Jennifer Dawes, R (on the application of) v Secretary of State for the Transport Department

A decision-maker conducting a redetermination after a decision has been quashed may rely on expert evidence whose underlying commercially confidential material is withheld. The issue is ordinarily the weight to be given to that evidence, rather than procedural unfairness or irrelevance. Under the Infrastructure Planning (Examination Procedure) Rules 2010, rule 19 and rule 20 govern distinct procedural stages. A consultation is unlawful only where something has gone clearly and radically wrong. A statement of matters identifies issues on which further representations are invited; it does not confine the material that may be considered. A decision-maker must have regard to legally material considerations, but retains judgment as to their weight. Government climate policies may permissibly support a conclusion that airport development’s climate effects attract neutral weight, even where the policy modelling did not specifically include that airport.

The interested party applied for development consent under section 37 of the Planning Act 2008 to reopen Manston Airport as an air-freight facility. The Secretary of State granted consent in 2020, but that decision was quashed because the reasoning on need was inadequate. Following a further consultation and the appointment of an independent aviation assessor, the Secretary of State again granted consent on 18 August 2022.

The claimant sought judicial review on two grounds. Ground 1 alleged procedural unfairness concerning confidential material underlying an expert demand report and a late aviation report, irrationality in the treatment of qualitative need, and failure to consider potential capacity at other airports. Ground 2 alleged failure to address the sixth carbon budget and unlawful reliance on the Decarbonising Transport Plan and Jet Zero Strategy, whose modelling did not include Manston Airport.

1. Claim dismissed. The claimant had not established either ground of challenge.
2. There was no procedural unfairness in relying on the Azimuth Report without disclosure of confidential interview transcripts and other underlying material. Such a report could be a material consideration. The proper question was the weight that could rationally be attached to it in the absence of the underlying evidence. The Secretary of State considered that issue and gave reasons for attaching substantial weight to the report. Fairness did not require further disclosure.
3. Rule 19 and rule 20 of the Infrastructure Planning (Examination Procedure) Rules 2010 address separate circumstances. Rule 19 applies after completion of the examination and before the initial decision. Rule 20 applies after a decision has been quashed and requires further representations on the matters identified by the Secretary of State. Rule 19 therefore did not apply to the redetermination. The reference to rule 19(3) in the decision letter was an error, but it was immaterial.
4. The consultation process was imperfect, particularly concerning correspondence submitted between consultation stages, but it was not unlawful. The applicable test was whether something had gone clearly and radically wrong. The claimant was not precluded from making representations on the IBA Report after its publication, and no unfairness was established.
5. The Statement of Matters did not restrict the Secretary of State to quantitative need or prevent consideration of evidence from the original examination. The assessment of demand and need involved judgment on competing expert methodologies. The high threshold for irrationality was not met.
6. Potential future capacity at other airports was legally capable of being material, but the Secretary of State was entitled to attach very little weight to it because its delivery was uncertain. Materiality and weight were distinct questions. The briefing and draft decision, read as a whole, did not treat the potential capacity as legally irrelevant.
7. The Secretary of State had adequately addressed the sixth carbon budget. He was entitled to rely on the Climate Change Act 2008, the Decarbonising Transport Plan and the Jet Zero Strategy, together with associated measures, in concluding that aviation decarbonisation targets and carbon budgets could be met without directly limiting aviation demand. The omission of Manston from the policy modelling was immaterial because the modelling represented a reasonable upper bound for testing policy measures, rather than a prediction of particular airport expansion.

The judgment records that an earlier Secretary of State decision granting development consent was quashed on 15 February 2021 because the reasoning on need was unlawfully inadequate. The present claim challenged the Secretary of State’s subsequent decision of 18 August 2022.