Thursday 17 December 2020

Heathrow decision and how it relates to Manston

 What follows is a tweetroll from Jason written after the Supreme Court overturned the Govt decision to quash the permission for the 3rd Runway at Heathrow. The conclusion is that this benefits the decision to stop the DCO for Manston airport.

What next for #Heathrow?

A #thread based on our experience with the UK's first (and only) airport DCO, #Manston, and @slmjh51012's recent presentation for the @The_AEF's  AGM.

Today's Supreme Court Judgment confirms what we knew ... an airport development's impact on ability of Govt to meet its Paris Agreement (PA) obligations will be examined and determined at DCO stage


All eyes now on Section 104 of the Planning Act 2008, which sets out what the Secretary of State must consider in determining a DCO where a National Policy Statement - in this case the ANPS - has effect


Worth noting that if Supreme Court had reached a different decision and ANPS was ruled unlawful, Heathrow could still apply for DCO and Section 105 of Planning Act would come into play in determining the DCO. Here it is


So was the airport development's impact on Govt Paris Agreement commitments taken into account for Manston DCO? Kind of. @PINSgov and @grantshapps accepted it would put UK in breach - of even older targets - and this should carry "moderate weight"


Climate Change was one of many grounds why @PINSgov recommended refusal of this airport DCO - others included issues around need, heritage impact, noise, poor surface access, devastation caused to historic town of Ramsgate, negative tourism impact etc.

So @grantshapps original decision was to overrule @PINSgov  and grant DCO anyway. Why? Well ... Not quite sure. Successful JR forced Govt to concede it had not given clear reasons to grant DCO, so decision will soon be quashed

Manston DCO decision will now be re-determined. This matters for Heathrow - and others. If we are to have any confidence whatsoever in DCO process, as LHR Supreme Court decision suggests, #Manston DCO must surely now be refused

Local campaigners are prepared to take this further with continued JR if needs be. Not sure @grantshapps wants this going to court as risks creating case law that may impact on future airport DCOs

What follows is the conclusion by No 3rd Runway Coalition




Saturday 5 December 2020

The common denominator

With the news that the DCO will be quashed because the DoT have withdrawn one can't but feel that there is a common thread running through this sorry saga. This thread has one main person who has instigated most of the failures, That is Anthony (Tony) Freudmann. In short this is the timeline to the current fiasco


2013 - Tony approaches TDC to see if they would entertain 1000 on the Northern Grass.

2014 - Tony ropes in Sir Roger Gale to make an 11th hour bid for the airport. This is rejected

2014/15 - Tony makes 3 approaches to TDC to partner for a CPO (Compulsory Purchase Order) which all fail mainly because he cannot prove he can safeguard the council. (He has no money)

2016/17 -Tony regroups, dumps Steve DeNardo and the original Riveroak, gains new backers and tries again with a Development Consent Order (DCO)

2018 - First try of a DCO submitted January 2018

2018 - RSP withdraw the DCO because it failed to pass muster

2018 - RSP resubmit a revised DCO in July. This time it is accepted for examination

2019 - National Planning conclude their report in October forwarding it to the Department of Transport for the Secretary of State's verdict. The 1097 pages of the report conclude it should be rejected

2020 - The deputy to the SoS Grant Schapps overturns the decision and issues a letter setting out his reasons. You can read the letter here 

The objectors join forces and ask for a Judicial Review.

The SoS withdraws in December clearing the way for the DCO to be quashed. The Legal verdict is as follows:

... 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.

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 [2004] 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 (SoS)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 Examining Authority’s report, but were not mentioned, let alone grappled with, in the Defendant’s perfunctory and dismissive Decision Letter.

What happens next

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. (editor's comment, he may of course walk away like happened with the Heathrow decision)

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 Crowd Justice campaign can be held in readiness and used towards a second judicial review. (This comes after costs are paid by the defendants)

Conclusion

At the start of this post I stated there is a common thread of failure and that hasn't changed. Freudmann has been the thread and everything he touches ends in failure. Even when the Tory Chumocracy sides with Tony he still fails.

1st he has no money then he cannot prove there is even a need for a Cargo Hub (he still hasn't shown he has the money to rebuild Manston) yet listening to the Airport supporters everyone else is to blame. Sooner or later they will come to their senses but the hurt will linger for a long, long time.




Wednesday 2 December 2020

Manston DCO quashed

Is this the beginning of the end? Or the end of the beginning?  Is the thought that runs through my head as I heard the news that the DoT and RSP had given up their legal case for the reopening of Manston airport today.


The news broke this morning in a flurry of emails from the Judicial Review Legal team representing Jenny Dawes, however Sir Roger Gale issued an ambiguous statement yesterday which I reproduce.

Manston Airport – Decision delay. (Statement by Roger Gale)
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. (In other words the DoT concedes that the grounds for overturning the decision by 4 planning Inspectors was weak and not sustainable)
That being so the Department has conceded these grounds ( yes conceded and what follows is spin) and will no doubt wish to afford all parties the opportunity to make further submissions before re-visiting the DCO (in other words re-submitting yet another application) and issuing a further and more detailed letter of determination in due course.
With the endgame of Brexit fast approaching the need for the airport is stronger not weaker (Spin because aviation has fallen off a cliff): the airfield is contracted for use as a lorry park for twelve months (is that so Roger because the DoT only said until July 2021. What have you heard about Brexit people need to know?)so the effects of the delay, while tiresome ought to be minimal and I remain confident that the right decisions will be taken in the interests of Thanet, Kent and the United Kingdom and that planes will be flying again from Manston in a couple of years time. (wishful thinking seeing as the DoT has conceded then RSP need to make a statement about the land use soonest)
(Editor's comments in Bold and it is also clear that he knew RSP had also withdrawn which he fails to mention)
Today Jenny's legal team also issued a statement

“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!”

Further the letter copied onto the crowdfunder webpage states ground 1b is as follows

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 [2004] 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.

Now the spin has started and the 3 parties (RSP, Airport supporters and those against the airport reopening) are discussing this on social media have differing opinions on just what this all means. 
RSP put out a statement this afternoon which any reasonable person could drive a bus through but the airport supporters are content to ignore the problems.
RSP Statement

“Naturally the Department for Transport’s decision not to contest the Judicial Review is disappointing (what an understatement), although it may in fact save time (what?). 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 (which was to refuse the DCO in case you forget).

“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 (which for those that research it have been well covered at Heathrow, East Midlands and Stanstead), 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.”

Yet this rather "uplifting" statement totally ignores the decision by 4 experienced planning inspectors that the DCO should be refused. I reproduce the reasons and any discerning person will conclude that these reasons tally with the Legal opinion quoted above


Given that RSP believe (in their statement) that "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" In other words they seem to be giving the impression that the SoS reasons letter issued when the DCO was granted would be rewritten to take account of Ground 1(b). 

This quite frankly is a non-starter especially in view of the original 1097 page take down of RSP's case. published here in full (click on link)

Further the grounds for a need for Manston cannot be made on grounds of need especially when the industry is in freefall. Passenger flights may recover by 2025 but passenger flights isn't the reason why the DCO was requested in the 1st place. The DCO (at the 2nd attempt) process was granted on the basis of a Nationally Significant Infrastructure Project for a Freight Hub generating at least 10000 movements annually. Even during the last 9 months of a pandemic when passenger flights were decimated Freight was carried in aircraft. In fact as bellyhold freight (mainly into Heathrow) had dropped freight into East Midlands and Stanstead increased. But and it is a big but they still had capacity to take more.

The future of freight carried in aircraft to the UK market will be in flux for sometime to come however the reasons for another freight hub in the geographical SE of England hasn't been made no matter how much spin the two Thanet MP's put forward and when this DCO is quashed in 3 weeks time the roadmap to reopening seems to have run into a roadblock