R (on the application of Network Rail Infrastructure Ltd) v The Secretary of State for the Environment, Food and Rural Affairs Eden District Council and Another (Interested Parties)

JurisdictionEngland & Wales
JudgeThe Hon. Mr Justice Holgate,Mr Justice Holgate
Judgment Date08 September 2017
Neutral Citation[2017] EWHC 2259 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/807/2017
Date08 September 2017

[2017] EWHC 2259 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Holgate

Case No: CO/807/2017

Between:
R (on the application of Network Rail Infrastructure Limited)
Claimant
and
The Secretary of State for the Environment, Food and Rural Affairs
Defendant

— and —

Eden District Council (1)
Story Homes Limited (2)
Interested Parties

Juan Lopez (instructed by Bond Dickinson LLP) for the Claimant

Tim Buley (instructed by Government Legal Department) for the Defendant

Jonathan Easton (instructed by Shoosmiths LLP) for the Second Interested Party

Hearing dates: 25 and 26 July 2017

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon. Mr Justice Holgate Mr Justice Holgate

Introduction

1

The Claimant, Network Rail Infrastructure Ltd, ("NR"), applies for judicial review of the decision given by an Inspector on behalf of the Defendant, the Secretary of State for Environment, Food and Rural Affairs, by letter dated 4 January 2017. The Inspector decided that the order made under section 257 of the TCPA 1990, known as the Eden District Council Public Path Stopping Up Order (No. 1) 2015 Cross Croft, Appleby ("the Order"), should not be confirmed. In summary, section 257 enables a local planning authority, in this case Eden District Council ("EDC"), to authorise by order the stopping up or diversion of any footpath, bridleway or restricted byway, if they are satisfied that it is necessary to do so in order to enable development to be carried out.

2

The recital to the Order stated that it was made to enable development to be carried out under two planning permissions granted by Eden District Council, namely 11/0989 granted on 30 July 2013 and 14/0594 granted on 13 May 2015. Both permissions authorised the construction of up to 142 houses, and the provision of open spaces and associated infrastructure at land off Cross Croft/Back Lane in Appleby. The site lies to the south west of the Settle-Carlisle railway line and just south of Appleby station. Both permissions were granted subject to a negative Grampian condition (see Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633) which prevented more than 32 houses being constructed until a footpath diversion order had been made and confirmed. Currently the footpath runs close to the north-eastern boundary of the development site and then crosses both tracks of the railway line. The condition stated that the Order should provide for (a) the stopping up of the footpath so as to prevent any access from the development site to the railway crossing, (b) the stopping up of a section of the existing footpath and (c) the provision of an alternative route which would run inside the north-eastern boundary of the development site and connect with a highway crossing the railway line over a bridge further to the north west. The Order made by EDC gave effect to that requirement. The condition was imposed to address safety concerns which NR had said would result from the carrying out of the development.

3

The Order attracted objections from (inter alia) members of the public and associations representing the interests of footpath users. Consequently, by section 259 the Order could not take effect unless it was confirmed by the Defendant. He decided to hold a public local enquiry under schedule 14 of TCPA 1990.

4

The inquiry was held on 29 November 2016. On the previous day, the Inspector made an unaccompanied inspection of the footpath and the site of the development. By the time of the public inquiry, the developer, Story Homes Limited ("SHL"), had applied under section 73 of TCPA 1990 for the grant of a fresh planning permission for the same development but with amendments to the Grampian condition. the developer's planning application was made in the context of the Order under section 257 which had already been made by EDC. The developer proposed that (a) the restriction to 32 houses should be increased to 64 houses and (b) that restriction would be lifted if either of two exceptions were satisfied. The first exception continued to repeat the requirement that the stopping up order should be made and confirmed. But in the alternative, the second exception would allow the prohibition on the construction of more than 64 homes to be lifted in the event of the Defendant deciding that the order should not be confirmed. On 9 March 2016 EDC approved the section 73 application and granted planning permission for the development of 142 homes subject to the revised condition proposed by the developer (Ref. 15/1097). The Council's decision resulted in the grant of a freestanding planning permission. It was open to SHL to decide which of these permissions to carry out and hence which version of the negative Grampian condition should be satisfied.

5

Shortly before the public inquiry opened, on 16 November 2016 Mr Alan Kind, an objector to the Order, wrote to the Planning Inspectorate, contending that in view of the terms in which planning permission 15/1097 had been granted, it could no longer be said that the stopping up was "necessary" in order to enable the development to go ahead and therefore the Order should be treated as outwith the powers of the Defendant. Another objector, Mr Geoff Wilson, wrote to the Planning Inspectorate to similar effect on 18 November.

6

The public inquiry had been set down for a hearing lasting some three days. However, when the inquiry opened the Inspector announced that because objectors had submitted to him that the Order was legally incapable of being confirmed, that issue should be dealt with at the outset. The Inspector then went on to hear submissions on this point from EDC and NR in support of the Order, and from objectors.

7

Towards the end of the morning of the first day of the inquiry, the Inspector repeated his provisional view expressed earlier on during the hearing that, for the reasons advanced by the objectors, it was not legally possible for the Order to be confirmed. Counsel for NR submitted to the Inspector that he should nevertheless proceed to hear all of the evidence which had been prepared for the three-day public inquiry dealing with the merits of the Order and the objections to it. It was suggested that the Inspector could revisit the issue which he had raised that morning once he had heard and considered all of the evidence. However, the Inspector rejected that suggestion and closed the inquiry. The hearing therefore lasted only a half day. His decision letter then followed just over a month later on 4 January 2017.

8

I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6–10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant's skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.

9

Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant's argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.

10

Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as "significant" under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties' legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.

11

Prolix or diffuse "grounds" and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court's finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the...

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