Goodman Logistics Developments (UK) Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 27 April 2017 |
| Neutral Citation | [2017] EWHC 947 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2017 |
| Docket Number | Case No: CO/4217/2016 |
[2017] EWHC 947 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/4217/2016
Christopher Katkowski QC and Guy Williams (instructed by Gowling WLG) for the Claimant
Tim Buley (instructed by the Government Legal Department) for the 1 st Defendant
The 2 nd Defendant did not appear and was not represented
Hearing dates: 28 th and 29 th March 2017
Approved Judgment
Introduction
The Claimant, Goodman Logistics Development (UK) Limited ("Goodman"), applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, the Secretary of State for Communities and Local Government ("the SSCLG"), dismissing its appeal against the refusal by the Second Defendant, Slough Borough Council ("SBC"), of permission for the construction of a strategic rail freight interchange ("SRFI") on land north of the A4 Colnbrook bypass.
The appeal was considered at a public inquiry which began on 8 September 2015 and sat for 10 days over a three week period. The Inspector produced a report to the SSCLG dated 26 January 2016 in which she recommended that planning permission be refused. The SSCLG accepted that recommendation in his decision letter dated 12 July 2016. 1
A strategic rail freight interchange enables freight to be transferred from the railway system to transportation by road and vice versa and provides substantial warehousing space.
The appeal site occupies some 58.7 hectares of land. It is located to the south east of Slough and to the north of Colnbrook and Poyle. It lies between the M4 to the north and the A4 Colnbrook by-pass to the south. The M25 motorway lies 500m to the east of the site and beyond that to the south-east is Heathrow Airport. The Great Western Main Line ("GWML") runs east west on the far side of the M4. Between the eastern boundary of the appeal site and the M25 the Colnbrook Branch Freight Line runs from south west to north east. The line passes under the junction of the M4 and M25 and continues to West Drayton where it connects with the GWML.
The proposed development would provide a rail connection to the Colnbrook branch line, two sidings alongside that line, four internal reception sidings, an intermodal terminal with rail links to warehousing units and gantry cranes 25m high for the transfer of container units. The Colnbrook branch line would be upgraded. Vehicular access would be via the A4. The proposal included B8 warehousing development of up to 194,836 sqm on 3 areas of land comprising respectively 9.73 hectares, 10.58 hectares and 10.67 hectares. The scheme also included a Landscape and Green Infrastructure Strategy, both for the appeal site and adjacent lands, covering a combined area of 78.8 hectares (IR 3.10).
The appeal site was used for gravel extraction between the 1950s and 1970s and then for landfill until the 1980s. It was the subject of restoration to pasture in the 1990s. It "now forms a broad low mound rising towards the centre and is used for horse grazing" (IR 2.2). The Colne Valley Trail follows the east/south eastern boundary of the site.
The appeal site lies within the Green Belt. As Goodman points out, the Green Belt north and south of the M4 serves in part to separate the built up areas of Slough and the western part of Greater London. However, the Borough of Slough does not cover the whole of that part of the Green Belt. Instead, it covers an area which, broadly speaking, lies to the south of the M4 and to the west of the M25. Core Policy 1 of the Slough Core Strategy 2006–2026 (adopted in 2008) designates that area as a Strategic Gap. It is common ground in these proceedings that Core Policy 2 ("CP2") applies a layer of restraint within the Strategic Gap in addition to that provided by Green Belt policy. This is the subject of ground 2 in this challenge. Goodman points out that the protection of the gap between Slough and west London to the north of the M4, and hence beyond the administrative area of SBC, is dealt with by Green Belt policy and not by any additional Strategic Gap policy.
Proposals for the development of a SRFI at Colnbrook have a long history. In 1999 there was a much larger proposal by Argent Group plc for the London International Freight Exchange ("LIFE") which included the appeal site but extended to some 182 hectares of land. An appeal against refusal of permission was dismissed by the Secretary of State in August 2002 (IR 4.1).
Goodman's application for permission was made on 27 September 2010. The inquiry into the planning appeal was due to begin in October 2012. However, the inquiry was postponed because the SSCLG considered that his decision on a proposal for a SRFI in the Green Belt at Radlett Aerodrome, Hertfordshire might have significant implications for that inquiry (IR 1.2). The Radlett proposal involved a substantially larger development of about 146 hectares of land linked to the Midland Main Line. In October 2008 the Secretary of State had issued a decision letter dismissing the appeal on the Radlett site because the assessment of alternative sites had been flawed. In July 2010 the Secretary of State dismissed a second appeal proposal on the Radlett site because he considered that an SRFI at Colnbrook could be less harmful, and so the very special circumstances needed to justify the grant of permission for the Radlett scheme in the Green Belt had not been demonstrated. The developers of the Radlett SRFI, Helioslough Limited ("Helioslough"), brought a successful challenge in the High Court to that decision, which on 1 July 2011 was quashed by HHJ Milwyn Jarman QC ( Helioslough Limited v SSCLG [2011] EWHC 2054 (Admin)). He held that the SSCLG had misconstrued CP2 in SBC's Core Strategy and had consequently failed to treat the Strategic Gap policy as an additional restraint applicable to the site for the Colnbrook SRFI over and above Green Belt policy. The Radlett appeal then had to be redetermined. Initially, the SSCLG considered that the Colnbrook and Radlett appeals should be conjoined. He later decided against that course and the redetermination of the Radlett appeal was dealt with through a lengthy process of written representations. Eventually a second and final decision letter was issued on 14 July 2014 in which he granted planning permission for the Radlett SRFI. That in turn was challenged in the High Court by the local planning authority. The claim was dismissed on 13 March 2015 ( St. Albans City and District Council v SSCLG [2015] EWHC 6551 (Admin)).
Once the SSCLG had issued his decision granting planning permission for the Radlett SRFI the appeal process for the Colnbrook proposal was revived. Updated documentation was prepared, leading to the inquiry in 2015 and the decision now the subject of this claim.
Summary of the Grounds of Challenge
The Claimant advances three grounds of challenge:
(1) The National Policy Statement for National Networks ("NPS") establishes that there is a "compelling need for an expanded network of SRFIs" "to serve regional, sub-regional and cross-regional markets". The SSCLG found that the Colnbrook proposal would contribute to meeting this need and that there was no alternative site capable of fulfilling the same purpose, namely contributing to a network of SRFI in London and the South East and dealing with the gap in provision on the west side of London. The SSCLG stated that, like the Inspector, he gave "no weight" to Goodman's argument that it was inevitable that a Green Belt location is essential for meeting that need, because this was a matter he had considered in relation to need and alternative sites in DL 24–26 and DL 31 (see DL 32). It is submitted that the SSCLG failed to give adequate reasons for that conclusion and/or misunderstood Goodman's case on this issue so that he failed to take it into account as a material consideration;
(2) The SSCLG failed to interpret correctly and apply CP2 of SBC's Core Strategy in relation to development within the Strategic Gap and the Colne Valley Regional Park and/or failed to give adequate reasoning to explain how he had treated the appeal proposals against that policy;
(3) The SSCLG failed to interpret correctly and apply policy in the National Planning Policy Framework ("NPPF") concerning the openness of the Green Belt and/or failed to take into account a material consideration in that he treated visual matters as having no relevance to that issue.
On 1 November 2016 Dove J granted permission for Goodman to bring this claim, observing that ground 3 is clearly arguable, while grounds 1 and 2 were less strong.
The principles upon which the Court may be asked to intervene in a challenge under section 288 are well-established and were summarised in Bloor Homes East Midlands Ltd v SSCLG [2014] EWHC 754 (Admin) at paragraph 19. They need not be repeated here.
I will deal with key provisions of national policy and summarise the Inspector's report and the Secretary of State's decision letter before going on to address the three grounds of challenge in the order set out above. I wish to express my gratitude for the considerable assistance I received from all counsel in their written and oral submissions.
National Policy
The National Policy Statement for National Networks
On 14 January 2015 the Minister of State at the Department for Transport designated the NPS as a national policy statement under section 5(4) of the Planning Act 2008 following the statutory consultation and parliamentary debate provided for in that statute. The statement is given a special...
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