Secretary of State making order authorising construction of railway – Applicant challenging validity of order – Applicant erroneously bringing judicial review proceedings – Statutory review procedure available – Court finding valid application made and ordering errors to be corrected – Whether Secretary of State misinterpreted policy – Planning Guidance Wales Planning Policy para 99 – Application dismissed
The Festiniog Railway Company (FRC) applied for an order authorising the construction and operation of a 35km railway in Snowdonia National Park. A large number of objections were raised, including those of the National Farmers’ Union (the applicant). In June 1999 the Secretary of State (the respondent) departed from the inspector’s recommendation and decided to make the Welsh Highland Railway Order 1999. The applicant sought to challenge the respondent’s decision by way of judicial review and informed the Treasury Solicitor and the FRC that it would be lodging such an application.
In August the FRC pointed out the inappropriateness of judicial review proceedings, as there was a statutory review procedure under section 22 of the 1992 Act. The applicant sought to amend form 86A to a Part 8 claim form so as to be in accordance with the Civil Procedure Rules (CPR) Schedule 1 Ord 94(2). The Secretary of State identified a further problem in that the Secretary of State’s functions had transferred to the National Assembly for Wales, which had not been served with the forms within the time period set out in the 1992 Act. Two procedural issues arose: (i) whether there had been a valid application made under section 22 of the 1992 Act; (ii) if so, should the court exercise its discretion to allow the errors to be corrected, namely, for form 86A to be treated as a Part 8 claim form, for the National Assembly of Wales to be substituted as respondent and for an extension of time to be made to allow the National Assembly to be served.
The court found that, although the applicant was in breach of the CPR in certain respects, that did not automatically preclude a valid application being made under section 22 of the 1992 Act. Section 22 did not stipulate how an application to the High Court under its provisions was to be made. Anyone reading form 86A would have realised that the applicant was seeking to challenge the validity of the order. Applying Cala Homes (South) Ltd v Chichester District Council [1999] PLSCS 217; The Times 15 October 1999, the document filed could properly be regarded as an application within section 22 of the Act. There was no evidence that the applicant had delayed the matter, nor had its procedural errors caused any prejudice. The court exercised its discretion to allow the errors to be corrected.
Accordingly, the substantive application was heard. The applicant submitted that the respondent had misinterpreted para 99 of the Planning Guidance Wales Planning Policy, which provided, inter alia, that such a development “should be demonstrated to be in the public interest before being allowed to proceed”. The applicant submitted that the respondent had wrongly taken into account the potential benefits of a reduction in traffic, as only benefits that could be achieved should be taken into consideration for the purposes of para 99.
Held: The application was dismissed.
The interpretation of the planning policy was, in the first instance, for the decision-maker. The respondent was entitled to take into account all relevant planning considerations, including the potential for the reduction in traffic, even though that benefit was expressed in uncertain terms. The weight to be attached to that factor was for the respondent to decide and he was entitled to attach greater weight to it than the inspector had done. The respondent’s approach to the policy was reasonable. His decision and the subsequent order were not ultra vires.
Clive Lewis (instructed by the solicitor for the National Farmers’ Union) appeared for the applicant; David Elvin (instructed by the Treasury Solicitor) appeared for the respondent; Russell Harris (instructed by Sharpe Pritchard) appeared for the Festiniog Railway Company.
Sarah Mills, barrister
