Mark Whitby v Secretary of State for Transport and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] EWHC 2804 (Admin) |
| Date | 14 October 2015 |
| Docket Number | Case No: CO/2071/2015 & CO/2073/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 2804 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang Dbe
Case No: CO/2071/2015 & CO/2073/2015
The Queen on the application of
Paul Brown QC and Andrew Parkinson (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Richard Kimblin (instructed by The Government Legal Department) for the First and Second Defendants (CO/2071/2015) and for the Defendant (CO/2073/2015)
Natalie Lieven QC and Richard Clarke (instructed by Winckworth Sherwood LLP) for the Third Defendant (CO/2071/2015)/Interested Party (CO/2073/2015)
Hearing date: 24 September 2015
The Claimant brings three related claims challenging the decision to construct the Ordsall Chord — a proposed 340m elevated chord railway in the Ordsall area of Greater Manchester — which will link the three main stations in Manchester, and improve rail capacity. The challenge arises from the choice of route, which will result in substantial harm to a collection of listed heritage assets associated with the historic development of the railways in the 19 th century. An alternative route (Option 15) which would avoid this harm has been rejected.
The Claimant, who is a former President of the Institution of Civil Engineers, heads an engineering practice and has wide experience in major engineering projects. He was a member of the Design Panel for the Ordsall Chord, and a proponent of Option 15. He resigned from the Panel to enable him to appear as an objector at the Inquiry.
The Claimant brings three claims:
i) an application under section 22 of the Transport and Works Act 1992 ("TWA 1992"), under CPR Pt 8;
ii) an application under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("PLBCAA 1990"), under CPR Pt 8;
iii) an application for judicial review of the deemed planning permission granted pursuant to section 90(2A) of the Town and Country Planning Act 1990 ("TCPA 1990"), under CPR Pt 54.
By order of Dove J., dated 5 June 2015, all three claims were ordered to be heard together and the application for permission to apply for judicial review was listed as a rolled-up hearing with the substantive claim for judicial review.
The decisions
On 16 September 2013, Network Rail Infrastructure Limited ("NR") applied to the Secretary of State for Transport ("SST") to make the Network Rail (Ordsall Chord) Order ("the Order"), under the TWA 1992, to construct and maintain a new chord railway in Manchester and Salford.
NR also applied to the SST for a direction under section 90(2A) of the TCPA 1990 granting deemed planning permission, subject to conditions, for the works specified in the Order.
On 16 September 2013, NR made ten associated applications for listed building consent to Manchester City Council and Salford City Council, which were automatically referred to the Secretary of State for Communities and Local Government ("SSCLG") for decision, pursuant to section 12 of the PLBCAA 1990.
The SST and the SSCLG appointed an Inspector, Mr Brendan Lyons, to conduct concurrent Inquiries and submit a report. The Inquiries sat for 13 days, and the Inspector made an accompanied and unaccompanied site visits. In a lengthy report, dated 6 January 2015, he accepted that the proposed scheme ("the Scheme") would cause substantial harm to heritage assets, but he found that there was no reasonable alternative route for the rail link, and the public benefits to be achieved by the rail link justified the harm. Therefore he recommended that the Order sought should be made and that the applications for deemed planning permission and listed building consent should be granted, subject to conditions.
On 25 March 2015, the SST issued a decision letter in which he agreed with the recommendations of the Inspector and gave notice of his intention to make the Order and planning direction sought. The Order was duly made, pursuant to sections 1, 3 and 5 of the TWA 1992, on 30 March 2015. Deemed planning permission for the development in the Order was then given under section 90(2A) of the TCPA 1990.
On 25 March 2015, the SSCLG issued two decision letters (one to Manchester City Council and the other to Salford City Council) in which he agreed with the recommendations of the Inspector, and granted listed building consent, subject to conditions, pursuant to sections 8, 16 and 17 of the PLBCAA 1990.
Grounds of challenge
The way in which the grounds in the Claimant's skeleton argument were formulated differed from the pleading in his claim form. No objection was taken to this by the Defendants. I have therefore treated the grounds in the claim form as if amended by the skeleton argument.
Ground 1. The Claimant submits that the Inspector, and subsequently the SST and SSCLG, erred in their interpretation of paragraph 133 of the National Planning Policy Framework ("NPPF") which states that where a development will cause substantial harm to designated heritage assets, permission should be refused " unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits". The Claimant submits that NR was required to demonstrate that it was not possible to deliver the substantial public benefits of the Ordsall Chord without causing substantial harm to the designated heritage assets. If there was another means of achieving the "substantial public benefits" without causing "substantial harm or loss" to heritage assets, the harm could not be said to be "necessary". The broad approach taken by the Inspector, and the Secretaries of State, in deciding that Option 15 was not a reasonable alternative, because of its adverse impact on the regeneration proposals for Middlewood Locks, departed from the clear meaning of paragraph 133 and wrongly diluted the protection afforded to heritage assets under the NPPF.
Ground 2. If, contrary to the Claimant's primary submission on Ground 1, the Inspector and the Secretaries of State were entitled to take a broad approach and consider whether Option 15 was a reasonable alternative, they were required as part of that exercise to apply the duties in sections 66(1) and 72(1) of the PLBCAA 1990, to give "considerable importance and weight" (per Sullivan LJ in Barnwell Manor, at [29]) to the fact that Option 15 would preserve the designated assets which would be harmed by the Scheme, and give adequate reasons for finding that the adverse effect on the regeneration of Middlewood Locks caused by Option 15 outweighed the harm to the heritage assets caused by the Scheme. They failed so to do.
Ground 3. If, contrary to the Claimant's primary submission on Ground 1, the Inspector and the Secretaries of State were entitled to take a broad approach and consider whether Option 15 was a reasonable alternative, they erred in failing to consider whether the substantial benefits of a rail link outweighed the adverse impact on the regeneration proposals for Middlewood Locks, or failing to give adequate reasons for their conclusion on this issue.
The statutory framework
Section 1 of the TWA 1992 makes provision for the SST to make an order relating to the construction of a railway, by way of a statutory instrument. Such an order may encompass several different authorisations, for example, compulsory purchase and planning permission.
Section 16 of the TWA 1992 provides:
"16. Town and Country Planning
(1) In section 90 of the Town and Country Planning Act 1990 (which gives power to deem planning permission to be granted in certain cases where development is authorised by a government department) after subsection (2) there shall be inserted —
"(2A) On making an order under section 1 or 3 of the Transport and Works Act 1992 which includes provision for development, the Secretary of State may direct that planning permission for development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.""
There are no statutory criteria for the making of an order under section 1 of the TWA 1992. However, since this Order required planning permission, in making his decision the SST followed his usual practice and took into account both national and local planning policies as relevant considerations. In doing so, he recognised that the policies in the NPPF and the local development plan which protect heritage assets reflected the statutory duties in section 66 and 72 of the PLBCAA 1990, though these statutory duties are not directly applicable to a TWA Order or the giving of directions as to deemed planning permission (paragraph 9 of the SST's letter of 25 March 2015).
The PLBCAA 1990 restricts works affecting listed buildings unless authorised (section 7). Section 16 provides:
"16(1) Subject to the previous provisions of this Part, the local planning authority, or as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions.
(2) In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special...
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Mark Whitby v Secretary of State for Transport and Others
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