London Borough of Hillingdon v The Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 13 April 2021 |
| Neutral Citation | [2021] EWHC 871 (Admin) |
| Date | 13 April 2021 |
| Docket Number | Case No: CO/3211/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
and
[2021] EWHC 871 (Admin)
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/3211/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Craig Howell Williams QC and Melissa Murphy (instructed by THE SOLICITOR TO THE LONDON BOROUGH OF HILLINGDON) for the Claimant
Timothy Mould QC (instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendants
David Elvin QC and Michael Fry (instructed by DLA PIPER UK LLP) for the Interested Party
Hearing dates: 10–11 February 2021
Approved Judgment
This action concerns the specific statutory regime for the approval of particular details in respect of the high speed railway between London and Birmingham, HS2, currently under construction. The London Borough of Hillingdon, LBH, challenges, by way of judicial review, the decision of 28 July 2020 by an Inspector appointed by the Defendants. He allowed an appeal by High Speed Two (HS2) Limited, HS2L, from the refusal of an approval by LBH, under paragraph 6 of Schedule 17 to the High Speed Rail (London-West Midlands) Act 2017, the HS2 Act. The approval of LBH had been sought by HS2L for the lorry routes to be used by construction lorries to and from the HS2 construction sites within LBH's area.
At the heart of LBH's case is its contention that HS2L ought to have provided a traffic impact assessment of the routes it had selected. This is not because LBH contended that other routes should have been selected by HS2L instead, but because LBH, as planning and highway authority for the routes selected, wished to impose controls on the level of usage of those routes by construction traffic, particularly in the normal peak traffic hours. To select and justify the controls it might wish to impose, it needed information which it said HS2L was duty bound to supply. HS2L had not supplied that information and so the Inspector was wrong in law to allow HS2L's appeal.
For this contention, LBH relied strongly on the judgment of the Court of Appeal in R(London Borough of Hillingdon) v Secretary of State for Transport and another [2020] EWCA Civ 1005, [2021] PTSR 113; for convenience, I refer to it as Hillingdon 1. That case also concerned the duty on HS2L to supply information for the purposes of approvals sought, but under a different paragraph of Schedule 17 to the HS2 Act. The Court of Appeal judgment came out on 31 July 2020, after the Inspector's decision now under challenge. The Court of Appeal allowed an appeal from Lang J, whose judgment had been applied by the Inspector in this case. On 23 February 2021 the Supreme Court refused HS2L permission to appeal.
Mr Howell Williams QC for LBH in that appeal, and before me, contends that the Court of Appeal decision is applicable to the decision here, yet the Inspector applied the approach of Lang J and of the Secretaries of State which the Court of Appeal had found unlawful. Mr Mould QC for the Secretaries of State and Mr Elvin QC for HS2L contend that the decision of this Inspector did not suffer, in any material way, from the vices to which the Court of Appeal judgment in Hillingdon 1 was addressed.
The statutory, policy and agreements framework
The Act: S20(1) HS2 Act deems planning permission to have been granted under the Town and Country Planning Act 1990, TCPA, for the construction and operation of HS2. S20(3) provides: “Schedule 17 imposes conditions on deemed planning permission under subsection (1).”
Schedule 17 paragraph 1 provides that the requirements in paragraphs 2–12 are “conditions of the planning permission.” The enforcement provisions in the TCPA 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,
(b) a site where it will be re-used, or
(c) a waste disposal site.
(3) In this paragraph “relevant planning authority” means, subject to paragraph 27, the unitary authority or, in a non-unitary area, the county council in whose area the development is carried out.
(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)….”
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.
Applying those provisions here, LBH 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”. LBH contended that a traffic impact assessment was required in order for it to know whether and how the arrangements could and should be modified to meet the provisions of paragraph 6(5)(b)(i) and (ii). It proposed conditions to which HS2L did not consent, and so for the purposes of its decision on the application for the approval of arrangements, they could not be imposed.
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).
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.
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.
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 guidance issued by the Secretary of State provides in [4.4] that the approvals in Schedule 17:
“have been carefully defined to provide an appropriate level of local planning...
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