Town and country planning – Planning permission – Approval – High-speed rail project – Interested party seeking approval of arrangements for proposed routes to and from construction sites – Claimant local authority considering requests invalid as information supplied inadequate to evaluate effect on transport – Defendant secretaries of state allowing appeals against failure to determine requests – Claimant applying for judicial review – Whether claimant supplying adequate information to validate approval request – Whether dispute about information affecting rights of appeal to defendants – Application dismissed
The High Speed Rail (London-West Midlands) Act 2017 deemed that planning permission was granted for the construction of the HS2 high-speed railway line between London and the West Midlands (HS2). Schedule 17 imposed conditions requiring the interested party, as nominated undertaker for the construction of the HS2 project, to make requests to local authorities for approval of arrangements in accordance with which various matters related to the construction of HS2 had to be carried out.
Pursuant to schedule 17, the interested party requested the approval of the claimant, a qualifying local authority under the 2017 Act, for the arrangements for each of eight routes for taking large goods vehicles to and from construction sites. The claimant’s planning committee concluded that seven of the requests were invalid for want of information from the interested party which was necessary for their determination. Therefore, it failed to determine those requests.
The interested party appealed to the defendant secretaries of state against the failure to determine the seven requests. Inspectors appointed by the defendants allowed the appeals, concluding that the interested party had provided sufficient information to determine the requests.
The claimant applied for judicial review of those decisions contending, amongst other things, that (applying the decision of the Court of Appeal in R (Hillingdon London Borough Council) v Secretaries of State for Transport and for Housing, Communities and Local Government [2020] EWCA Civ 1005; [2020] PLSCS 152) (Hillingdon 1), the effect of its decision that insufficient material had been provided was that no valid application had been made. Accordingly, time to determine the application had not started to run with the result that no valid appeal could be brought.
Held: The application was dismissed.
(1) The 2017 Act contained, by necessary implication, a duty on the nominated undertaker to provide the information necessary or sufficient for the qualifying local authority to carry out its statutory functions and reach a lawful determination on the issues.
The structure of the general planning legislation suggested that if time was not to run, so that there could be no appeal from the local authority decision that a request had yet to be validly made, and that what was styled a request was not a request at all in the context of schedule 17, the material to be provided for validity had to be that without which no reasonable authority could reach a lawful decision; and without which either the local authority or the secretaries of state on appeal, would be bound in law to hold that no decision could be made. It was difficult to see that a process of determining validity by evaluation of reasonableness, relevance and proportionality, availability of other sources or even some analysis which could be undertaken by the local planning authority itself, could be a necessary statutory implication: R (Hillingdon London Borough Council) v Secretary of State for Transport [2020] EWCA Civ 1005; [2020] PLSCS 152 and [2021] EWCA Civ 1501; [2021] PLSCS 172 considered.
(2) Unless the statutory appeal provisions expressly excluded an appeal on validity, an appeal on validity could be entertained by the defendants. There was no such express exclusionary provision in the 2017 Act. The general purposive approach to the interpretation of appeal rights in planning legislation was that an appeal was available on issues relating to validity, including evaluative and factual matters, as part of the generally expressed appeal rights. Even where, in the general planning legislation, there was an express provision which prevented an authority having jurisdiction, the balance of authority favoured the conclusion that there was a discretionary jurisdiction to hear the appeal: Parker v Secretary of State for Communities and Local Government and others [2009] EWHC 2330 (Admin) considered.
(3) There was nothing in the context or structure of the 2017 Act to show that some such exclusionary provision in relation to appeals should be inferred, putting that Act at odds with the general approach in planning appeals, quite contrary to its specific purpose and structure. The more general approach was clearly intended by parliament. Once there was jurisdiction to entertain the appeal, the merits fell for determination as well: Geall v Secretary of State for the Environment [1999] 2 PLR 1, R v Secretary of State for the Environment, Transport and the Regions, Ex parte Bath and North East Somerset District Council [1999] 2 PLR 120, Newcastle Upon Tyne City Council v Secretary of State for Communities and Local Government [2009] EWHC (Admin) 3469; [2010] PLSCS 26 and Maximus Networks Ltd v Secretary of State for Communities and Local Government and others [2018] EWHC 1933 (Admin) considered.
(4) The inspectors in the present case each had jurisdiction to hear the appeals. Each was entitled to consider the need for the information sought, and each was entitled to reach the conclusion they did, that the information supplied was sufficient, and then to reach a conclusion about that on its planning merits. In no case did the claimant suggest that the inspectors lacked sufficient material for a lawful decision; it accepted that reasonable inspectors could reach those decisions. It was agreed therefore to be very different from the factual situation addressed by the Court of Appeal in Hillingdon 1.
The claimant had thus nailed its colours to the mast of validity. It did not suggest that the information it sought could have affected the choice of route; it could only therefore have gone to some unspecified sort of modification about the way in which the route was used. It did not suggest any conditions which should and could reasonably be imposed to deal with the situations which concerned it. Once its colours had been struck, the claimant could not and did not suggest that the inspectors should have considered the possibility of, let alone devised, conditions which it had not suggested or drafted.
David Matthias QC and Charles Streeten (instructed by Buckles Solicitors LLP, of Peterborough) appeared for the claimant; Richard Kimblin QC and Matthew Dale-Harris (instructed by the Treasury Solicitor) for the defendants; Morag Ellis QC and Alexander Greaves (instructed by Eversheds Sutherland (International) Ltd) appeared for the interested party.
Eileen O’Grady, barrister
