R (on the application of London Borough of Hillingdon Council) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green,Lord Justice Haddon-Cave,Lord Justice Lindblom |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWCA Civ 1005 |
| Date | 31 July 2020 |
| Docket Number | Case No: C1/2020/0152 |
| Year | 2020 |
| Court | Court of Appeal (Civil Division) |
and
[2020] EWCA Civ 1005
Lord Justice Lindblom
Lord Justice Haddon-Cave
and
Lord Justice Green
Case No: C1/2020/0152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Craig Howell Williams Q.C. and Ms Melissa Murphy (instructed by London Borough of Hillingdon Legal Services) for the Appellant
Mr Timothy Mould Q.C. (instructed by the Government Legal Department) for the Respondents
The Interested Party did not appear and was not represented.
Hearing date: 9 July 2020
Judgment Approved by the court for handing down
Lord Justice Lindblom, Lord Justice Haddon-Cave and Lord Justice Green
A. The issue in context
The appeal
This is the judgment of the Court.
This is the second of two cases that this Court heard on consecutive days concerning the HS2 high speed railway line to be built between London and the West Midlands (“ HS2” or the “ HS2 project”). The first case ( R. (on the application of Christopher Packham) v Secretary of State for Transport [2020] EWCA Civ 1004) amounted to a full-scale challenge to the scheme itself, and to the decision of the Cabinet to approve it. The present appeal arises within a far narrower compass and concerns the respective duties and obligations imposed by Parliament upon High Speed Two (HS2) Limited (“ HS2 Ltd”) and local authorities in relation to the actual implementation of HS2 as it affects localised planning concerns. In neither case is the Court engaged with the political debate that surrounds the HS2 project; the task of the Court in both cases is to rule upon points of law.
This appeal concerns the judgment (“ the Judgment”) of Mrs Justice Lang in which she upheld the decision, dated 4 th March 2019, of the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government (“ the Decision”). This overturned a decision of the Appellant, the London Borough of Hillingdon Council, whose planning committee had, on 20 th March 2018, decided to refuse to grant approval to a request made by HS2 Ltd for approval of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation (“ the Council Decision”).
The Decision was taken following the rejection by the Secretaries of State of recommendations made to them by the planning Inspector who had been appointed by them to report and who recommended that the Council Decision be upheld (“ the Inspector's Recommendations”).
The site
The land to which the request for approval related and on which the works were proposed, a site of about 0.5 ha., lies to the west of Harvil Road, about 90 metres to the south-west of the route of the Phase One railway where it would pass on to the Colne Valley Viaduct, near the settlement of South Harefield. It is within the Colne Valley Archaeological Protection Zone (“ APZ”). Part of it is within the Mid-Colne Valley Site of Importance for Nature Conservation (Metropolitan Grade). The proposed earthworks would provide a mitigation pond, a reptile basking bank and two hibernacula for a community of great crested newts whose present habitat would be affected by the Colne Valley Viaduct South Embankment Works. The new habitat would be enclosed by a permanent fence. The Decision, upheld in the Judgment, concerns the impact of the development upon both ecological and archaeological interests. The appeal, however, concerns only the impact of the development on archaeological interests and we confine our description of the facts accordingly.
The issue
This appeal focuses upon the division of powers and responsibility for the evaluation of local planning concerns as between local authorities and HS2 Ltd. That allocation of responsibility is determined by Schedule 17 of the High Speed Rail (London–West Midlands) Act 2017 (“ the Act” or “ Schedule 17”, as appropriate). The Act, which received the Royal Assent on 23 February 2017, authorises Phase One of HS2, comprising a high-speed railway between London and the West Midlands. HS2 Ltd is the nominated undertaker charged with the creation of the rail link.
The dispute relates to the failure on the part of HS2 Ltd to submit any information or evidence, as part of its formal request for approval, to the Appellant which would enable it to conduct what it says are its statutory duties to evaluate the plans and specifications for their impact upon relevant planning interests – here potential archaeological remains. The nub of the reasoning of the Council Decision, refusing approval to the request, was that HS2 Ltd had failed to furnish the Council with adequate information and evidence. HS2 Ltd however has argued throughout that it is under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project. In these circumstances, HS2 Ltd argues that it was wrong for the Appellant to refuse to grant it approval for its plans and specifications. The Secretaries of State agreed with this reasoning and set aside the Council Decision. The Judge agreed with the Secretaries of State.
The central legal issue arising concerns the proper construction of the Act and Schedule 17 thereof and the status of guidance documents and material prepared by the Secretary of State for Transport which form part of the matrix of documentation comprising the agreement between the Secretary of State and the nominated undertaker, HS2 Ltd. The documents at the core of the issue are the Environmental Minimum Requirements or “ EMRs” and Statutory Guidance which the Judge, agreeing with the Secretaries of State, concluded elevated the status of the EMRs in a way which curtailed, very substantially, the powers of local authorities under the Act.
The Appellant advances its arguments under a number of related headings. We would summarise the issues as follows: whether on a proper construction of Schedule 17 a “ qualifying” authority (such as the Appellant) is required in law to approve upon the basis that –
(i) the investigation that would otherwise be necessary as to impact, to enable the authority to take a decision on approval or refusal, is to be carried out by HS2 Ltd under the EMRs, and not the authority; and
(ii) there is (accordingly) no need for HS2 Ltd to provide the information and evidence necessary to enable the authority to perform any assessment of impact or related mitigation or modification measures; and that
(iii) the planning authority has, commensurately, no lawful right to call for information relevant to that evaluation from HS2 Ltd and must approve submitted plans and specifications without itself conducting such an evaluation.
Summary
For the reasons we set out below we have allowed the appeal. The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.
Context
The context to this judgment is, however, important. A central tenet of Schedule 17, the surrounding Statutory Guidance and the other relevant guidance, planning materials and memoranda, is that authorities and HS2 Ltd should work in a proportionate, effective and collaborative way which balances important local interests with the much broader national interest in the delivery of the HS2 project, which Government and Parliament has approved. The object of this cooperation is to prevent the planning process creating an undue hindrance to the delivery of that broader national interest whilst giving proper weight to local concerns. We are clear that our judgment is consistent with that important aim.
On the facts of this case, for whatever reason, the system did not work as it should have: HS2 Ltd did not submit the information necessary for the local authority to perform its statutory duty to evaluate the proposed building works for their potential impact upon relevant planning interests. The reasons for this were said to be due to a temporary inability on the part of HS2 Ltd experts to gain access to the site for the purpose of conducting investigations. But that was some two years back and during the appeal we were given no information as to the present position. Schedule 17, the Statutory Guidance and the EMRs, however, set out what should occur when there are delays in the submission of evidence. They include the holding of fruitful discussions to determine the best way in which the relevant information can be provided and, if needs be, extending the time for completion of the approval...
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