Town and country planning – Approval – Local authority – Interested party requesting approval of routes for HS2 construction lorries by claimant local authority – Claimant refusing request – Inspector overturning decision – Claimant applying for judicial review – Whether interested party providing sufficient information for purposes of approval – Application dismissed
The interested parties sought the approval of the claimant local authority for the lorry routes to be used by construction lorries to and from the HS2 construction sites within the claimant’s area. An inspector appointed by the defendant secretaries of state allowed the interested party’s appeal against the refusal of approval under para 6 of schedule 17 to the High Speed Rail (London-West Midlands) Act 2017. The claimant applied for judicial review of that decision.
The claimant contended that the interested party ought to have provided a traffic impact assessment of the routes it had selected. The claimant, as planning and highway authority, wished to impose controls on the level of usage of those routes by construction traffic, particularly in the normal peak traffic hours. To select and justify the controls it might wish to impose, it needed information which it said the interested party was duty bound to supply. It had not supplied that information and so the inspector erred in allowing the appeal.
The claimant relied on the judgment in R (London Borough of Hillingdon) v Secretary of State for Transport and another [2020] EWCA Civ 1005; [2020] PLSCS 152; [2021] PTSR 113 (Hillingdon 1). That case also concerned the duty on the interested party to supply information for the purposes of approvals sought, but under a different paragraph of schedule 17. The Court of Appeal, whose judgment was released after the inspector’s decision in the present case, allowed an appeal from Lang J, whose judgment had been applied by the inspector in the present case. The claimant contended that the Court of Appeal decision was applicable here, whereas the inspector had applied the approach of the court below, which the Court of Appeal found unlawful.
Held: The application was dismissed.
(1) This was an application for judicial review of the lawfulness of the inspector’s decision allowing an appeal against a refusal of approval on its merits. The inspector had to approach the appeal as if the application had been made to him in the first place, save that he could impose conditions. Although he had to make his decision within the confines of para 6 of schedule 17, he had to assess and give the weight he thought appropriate to the various pieces of evidence, or absence of evidence, before him in the light of various material considerations, including the planning memorandum, the interested party’s undertakings and statutory guidance. He was entitled to take a different view of the evidence, and of the significance of the guidance and other material considerations, from that taken by the claimant.
(2) It was not an appeal about whether the claimant had had sufficient information to enable it to determine the issues in the way in which it wanted to determine them, by seeking a scheme, which it would then approve and, on the basis of which, it would enforce controls. The judgment that further information was necessary to that end was not supported by any analysis of why the information already supplied could not of itself provide a basis for some limit on the numbers of LGVs in the peak hours, or other specific measures. The inspector did not have to consider the appeal within the same framework as that fashioned by the claimant for its own consideration. He was not bound to treat the information sought by the claimant as necessary for him to reach a decision, lawfully and rationally, on the issues raised under para 6.
(3) On the correct interpretation of para 6(5), the claimant had to show why the proposals should be modified and why that was reasonable. That was consistent with the normal approach to planning conditions. The inspector’s language about conditions would be normal for any planning appeal. It was not for the planning authority to impose whatever it wished, and to leave it for the developer to strike it down by evidence. It was also in line with the planning memorandum to which the claimant had to sign up in order to become a qualifying authority to decide those applications for approval in the first place. It was not for the claimant to adopt or to urge, with any legitimate expectation of success, a different approach while remaining a qualifying authority. Parliament did not leave local authorities with those functions; they had to qualify to be able to exercise them, by giving undertakings about their handling of applications. Those obligations were plainly material to an understanding of how the claimant’s functions were to be interpreted. The decision in Hillingdon 1 was predicated on the obligation on the claimant to make good its proposed modifications.
On the other hand, there was implied into the schedule an obligation on the interested party, which was otherwise found within the planning memorandum and the development agreement, to provide sufficient information to enable the claimant to carry out its task. However, on appeal, it was for the inspector to decide what the evidence showed and what he needed for his decision and he reached unchallengeable conclusions on the evidence. He pointed out that the claimant had asserted that the evidence supported its position. It was only after explaining why it did not do so, that he concluded that the claimant had not made out its case. That was very different from the facts in Hillingdon 1, where nothing of significance about the archaeological potential or its extent or whereabouts on the site, was known to the claimant or to the interested party.
(4) The decision in Hillingdon 1, which concerned a different part of schedule 17, was successfully challenged on the basis that the secretaries of state erred in law in finding that the duty had been complied with; that did not require the claimant to refuse to entertain the application. In the circumstances of the present case, the suggested approach could be applied without collateral litigation and costly delays, which the Court of Appeal clearly did not intend.
Craig Howell Williams QC and Melissa Murphy (instructed by Hillingdon London Borough Council) appeared for the claimant; Timothy Mould QC (instructed by the Government Legal Department) appeared for the defendants; David Elvin QC and Michael Fry (instructed by DLA Piper UK LLP) appeared for the interested party.
Eileen O’Grady, barrister
