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

In a statutory planning examination, procedural fairness does not require disclosure of confidential or commercially sensitive material underlying an expert report where the report explains its methodology, identifies interviewees and summarises their responses. The report may be considered, with its weight being a matter for the decision-maker subject to rationality.

Rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010 can apply when an application is reconsidered after an earlier decision has been quashed. Its procedural safeguard is triggered only where new evidence or facts cause the Secretary of State to disagree with the examining authority’s recommendation. A general opportunity to comment is not an adequate substitute for the rule’s specific notification and representation requirements.

Potential future capacity at other airports is legally capable of consideration, but uncertainty may justify attaching little weight to it.

Riveroak Strategic Partners Ltd applied for development consent to reopen Manston Airport as a dedicated air freight facility. The Examining Authority recommended refusal, principally because sufficient additional need had not been demonstrated.

The Secretary of State initially granted consent, but that decision was quashed for inadequate reasons. On reconsideration, the Secretary of State granted consent again. The reconsideration included the Azimuth report, based partly on confidential interviews, and a later IBA report on future freight capacity.

A local resident’s judicial review claim was dismissed by Dove J in the Planning Court. She appealed on procedural fairness, the applicability of rule 19, the treatment of the IBA report, and advice concerning future airport capacity.

1. Azimuth report. The appeal court agreed with the judge that neither the Planning Act 2008, the 2010 Rules nor common law procedural fairness required disclosure of the confidential interview transcripts. The report identified its methodology and interviewees and summarised their responses. Interested parties could comment on its adequacy and reliability. The Secretary of State was entitled to consider the report and decide what weight to give it, subject to rationality. The principles in R v Secretary of State for the Home Department ex p. Doody [1994] 1 AC 531, Lloyd v McMahon [1987] AC 625 and R v North and East Devon Health Authority ex p. Coughlan [2001] QB 213 supported that approach.
2. Rule 19. Rule 19 applies after the examination and before a decision, including where an earlier decision has been quashed and the application is being reconsidered. Rule 20 addresses the general procedure following quashing and does not exclude the separate safeguard in rule 19.
3. Causative new evidence. Under rule 19(3)(b), new evidence or a new matter of fact must be a reason for the Secretary of State’s disagreement with the examining authority’s recommendation. It is insufficient that the material was considered, regarded as relevant, or formed part of the decision-making process. The broader approach suggested in Gladman Developments Ltd v Secretary of State for Communities and Local Government [2017] EWHC 2448 (Admin) was not accepted.
4. On a fair reading of the decision letter, the disagreement with the recommendation resulted from the weight given to the Azimuth report, not the IBA report. Rule 19(3)(b) was therefore not triggered. If it had been triggered, the possibility of making unsolicited submissions after consultation would not have discharged the duty to identify the disagreement and new material and invite representations on it.
5. Future capacity. Advice to a minister must be read fairly, as a whole and in context. Future airport capacity was legally capable of consideration. However, uncertainty as to whether expansion would occur justified attaching very little weight to it. The minister had not been misdirected into treating that factor as legally irrelevant. The approach was consistent with Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.
6. The appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal: [2024] EWCA Civ 560.
• High Court of Justice, King’s Bench Division, Planning Court dismissed the judicial review claim challenging the Secretary of State’s grant of development consent.