The King (on the application of Doncaster Metropolitan Borough Council) v Doncaster Sheffield Airport Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] EWHC 3060 (Admin) |
| Docket Number | Case No: CO/4044/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 3060 (Admin)
Mr Justice Fordham
Case No: CO/4044/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
James Maurici KC and Jacqueline Lean (instructed by DLA Piper UK LLP) for the Claimant
John Litton KC and Nick Grant (instructed by Squire Patton Boggs (UK) LLP) for the Defendant
Heather Emmerson (instructed by South Yorkshire Mayoral Combined Authority) for the Second Interested Party
The First Interested Party did not appear and was not represented
Hearing date: 22/11/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a claim for judicial review whose purpose is to try and keep alive the prospect of continued aviation activities at Doncaster Sheffield Airport (“the Airport”), by securing that the Airport is placed in the hands of a new third party. That is in the context of an announcement on 26 September 2022 (“the September Announcement”) by the Peel Group (“TPG”) that the winding down of aviation services at the Airport would begin on the week of 31 October 2022. The Airport is owned and operated by TPG through its operational company, and wholly-owned subsidiary, the Defendant (“the Operator”) who occupies the Airport under a 99 year lease dated March 2018. That lease is currently scheduled for termination with effect from 16 May 2023. The freehold owner is the First Interested Party (“the Freeholder”), another wholly owned subsidiary of TPG. The Claimant (“the Council”) is supported by the Second Interested Party (“the Combined Council”).
The claim for judicial review was issued on 2 November 2022. It was rightly issued in the North-East, as the region with which the claim is most closely connected. The Administrative Court in Leeds has shown that it can act speedily. On 14 November 2022, I made directions for a one-day oral hearing on 22 November 2022. The parties were jointly inviting a day's hearing for oral submissions on whether permission for judicial review should be granted and whether the court should grant interim relief. The parties and their lawyers worked tirelessly on getting some 3,000 pages of primary and secondary, legal and factual, material before the Court. The Operator's Grounds of Defence, and the Combined Authority's Grounds of Support were filed on 16 November 2022. Witness statement evidence was supplied from Damien Allen (the Council's chief executive officer) on 2 and 18 November 2022; from David Grant (the Operator's managing director) and Robert Hough (the Operator's chairman and a director) both dated 16 November 2022; and from Gareth Sutton (the Combined Authority's executive director of finance and investment) dated 18 November 2022. I granted permission for those witness statements requiring it, and (subject to any costs issues) for the Operator to rely on Grounds of Defence exceeding the 30-page limit (CPR PD54A §6.2(4)), none of which was opposed. Undertakings given by the Operator on 31 October 2022, and which would have lapsed at midnight on 22 November 2022 have been extended to the date of hand-down of this judgment (or if later midnight on 2 December 2022). A confidential embargoed draft of this judgment was provided to the parties at lunchtime on 24 November 2022. That draft judgment involved no decision, either way, on an aspect on which I had given a timetable for further evidence: the implications of the Council's draft order for interim relief extending beyond the scope of the undertakings. In the event, no further evidence was filed.
Sequence of Events
The sequence of events culminating in the September Announcement involved a lot of activity and communication. For now, it is sufficient to give a brief outline of some aspects of that sequence, as reference-points. On 12 July 2022 the Operator's Mr Hough wrote an email to the Council's Mr Allen describing a Strategic Review (“review of strategic options for the Airport”) which the Board of the Operator had begun, as a “consultation and engagement programme with stakeholders”. An announcement (“the July announcement”) of the Strategic Review was made the following day on 13 July 2022. Mr Hough and the Operator's Chief Executive Steven Underwood wrote letters about the Strategic Review: on 1 August 2022 to the Council's Mr Allen and the Combined Authority's Chief Executive Martin Swales, following a meeting; and on 22 August 2022 to the Combined Authority's Mayor Oliver Coppard. An announcement (“the August announcement”) was made on 23 August 2022, giving “an extension to the consultation” to 16 September 2022. There was a meeting of the “Weekly Negotiating Group” – a group including Mr Allen, Mr Swales, Mr Hough, Mr Grant and others – on 25 August 2022. The Council and the Combined Authority (collectively “the CCA”) wrote letters to Mr Underwood and Mr Hough: on 8 September 2022 (referring to “economic impact work” and requesting “a separate process”); on 12 September 2022 (asking for “a new and short process (90 days)”); and on 22 September 2022 (offering a £7m bridging grant to cover operational losses over a 13 month period). A principal theme of those three letters was that there was investor interest: 8 September 2022 (referring to “strong market interest” with “one group that we believe is an extremely serious proposition”); 12 September 2022 (referring to having “identified what is a highly desirable bidder with extensive aviation experience”); and 22 September 2022 (referring to “market testing” having “brought forward conversations with some 10 potential investors” including “interest from airlines, a global asset management business, a UK based new venture in the aviation sector, significant local aviation businesses interest and an international investment bank”). On 25 September 2022 Mr Underwood wrote a Decision Letter to CCA foreshadowing the September Announcement made the following day.
About the Airport
Among the themes emphasised to me and deployed in the arguments of CCA are points about the significance of the Airport and aviation operations there, and the significance and impacts of closure of the Airport. The following points are some reference-points from among the evidence before the Court. The Airport is integral to the Council's vision to build a green and inclusive economy. The Doncaster Local Plan 2015–2035 describes the Airport as the “Gateway to the City Region” and the sustainable growth of the Airport as a “key proposal”, noting the “transformational effect it could have on the local and regional economy”, and stating that: “the Airport is an economic priority both for Doncaster and for the Sheffield City Region as a whole. The airport corridor is recognised regionally as a catalyst for business development, inward investment and job creation with regard to logistics, engineering and associated aviation activities. The Doncaster Inclusive Growth Strategy continues to support airport growth including expanding the enterprise sectors and linking to regional growth corridors (such as the aforementioned Advanced Manufacturing Park). [The] Airport will play a key role in driving the local and regional economy forward.” The Airport is a recognised growth corridor within the Sheffield City Region Local Enterprise Partnership and Integrated Infrastructure Plan, and is integral to the city region transport and economic strategies. The Integrated Infrastructure Plan says the Airport: “Provides an international gateway and attracts aero related employment and training” and “is recognised as a catalyst for business development, inward investment and job creation with regard to logistics, engineering and associated aviation activities”, within an “area” which “includes an Enterprise Zone site and the iPort, a major strategic rail freight hub and employment site”. The Airport is recognised as an important economic centre in Transport for the North's Strategic Transport Plan. The Airport is targeted in the Combined Authority's Strategic Economic Plan for 2021–2041, as a focus area for economic growth; as one of three sites that “has unique strengths, outstanding connectivity and large land allocations for commercial and residential development” which “link to Doncaster's priority industries and provide a focus for economic development support.” The Council considers that the Airport represents a national opportunity in terms of the UK Government's “levelling-up” agenda to deliver growth in economic output, productivity and exports in the North of England, particularly South Yorkshire, North Nottinghamshire and North Lincolnshire. The Airport is featured in Central Government's Flightpath to the Future Plan, which emphasises the importance of the regional airport network in unlocking local benefits and levelling up, by reference to “positive economic outcomes … for the whole of the UK” supporting “jobs, investment, trade and tourism”.
In a March 2018 Draft Consultation Report on its Masterplan 2018–2037 TPG described the Airport's “unique potential … to deliver major international connectivity for Yorkshire, surrounding regions and the UK”, to “drive significant job creation in Doncaster and the Sheffield City Region”, as an international airport which “puts a region on the global map” and “acts as a magnet to draw people and investment to the region, driving economic activity and other industries such as tourism”, and as a “unique opportunity to deliver a major international gateway for...
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