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(Editor's comments in Bold and it is also clear that he knew RSP had also withdrawn which he fails to mention)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