Queen on Application of Blue Green London Plan v Secretary of State for Environment Food & Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 16 January 2015 |
| Neutral Citation | [2015] EWHC 727 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4916/2014 |
| Date | 16 January 2015 |
[2015] EWHC 727 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/4916/2014
Mr Michael Humphries QC and Mr A Booth (instructed by the Berwin Leighton Paisner) appeared on behalf of the Interested Party
Mr Andrew Parkinson appeared on behalf of the Claimant Thames Blue Green Economy
Mr Richard Harwood QC and Mr David Blundell appeared on behalf of the Defendant
Mr Richard Harwood QC and Mr David Blundell appeared on behalf of the Defendants
This is an application for permission to apply for judicial review following its adjournment to court by Mr Justice Lewis. The basis upon which permission is sought goes rather beyond the grounds which he considered. I shall return to them in the light of the way the argument has developed towards the end of this judgment.
The facts upon which the further arguments deployed by Mr Parkinson on behalf of the claimant rely were canvassed in the Statement of Facts and Grounds but no legal ground was put forward in consequence of those facts. I have however heard full argument from Mr Parkinson on those points although not the full merits response which, with greater notice, the interested party in particular might have put forward. The relevant skeleton argument from the claimant and the associated witness statement of the witness Lady Berkeley are dated 9 January.
The contest turns upon the arguability of provisions in the Planning Act 2008. Very briefly, the Government drafted a National Policy Statement (NPS) concerned with waste water. That draft was to lead to an NPS being designated, following its being laid before Parliament. It was accepted that this NPS would constitute a plan or programme for the purposes of the Strategic Environmental Assessment Directive. For the purposes of compliance with that Directive — and there is no dispute about compliance with that Directive — it was necessary for the Government, as part of its strategic environmental assessment, to consider alternatives to the plan which it was contemplating, namely the Thames Tideway Tunnel.
The Thames Tideway Tunnel had as its purposes dealing with a problem which was sufficiently severe to have led to infraction proceedings in Brussels against the United Kingdom. The problem was related to the capacity of the combined sewerage system in London to cope with the demands that were and were expected to be placed on it to cope with sewage from the existing and growing population as well as surface water. Putting it shortly for these purposes, the sewerage system could not cope and its overload, particularly in storm conditions, led to untreated sewage being discharged into the Thames with the associated problems which that would create. The Bazalgette system had not been intended for the situation as it was now found to be.
The Strategic Environmental Assessment was required by the Directive to cover "reasonable alternatives, taking into account the objectives and the geographical scope of the plan or programme". These had to be identified, described and evaluated. An outline of the reasons for selecting those alternatives had to be provided. The Strategic Environmental Assessment of Plans and Programmes Regulations, SI 2004/1633, give effect to that Directive.
The NPS describes what conclusions were reached in relation to the alternatives which it considered. The NPS describes the need for new waste water infrastructure after it has considered a number of alternatives to new waste water infrastructure. In Section 2.4 these include reducing demand for waste water, sustainable drainage systems, separating retrospectively the various sewer systems, decentralising waste water treatment infrastructure and then reaching general conclusions on alternatives to new large waste water infrastructure, coming to the conclusion that although demand reduction and decentralised treatment may help, the need for new waste water infrastructure remains.
The NPS then considers in relation to the infrastructure project with which I am concerned — now known as the Thames Tideway Tunnel — what the drivers for demand behind that particular tunnel are in Section 2.6.14 onward. The drivers include the ageing infrastructure, the consequent overflow from sewerage systems into the Thames (particularly after storms), with a reduction of biodiversity and the implications for the attractiveness of the environment. It refers to the Water Framework Directive and the Urban Waste Water Treatment Directive as the initial drivers of the Thames Tunnel. It refers to climate change and population and then turns to the development of a preferred solution.
A number of alternatives are again considered at this stage. These are: what is called the non-intervention strategy, then preventing rain water from entering the sewerage system by sustainable drainage system, providing extra capacity within the existing sewerage system or, alternatively, separating out the existing combined system. The alternative which develops into the Thames Tideway Tunnel is intercepting the combined sewers at their point of discharge into the River and conveying what otherwise would be discharged to a suitable site for treatment. It concludes that it was not appropriate to do nothing. The Government had considered that detailed investigations had confirmed the case for a Thames tunnel as the preferred solution. Paragraph 2.6.34 stated:
"2.6.34 The examining authority and the decision maker should undertake any assessment of an application for the development of the Thames Tunnel on the basis that the national need for this infrastructure has been demonstrated. The appropriate strategic alternatives to a tunnel have been considered and it has been concluded that it is the only option to address the problem of discharging unacceptable levels of untreated sewage into the River Thames within a reasonable time at a reasonable cost. It would be for Thames Water to justify in its application the specific design and route of the project that it is proposing, including any other options it has considered and ruled out."
Under the heading of "Alternatives" it says:
"3.4.1 Part 2 of this NPS provides an overview of the strategic alternatives both to the general nationally significant need for waste water infrastructure and to the project-specific need for the Thames Tunnel ….. These strategic alternatives do not need to be assessed by the examining authority or the decision maker."
It points out that —
"This NPS has not considered the detail of specific sites, routes, designs, layout, construction programmes or operational processes for these particular projects, which are the responsibility of the applicant [Thames Water Utilities Ltd] to determine, in conjunction with the [relevant regulators]."
A number of further relevant points are made with regard to impacts. For present purposes it only needs to be noted that the Thames Tunnel was considered to be an infrastructure scheme of national significance because it was essential to meet water quality objectives, reduce human health impacts, reduce aesthetic impacts and meet statutory requirements.
The next stage in the process was that an Environmental Impact Assessment was carried out of the project, to which the Environmental Impact Assessment Directive relates. The project was that for which the development consent would be sought by means of an order under the Planning Act 2008. That was for the Thames Tideway Tunnel.
The application then came to be considered pursuant to the Special Provisions of the 2008 Act. I emphasise these are Special Provisions. They dealt particularly with national infrastructure projects and are designed to ensure that they are dealt with under a procedural regime and a staged process that is different from that which would be applicable to a normal planning application and is different from that which applied in days of yore to nationally important infrastructure projects which were otherwise dealt with through the planning system. It is important in understanding the way in which the 2008 Act works to recognise both those aspects.
I turn therefore to the way in which that Act is drafted. Part 2 (in Section 5) deals with national policy statements and affirms in Section 5 (5) (a) that the policy in that statement may set out, in relation to a specified description of development, the amount, type, size of development appropriate nationally or for a specific area. There are various procedural provisions with which I need not be concerned at this stage but they include of course environmental appraisals, sustainability appraisal and public and parliamentary procedures. Section 13 permits the court to hear a challenge by way of judicial review to a national policy statement. No such challenge was brought and the time for doing so has long expired.
The way in which an application for a Development Consent Order is dealt with is set out in Chapter 2 — a panel, if I can put it that way, of inspectors is set up to deal with the applications. They report, having dealt with written and oral submissions, with a recommendation to the Secretaries of State. The examination is constrained by Section 87, a section which was at the heart of Mr...
To continue reading
Request your trial
-
R Neil Richard Spurrier v The Secretary of State for Transport
...97 In addition, relying upon R (Thames Blue Green Economy Limited) v Secretary of State for Communities and Local Government [2015] EWHC 727 (Admin) upheld [2015] EWCA Civ 876; [2016] JPL 157 and R (Scarisbrick) v Secretary of State for Communities and Local Government [2017] EWCA Civ 78......
-
R Thames Blue Green Economy Ltd (First Claimant) v The Secretary of State for Communities and Local Government
...Defendant Lord Justice Sales 1 This is a renewed oral application for permission to appeal in relation to a decision of Ouseley J — [2015] EWHC 727 (Admin)— in which the judge refused to give permission to apply for judicial review in relation to the grant by the Secretary of State of a de......
-
R ClientEarth v Secretary of State for Business, Energy and Industrial Strategy
...has been considered by the courts in R (Thames Blue Green Economy Limited) v Secretary of State for Communities and Local Government [2015] EWHC 727 (Admin); [2015] EWCA Civ 876; [2016] J.P.L. 157; R (Scarisbrick) v Secretary of State for Communities and Local Government [2017] EWCA Civ ......
-
R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy
...Ltd.) v Secretary of State for Communities and Local Government [2015] EWCA Civ 876, and at first instance in the same case ( [2015] EWHC 727 (Admin)), and also that of the Divisional Court in R. (on the application of Spurrier) v Secretary of State for Transport [2020] P.T.S.R. 240, he a......