R David Gate on behalf of Transport Solutions Lancaster and Morecambe v The Secretary of State for Transport and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 28 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1707 |
| Date | 28 November 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2013/2932 |
[2013] EWCA Civ 1707
IN THE COURT OF APPEAL (CIVIL DIVISION)
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Sullivan
C1/2013/2932
Mr Richard Turney (instructed by Unrecorded Solicitor)) appeared on behalf of the Claimant
The Defendant was not represented and was not present in Court
The wheel in this case has come full circle. This is a renewed application for permission to appeal against the order dated 4 October 2013 of Turner J dismissing the applicant's claim for judicial review in a rolled up hearing of the Lancashire County Council (Torrisholme to the M6 Link Road A683 completion of Heysham to M6 Link Road) Order 2013, ("the Order").
The factual background is set out in some detail in Turner J's judgment: [2013] EWHC 2937 Admin. In the claim before the judge the order was challenged on five grounds, all of which the judge dismissed. Permission to appeal was sought on grounds 1, 2 and 5. Permission to appeal was refused on the papers by Davis LJ.
In this renewed application, Mr Turney on behalf of the applicant seeks permission to appeal on grounds 1 and 2 only. They were summarised by the judge as Ground 1, the defendant had no power to make the order; and Ground 2, the consultation process was flawed. I add "flawed" because it was said to be unfair.
It is convenient to deal with Ground 2 first. In this ground, the applicant submits that the consultation process was not fair because the supporting information issued in conjunction with the Statement of Community Consultation which had to be provided under section 47 of the Planning Act 2008 had told consultees that:
"The following elements of the design will not be open for consultation or change for the reasons stated: route and road type."
As the judge said, and as Davis LJ noted, at first sight that is a very strange and potentially most unfair restriction upon a consultation exercise. But as the judge said, it is necessary to go beyond the first impressions and to consider the very lengthy history of the proposals to link Heysham to the M6 in order to form a judgment as to whether there really was unfairness.
Although Mr Turney submitted that the whole purpose of consultation is that it should take place at a formative stage when options are genuinely open and before matters are foreclosed, the question is whether that is a realistic proposition on the particular and somewhat unusual facts of this case. That is because the issue of a link road between the port of Heysham and the motorway, what is now the M6 motorway, has been an issue which has been under consideration for a very long time. The proposed route now is in fact the same route as was proposed in an earlier scheme in respect of which I rejected the claim for judicial review in 2008.
Whether there has been unfairness in a consultation process is very much a question of fact dependent on particular circumstances of the case. In my judgment, this ground of challenge has no prospect of success; firstly, in the light of the history of the matter referred to by the judge but also because the examining authority for the proposal considered whether or not objectors should be allowed to object to the principle of the scheme.
I appreciate that that does not entirely meet Mr Turney's point that they should have been able to do so at an earlier stage, but the fact remains that the examining authority said that the principle of the development under consideration, realistic alternative non-highway options, and realistic alternative alignments for the link road that would address the objectives of the scheme, were all matters which would be considered (see paragraph 36 of the authority's report).
The adequacy of the statutory consultation process under the 2008 Act was also considered by the examining authority. In paragraphs 215 and 216 of the report, the examining authority was satisfied that even if at some of the consultation meetings the promoters or their consultants may have given unhelpful comments (that is to say as to whether or not the route or road type could be considered), in practice objections in principle and fundamental alternatives were permitted to be canvassed. The examining authority considered the consultation report and concluded:
"I...
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