Buckinghamshire Council v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 21 July 2022 |
| Neutral Citation | [2022] EWHC 1923 (Admin) |
| Docket Number | Case No: CO/3401/2021 CO/3869/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1923 (Admin)
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/3401/2021
CO/3508/2021
CO/3869/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Matthias QC and Charles Streeten (instructed by Buckles Solicitors) for the Claimant
Richard Kimblin QC and Matthew Dale-Harris (instructed by Government Legal Department) for the Defendants
Morag Ellis QC and Alexander Greaves (instructed by Eversheds Sutherland (International) Ltd) for the Interested Party
Hearing dates: 8 and 9 June 2022
Judgment Approved by the court for handing down
The High Speed Rail (London-West Midlands) Act 2017, the 2017 Act, deems in section 20 that planning permission is granted for the HS2 project, and provides that Schedule 17 imposes conditions on that permission. These require High Speed Two (HS2) Ltd, HS2L, the Interested Party, to make requests to local authorities for approval of arrangements in accordance with which various matters related to the construction of HS2 have to be carried out. Appeals against refusal of approval or non-determination of requests for approval are made to the two Secretaries of States, the Defendants, jointly. Challenges to their appeal decisions are made by judicial review.
HS2L made eight requests to Buckinghamshire Council, the Claimant, for approval of the arrangements for eight routes in Buckinghamshire for Large Goods Vehicles, LGVs, to and from construction sites for the HS2 project. The Council did not determine seven of the requests, because it said that information necessary for their determination had not been provided by HS2L. Indeed, that meant that the period allowed for their determination had never begun. HS2L appealed against non-determination to the Secretaries of State, the seven sites generating three appeals. The Secretaries of State, through Inspectors, allowed the appeals. These three linked claims for judicial review challenge those three decisions of the Secretaries of State.
These are the third court proceedings involving consideration of a request for approval of the arrangements related to various aspects of the construction of HS2.
There are common issues across all three decision letters, and some peculiar to one or two of them. The first common ground of challenge concerns the information which has to be provided to the local authority for the request for approval to be valid, and how a dispute, about the necessity for the information sought, affects appeal rights to the Secretaries of State. This gives rise to a jurisdictional issue, and a consideration of earlier authorities. The second common ground of challenge raises issues as to the true interpretation of paragraph 6 of Schedule 17, and as to what scope it gives to the local authority to seek to modify the routes proposed by conditions. Broadly, the Council says that the decisions on the appeals, properly understood, took an overly narrow view of paragraph 6. The detail of this varies from decision to decision. There is thirdly a particular issue involving two decisions, where it is said that an important aspect of cumulative impact was ignored by each when it should have been covered at least in one decision.
The statutory, policy and agreements framework
This was set out in paragraphs 7–28 of my earlier judgment on paragraph 6 of Schedule 17 in R (London Borough of Hillingdon) v Secretaries of State for Transport and for Housing. Communities and Local Government [2021] EWHC 871 (Admin); ( Hillingdon 2). For convenience, I repeat here that which has not been changed since that judgment. The statutory guidance, in paragraphs 13–17, was updated following the decision of the Court of Appeal in R (London Borough of Hillingdon) v Secretaries of State for Transport and for Housing, Communities and Local Government; [2020] EWCA Civ 1005, Hillingdon 1.
Schedule 17 paragraph 1 provides that the requirements in paragraphs 2–12 are “conditions of the planning permission.” The enforcement provisions in the Town and Country Planning Act 1990 apply to enable the conditions to be enforced by a local planning authority. Paragraph 6 contains the “Condition relating to road transport”:
“(1) If the relevant planning authority is a qualifying authority, development must, with respect to the matters to which this paragraph applies, be carried out in accordance with arrangements approved by that authority.
(2) The matters to which this paragraph applies are the routes by which anything is to be transported on a highway by a large goods vehicle to –
(a) a working or storage site;…
(4) Sub-paragraph (1) does not require arrangements to be approved in relation to—
(a) transportation on a special road or trunk road, or
(b) transportation to a site where the number of large goods vehicle movements (whether to or from the site) does not on any day exceed 24.
(5) The relevant planning authority may only refuse to approve arrangements for the purposes of this paragraph on the ground that—
(a)… or
(b) the arrangements ought to be modified—
(i) to preserve the local environment or local amenity,
(ii) to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
(iii) to preserve a site of archaeological or historic interest or nature conservation value,
and are reasonably capable of being so modified.
(6) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph— (a) with the agreement of the nominated undertaker, and (b) on the ground referred to in sub-paragraph (5)(b)….”
“7. A ‘large goods vehicle’ is defined by reference to Part 4 of the Road Traffic Act 1988. They are goods vehicles with a maximum permissible operating weight over 7.5 tonnes, and are therefore the larger heavy goods vehicles. [Heavy goods vehicles are those over 3.5 tonnes].
“8. Applying those provisions here, [Buckinghamshire Council] is a relevant planning authority and a qualifying authority within paragraph 6(1) and (3), and became a qualifying authority in circumstances I shall come to. Hence its approval to the routes for large goods vehicles used in the construction of HS2, was required; paragraph 6(2). HS2L is the ‘nominated undertaker’….
“9. Paragraph 22 deals with appeals: where HS2L ‘is aggrieved by a decision of a planning authority on a request for approval…(including a decision to require additional details), it may appeal to the appropriate Ministers….’ The appropriate ministers may allow or dismiss the appeal or vary the decision of the authority, ‘but may only make a determination involving— (a) the refusal of approval or (b) the imposition of conditions on approval, on a ground open to that authority.’ The parties agreed before me that the requirement for HS2L's consent to the imposition of a condition by a local authority did not apply to the imposition of a condition by the Secretaries of State on an appeal, and that they could impose conditions regardless of HS2L's consent. On an application under paragraph 6, they could not impose a condition on a ground other than those in subparagraph (5)(b). [Paragraph 20 empowers the Secretaries of State to call in any request for approval for their determination].
“10. I need to refer briefly to other provisions of the Schedule. The paragraph at issue in Hillingdon 1 was paragraph 3, which related to ‘other construction works’, including earthworks and fences. An approval could only be refused on a limited range of grounds, which, so far as material, were the same as in paragraph 6 (5)(b)(i-iii), that is the preservation of local amenities, preventing prejudice to road safety and traffic flow, and to preserve a site of archaeological or other special interest. Subparagraph (4) of paragraph 3 did not have a counterpart in paragraph 6; it enabled the planning authority, on approving a plan under paragraph 3, to require additional details to be submitted by HS2L for the authority's approval. This provision did however have counterparts in paragraph 2, the condition relating to building works, and paragraph 7, relating to waste, soil disposal and excavation. But these were not relevant in Hillingdon 1.
“11. There was also a general paragraph, 16, in the Schedule, providing that a local authority did not need to consider a request for approval unless HS2L had deposited with the authority a document setting out its proposed programme of Schedule 17 requests for approval to the authority, and a document explaining how the subject of the request fitted into the overall scheme of the works authorised by the HS2 Act. Paragraph 16(2) makes it clear that this does not apply to a request for approval of additional details. There is no express general power in the Schedule, or Act, enabling relevant information about the subject matter of the request to be required from HS2L. This was an issue in Hillingdon 1.
“12. Statutory guidance: Under paragraph 26 of Schedule 17, the Secretary of State may issue guidance to local authorities, which are obliged to have regard to the guidance in the exercise of their functions under this Schedule. So too was the Inspector.”
The updated guidance issued by the Secretary of State in May 2021, after Hillingdon 1, states in [2] that the “purpose of Schedule 17 is to ensure that there is an appropriate level of local planning control over the HS2 Phase One construction works while not unduly delaying or adding costs to the project.” Later, it added that the approvals had been “carefully defined to provide that level of local planning control.” It acknowledged that...
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