Helioslough Ltd v Secretary of State for Communities and Local Government and Another Goodman Logistics Developments (Uk) and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 2011 |
| Neutral Citation | [2011] EWHC 2054 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8739/2010 |
| Date | 01 July 2011 |
[2011] EWHC 2054 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Milwyn Jarman QC
(Sitting as a Deputy High Court Judge)
CO/8739/2010
Mr M Kingston QC, Mr D Forsdick and Miss E Harling Phillips (instructed by Hogan Lovells) appeared on behalf of the Claimant
Mr H Philpott (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
Mr M Read (instructed by St Albans DC) appeared on behalf of the Second Defendant
Mr G Williams appeared on behalf of the Interested Parties
THE DEPUTY JUDGE:
Introduction
This is an appeal by the claimant (Helioslough) under section 288 of the Town and Country Planning Act 1990, against the dismissal by the first defendant (the Secretary of State) of its appeal against a refusal of planning permission for a strategic rail freight interchange (SRFI) on land in and around a former aerodrome at Radlett near the North Orbital Road, Upper Colne Valley, St Albans (Radlett).
For some years government policy has been to encourage a greater use of rail freight services. To promote such policy the need has been recognised for facilities, which will give distributors the opportunity to transfer the primary distribution legs of their chains from HGVs on motorways to rail. The key policy is the Strategic Rail Freight Interchange Policy published by the Strategic Rail Authority in 2004. That authority exists no more, but the interchange policy was based on the government's policies for transport, planning, sustainable development and economic growth which remain relevant. Under the heading "scale", paragraph 4.28 provides that the size of these SRFIs will vary considerably around the UK but in general the size will be likely to be 40 hectares to 400 hectares. Paragraph 6.10 confirms the need for three to four SRFIs to serve London and the South East, and paragraph 6.9 acknowledges that suitable sites are likely to be located where the key rail and road radials intersect with the M25.
However, there remains a significant under-provision of rail-linked floorspace particularly in London and the South East. At present there is no SRFI serving London. It is recognised by the Secretary of State that further SRFI capacity is needed, to ensure that rail freight services can start and finish as close as to the points of consumption as possible, in order to minimise the final collection and delivery mileage by road.
It has proved difficult, however, to obtain planning permission for SRFIs in the London area. This is in part due to the recognition that such facilities need to be located close to rail links and to the M25 and accordingly are likely to be located on open land designated in redevelopment plans as Green Belt. National policy, set out in PPG2 and relevant local policy, requires a proposed developer to demonstrate that harm by the development in the Green Belt is clearly outweighed by very special circumstances that would justify granting planning permission.
Because of the significance of such proposals, both in terms of the Green Belt and the wider public interest, appeals from refusal of permission by local planning authorities are generally recovered by the Secretary of State for his or her determination in pursuance of section 79 of, and paragraph 3 to Schedule 6 of the Town and Country Planning Act 1990. This is what occurred in the present case.
An application for a SRFI was dismissed on appeal by the then Secretary of State in 2002 in respect of a site at Colnbrook between Eastern Slough and Heathrow Airport immediately to the southwest of the intersection between the M4 and the M25 (Colnbrook). The proposal was known as the London International Freight Exchange (LIFE). In so doing, he commented that the function of this open land to the west of the M25 was to help demarcate and separate London from Slough. The first interested party (Goodman) are currently promoting proposals known as Slough International Freight Exchange (SIFE) at Colnbrook which involve about 200,000 square metres of warehouse space.
Helioslough proposes a SRFI of some 330,000 square metres at Radlett. It first applied for planning permission in 2006 which was refused by the second defendant (the Council) on some 14 grounds, one of which was that Radlett lies within the Green Belt in its current development plan, the Local Planning Review adopted in 1994. Another ground was the large scale of the proposal. Helioslough appealed. By this time the second interested party (STRIFE) had been incorporated to represent groups opposed to the Radlett proposal and became a Rule 6 party at the subsequent inquiry. The inspector who heard the inquiry in his 2008 report (the 2008 report) rejected the criticism then made of the scale of the proposal, and noted that the Council's SRFI expert had accepted that the proposal fell within the scale set out in the SRFI Policy (40— 400 hectares), that scale contributors to efficiency given the level of necessary infrastructure, and that the higher the portion of goods warehousing adjacent to rail, the greater the volume of rail freight will result.
Indeed he rejected each of the grounds for refusal apart from one. He concluded that the evidence of alternative sites assessment adduced by Helioslough was wholly unconvincing. He acknowledge that there was no evidence of the availability or even existence of another superior site to meet the need which the Radlett proposal would satisfy. But, as the evidential burden was upon Helioslough to show that very special circumstances existed to outweigh the significant harm to the Green Belt, he concluded that unless a convincing case was presented that there was no suitable or available alternative to the Radlett proposal which would meet the need for SEFI to serve London and the South East and in doing so cause less harm to the Green Belt than would be the case at Radlett, then planning permission should be refused.
In the subsequent decision letter dated 1st October 2008, (the 2008 decision letter) the then Secretary of State agreed with the inspector. She agreed that there is no reason "per se" to criticise the proposal on account of its size. She considered that the need for SRFIs to serve London and the South East is a material consideration of very considerable weight and indicated that had Helioslough demonstrated that there were no alternative sites for the proposal, this would almost certainly have led her to conclude that this consideration, together with other benefits, were capable of outweighing the harm to the Green Belt and other harm. However, she was not satisfied that it had been demonstrated that no other sites would come forward to meet the need for further SRFIs to serve London and the South East. She accordingly dismissed the appeal.
Helioslough did not waste much time in carrying out a further assessment of alternative sites in order to satisfy what it understood the Secretary of State to be saying was required. A long list of some 72 sites was obtained adopting certain criteria, including that the site must provide a minimum of 40 hectares of developable land and lie within 32 kilometres of an M25 junction from the A1 to the M25 (the North West Sector). After further key operational criteria were applied a short list of five was arrived at including Radlett and Colnbrook. The latter was identified as site 9/10. The comparable assessment was carried out on a basis of a SRFI of equivalent size to the Radlett proposal. It concluded that the best site was Radlett. Armed with this report, Helioslough submitted a further application the following month which was refused by the Council in July 2009, again on a number of grounds.
Helioslough again appealed and an inquiry was held by an inspector over 15 days commencing on 24th November 2009. Goodman submitted written representations to the inquiry on its SIFE proposal at Colnbrook. STRIFE was again a Rule 6 party.
By a report dated 9th March 2010 (the 2010 report) an inspector appointed by the Secretary of State recommended that Helioslough's appeal should be allowed. The inspector agreed that the proposal would constitute inappropriate development in the Green Belt. Significant harm would be caused to the Belt itself, as well as loss of openness, significant encroachment into the countryside, and the contribution of urban sprawl. There would be adverse effects on the landscape and ecology and the setting of St Albans.
However, the inspector also concluded that very special circumstances existed which outweighed the development plan. These included the local benefits of a country park included the proposal, together with improvements to footpaths and bridleways and a bypass around the two adjacent urban settlements at Park Street and Frogmore. The particular circumstances upon which the inspector relied in coming to his conclusion was the need for SRFIs to serve London and the South East and the lack of more appropriate alternatives locations for a SRFI in the North West Sector.
The inspector had visited Radlett, Daventry International Rail Freight Terminal, and locations of sites which were suggested as alternatives in the North West Sector including Colnbrook, which also falls within the Green Belt designation. It also falls within a strategic gap identified in...
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