The King on the application of Peak District and South Yorkshire Branch of the Campaign to Protect Rural England v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton DBE,Mrs Justice Thornton |
| Judgment Date | 17 November 2023 |
| Neutral Citation | [2023] EWHC 2917 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4852/2022; AC-2022-LON-003680 |
and
[2023] EWHC 2917 (Admin)
THE HONOURABLE Mrs Justice Thornton DBE
Case No: CO/4852/2022; AC-2022-LON-003680
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe KC and Toby Fisher (instructed by Richard Buxton Solicitors) for the Claimant
James Strachan KC and Rose Grogan (instructed by Government Legal Department) for the Defendant
Jenny Wigley KC (instructed by Gowling WLG (UK) LLP) for the Interested Party
Hearing dates: 3 rd – 4 th October 2023
Approved Judgment
This judgment was handed down remotely not before 14:00 on Friday 17 th November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mrs Justice Thornton DBE
Introduction
Peak District and South Yorkshire Branch of the Campaign to Protect Rural England (“CPRE”) seeks to challenge a decision by the Defendant, the Secretary of State for Transport (“the Secretary of State”), dated 16 November 2022, to grant development consent for the A57 Link Roads Scheme. The Interested Party, National Highways Limited (“National Highways”) is the applicant for development consent.
The A57 Link Roads Scheme (“the Scheme”) has been developed to improve journeys between Manchester and Sheffield and to address one of the most significant and longstanding congested areas of the country. The current A57 around Mottram-in-Longdendale in Tameside suffers from congestion which causes delays and unreliable journey times. The Scheme will create two new link roads at the western end of the A57/A628 Trans-Pennine route:
• Mottram Moor Link Road — a new dual carriageway from the M67, junction 4 roundabout, to a new junction on the A57(T) at Mottram Moor.
• A57 Link Road — a new single carriageway link from the A57(T) at Mottram Moor to a new junction on the A57 in Woolley Bridge.
The Secretary of State's decision to grant consent followed a public examination before a Panel of two Planning Inspectors (“the Panel”) which began on 16 November 2021 and finished on 16 May 2022. The Panel recommended the grant of consent in a report dated 16 August 2022 (“the Report”). CPRE participated fully in the public examination.
Twenty-two hectares of the Scheme will be located on Green Belt land. The Panel reached the view that the Scheme will cause harm to the openness of the Green Belt. It will cross the Green Belt, introduce permanent embankments, bunds, and barriers alien to the Green Belt; give prominence to vehicles and introduce new street lighting. The Panel gave the harm significant weight in its decision making but concluded that the need for, and considerable public benefits of, the Scheme clearly outweighed the adverse effects of the Scheme, including its harm to the Green Belt. The public benefits weighing significantly in favour of granting consent were said to include the reduced congestion and improved journey time through Mottram, Hollingworth and Tintwistle, as well as between Manchester and Sheffield, together with the significant economic benefits brought about by the improvements proposed. The Secretary of State agreed with the Panel's conclusion.
CPRE seeks to challenge the Secretary of State's decision on two grounds:
Ground 1: The Secretary of State unlawfully failed to comply with the requirement in Regulation 21(1)(b) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 to provide a reasoned conclusion on the significant effects of the Scheme because he erroneously treated National Highways' Environmental Statement as providing a cumulative assessment of the carbon emissions from the Scheme in conjunction with other developments when it did not and he failed to assess the significance of those cumulative impacts.
Ground 2: when concluding that the benefits of the Scheme clearly outweighed the harm to the Green Belt such that there were ‘Very Special Circumstances’ justifying inappropriate development in the Green Belt, the Secretary of State unlawfully failed personally to assess whether credible alternatives proposed might deliver substantially similar benefits with less harm to the Green Belt.
By order dated 17 March 2023, Lang J ordered the claim to proceed by way of a rolled up hearing to consider permission, with the substantive hearing to follow on, if permission was granted.
At the hearing it was common ground that Ground 1 is materially the same as the challenge advanced by Dr Boswell in Boswell v Secretary of State for Transport [2023] EWHC 1710 which was dismissed by the Court. Dr Boswell has been granted permission to appeal by the Court of Appeal. The parties were in agreement with the Court's suggestion that Ground 1 of the present claim is stayed pending a decision from the Court of Appeal on the appeal. Accordingly, no submissions were made on the substance of Ground 1 at the hearing and the remainder of this judgment focuses on Ground 2 (consideration of alternatives in relation to development proposed on Green Belt land).
Background
Legal and policy background
The Scheme is classed as a nationally significant infrastructure project under sections 14 and 22 of the Planning Act 2008. Accordingly, development consent is required under Section 31 of the Act and the decision making process is regulated by the Act. The application is examined in public by a single Planning Inspector or, as in the present case, by a Panel of Inspectors who produce a report to the Secretary of State setting out the findings and conclusions in respect of the application and a recommendation on the decision to be made (Section 74). It is the function of the Secretary of State to decide the application (Section 103). The Secretary of State either makes an order granting development consent or refuses it (Section 114).
Where, as here, a National Policy Statement is applicable, Section 104(2) of the Act requires the Secretary of State to have regard to, amongst other matters, the policy statement and to decide the application in accordance with it, save to the extent that exceptions apply (s104(3)). The statutory framework for the designation of national policy statements and for obtaining a Development Consent Order has been summarised in a number of recent cases and need not be repeated here as the analysis was not in dispute (( R (Clientearth) v SSBEIS [2020] PTSR 1709, as approved by the Court of Appeal [2021] PTSR 1400)).
The National Policy Statement on National Networks (“the National Policy Statement”) was adopted in 2014. Passages of particular relevance to the issues which arise in the present claim are as follows:
‘General principles of assessment
4.2 Subject to the detailed policies and protections in this NPS, and the legal constraints set out in the Planning Act, there is a presumption in favour of granting development consent for national networks NSIPs that fall within the need for infrastructure established in this NPS. ….
Alternatives
4.26 Applicants should comply with all legal requirements and any policy requirements set out in this NPS on the assessment of alternatives. In particular:
• The EIA Directive requires projects with significant environmental effects to include an outline of the main alternatives studied by the applicant and an indication of the main reasons for the applicant's choice, taking into account the environmental effects.
• There may also be other specific legal requirements for the consideration of alternatives, for example, under the Habitats and Water Framework Directives.
• There may also be policy requirements in this NPS, for example the flood risk sequential test and the assessment of alternatives for developments in National Parks, the Broads and Areas of Outstanding Natural Beauty (AONB).
4.27 All projects should be subject to an options appraisal. The appraisal should consider viable modal alternatives and may also consider other options (in light of the paragraphs 3.23 to 3.27 of this NPS). Where projects have been subject to full options appraisal in achieving their status within Road or Rail Investment Strategies or other appropriate policies or investment plans, option testing need not be considered by the examining authority or the decision maker. For national road and rail schemes, proportionate option consideration of alternatives will have been undertaken as part of the investment decision making process. It is not necessary for the Examining Authority and the decision maker to reconsider this process, but they should be satisfied that this assessment has been undertaken.
Green Belt
5.164 ……The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
5.178 When located in the Green Belt national networks infrastructure projects may comprise inappropriate development. Inappropriate development is by definition harmful to the Green Belt and there is a presumption against it except in very special circumstances. The Secretary of State will need to assess whether there are very special circumstances to justify inappropriate development. Very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt, when considering any application for such...
To continue reading
Request your trial