R (on the application of Dawes) v Secretary of State for Transport and another

Town and country planning – Development consent order – Procedural unfairness – Developer applying for development consent order to develop and reopen airport as dedicated air freight facility – Secretary of state granting application – Court dismissing local resident’s application for judicial review – Appellant appealing – Whether decision procedurally unfair – Whether judge erring in law – Appeal dismissed The second respondent developer applied to the first respondent secretary of state 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 application was considered by an examining authority which recommended refusal of the application. The second respondent had submitted a report by Azimuth Associates based on interviews conducted with 24 aviation industry experts. The transcripts of the interviews were not submitted to the examining authority as they were considered to be confidential and contained commercially sensitive information. The first respondent initially disagreed with the examining authority’s recommendation and decided to grant the application. That decision was quashed and the matter remitted to the first respondent to reconsider. During a consultation exercise, a report by the International Bureau of Aviation (IBA) was submitted on behalf of the second respondent. The other interested parties at the inquiry, including the appellant, were not specifically invited to comment upon that report. The appellant was a local resident who applied for judicial review of the decision to grant development consent. He argued, amongst other things, that the decision was procedurally unfair and in breach of rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010 in that it relied on the IBA report that the appellant did not have an opportunity to comment on. The High Court dismissed the application: [2023] EWHC 2352 (Admin); [2023] PLSCS 163. The appellant appealed. Held: The appeal was dismissed. (1) The requirements of procedural fairness depended on several factors, including the facts, the nature of the decision-making process and the statutory framework. A process of consultation might require that those who had a potential interest in the subject matter were told enough about the proposal to enable them to make an intelligent response. But consultation was not litigation and the consulting authority was not obliged to reveal every submission it received: Lloyd v McMahon [1987] AC 625, R v Secretary of State for the Home Department ex p. Doody [1994] 1 AC 531 and R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 considered. In the present case, the statutory framework involved consideration of an application for a development consent order for a nationally significant infrastructure project. The statute provided for an examination of the application by way of written representations by an examining authority and then consideration of the application and the report of the examining authority by the minister. There were obligations imposed by the Planning Act 2008 and the 2010 Rules to ensure fairness. Those provisions did not require the disclosure of confidential or commercially sensitive information relied upon in preparing a report in support of the application for a development consent order. Nor did any wider principle of common law procedural fairness require the provision of such information in the present case. (2) Those interested in the application, such as the appellant, had access to the application for development consent and to the supporting material, including the Azimuth report. That report identified the methodology used, the names of those interviewed, and summarised their responses. Those interested were able to (and the appellant did) make submissions on the report, including on its adequacy and reliability. The appellant was not engaged in litigation and was not entitled either under the statutory provisions or the common law to be provided with the transcripts of the interviews. Neither the statutory provisions nor any principle of common law procedural fairness prevented the second respondent from relying on the report in support of its application. They did not require the first respondent to exclude the Azimuth report from his consideration of the application because the interview transcripts had not been disclosed. The weight or reliance that the decision-maker placed on the report was a matter for the decision-maker unless it was irrational for him to do so. (3) Rule 19 of the 2010 Rules required the defendant to consult where new evidence or facts meant that the minister was inclined to disagree with the examining authority. On the ordinary and natural reading of the words in rule 19, the obligations imposed by that rule were still capable of applying at any time after the completion of the examination and before a decision on the application was reached, if the circumstances specified in rule 19(3) arose. There was nothing to indicate that rule 19 could not apply to the process of further consideration of the application and the taking of a decision in such circumstances. Rule 19(3)(b) dealt with the role of the first respondent after the completion of the examining authority’s examination if he took into consideration any new evidence or new matter of fact. If for that reason the first respondent was disposed to disagree with a recommendation of the examining authority, he “shall not come to a decision” without notifying all interested parties of the disagreement and the reason for it, and giving them an opportunity to make written representations about any new evidence or matter of fact. Reading the words of rule 19(3)(b) in context, the new evidence or new facts had to be causative of the disagreement and must have caused the first respondent to disagree with the examining authority’s recommendation. (4) In the present case, reading the decision letter as a whole, the reason for disagreeing with the examining authority’s recommendation was the first respondent’s conclusions on the justification for the development which were principally based on his assessment of the need for the development and the benefits that would flow from it. The reason for reaching a different conclusion was the different weight attached to the forecasts in the Azimuth Report. The new evidence (the IBA report) was not a reason for the disagreement with the recommendation. That report did not, on analysis, have a causative effect resulting in the disagreement with the recommendation. Therefore, the first respondent was not obliged to give the interested parties an opportunity to make written representations on the IBA report. There was no breach of rule 19(3)(b). Richard Harwood KC and Gethin Thomas (instructed by Goodenough Ring Solicitors) appeared for the appellant; Mark Westmoreland Smith KC and Mark O’Brien O’Reilly (instructed by the Government Legal Department) appeared for the first respondent; Michael Humphries KC and Isabella Tafur (instructed by BDB Pitmans LLP) appeared for the second respondent. 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