Davies v Secretary of State for Communities & Local Government

JurisdictionEngland & Wales
JudgeMR JUSTICE SULLIVAN
Judgment Date29 August 2008
Neutral Citation[2008] EWHC 2223 (Admin)
Date29 August 2008
Docket NumberCO/2734/2008
CourtQueen's Bench Division (Administrative Court)

[2008] EWHC 2223 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Sullivan

CO/2734/2008

Between:
The Queen on the Application of Linda Davies
Claimant
and
Secretary of State for Communities and Local Government
Defendant
Lancashire County Council
Interested Party

Mr Jeremy Pike (instructed by Earthrights Solicitors) appeared on behalf of the Claimant

Mr John Litton and Mr David Blundell (instructed by Treasury Solicitor) appeared on behalf of the Defendant

Miss Frances Patterson QC and Mr Christopher Buttler (instructed by Lancashire County Council) appeared on behalf of the Interested Party

MR JUSTICE SULLIVAN

Introduction

1

This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash the defendant's decision, contained in a decision letter dated 7 February 2008, to grant planning permission, subject to conditions, for the construction of the Heysham to M6 Link Road. The application for planning permission was made by the interested party on 14 December 2005. The defendant called in the application for her determination, and appointed an Inspector to hold a public inquiry.

2

Following an inquiry over a five-week period from 10 July to 10 August 2007, the Inspector reported to the defendant on 21 November 2007. In his report the Inspector recommended that planning permission be granted subject to conditions. With one minor exception, which is not relevant for present purposes, the defendant agreed with all of the Inspector's conclusions and with his recommendation.

3

The claimant is a member of Transport Solutions for Lancaster and Morecambe (TSLM), a group of concerned organisations and individuals which opposed the proposed link road at the public inquiry. TSLM and the Environmental and Sustainable Transport Alliance (ESTA) presented a joint case to the inquiry and instructed the same counsel, Mr Pike, who appeared on behalf of the claimant in these proceedings.

4

The Inspector's report is a lengthy document, running to 99 pages excluding a number of annexes. To set the scene for present purposes, it is sufficient to refer to some of the Inspector's summary conclusions in paragraph 8.12 of the report:

“8.12.1 I have concluded above that the scheme is an express element of development plan policy. I also take the view, having regard to the history of

the matter and such contextual documents as the City Council's Core Strategy, that it is to the promoted northern route that the development plan refers … A western route would also fall within the terms of the development plan, but I have concluded above that on legal and other grounds such a route is unlikely to prove viable.

8.12.2 In these circumstances, and having regard to section 38(6) of the 2004 Act, this application falls to be determined in accordance with the development plan unless material considerations indicate otherwise. I have considered the main thrust of the case presented by ESTA/TSLM, namely that no new road is necessary as the traffic problems of the area could be resolved by a package of other measures. My conclusion is that this proposition has not been made out, not least because no credible means has been identified of carrying existing and expanding volumes of freight to Heysham except by road.

8.12.6 Few significant adverse ecological impacts would remain after mitigation. The impact on geology is predicted to be broadly neutral. I do not believe that the new lower level bridge proposed across the River Lune would have any significant effect on flood risk.

8.12.7 The scheme would have an adverse landscape impact and amount to inappropriate development in the Green Belt. I do not accept that its impact would be as extreme as that suggested by some objectors. Nevertheless, there would clearly be harm, including that arising from inappropriate development, to which significant weight must be afforded. To my mind, however, this harm would be clearly outweighed by the very special circumstances relied on by LCC [Lancashire County Council, the interested party in these proceedings] … I have concluded above that there is no viable alternative route which would avoid the Green Belt. After mitigation, there would be a significant residual impact on landscape, but for similar reasons I do not consider that this would be unacceptable.

8.12.9 Whether taken individually or cumulatively, I do not find the residual impacts of the scheme of sufficient weight to overturn the presumption in section 38(6) of the 2004 Act that the determination of planning applications should be made in accordance with the development plan. I have therefore decided to recommend that conditional planning permission be granted.”

The claimant's grounds of challenge

5

In the order in which they were presented in Mr Pike's oral submissions to the court, the claimant's three grounds of challenge were:

(1) The defendant failed to have regard to a material consideration, namely the interested party's failure to follow the Department of Transport's Transport Analysis Guidance (TAG) when considering whether there were alternatives to the proposed road scheme. Alternatively, she failed to give adequate reasons as to why the guidance in TAG need not be followed.

(2) The defendant failed to have regard to a material consideration, namely her own Department's Planning Policy Statement 25 (PPS25), which deals with 'development and flood risk'. Alternatively, she failed to give adequate reasons for not applying that Policy Guidance.

(3) The defendant erred in rejecting the claimant's contention that the interested party's Environmental Statement was inadequate in a number of respects so that planning permission could not lawfully be granted for the scheme.

I will deal with each of these grounds in turn.

Ground (1): TAG

6

In the call in letter the defendant set out a list of the matters about which she particularly wished to be informed. They included the following:

“b) Whether the road alignment as proposed, is, in principle, the most appropriate and sustainable route.

c) The extent to which the proposed development is consistent with Government policies in Planning Policy Statement 1: Delivering Sustainable Development and its emphasis on the importance of sustainable development as the core principle underpinning the planning system.

In particular, the requirement to reduce the need to travel and encourage accessible public transport provision, to secure more sustainable patterns of transport development, should be considered, together with the Government's commitment to promote a strong, stable and productive economy that aims to bring jobs and prosperity for all.

g) The extent to which the proposed development is consistent with the advice in Planning Policy Guidance Note 13: Transport, in particular on the need to promote more sustainable transport choices and reduce the need to travel especially by car.”

7

Mr James, one of TSLM's witnesses, gave evidence covering options, alternatives and national policy guidance. His proof of evidence said, in part:

“1.5 Under b), as set out in the joint TSLM/ESTA statement of case, the issue is felt to be more about whether the proposed Heysham-M6 Link (HM6L) is the most appropriate and sustainable solution to the area's transport needs. The view of TSLM, which I share, is that solutions led by major road schemes are not the most appropriate and sustainable solutions, so choice of routes for major road schemes is very much a secondary issue. This does not preclude solutions with elements of road improvement to make best use of existing capacity, but schemes which involve significant increases in road capacity and enhanced travel times primarily for one sector only of transport users are another matter.

1.6 Options, alternatives, and national guidance have been brought together in one proof of evidence because of the inextricable links between them. A central issue in this proof is that Lancashire County Council (LCC) has failed to examine the wide range of possible alternatives to major road construction to solve the transport problems of Lancaster District. In doing so LCC has failed to follow the WebTAG guidance which specifically calls for an option identification and distillation process to ensure that the optimal solution has been correctly identified and that there is an audit trail to explain the choice of preferred option. PPG 13 provides the sustainable transport framework on which WebTAG is based.”

8

In the summary section of Mr James' proof of evidence, he said:

“2.3 Although refined and strengthened over the years, the principle of beginning an appraisal with as wide a range of options as possible was established in GNATA (Guidance on NATA, also 1998) so has been around for almost 10 years. The April 2005 guidance on LTP major schemes, although it only just predates the submission on the MSBC [Main Scheme Business Case] for the HM6L, repeats the guidance on option identification and appraisal from the April 2003 revision of the LTP major scheme guidance, which itself reiterates the guidance in WebTAG.

2.4 There is therefore no reason why this guidance should not have been followed in the preparation of HM6L as a submission for LTP major scheme Programme Entry in July 2005. TAG Unit 1.4 Section 2.9.3 clearly states: 'The assessment of alternatives should start from an initial wide base of possible options. The Department [of Transport] requires a clear understanding of why some particular options are preferred to others. Each option must be assessed against both local...

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