The Secretary of State originally granted development consent in July 2020. That decision was quashed by consent on the basis that the Secretary of State’s reasons for disagreeing with the Examining Authority’s recommendation were inadequate. Following a period of re-consultation, the Secretary of State again granted development consent in August 2022.
The claimant’s challenge focused on two areas: the need for the development and climate change.
Ground 1 alleged that:
(i) The decision was procedurally unfair in that the Secretary of State had relied on a qualitative assessment of need in the Azimuth Report submitted by the applicant without having the underling evidence in the form of interview transcripts that informed it;
(ii) The decision was procedurally unfair and in breach of rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010 in that it relied on a report submitted by the applicant (the IBA Report) during the Secretary of State’s re-consultation process that the claimant did not have an opportunity to comment on;
(iii) The Secretary of State acted irrationally in calling for representations in relation to quantitative need and then relying on the applicant’s qualitative assessment of need;
(iv) The Secretary of State was unlawfully advised in Ministerial briefing material that the potential for expansion of air freight traffic at other airports was not a material consideration.
Ground 2 alleged that the Secretary of State had failed to reach a conclusion of the 6th carbon budget and had unlawfully relied on the Decarbonising Transport Plan and Jet Zero Strategy to conclude that the development would have a neutral impact on climate change.
The High Court rejected all of the grounds and dismissed the application for judicial review. In summary, the Court found that:
- There was nothing to prevent the Secretary of State from relying on the Azimuth report without the disclosure of commercially confidential interview transcripts. The weight to be attached to that report was a matter for the decision-maker.
- Rules 19 and 20 of the Infrastructure Planning (Examination Procedure) Rules 2010 provide for separate processes that arise in different factual contexts. Rule 19 applies after completion of the examination but prior to the publication of the Examining Authority’s report whereas rule 20 applies following the quashing of a previous decision when the Examining Authority’s report is available to the public. Rule 19 did not therefore apply in the circumstances of the case so as to require the Secretary of State to invite representations on the IBA Report. Furthermore, there was no procedural unfairness in that the IBA Report had been published and was available for comment. The Secretary of State had made it clear that he would have regard to material submitted outside the formal consultation process.
- The fact the Secretary of State had invited representations on qualitative need did not preclude him from taking account of the totality of the evidence before him, including the qualitative evidence.
- Reading all of the Ministerial briefing material as a whole, the Secretary of State was advised that potential expansion at other airports was something to which very little weight could be attached. It was not obviously material to the decision given the uncertainties and contingencies upon which any expansion depended.
- The Secretary of State was entitled to rely on policies in the Decarbonising Transport Plan and Jet Zero Strategy as measures that would accelerate decarbonisation of the aviation sector and ensure carbon budgets were met without directly limiting aviation demand.
A copy of the judgment can be found here.
Andrew Tait KC, Mark Westmoreland Smith and Mark O’Brien O’Reilly acted for the Secretary of State. Michael Humphries KC and Isabella Tafur, instructed by BDB Pitmans, acted for the developer, RiverOak Strategic Partners.