The Society submitted detailed representations to the Secretary of State on the Redetermination of the Development Consent Order which had been quashed by the High Court. When redetermining the application the Secretary of State, having rejected the original advice of the Examining Authority, then went on to reject the advice of his own independent consultants Ove Arup to refuse the application and instead approved it.
This redetermination was the subject of a further judicial review (JR) which took place over two days on 5th and 6th July in Court 2 at the Royal Courts of Justice before Mr Justice Dove. The parties to the JR were The King (on the application of Jennifer Dawes, Claimant), The Secretary of State for Transport (Defendant) and Riveroak Strategic Partners Ltd (Interested Party)
In brief the Claimant’s case concerned the Defendants approach to two issues (a) Need and (b) Climate Change.
On the issue of Need, the Claimant argued that the Secretary of State’s conclusion on the need for the airport was reached on the basis of three errors, giving rise to breaches of the Defendants common law duty on unfairness.
The first error was one of procedural unfairness, (the principles of which are well established in law) in that the Secretary of State failed to allow interested parties the opportunity to comment on the report from the International Bureau of Aviation on which he subsequently relied when determining the question of need.
The second error was one of Irrationality in that having raised the question of whether Quantitative Need for the airport had changed since the Examination in Public in 2018/2019, the Secretary of State then went on to rely heavily on a report on Qualitative Need submitted by RSP (the Azimuth Report) without having the underlying evidence on which that report was based, or submitting that report to scrutiny by interested parties. This second error was that having identified the issue of Quantitative Need as a matter for his consideration in the Redetermination process, he then failed to answer it which was Irrational.
The third error on the issue of Need was concerned with the potential for growth at existing airports in that the Secretary of State was wrongly advised that this was not a material consideration and it follows from the final decision letter that this advice was unlawful.
On the issue of Climate Change the Claimant argued that the Secretary of State failed to reach a conclusion on the Sixth Carbon Budget (CB6) despite this being one of the three questions he raised in his Statement of Matters and therefore he acted irrationally in not determining the question he had himself raised. The Defendant also unlawfully relied on the Transport Decarbonisation Plan and the Government’s Jet Zero Strategy as the sole basis for reaching his conclusion when in fact these policies were not capable of doing so because they were aspirational, unspecific and unquantified in nature.
At the close of proceedings, the Judge indicated that it would be October before he would be able to hand down his decision.
John Walker
