Town and country planning – Development consent order – Procedural unfairness – Interested party applying for development consent order to develop and reopen airport as dedicated air freight facility – Defendant secretary of state granting application – Claimant applying for judicial review – Whether decision procedurally unfair – Whether decision irrational – Whether defendant failing to take into account material consideration – Application dismissed
In August 2022, the defendant secretary of state granted an application by the interested party, under section 37 of the Planning Act 2008, for a development consent order authorising the development and reopening of Manston Airport on the Isle of Thanet in East Kent as a dedicated air freight facility.
The claimant applied for judicial review of that decision, contending that: (i) the decision was procedurally unfair in that the defendant had relied on a qualitative assessment in a report prepared by Azimuth Associates to forecast freight and passenger volumes without the underlying evidence that informed it; (ii) the decision was procedurally unfair and in breach of rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010 in that it relied on a report submitted by the applicant that the claimant did not have an opportunity to comment on; (iii) the defendant acted irrationally in calling for representations on quantitative need and then relying on the applicant’s qualitative assessment of need; and (iv) ministerial briefing material unlawfully advised the defendant that the potential for expansion of air freight traffic at other airports was not a material consideration.
Further, the defendant had failed to reach a conclusion on the relevance of the sixth carbon budget and unlawfully relied on the decarbonising transport plan and jet zero strategy to conclude that the development would have a neutral impact on climate change.
Held: The application was dismissed.
(1) Section 23 of the Planning Act 2008 required the granting of a development consent order to authorise proposed development. Under section 116, the defendant was obliged to prepare a statement of the reasons for his decision. The procedure in respect of the application was governed by the 2010 Rules.
Where an Act of Parliament conferred an administrative power, it was presumed that it would be exercised in a manner which was fair in all the circumstances. What fairness demanded was dependent on the context of the decision.
Fairness often required a person who might be adversely affected by the decision to have an opportunity to make representations on his own behalf, either before the decision was taken to produce a favourable result, or after it was taken to procure its modification, or both. Since the person affected usually could not make worthwhile representations without knowing what factors might weigh against his interests, fairness often required him to be informed of the gist of the case he had to answer: R v Secretary of State for the Home Department Ex Parte Doody [1994] 1 AC 531 applied.
(2) The Climate Change Act 2008 provided a target within section 1(1) to ensure that the net UK carbon account for the year 2050 was 100% lower than the 1990 baseline. In order to meet the requirements of the 2008 Act, it was open to the defendant to publish additional policies and proposals addressing the need to meet the target contained within section 1 of the 2008 Act.
In the present case, there was no breach of the requirements of fairness by reason of the failure to provide material underpinning the Azimuth report which was capable of amounting to a material consideration in the decision-making process. There was nothing to preclude expert evidence being provided in a decision-making process in which some of the underlying data or evidence was not disclosed because it was commercially confidential and could not be put into the public domain: Elliott-Smith v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 1633 and R (on the application of Friends of the Earth Ltd) v Secretary of state for Business, Energy and Industrial Strategy [2023] 1 WLR 225 considered.
The defendant had engaged with the impact of the material omitted and reached the conclusion that it did not affect the weight which he proposed to afford the report, providing reasons for that conclusion. In all the circumstances, fairness did not require additional disclosure.
(3) A distinction needed to be drawn between rules 19 and 20 of the 2010 Rules. Rule 19 applied after completion of the examination and the submission of the examining authority’s report to the defendant prior to decision-making. By contrast, rule 20 specifically addressed the procedure following the quashing of a decision. Thus, rule 19 did not apply at the stage of proceedings after an initial decision had been the subject of a quashing order. In the present circumstances, the defendant was addressing a redetermination procedure after his initial decision was quashed: R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] Env LR 29 considered.
(4) A flawed consultation was not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight, it was possible to suggest ways in which a consultation exercise might have been improved upon. That was not the test. A decision-maker usually had a broad discretion as to how a consultation exercise should be carried out.
On the evidence, the opportunity existed for the claimant to make representations to the defendant, albeit that no specific further round of consultation or invitation to comment was published. In the circumstances, the court was not satisfied that there was unfairness to the claimant.
(5) There was a clear distinction between whether something was a material consideration and the weight to be attached to it. The question whether something was a material consideration was a question of law, whereas the weight to be attached to it was a question of judgment. Provided decision-makers had regard to all the lawfully material considerations in a decision, it was entirely a matter for them what weight to give those material considerations, including giving them no weight at all: R (on the application of Samuel Smith Old Brewery (Tadcaster) and others v North Yorkshire County Council [2020] UKSC 3; [2020] EGLR 13 applied.
The defendant adopted the recommendation of his officials that the potential for airport capacity expansion elsewhere was something to which very little weight could be attached, and was not obviously material to the decision because of the uncertainties and contingencies upon which any expansion depended.
(6) It was not legally inappropriate or incorrect for the defendant to rely upon his own policies designed to enable achievement of carbon budgets by the aviation sector to reach the conclusion that in the light of the decarbonising transport plan and jet zero strategy the question of greenhouse gas emissions and climate change could properly be regarded as neutral in the overall planning balance.
Richard Harwood KC and Gethin Thomas (instructed by Harrison Grant Ring) appeared for the claimant; Mark Westmoreland Smith and Mark O’Brien O’Reilly (instructed by the Government Legal Department) appeared for the defendant; Michael Humphries KC and Isabella Tafur (instructed by BDB Pitmans LLP) appeared for the interested party.
Eileen O’Grady, barrister