The owners of the Manston Airport site claim that flaws in UK planning laws relating to major infrastructure projects and the way they allow “legal challenge after legal challenge” has resulted in the project being held in a state of “suspended animation” almost six years after planning consent was first given.
Further delays in developing Manston as a hub for air cargo
The appeal court under Lord Justice Warby has granted permission for an appeal against the high court’s support of the go-ahead for the airport’s development, thereby causing more delay in the tortuous legal progress for a huge investment project for East Kent.
Those in favour of the development say this ruling puts a further delay on the £800mn development proposed by the site’s owners, Riveroak Strategic Partners (RSP), to develop the airport as a cargo hub. Their plans include 19 cargo aircraft stands, new taxi ways, four stands for passenger aircraft, eight aviation hangers and a new passenger terminal building. RSP forecast that the airport will provide 2,150 jobs on the airport site and 13,100 indirect jobs by year five of operation.
Plans for a housing development at Manston
When the airport was suddenly closed in 2014, the then owners put forward plans for a huge housing development. Local resistance to this gave birth to the Save Manston Airport movement. They are against thousands of houses being built on the site, which, in all likelihood, would benefit London residents moving to Thanet rather than providing for local residents, who prefer the employment potential of an active airport.
The revival of the airport seemed feasible due to the involvement of RSP, who put forward plans for the development of the site as an air-cargo hub and claimed the financial backing from the private sector to make this happen. In 2016 RSP managed to buy the airport site for £16.5mn.
Although the airport had not succeeded financially from 2004 to 2014 when it was used by various minor passenger airlines, RSP’s plans offered a different business model of servicing the air-cargo market, underpinned by the sort of investment that was not achieved by earlier owners.
Thanet District Council, the planning authority, which, unusually, was run by UKIP at the time, was resolutely behind the idea of the housing development. This led to many protests at Thanet District Council and other civic actions. The situation changed significantly when RSP applied for Manston to be recognised as a nationally significant infrastructure project. Here, planning permission for the whole project would come from a development consent order (DCO) from central government.
The concept of a DCO was introduced by the planning legislation of 2008 to improve planning for major infrastructure projects by having central government rather than local authorities deal with planning permission. This effectively cut Thanet District Council out of the decision process. The DCO was also asking for the compulsory purchase of the site.
Local support for and against the airport
The DCO for the Manston site was first granted in July 2020. Since then, the project has been unable to move forward because of repeated legal challenges in the name of Ramsgate resident Jenny Dawes.
There have been claims of local support on both sides of the argument. The group ‘No Night Flights’ presented evidence in 2015 of their supporters from among the districts under the flight paths. On the other side of the argument, it is claimed by the pro-airport action group, who say they have over 4,000 supporters, that the legal challenge has been against the will of a significant part of the local community who are in favour of the airport. Local MP Sir Roger Gale’s view is that “Manston Airport has had the overwhelming support of the people of Thanet at every local government, county and general election since the airport closed.”
Reactions to the latest appeal court decision
The owners of the airport site, RSP, have described the latest decision as “completely inexplicable”. They claim to have spent over £200,000 on legal fees so far in these actions. They say that they remain confident that their investors, who they now say are waiting to invest probably £800mn in this project, remain committed.
The appeal to the court requested that two grounds should be subject to review: the first on ecological grounds and the second on the need for the airport. Lord Justice Warby, a lord justice of appeal, granted the application to review the decision on the need for the airport but declined the application on climate change grounds.
This does not mean that the need for the airport needs to be proven again. It is a review of the decision making over need and asks if the minister followed a proper process when making his decision.
Environmental arguments ruled out
The latest court decision has ruled out further environmental arguments. Airport supporters have always argued that the airport is not an environmental threat, as there is a current shortage of cargo capacity in UK airports, which has resulted in cargo destined for the UK being flown into Schiphol or Paris Charles de Gaulle and then being trucked by road, giving greater problems to Dover. Dover Port is currently concerned about the introduction of full checks on inbound cargo that it is now having to introduce because of the thin Brexit deal that the UK negotiated. Cargo flying directly into Manston would help slightly ease Dover’s problems.
Proponents also point out that because of Manston’s geographical position, on the coast close to the continent, air traffic will be able to drop into Manston’s airspace without having to mix with the highly congested air traffic found around the rest of the south of the UK and suffering the resultant fuel-hungry air traffic holds and re-routings. They argue that this makes Manston a better place for expansion of UK cargo capacity than any of the existing airports.
What the local MPs say
Long-time airport proponent and local MP Gale said:
“It appears to me utterly perverse that a judge who is a member of an expert panel set up by the government to determine planning matters should have decreed that there are no grounds, on ‘need’, environmental or any other matters, for appeal against the secretary of state’s decision to grant a development consent order on Manston Airport only to have that decision reversed and a right to yet a further appeal granted by another Judge whose expertise is not in planning.”
Lord Justice Warby’s specialities are listed as being media and sports law, whereas Mr Justice Dove, who gave the appealed decision for the go-ahead, is an acknowledged authority on planning law.
The neighbouring MP for Thanet South, Craig McKinlay, expressed his disappointment in the latest court decision and commented:
“This latest development is simply another delaying tactic to frustrate the shared desire of Riveroak Strategic Partners and the government, together with local supporters, to see Manston return to operational use as an international freight hub and create employment opportunities in Thanet and beyond.”
Unusually, Dawes, in a rare statement to the press, said, “It’s time for MPs Roger Gale and Craig Mackinlay to stop misleading the electorate and start encouraging more realistic and sustainable investment in the area.” She goes on to say, “we’ve already missed a great opportunity for developing Manston” and “meanwhile, our local green fields, farmland and villages are being lost to government house building quotas.”
Costs of litigation
Dawes’ publicly declared funding of her legal actions so far is by approximately £85,000 of crowd funding and a further £10,000 contribution from Ramsgate District Council.
So far, Dawes’ personal exposure to costs has been limited due to the Aarhus Convention. This is a UN treaty that provides for public participation in justice in environmental matters. Where there is an environmental issue, this limits an individual’s exposure to a costs claim if they lose a case to £5,000.
It is this protection that, not only in the Manston case, has, according to solicitors BDB Pitmans, encouraged repeated challenges. They say, “[T]he cap acts as an incentive to relitigate every DCO decision, even where the ground has been covered, and delays nationally significant and critical infrastructure.”
Dr Beau Webber, chair of the pro-airport Save Manston Association (SMA), said:
“The reason that the DCO process was introduced in 2008 was to hasten the planning permission process for nationally significant infrastructure projects. Manston’s legal saga, which started four years ago in 2020, has been delayed by one person repeatedly relitigating the same issues which suggests that the system isn’t working.”
RSP, who have kept relatively quiet through the legal process so far, are now publicly saying that “weaknesses in the British planning process are damaging investor confidence in the UK”. They go on to say, “RSP and its investors, which have collectively already spent more than £42mn on the project, call upon the government to reform the major infrastructure planning laws.” They add that “it is vitally important that the determination of nationally significant infrastructure projects should not be delayed for years through endless litigation and uncertainty, to the detriment of all involved”, among which they include the British public and the national transport infrastructure.
Aarhus Convention protects the public from environmental damage
Dawes has posted a long rebuttal to these comments on the planning process, giving her take on the background to the legal actions. She summarises by saying:
“Removing Aarhus costs protection would effectively amount to pricing individuals out of the justice system. To do so would prevent a legitimate challenge being raised in the courts about an infrastructure project that is not supported by the government’s own expert advisors. Such an argument would prevent access to justice, precisely what Aarhus was set up to avoid”.
It was recognised as a huge achievement of international negotiation to get so many nations to sign the treaty containing this convention. The principle was that public understanding of such projects and the right to information about them is vital. The intention of the treaty was to place an onus on those proposing such projects to mitigate environmental damage as far as possible and convince objectors that they have done their utmost to lessen environmental damage. It would be a huge step for the UK to withdraw from this international convention to ease our planning laws.
It seems reasonable that the public should have the protection that the Aarhus Cconvention gives to ensure that ordinary people can hold a rich corporation to account for plans that impact on the environment. There is, though, also substance in the argument that court challenges should not continue to be revisited time and time again – causing unreasonable delay to significant investments to the economy.
Next round of appeal in April
In the meantime, RSP and its investors face a further frustrating delay to their plans. The appeal against the Manston Airport DCO has been scheduled for the Royal Courts of Justice in London for 24 April in front of a panel of appeal court judges. It is unlikely that the court will give its decision on the day, so it will probably not be until towards the summer that the outcome is known.
