R Thames Blue Green Economy Ltd (First Claimant) v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWCA Civ 876 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2015/0225/0340 |
| Date | 24 June 2015 |
[2015] EWCA Civ 876
Lord Justice Sales
C1/2015/0225/0340
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
(MR JUSTICE OUSELEY)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr R McCracken QC and Mr A Parkinson (instructed by Environmental Law Foundation) appeared on behalf of the First Claimant
The Second Claimant, Mr Stevens, appeared in person
Mr R Harwood (instructed by the Government Law Department) appeared on behalf of the Defendant
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 development consent order in relation to the major Thames Tideway Tunnel infrastructure project.
The background, put very shortly, is that the project was the subject of examination at a strategic level through the formation of a National Policy Statement under Part 2 of the Planning Act 2008. National Policy Statements developed under that Part are subject to obligations of publicity and consultation, including under section 7, and there is a power to mount legal challenges in relation to them: see section 13.
The structure of the Act is that national policy should be decided subject to those processes and formulated in a National Policy Statement which will then inform individual planning decisions which are brought forward in respect of it. In this case, an application was made to the Secretary of State for a development consent order and that was subject to examination by an Examining Authority in accordance with Chapter 4 of the Act.
Section 87(3) provides as follows:
"The Examining authority may in examining the application disregard representations if the Examining authority considers that the representations—
…
(b) relate to the merits of policy set out in a national policy statement.
…"
In this case, the Examining Authority took a decision that it would not entertain representations designed to open up examination of strategic alternatives to the Thames Tideway Tunnel which the present claimant now wishes to advance, but which had not been advanced at the time of the development of the National Policy Statement.
Under the scheme of the Act, decisions on individual applications are made by the Secretary of State (see section 103), having regard to the report and recommendations made to him by the Examining Authority. Section 104 of the Act governs in relation to decisions in cases where a National Policy Statement has effect. Under section 104(3), the Secretary of State must decide the application in accordance with any relevant National Policy Statement, except to the extent that one or more of subsections (4) to (8) applies. Subsection (7) provides:
"This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits."
The argument for the claimant is that section 104(7) is of such width that the Examining Authority and the Secretary of State were obliged in substance in this case to consider the new arguments regarding whether there was need for a Thames Tideway Tunnel at the strategic level or whether problems in relation to effluent in London could be dealt with satisfactorily by some other form of scheme.
The judge decided that section 104(7) did not bear the interpretation which the claimant sought to place upon it, which was to the effect that it authorised the Examining Authority and the Secretary of State to open up at the second stage of considering whether an individual development consent order should be made the prior question decided at the determination of the National Policy Statement stage, namely whether there was indeed a strategic need for having a Thames Tideway Tunnel at all (see paragraphs [32] and following of the judge's judgment).
The judge was examining the question whether permission should be granted for judicial review according to the relevant arguability threshold. He considered that the point of construction put forward by the claimant was not an arguable one in the context of the Act and therefore refused permission.
An application was made to this court for permission to appeal on two grounds: the first in relation to the interpretation of section 104(7) of the 2008 Act; the second in relation to the effect of the EIA Directive and whether under that Directive again the Examining Authority and Secretary of State were obliged at the second, development consent order stage to reopen and examine the strategic merits of having the Thames Tideway Tunnel at all. The judge had dismissed those arguments as well.
On the application for permission to appeal, Sullivan LJ refused the application on the papers. So far as the first ground in relation to section 104(7) is concerned, he said this:
"Even though this application is still at the arguability stage the appeal does not have a real prospect of success. The two stage process was introduced by the 2008 Act in order to avoid precisely the outcome which this appeal seeks to achieve: the reopening at the second (examination by the panel) stage of the process, of alternatives to the option (in this case the tunnel) which has been adopted by the Government in the first (NPS) stage of the process. The provisions of the 2008 Act must be interpreted with the underlying objective of having a two-stage process for NSIPs in mind. Although the Claimant focuses upon the terminology of the final sentence of paragraph 16.25 of the panel's report (paragraphs 24 and 25 of the judgment), there was, in reality, no other way in which the panel could reasonably have exercised its discretion under section 87(3) given the statutory objective — to settle strategic alternatives at the first stage — and the flagrant conflict between the 'no alternatives to the tunnel' policy set out in the NPS (paragraphs 8 and 9 of the judgment) and the 'alternatives to the tunnel' put forward by the Claimant."
I agree with the reasoning of the judge and the reasons of Sullivan LJ. I do not consider that the argument based on section 104(7) and section 87(3) of the Act has any real prospect of success.
Today, Mr McCracken QC has contended that there are two reasons why the point is in fact...
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