Town and country planning – Approval – Local authority – Interested party requesting approval of routes for HS2 construction lorries by applicant local authority – Applicant refusing request – Inspector overturning decision – High court dismissing applicant’s application for judicial review – Applicant applying for permission to appeal – Whether inspector misdirected himself in approach to refusal of approval – Application dismissed
The interested party sought the approval of the applicant local authority for the lorry routes to be used by construction lorries to and from the HS2 construction sites within the applicant’s area. An inspector appointed by the respondent 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 applicant applied for judicial review of that decision.
The applicant relied on the judgment in R (Hillingdon London Borough Council) v Secretary of State for Transport [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 applicant 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.
The High Court dismissed the application, rejecting the argument that the inspector’s approach could not be reconciled with the court’s reasoning in the earlier case: [2021] EWHC 871 (Admin). The applicant applied for permission to appeal contending that the court was wrong to do so. The application and the appeal itself, if permission were granted, were dealt with at a “rolled-up” hearing. The basic issue was whether the inspector’s approach was unlawful, principally because the inspector misdirected himself on para 6(5) of Schedule 17.
Held: The application was dismissed.
(1) The judge’s analysis stood on robust principles governing the review by the court of planning decisions. It was not for the court to investigate the merits of either side’s case before the inspector. It was his job to consider the evidence the parties had given, and to make the evaluative judgments required on the matters he had to decide. The court would not unpick his findings and conclusions on that evidence merely because they might be open to doubt as a matter of planning judgment. It would only interfere on public law grounds. It would resist excessive legalism, both in the parties’ submissions and in its own consideration of the issues in the claim. That applied no less in this statutory context than in the broader sphere of challenges to planning decisions: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147, St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] PLSCS 196; [2018] PTSR 746, Mansell v Tonbridge and Malling Borough Council [2017] PLSCS 174; [2019] PTSR 1452) and City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 320; [2021] PLSCS 49 applied.
(2) The Court of Appeal’s decision in Hillingdon 1 did not help the applicant in the present case. The circumstances there were materially different, and the principles on which the court’s conclusions were based, were not offended by the inspector’s decision here. In the previous case, HS2 Ltd did not even provide the council with information that was indisputably necessary to make an assessment of the likely effects of the proposed earthworks on the site of archaeological interest. That was the context in which the legal issues in the case arose. The Court of Appeal held that, under schedule 17, an authority had a duty to conduct its own assessment of the matters it had to decide within the ambit of the conditions imposed on the deemed planning permission under section 20. The duty could not lawfully be delegated or abrogated. It was therefore incumbent on the nominated undertaker to provide the authority with enough information supporting its request for approval under schedule 17 to enable it to comply with that obligation.
Applying those principles here, there was no error of law in the inspector’s approach and conclusions. Applying his own judgment to the material before him, he accepted the case put forward by the interested party. The crucial question was whether the safety and capacity of the roads on which vehicles would travel to and from the construction sites would be adequately protected without the additional controls sought by the applicant. The issue was whether such controls were necessary “to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area”: para 6(5)(b)(ii) of schedule 17. Within the statutory parameters set, that was an evaluative judgment for the inspector. Disagreement with his conclusions did not prove any error of law.
(3) The inspector’s approach was consistent with the relevant provisions of schedule 17. It was true to the statutory guidance. It took heed of the undertakings given by the applicant as qualifying authority, which did not envisage a need for extra controls to be imposed on lorry movements to and from HS2 construction sites in addition to the traffic management measures in the environmental minimum requirements, with which the interested party and its contractors were already obliged to comply.
The inspector’s approach was not inconsistent with the reasoning of the Court of Appeal in the previous proceedings. In this case, the decision-maker was able to assess evidence and reach a concluded view, upon that evidence, on the merits of the interested party’s request. It was reasonably open to the inspector to find that the information in the evidence before him was adequate for his own consideration of the impact of construction traffic on highway safety and capacity in making the determination required under para 6 of schedule 17.
In all the circumstances, the applicant’s appeal had no real prospect of success and there was no other compelling reason for it to be heard. Accordingly, permission to appeal would be refused.
Craig Howell Williams QC and Melissa Murphy (instructed by Hillingdon London Borough Council) appeared for the applicant; Timothy Mould QC (instructed by the Government Legal Department) appeared for the respondents; David Elvin QC and Michael Fry (instructed by DLA Piper UK LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Hillingdon London Borough Council) v Secretary of State for Transport and another