Dawes, R (On the Application Of) v Secretary of State for Transport & Anor

Factual and Procedural Background

This appeal concerns the procedure by which the first respondent, the Secretary of State for Transport, considered an application for a development consent order permitting the re-opening of Manston Airport in Kent to operate as a dedicated air freight facility ("the development"). The application was made by the second respondent, Company B.

The application was examined by an Examining Authority which recommended refusal, primarily on the basis that Company B had failed to demonstrate sufficient need for the development beyond what existing airports provided. Company B submitted a report by Azimuth Associates based on confidential interviews with 24 aviation industry experts; the transcripts of these interviews were withheld due to commercial sensitivity, leading the Examining Authority to place limited weight on the report.

The first respondent initially disagreed with the Examining Authority and granted the application, but that decision was quashed due to inadequate reasons. The matter was remitted for reconsideration, during which two consultation exercises were conducted. During the second consultation, a new report by the International Bureau of Aviation ("the IBA report") was submitted by Company B. Other interested parties, including the appellant, were not specifically invited to comment on this report.

The first respondent ultimately decided to grant the application again. A claim for judicial review of this decision was dismissed by the judge, who found no procedural unfairness in withholding the interview transcripts, held that rule 19(3)(b) of the Infrastructure Planning (Examination Procedure) Rules 2010 ("the 2010 Rules") did not apply to the reconsideration process, and that there was no requirement to give parties an opportunity to comment on the IBA report. The judge also found no illegality in the ministerial advice regarding airport capacity considerations.

The appellant was granted permission to appeal on grounds including procedural fairness relating to the Azimuth report, the applicability of rule 19 of the 2010 Rules after quashing, the treatment of the IBA report under rule 19, procedural fairness regarding commenting opportunities, and the legality of ministerial advice on airport capacity.

Legal Issues Presented

1. Whether it was procedurally fair for the Secretary of State to rely on the Azimuth report without disclosure of the underlying interview transcripts to interested parties.
2. Whether rule 19 of the 2010 Rules applies to the process of reconsideration of an application following the quashing of an earlier decision.
3. Whether rule 19(3)(b) required the Secretary of State to give interested parties an opportunity to comment on the IBA report submitted during the reconsideration.
4. Whether the procedural requirements of rule 19(3)(b) were satisfied by allowing submissions on the IBA report after the consultation period.
5. Whether the minister was incorrectly advised that it was legally impermissible to take future airport capacity into account in deciding the application.

Arguments of the Parties

Appellant's Arguments

• It was a breach of common law procedural fairness to rely on the Azimuth report without disclosing the interview transcripts, as parties could not properly scrutinize the evidence.
• Rule 19 of the 2010 Rules applies to reconsideration after quashing and should have required the Secretary of State to notify parties and allow representations on new evidence such as the IBA report.
• The IBA report was a significant part of the reason for disagreement with the Examining Authority's recommendation, triggering rule 19(3)(b) obligations.
• The minister was wrongly advised that future airport capacity was irrelevant and could not be taken into account, rendering the decision unlawful.
• If transcripts were not provided, the Azimuth report should have been excluded from consideration.

First Respondent's Arguments

• The Azimuth report was a material consideration and the weight to be attached was for the decision-maker; disclosure of confidential interview transcripts was not required by statute or common law procedural fairness.
• Rule 19 does not apply after a decision has been quashed; instead, rule 20 governs reconsideration procedures.
• The IBA report was not a material reason for disagreement with the Examining Authority's recommendation; the difference arose from the weight given to the Azimuth report.
• There was no procedural unfairness as parties could make submissions on any material after the consultation period.
• The ministerial advice correctly reflected that future airport capacity was uncertain and, therefore, of little or no weight in the decision, not that it was legally impermissible to consider it.

Second Respondent's Arguments

• No statutory requirement existed to disclose interview transcripts underlying the Azimuth report.
• The judge correctly concluded there was no procedural unfairness in withholding confidential material.
• The interviews formed only part of the report, which also contained unchallenged forecasts.
• The IBA report merely demonstrated general growth in air freight and was not a reason for disagreement with the Examining Authority.
• The ministerial advice was accurate in context and did not mislead the decision-maker.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the procedural fairness issue concerning the Azimuth report. It held that neither the statutory framework nor common law principles required disclosure of confidential interview transcripts underlying an expert report. Interested parties had access to the application and the report, which identified interviewees and summarized their responses, allowing for meaningful submissions. The question of weight to be attached to the report, in light of withheld material, was properly a matter for the decision-maker. The judge's conclusion that no procedural unfairness arose was upheld.

Regarding the applicability of rule 19 of the 2010 Rules to the reconsideration process following quashing, the court found that the rule applies to any stage after completion of the examination and before a decision is made, including reconsideration after quashing. The purpose of rule 19 is to ensure procedural fairness where the Secretary of State takes into account new evidence or facts and is disposed to disagree with the Examining Authority's recommendation.

However, on the facts, the court agreed with the judge that the new evidence (the IBA report) was not a reason for disagreement with the Examining Authority's recommendation; rather, the difference arose from the weight attached to the Azimuth report. Consequently, the procedural obligations under rule 19(3)(b) were not triggered, and no failure to provide an opportunity to comment on the IBA report occurred.

The court also considered the ministerial advice regarding future airport capacity. It concluded that the advice did not incorrectly state that such capacity was legally impermissible to consider, but rather that it was not material in this case due to uncertainty about its realization. The decision-maker was entitled to give little or no weight to such capacity, and no illegality arose.

Holding and Implications

The appeal is dismissed.

The court held that the first respondent was entitled to rely on the Azimuth report without disclosure of the underlying confidential interview transcripts. Rule 19(3)(b) of the 2010 Rules applies to reconsideration after quashing but did not require further representations on the IBA report here because that report was not a reason for disagreement with the Examining Authority's recommendation. The ministerial advice regarding future airport capacity was not legally flawed. The decision to grant development consent for the Manston Airport project stands.

No new precedent was established beyond the application of existing principles to the facts of this case. The direct effect is that the development consent order remains valid and enforceable.