Introduction

The case Dawes, R (On the Application Of) v Secretary of State for Transport & Anor ([2024] EWCA Civ 560) addressed pivotal questions regarding procedural fairness in the context of development consent applications for nationally significant infrastructure projects. The appellant, a local resident opposing the re-opening of Manston Airport in Kent as a dedicated air freight facility, challenged the decision-making process employed by the Secretary of State for Transport ("the first respondent"). Central to the appeal were issues surrounding the reliance on a confidential expert report (the Azimuth Report) and the applicability of Rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010.

Summary of the Judgment

The Court of Appeal dismissed the appellant's appeal, upholding the decision to grant the development consent order for Manston Airport. The judge ruled that procedural fairness did not mandate the disclosure of the confidential transcripts underlying the Azimuth Report. Furthermore, the court clarified the applicability of Rule 19, determining that it did not require additional representations concerning the International Bureau of Aviation ("IBA Report") since it did not form the basis for disagreement with the Examining Authority's recommendation.

Analysis

Precedents Cited

The judgment referenced several key cases to elucidate principles of procedural fairness and rule interpretation:

• R v Secretary of State for the Home Department ex p. Doody [1994] 1 AC 531: Established foundational principles for procedural fairness.
• Lloyd v McMahon [1987] AC 625: Discussed the relevance of mandatory and permissible considerations in public law.
• R v North and East Devon Health Authority ex p. Coughlan [2001] QB 213: Clarified the scope of consultation processes and obligations.
• Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759: Highlighted the discretion of decision-makers in weighting considerations.

Legal Reasoning

The court's analysis hinged on interpreting Rule 19 of the 2010 Rules, which governs the procedure after the completion of an Examining Authority's examination. The key points in the legal reasoning include:

• Nature of Rule 19: The rule applies whenever the Secretary of State considers new evidence or forms a different view on material facts post-examination, regardless of whether an initial decision was quashed.
• Confidentiality and Procedural Fairness: The decision to withhold confidential transcripts did not breach procedural fairness, as long as the report itself was comprehensive and provided sufficient methodological transparency.
• Weight of Evidence: The Secretary of State's discretion in weighting the Azimuth Report was upheld, reinforcing that decision-makers are not bound to attach significant weight to every piece of evidence, especially when it's subject to interpretation.

Impact

This judgment solidifies the principle that confidential expert reports can be utilized in decision-making processes without necessitating the disclosure of underlying sensitive information. It also clarifies the application of Rule 19, ensuring that procedural safeguards are appropriately invoked only when new evidence directly influences a departure from the Examining Authority's recommendations.

Future cases involving development consent orders can reference this judgment to understand the boundaries of procedural fairness concerning confidential evidence and the specific application of procedural rules post-quashing of decisions.

Complex Concepts Simplified

Conclusion

The Dawes v Secretary of State for Transport judgment reaffirmed the balance between utilizing expert reports and maintaining confidentiality where necessary. By dismissing the appellant's concerns over procedural fairness, the Court of Appeal emphasized the discretion afforded to decision-makers in weighing evidence, especially when underpinned by confidential sources. Additionally, the clarification surrounding the application of Rule 19 ensures that procedural safeguards are contextually and appropriately applied, safeguarding the integrity of the decision-making process while recognizing the practical constraints of disclosure in sensitive matters.

This case serves as a pivotal reference for future infrastructure projects, guiding both applicants and decision-makers in understanding the interplay between procedural requirements and the practicalities of evidence management.