R London Borough of Hillingdon v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 20 December 2019 |
| Neutral Citation | [2019] EWHC 3574 (Admin) |
| Date | 20 December 2019 |
| Docket Number | Case No: CO/1561/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3574 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1561/2019
Melissa Murphy (instructed by Legal Services) for the Claimant
Tim Mould QC (instructed by the Government Legal Department) for the Defendants
Michael Fry (instructed by DLA Piper) for the Interested Party
Hearing date: 20 November 2019
Approved Judgment
The Claimant applies for judicial review of the Defendants' decision, dated 4 March 2019, to allow the Interested Party's (“IP's”) appeal against the Claimant's decision to refuse the IP's application for approval, under schedule 17 to the High Speed Rail (London — West Midlands) Act 2017 (“the HS2 Act”), for plans and specifications for proposed works (“the Works”) associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation area (“the Site”), comprising earthworks and fencing. The Claimant's challenge is limited to the conclusions reached by the Defendants in respect of the archaeological importance of the Site.
The Claimant is the local planning authority for the area in which the Site is situated. The IP is a body established by the Department for Transport and it is the nominated undertaker appointed to deliver the HS2 project, and to exercise powers under the HS2 Act.
The issues raised in the claim are potentially of importance to the determination of other applications for approval under schedule 17 to the HS2 Act, both in this local authority area and other areas.
Permission to apply for judicial review was refused on the papers, but Sir Ross Cranston, sitting as a Judge of the High Court, subsequently granted the Claimant's application for a rolled-up hearing, to enable the renewed permission application and the substantive hearing to be listed on the same day.
Legislative scheme and guidance
The HS2 Act, which received Royal Assent on 23 February 2017, authorises development of a high-speed railway link between London and the West Midlands (Phase One of the HS2 line).
Deemed planning permission
Subsection 20(1) of the HS2 Act grants deemed planning permission under Part 3 of the Town and Country Planning Act 1990 (“TCPA 1990”) for the carrying out of development authorised by the HS2 Act (subject to certain exceptions in subsection (2) which do not apply in this case).
By subsection 20(2) of the HS2 Act, such deemed planning permission is subject to the conditions contained in schedule 17 to the HS2 Act.
Schedule 17
Schedule 17 to the HS2 Act provides a scheme under which the nominated undertaker (the IP) is required to apply to local planning authorities for approval for its plans and specifications for proposed development.
Under paragraph 16 of schedule 17, an application for approval should be accompanied by a document from the nominated undertaker setting out its proposed programme, and a document explaining how matters to which the request relates fit into the overall scheme of works authorised by the Act.
Schedule 17 distinguishes between qualifying and non-qualifying authorities. The Claimant has been appointed as a qualifying authority under paragraph 13 of schedule 17. All local authorities along the Phase One route were given the option to become qualifying authorities, provided that they gave the requisite undertakings to the Minister (the Secretary of State for Transport).
Schedule 17 makes separate provision for different types of development. The Works in this case come within paragraph 3 – “Conditions relating to other construction works”. The construction works to which paragraph 3 relates are listed in paragraph 3(2), and they include “(b) earthworks” and “(e) fences or walls”.
The scheme for approval under paragraph 3 provides as follows:
“3 (1) If the relevant planning authority is a qualifying authority, development to which this paragraph applies must be carried out in accordance with plans and specifications for the time being approved by that authority.
…
(4) The relevant planning authority may, on approving a plan or specification for the purposes of this paragraph, specify any respect in which it requires there to be submitted for approval additional details of the operation or work which gives rise to the need for approval under sub-paragraph (1).
(5) Where the relevant planning authority exercises the power conferred under sub-paragraph (4), the plans and specifications in accordance with which the development is required under sub-paragraph (1) to be carried out must, as regards the specified respect, include a plan or specification showing the additional details.
(6) The relevant planning authority may only refuse to approve plans or specifications for the purposes of this paragraph on a ground specified in relation to the work in question in the following table.”
The table sets out, in the case of earthworks, the specified, possible grounds for refusal as follows:
“That the design or external appearance of the works ought to, and could reasonably be, modified –
to preserve the local environment or local amenity,
to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or to preserve a site of archaeological or historic interest or nature conservation value.
If the development does not form part of a scheduled work, that the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits.”
The term “scheduled works” is defined in section 1(2) of the HS2 Act as the works specified in schedule 1 to the HS2 Act. The Works in this case are not listed in schedule 1.
For fences and walls (except for sight, noise and dust screens), the Table sets out the specified, possible grounds for refusal as follows—
“That the development ought to, and could reasonably, be carried out elsewhere within the development's permitted limits”.
Appeal
Paragraph 22 of schedule 17 provides a right of appeal, as follows:
“Where the nominated undertaker is aggrieved by a decision of a planning authority on a request for approval under Part 1 (including a decision to require additional details), it may appeal to the appropriate Ministers by giving notice of the appeal in the prescribed form to them and to the authority whose decision is appealed against within 42 days of notification of the decision.
The appropriate Ministers for the purposes of paragraph 22 are the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government. Under paragraph 23, the appropriate Ministers have delegated the appellate function to the Planning Inspectorate, whilst retaining the ability to “recover” the appeal should they deem it necessary, which they did in this case.
The statutory guidance
Paragraph 26(1) of schedule 17 to the HS2 Act empowers the Secretary of State to give guidance to planning authorities in the exercise of their functions under that schedule. Paragraph 26(2) states that a “planning authority must have regard to that guidance”.
The Secretary of State for Transport has published the “Schedule 17 Statutory Guidance” (February 2017). Under the heading “Scope of Schedule 17”, paragraph 4.4 of the Guidance states:
“These approvals have been carefully defined to provide an appropriate level of local planning control over the works while not unduly delaying or adding cost to the project. Planning authorities should not through the exercise of the Schedule seek to:
— revisit matters settled through the parliamentary process;
— seek to extend or alter the scope of the project; or
— modify or replicate controls already in place, either specific to HS2 Phase One such as the Environmental Minimum Requirements, or existing legislation such as the Control of Pollution Act or the regulatory requirements that apply to railways.”
Under the heading “Grounds for determination”, the Guidance states:
“7.1 For all approvals under Schedule 17, the Schedule specifies the grounds that are relevant. When determining a request for approval a planning authority must only consider the grounds relevant to that approval. Therefore requests may only be refused, conditions be imposed, and modifications or additional information requested, where they relate to the grounds specified for determining the request for approval.
…..
7.6 When considering requests for approval for which the grounds include the preservation of a site of archaeological or historic interest this ground should be taken to include the preservation of the setting of listed buildings. This ground should be applied in conjunction with other material considerations.”
The Environmental Minimum Requirements
The Environmental Minimum Requirements (“EMRs”) are explained and set out in the ‘General Principles’ document published by the Secretary of State for Transport in February 2017. It explains, at paragraph 1, that the objective of the EMRs is to ensure that Phase One is delivered in accordance with the Environmental Statement that was undertaken during the passage of the HS2 Act through Parliament. Under the terms of the Development Agreement between the IP and the Secretary of State for Transport, the IP is contractually obliged to comply with the EMRs.
The components of the EMRs are:
i) the Code of Construction Practice (Annex 1);
ii) the Planning Memorandum (Annex 2);
iii) the Heritage Memorandum (Annex 3);
iv) the Environmental Memorandum (Annex 4).
The Code of Construction Practice (“the...
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