There is no new evidence to suggest a different conclusion should be drawn in respect of the locational performance of Manston compared to East Midlands Airport, and to a lesser extent Stansted, to that of the ExA Report.
The Secretary of State is now inviting comments on the report, responses to the first consultation and other relevant representations. The deadline for responses is 23.59 on 19 November 2021
Oct. 19, 2021
What's going on?
A recent donor has asked "What's going on?". Sadly the answer is "Nothing".
The next stage should be publication of the report by the government's independent aviation expert, Ove Arup & Partners, but there's been no indication of when that might happen - nor what the report might contain.
Nothing to do but wait...
July 22, 2021
WHY AM I STILL FUNDRAISING?
The response to this CrowdJustice appeal has exceeded expectations and the DCO has been quashed - so why do I still need to fundraise?
A simple answer: almost all the money raised has now been expended on legal fees and, more recently, on paying an expert consultant.
Another simple answer: the fight to overturn the decision to grant development consent for the re-opening and development of Manston Airport goes on
Lawyers are familiar with the process of Judicial Review, making it possible to estimate the likely cost of each stage but this was the first DCO to be quashed since the introduction of the Planning Act 2008, making it more difficult to anticipate costs. While the Act provides guidance on what has to happen next, these directions are now being implemented for the first time. They require the Secretary of State to set out key issues and invite further written representations - effectively taking the process back to the beginning.
When the Secretary of State issued his invitation, my legal team agreed on the need for expert evidence: I was delighted when York Aviation Ltd agreed to take this on. The consultancy is very familiar with RSP's proposals for Manston and contributed extensively to the original examination and the Examining Authority's recommendation that development consent should not be granted.
The Secretary of State has appointed an independent aviation assessor, Ove Arup & Partners Ltd, to advise him on the need for the development and to produce a report on those findings. This report will be made public, along with all submissions. We will have 28 days to respond and, once again, I will need to call on both lawyers and experts for advice and assistance.
The Department of Transport has not set a date for publication of the report and submissions. The letter from the Secretary of State simply says "The assessor’s report, along with all representations received and any supporting information, will be made available on the Planning Inspectorate’s National Infrastructure Planning website as soon as possible after the 9 July 2021 deadline for responses."
Fundraising for this campaign has been incremental. Now there is a sense of urgency. Funding needs to be in place when information is released.
Your generous donations have covered the costs of legal action so far and, with the addition of costs awarded against the Secretary of State, made possible my response to the Statement of Matters. (Costs awarded against the developer, RiverOak Strategic Partners Ltd, have not yet been agreed.) The next stage is to raise £25,000 to ensure the strongest possible case be made against the re-opening and redevelopment of Manston.
- 2018: Application for a Development Consent Order (DCO) to turn the disused site into a dedicated cargo airport;
- 9 January 2019 - 9 July 2019 Examination of the application: 14 hearings and 2,052 relevant representations;
- 18 October 2019: Examining Authority's Report of Findings and Conclusions and Recommendation sent to the Secretary of State for Transport;
- 17 January 2020: Invitation from the Secretary of State to submit further information or comments;
- 9 July 2020: Manston Airport Development Consent Order made; Examining Authority's report made public;
- 24 July 2020: Notice of intention to seek Judicial Review sent to the Secretary of State and the Interested Party, RiverOak Strategic Partnership Ltd;
- 20 August 2020: Claim for Judicial Review lodged;
- 14 October 2020: Permission for Judicial Review granted;
- 14 November 2020: Dates set for hearing - 16/17 February 2021;
- 1 December 2020: Secretary of State's intention to withdraw his decision made known;
- 15 February 2021: Manston Airport Development Consent Order 2020 quashed by the High Court;
- 26 April 2021: Secretary of State appoints Independent Aviation Assessor on a six-month contract;
- 11 June 2021: Secretary of State issues a Statement of Matters inviting further submissions;
- 9 July 2021: Closing date for submissions;
- 9 July - 25 October? 28 days to respond following publication of Interested Party submissions and Independent Assessor's report;
- 25 October 2021: Independent aviation assessor's contract ends;
- 31 October - 12 November 2021: UK to host 26th UN Climate Change Conference of the Parties (COP26) in Glasgow.
July 9, 2021
One Year On...
"The lesson, to my mind, is obvious: if we fail to hold organisations to account for their mistakes and obfuscations, they'll keep repeating them."
George Monbiot, The Guardian Journal, Friday 9 July 2021
It's exactly a year since the Examining Authority's Report of Findings and Conclusions and Recommendation to the Secretary of State for Transport was released. That report clearly stated: The Examining Authority recommends that the Secretary of State should not grant development consent.
On the same day, the Decision Letter from the Secretary of State for Transport was also published:
Summary of the Secretary of State’s Decision: The Secretary of State has carefully considered the ExA’s Report and has decided, under section 114(1)(a) of the 2008 Act, to make, with modifications, a DCO granting development consent for the proposals in the Application.
With the help of donations made through CrowdJustice, it has been possible to hold the Secretary of State to account. Permission for Judicial Review was granted on 12 October 2020 but on 15 February 2021, the day before the Judicial Review was to be heard in court, the Secretary of State's decision was formally quashed - the first of two DCO's to be quashed on the same day and the first since the introduction of the 2008 Act.
It took until 11 June 2021 for the Department of Transport to release the Statement of Matters inviting further representations by midnight this day (9 July 2021).
Now, a slight pause while the independent assessor, appointed by the Secretary of State to advise him, prepares his report on "... matters relating to the need for the Development..."
The assessor's report and all representations will be published on the Planning Inspectorate's National Infrastructure Planning website: https://infrastructure.planninginspectorate.gov.uk/projects/south-east/manston-airport/
We are to be given a further opportunity to hold the Secretary of State to account: "The Secretary of State will, as a minimum, allow a period of 28 days for the second round of consultation to allow Interested Parties to submit further representations on the responses received by the 9 July deadline and the Independent Assessor's draft report."
Today, a personal representation, supported by lengthy and detailed expert evidence, is being submitted. This has been made possible by the support of my legal team and by the generous amount donated through CrowdJustice but, and there has to be a 'but', this is far from the end of the campaign. There will be a further need to call on expert advice and to act on advice from my legal team when the time comes to respond to the independent assessor's report.
Beyond immediate concerns, the Statement of Matters includes an opportunity to comment on "the extent to which the Secretary of State should, in his re-determination of the application, have regard the sixth carbon budget (covering the years between 2033-2037) which will included emissions from international aviation".
George Monbiot's article, Our Gullible BBC has let climate deniers walk all over it, concludes: "The lesson, to my mind, is obvious: if we fail to hold organisations to account for their mistakes and obfuscations, they'll keep repeating them. Climate crimes have perpetrators. They also have facilitators."
June 11, 2021
Steps towards re-determination
Just as our funding page rolls forward for another 30 days, and four months after the application for a Development Consent Order for the re-opening and Development of Manston Airport was quashed, the Department of Transport has written to all interested parties (anyone who registered as an interested party for the initial examination) to invite further representations by 9 July 2021.
The Secretary of State is inviting further representations on the following matters:
- the extent to which current national or local policies (including any changes since 9 July 2020 such as, but not limited to, the re-instatement of the ANPS) inform the level of need for the services that the Development would provide and the benefits that would be achieved from the Development;
- whether the quantitative need for the Development has been affected by any changes since 9 July 2019, and if so, a description of any such changes and the impacts on the level of need from those changes (such as, but not limited to, changes in demand for air freight, changes of capacity at other airports, locational requirements for air freight and the effects of Brexit and/or Covid);
- the extent to which the Secretary of State should, in his re-determination of the application, have regard to the sixth carbon budget (covering the years between 2033 – 2037) which will include emissions from international aviation; and
- any other matters arising since 9 July 2019 which Interested Parties consider are material for the Secretary of State to take into account in his re-determination of the application.
In addition, the Secretary of State is also asking for the following information:
- In light of the passage of time since close of the examination, the Secretary of State requests the Applicant to consider the currency of the environmental information produced for the application (including information submitted to inform the Habitats Regulation Assessment) and either confirm the continued currency of that information, or where necessary, to submit updated information.
- The Secretary of State seeks confirmation or otherwise from the Government Legal Department of consent to the compulsory acquisition under section 135 of the Planning Act 2008 in relation to plots 019c and 05b held as Queen’s Nominee in respect of bona vacantia land.
- The Secretary of State seeks confirmation or otherwise from both the Met Office and the Secretary of State for Housing, Communities and Local Government of consent to the compulsory acquisition under section 135 of the Planning Act 2008 in relation to plot 27.
The full text of the DfT's letter can be found at: http://infrastructure.planninginspectorate.gov.uk/document/TR020002-005360
Worth noting paragraph 9 which states:
The Secretary of State has appointed an independent aviation assessor to advise him on matters relating to the need for the Development and to produce a report summarising those findings.
May 10, 2021
We're not alone
April 12, 2021
Not quite two months since the Consent Order quashing the Manston Airport DCO was sealed by the Court and once again the funding page has rolled over as we wait for the Secretary of State for Transport to reconsider RSP's application and invite further representations.
In the meantime, his department has confirmed that RiverOak Strategic Partners would be paid £8.5m to compensate them for "the costs incurred in condensing their planned programme of works to develop the site back into a commercial airport". RSP's own website states this is "compensation for the use of the Manston site as a post Brexit customs clearance post for the first six months of the year. In addition, the DfT will pay a further amount to cover the cost of site reinstatement following their departure from Manston."
March 15, 2021
COSTS AND CUSHION
“… the Applicant has failed to demonstrate sufficient need for the Proposed Development, additional to (or different from) the need which is met by the provision of existing airports.”
from the Examining Authority report on the examination into the application for a Development Consent Order for the former Manston Airport, October 2019
Pre-pandemic, pre-Brexit, before East Midlands Airport and Southampton Airport among others were given freeport status, the Examining Authority concluded that “the Secretary of State should not grant development consent”. Yet, despite this recommendation, development consent was granted on 9 July 2020.
In December 2020, the Secretary of State conceded that his decision letter did not give adequate reasons and on 15 February 2021, Mr Justice Holgate approved a Consent Order quashing the Manston Airport Development Consent Order 2020.
The Secretary of State has three months from the 15 February (although the period could be extended) to write to interested parties, setting out key issues and inviting further written representations on those issues, before making a decision based on the Examining Authority’s Report and any further representations.
Manston Airport was the first ever proposed airport development to go through the DCO examination process, the first airport DCO to be challenged, and, apparently, the first grant of consent for a Nationally Significant Infrastructure Project to be quashed since the introduction of the Planning Act 2008.
In October 2019 the Examining Authority found the applicant had failed to demonstrate sufficient need for a new airport. Given everything that has happened since then, it is hard to imagine what justification could be given for overturning this recommendation a second time.
Thanks to the generosity of donors and to the judge’s decision to award costs against the Secretary of State and, unusually, against the developer, RiverOak Strategic Partners Limited, the costs of obtaining the Consent Order quashing the DCO have been not only been met but there is a cushion against the costs of any future legal action.
Feb. 15, 2021
The Manston Airport Development Consent Order 2020 has been quashed.
Here is the sealed Consent Order received from the Court today:
Feb. 11, 2021
The funding page has rolled forward for another 30 days (and will continue to do so until the Manston Airport DCO is resolved).
It's almost 8 weeks since a draft Consent Order, agreed by all parties, and quashing the Secretary of State's decision to make a Manston Airport Development Consent Order 2020, was submitted to the Court.
We're waiting to hear from the Court...
Dec. 4, 2020
What next? What if ...?
Following the quashing of the Manston Airport Development Consent Order 2020 by the Court, the Secretary of State will write to all interested parties, setting out key issues and inviting further written representations on those issues.
Interested parties include the applicant, the local authority and anyone who previously registered by filling out a Relevant Representation form at the inquiry stage (and had it accepted as valid).
The Secretary of State will make a decision based on the Examining Authority’s Report and the further representations. The Secretary of State has three months to make a decision but this can be extended.
The decision could be either a refusal to make a Manston Airport Development Consent Order or a decision to grant such a Consent Order.
If a DCO is refused, RSP may wish to bring a judicial review. I would be an Interested Party in any such challenge.
If a DCO is granted, another judicial review can be brought on the existing grounds and any further grounds that may arise on review of the decision letter.
Any money left over from the current CrowdJustice campaign can be held in readiness and used towards a second judicial review
Dec. 2, 2020
ITS NOT OVER YET BUT ...
... 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
Here is the full text of Ground 1(b): Failure to Give Reasons:
75. 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.
76. 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:
a. 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.
b. Upon what basis the quantum of anticipated need for freight had been assessed by him.
c. Upon what basis the capacity of existing airports within the south east to accommodate that quantum of need had been assessed by him.
d. 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.
e. To what extent he considered need could not be met in the bellyhold of passenger flights to and from those existing airports.
f. Whether, and if so why, he considered that facilities could not be constructed at those existing airports to meet that quantum of need.
g. Upon what basis the Defendant disagreed with the expert evidence produced by York Aviation, and others, against the need case.
77. 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.
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 in the current stage 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!
Nov. 14, 2020
WE HAVE A DATE FOR THE HEARING!
The Court has listed our 1.5 day hearing for 16/17 February 2021.
To recap, in July 2020, the Secretary of State for Transport gave permission for Manston Airport to reopen as a freight hub. Approval of the Development Consent Order (the first for a UK airport) went against the advice of the planning inspectorate which had concluded that "the airport will damage the local economy and impact negatively on the UK's carbon budget and our commitments to the Paris Agreement".
The Examining Authority's Report of Findings and Conclusions and Recommendations to the Secretary of State for Transport recommended that the Secretary of State should not grant development consent.
The Examining Authority (ExA) was composed of four senior Planning Inspectors who made their recommendation to refuse the DCO after one of the most intensely scrutinised examinations ever handled: an unprecedented 682 pages of written questions (13 times the average), 2,052 relevant representations and a further 585 additional submissions. The ExA's final report exceeded 1,000 pages and made it clear the the Applicant had "failed to demonstrate sufficient need for the Proposed Development, additional to (or different from) the need which is met by the provision of existing airports".
The Secretary of State's Decision Letter can be found here: Decision Letter
The Examining Authority's full report can be found here: ExA Report
Thank you for all your support! With three months still to go to the hearing, we're well on our way towards achieving the fundraising target of £120,000.
Oct. 14, 2020
A note on costs
The court has imposed a cost limiting order cap limiting the amount I will have to pay towards the SoS's and RSP's combined costs, in the event that we lose the case, to £5,000. This is because this is an Aarhus Convention claim concerning the environment.
If the SoS and RSP lose, the amount they will have to pay towards my costs has been limited to £35,000 each - a total of £70,000. This will only go part of the way towards meeting the overall cost of bringing the case.
Both solicitors and counsel have supplied detailed estimates of costs, including VAT, set against the various stages of the case, for example preparing papers for filing, considering the defendant's reply, the hearing itself and finally any post-judgement matters. The judge's decision moves the case to a new stage of the process.
Oct. 14, 2020
WE HAVE PERMISSION!
The Court has granted permission for a Judicial Review of the Secretary of State for Transport's decision to give development consent for the reopening and redevelopment of Manston Airport.
Further, the Court has agreed that this is an Aarhus Convention claim and that costs should be capped.
No date has been set for the hearing but both the SoS (the Defendant) and RiverOak Strategic Partners Limited (the Interested Party) have until 16 November 2020 to lodge full grounds for resisting the claim.
It's been extraordinarily moving to see donations coming in and to read the comments. Thank you!
Not all applications for Judicial Review get this far but now the campaign is rolling forward for another 30 days. My wonderful legal team has provided a detailed estimate of their fees and once again I'm increasing the target - but this time in the knowledge that costs will be capped.
Ramsgate is a special place and worthy of respect!
Sept. 14, 2020
And on it goes...
As the funding target rolls over for a further 30 days both the Secretary of State for Transport and RiverOak Strategic Partners Ltd have declared their intention to contest the claim for judicial review.
They now have five weeks to prepare and submit their full grounds for resisting the claim.
I am enormously grateful to everyone who has contributed so far - the £100,000 target is still challenging but it's both realistic and achievable! The first stretch target of £75,000 felt daunting; achieving and then surpassing it has been morale boosting - thank you!
Aug. 20, 2020
The claim has been issued at the High Court: the Defendant and Interested Party (RSP) now have until 11 September to file an acknowledgement of service indicating whether they wish to contest the claim and, if so, setting out their summary grounds for doing so.
Aug. 15, 2020
Today, the appeal for funding moves into a second thirty-day cycle and I've taken the decision to increase the stretch target.
The legal team is preparing to issue judicial review proceedings in light of an unsatisfactory pre-action protocol response. This response was not unexpected.
The deadline for the application for judicial review is Thursday 20 August 2020. On the basis of the government's response, the lawyers are able to finalise the bundle of papers for submission, including an estimate of costs. The Secretary of State accepts this would be an Aarhus Convention claim but has reserved his position on whether or not it would be appropriate to apply to vary the limit on recoverable costs.
A big 'thank you' to everyone who contributed towards the first stretch target! Please spread the word so that this second, more ambitious target becomes attainable!
Aug. 12, 2020
Thank you to everyone who has contributed so far or is thinking about contributing!
For clarification: this appeal will continue beyond the date set for achieving the first stretch target.
The Secretary of State has chosen not to reverse his decision. Therefore my legal team is preparing to submit an application next week for judicial review.
Aug. 7, 2020
A RESPONSE HAS BEEN RECEIVED
The Government Legal Department responded to the pre-action letter setting out draft grounds for judicial review, ahead of the deadline of 4.00 pm today.
I await advice from my legal team.
Aug. 3, 2020
WILL HE, WON'T HE...?
The Secretary of State for Transport has until 4pm on Friday to respond to the pre-action letter that sets out the draft grounds for judicial review.
At this stage, the Secretary of State could concede defeat.
Should he choose not to to do so, the legal team will issue the claim at Court and apply for permission to bring judicial review proceedings.
July 29, 2020
COSTS AND LIABILITIES
This page is about raising money to cover legal costs – for lawyers, experts and court fees – and to cover any liability for the costs of other parties should I lose.
The normal rule in legal cases is that the loser has to pay the winner’s costs. But in environmental law cases the amount a losing claimant has to pay is normally limited to £5K.
If the case is lost only the claimant is liable to pay the other side’s costs. There are government proposals to widen the list of those who could be liable to those who have given large donations, but those changes have not been brought into law
July 27, 2020
AN ADDITION TO THE LEGAL TEAM
Barristers Richard Wald QC and Gethin Thomas have been joined by their colleague Paul Stinchcombe QC also of 39 Essex Chambers.
July 25, 2020
A SIGNIFICANT STEP!
Yesterday my lawyers sent a Judicial Review Pre-action Protocol letter to the Secretary of State setting out the proposed grounds for judicial review.
The Secretary of State now has 14 days to respond substantively to this letter.
I will keep you updated.
July 24, 2020
STEP BY STEP
Thank you CrowdJustice for promoting this campaign to your support base yesterday! It is hugely encouraging to receive messages of support from around the country.
Yesterday was also a day for reviewing the funding target. This is a complex case: the Examining Authority's Report alone is more than 1,000 pages.
The funding target has been increased to allow for a number of possibilities.
The first step is to engage in pre-action correspondence with the Secretary of State. A pre-action letter setting out the draft grounds for judicial review is about to be sent and the Secretary of State will have 14 days to respond. It is open to the Secretary of State to concede defeat before proceedings have even been issued. .
If the Secretary of State does not concede, the next step will be to issue the claim at Court and apply for permission to bring judicial review proceedings. This will be served on the Secretary of State as the Defendant and the developer as an Interested Party. All this must be done by 20 August 2020.
If the Defendant and Interested Party want to contest the claim, they will need to file a summary defence; a judge will then consider whether to grant permission to bring the proceedings without a hearing. If the judge considers there is an arguable case, s/he will grant permission to bring judicial review proceedings and the claim will proceed to a hearing.
The hearing could take place as early as the autumn.
July 23, 2020
TIME TO DRAW BREATH
Two weeks in and a chance to say "Thank you" to everyone who has helped to get this far. It's moving to see contributions and comments pouring in - the first target was reached in a matter of hours! The second, stretch target is within reach but it's time to aim higher and set the challenge of a moveable target, one that will almost certainly change as the case progresses. Any application for judicial review has to be lodged within six weeks of the Secretary of State's decision and in this case the deadline is 20 August 2020.
The funding page says this is a matter of local interest but of national importance. It becomes more and more evident that this proposal to re-open a defunct airport in the south-east corner of England is part of a larger pattern of developments that threaten our environment and affect us all.
The team of solicitors supporting me first successfully challenged Heathrow expansion in 2009, when the then government gave it the go ahead. Harrison Grant acted for a consortium of local authorities, residents' groups and green groups including WWF and Greenpeace.
Thank you again to everyone who has help with donations ranging from £5 to £5,000. If you're still thinking about giving - yes please! Your contribution is needed.
Do reinforce this shared effort by spreading the word, encouraging others to read the funding page and understand what is at stake.
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