Why the pre-closure consultation for Doncaster Airport was lawful after all.

This is Blog no 7

So, the Council failed to get permission for a Judicial Review of the closure in November of the Robin Hood Airport

(See my LinkedIn commentary on 2^nd December - https://tinyurl.com/ye27c59c)

I have been reading the High Court judgment. The case is R (Doncaster MBC) v Doncaster Sheffield Airport [2022] EWHC 3060 (Admin) and it arose because Doncaster Council challenged the closure of its local Airport - formerly known as the Robin Hood Airport. This was a decision taken by The Peel Group, a private Company that owned the facility.

At the heart of this story is the viability of a small regional airport, much cherished by local business no doubt, and trumpeted as strategic infrastructure essential for levelling up. This particular airport once scheduled flights by TUI, Ryanair, EasyJet and WizzAir, but following the pandemic and other economic woes, the owners, backed up by Consultants’ reports could not attract replacement traffic and concluded it was not viable

In the summer of 2022, it held a Strategic Review which then became a “consultation and engagement programme with stakeholders.” It was formally announced in July and in August, was extended till September. During this, and as in similar ‘last-minute-rescue’ scenarios, various third-party investors were sought, and the Council offered a £7m ‘bridging’ grant to enable Peel to continue the Airport’s operations and have more time to find more business and secure a viable future.

What’s interesting is that airports are far from being the only activity that may now be run by private Companies but are truly serving ‘public functions’, and the Courts are increasingly called upon to rule upon the extent to which their actions need follow public law standards of lawfulness, reasonableness, and fairness. They are often marginal decisions and in this case Mr Justice Fordham gave the Council the benefit of the doubt and declared the closure potentially open to judicial review.

But first, it’s necessary to have permission, and hence the focus on the Airport Owners‘ consultation. Note there was no requirement to do so by law. This was a voluntary initiative by Peel, and it was NOT a public consultation – concentrating upon stakeholders. That said, as the local authorities were major stakeholders, and their raison d’etre is to represent their public, unless they chose to conduct the dialogue confidentially, the exercise appears to me to have been a public consultation in everything but name.

Regarding the consultation, the following emerged

• The Gunning Principles applied. Once you embark upon a consultation – even if not obliged to do so, the rules are the rules, and you are accountable if you ignore them. (Those who attended the courses run by Elizabeth Gammell and myself for the Consultation Institute some years ago will remember the case of a ‘voluntary’ consultation conducted in association with the Royal Albert Hall about re-applying for a boxing licence – and where failure to meet the Principles led complainants to succeed!).
• Although the Council complained that the only option appeared to be closure, the Judge found plenty of factual evidence to rule out ‘pre-determination’ (Gunning One). The consultor seemed genuinely willing to examine any proposal that might make the Airport viable.
• Neither was there evidence that Peel had failed to give conscientious consideration (Gunning Four) to such expressions of interest as had been forthcoming from third parties.
• The same applied to the offer of the 'bridging' grant. Peel said, in effect that it had no interest in prolonging the agony and running a commercially-unviable business unless it could see a path to viability somewhere ahead. Whether it was ’reasonable’, in a public law sense to reject the offer was highly contextual but in the Judge’s view not sufficiently unreasonable as to justify giving permission for a judicial review.
• The Council argued that Peel had not fully taken into account the impacts of closing the Airport upon the local economy; some of these were undeniably serious. A Report detailing the implications was tabled, and significant political influence wielded to urge Peel not to announce a closure. However, on the evidence, the Judge determined that all these facts were known, understood, and considered.
• The Judge similarly dismissed a claim that there had been insufficient time (Gunning Three) for a new buyer or new airport users to emerge.

IN SUMMARY

There are, unfortunately, too many situations where the public is consulted about withdrawal of services and where communities feel powerless to argue against the ‘experts’ who say that it is no longer practical to deliver what has hitherto been possible. In one sense, an Airport is not unlike the closures of police stations, fire stations, libraries, care homes or bus services. But in another sense, they are massively different, being an economic and business ‘hub’ around which whole economies are built and affecting patterns of employment, transport networks, housing, and other infrastructure.

However, they have in common that the days of perpetual subsidy are coming to and end. In a 2014 case about significant reductions to a library service (Draper v Lincolnshire CC), the Council lost a legal challenge because it had not properly considered a serious alternative proposal tabled by a third party – Greenwich Leisure Services. In its proper context, the Court held that this had been unreasonable.

In contrast, the Doncaster Airport case seems clear that, despite the consultation, its extension, and other efforts, no ‘tangible proposals’ had been forthcoming. In other words, there was never anything realistic that the consultor could have considered. Adverse impacts are insufficient and relying upon further time to find viability can only help in marginal situations.

Politically, there may still be arguments to deploy and policies that might help, but on the legality alone, this case merely illustrates that it is difficult to set aside a carefully-constructed engagement and consultation strategy unless, as in Draper, there is genuine alternative bidder/operator flying around. For the Doncaster/Sheffield Airport, there seems to be no such potential source of salvation and our thoughts are now therefore with the employees of the business and their families at a difficult time.

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Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion Jones LL.B has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary. Ask him?

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