The Queen (oao David Gate on behalf of Transport Solutions Fop Lancaster and Morecambe) v The Secretary of State for Transport Lancashire County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Turner |
| Judgment Date | 04 October 2013 |
| Neutral Citation | [2013] EWHC 2937 (Admin) |
| Docket Number | Case No: CO/5073/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 October 2013 |
[2013] EWHC 2937 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(sitting at Manchester Civil Justice Centre)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: CO/5073/2013
and
Mr Richard Turney (instructed by Leigh Day & Co) for the Claimant
Mr Richard Kimblin (instructed by T/Sols) for the Defendant
Mr Vincent Fraser QC (instructed by Lancashire County Council) for the Interested Party
Hearing dates: 2 2nd and 2 3rd July 2013
Approved Judgment
THE BACKGROUND
For a very long time, Lancashire County Council ("Lancashire") has wanted to provide a road to link the M6 Motorway to the port of Heysham on Morecambe Bay. Its wish was eventually granted by The Lancashire County Council (Torrisholme to the M6 Link (A683 Completion of Heysham to M6 Link Road)) Order 2013 ("the Order"). The Order is now challenged by the claimant, Mr Gate, on behalf of a campaigning group called "Transport Solutions for Lancaster and Morecambe" the members of which are united in a common conviction that, whatever might be the right transport solution for Lancaster and Morecambe, this is not it. Fortunately, it is not the job of this court to decide if this proposed new road is a good idea but merely to determine whether or not the decision to make the Order permitting it to be built was lawful.
THE ROAD
The development comprises a 4.8km (about three miles) long dual carriageway road. It connects a previously built length of the A683 Heysham to M6 Link, at its junction with the A589 Morecambe Road near Torrisholme, to junction 34 on the M6 near Halton. It includes a combined footway and cycleway along its full length and 23 major structures including bridges over the West Coast Mainline Railway, the Lancaster Canal and the River Lune. By way of convenient shorthand, I will refer to the project as a whole as the "Heysham/M6 development".
GROUNDS OF CHALLENGE
The claimant challenges the decision to give development consent on five grounds:
i) Ground One. The defendant had no power to make the order.
ii) Ground Two. The consultation process was flawed.
iii) Ground Three. The defendant wrongly took into account inapplicable National Policy Statements.
iv) Ground Four. The defendant wrongly dismissed alternative alignments of the proposed route.
v) Ground Five. Inadequate consideration was given to otter welfare.
I propose to deal with each ground in turn.
GROUND ONE
Development consent
The Planning Act 2008 ("the 2008 Act") introduced a new approach to the planning process applicable to certain types of development. The summary contained in the Explanatory Notes to the Act provides:
"Parts 1 to 8 of the Act create a new system of development consent for nationally significant infrastructure projects. The new system covers certain types of energy, transport, water, waste water and waste projects. The number of applications and permits required for such projects is being reduced, compared with the position under current legislation."
Thus different consent regimes apply depending upon whether or not any given project falls within the scope of the 2008 Act. Lancashire and the defendant proceeded on the basis that the Heysham/M6 development qualified for consent under the 2008 regime and set about obtaining development consent on this basis. The claimant contends that the development fell outside the scope of the scheme of the 2008 Act and therefore the whole process was irremediably flawed.
To resolve this issue it is necessary to analyse the basis upon which it is to be determined whether or not any given project falls within the purview of the 2008 Act.
Section 115(1) of the Planning Act 2008 provides:
"Development for which development consent may be granted
(1) Development consent may be granted for development which is—
(a) development for which development consent is required, or
(b) associated development."
Section 115(2) of the 2008 Act provides insofar as is relevant:
"(2) "Associated development" means development which—
(a) is associated with the development within subsection (1)(a) (or any part of it)…"
This of course poses the question as to what types of development are those for which development consent is required. The answer is to be found in section 31 of the 2008 Act:
"When development consent is required
Consent under this Act ("development consent") is required for development to the extent that the development is or forms part of a nationally significant infrastructure project."
Throughout the trial the term "nationally significant infrastructure project" was referred to as an NSIP (and pronounced en-sip).
Combining the effects of section 115 and 31 of the 2008 Act therefore generates three categories of development for which development consent may be granted:
i) development which is an NSIP,
ii) development which forms part of an NSIP, and
iii) associated development.
What is an NSIP?
Section 14 of the 2008 Act lists no fewer than sixteen types of project which are categorised as NSIPs. They include by way of example: the construction of railways, development relating to underground gas storage facilities, airport-related developments and the construction or alteration of hazardous waste facilities. The category with which this case is concerned is to be found in section 14(1)(h): "highway-related development".
As one might reasonably expect, not every "highway-related development" falls within the 2008 regime, otherwise even the most trivial of works would automatically attract the full weight of a process designed to be proportionate only to cases involving nationally significant infrastructure. Accordingly, the 2008 Act imposes a narrow definition of "highway-related development" to retain the distinctive nature of NSIP projects.
Section 22 of the 2008 Act provides the relevant definition:
"Highways
(1) Highway-related development is within section 14(1)(h) only if the development is—
(a) construction of a highway in a case within subsection (2),
(b) improvement of a highway in a case within subsection (3), or
(c) alteration of a highway in a case within subsection (4).
(2) Construction of a highway is within this subsection only if the highway will (when constructed) be wholly in England and—
(a) the Secretary of State will be the highway authority for the highway, or
(b) the highway is to be constructed for a purpose connected with a highway for which the Secretary of State is (or will be) the highway authority.
(3) Improvement of a highway is within this subsection only if—
(a) the highway is wholly in England,
(b) the Secretary of State is the highway authority for the highway, and
(c) the improvement is likely to have a significant effect on the environment.
(4) Alteration of a highway is within this subsection only if—
(a) the highway is wholly in England,
(b) the alteration is to be carried out by or on behalf of the Secretary of State, and
(c) the highway is to be altered for a purpose connected with a highway for which the Secretary of State is (or will be) the highway authority."
In this case, paragraph 11 of the Order provides for the Secretary of State to be the highway authority for those roads described in Schedule 5 thereto. In effect, these roads are those relating to the link with the M6. Lancashire is to be the Highway Authority in respect of the rest of the development roads. Applying the section 22 definition, therefore, the claimant must concede that at least part of the Heysham/M6 development is an NSIP even if the rest is not. He is constrained to argue that there ought therefore to have been two processes for the obtaining of consent, one of which proceeded under the 2008 regime and the other outside it. To treat the whole of the development as falling within the provisions of the 2008 Act was, he argues, wrong in law.
The whole scheme approach
In an argument most fully developed on behalf of Lancashire, it is contended that the consented project was one complete scheme. The following points are made:
i) The layout of junction 34 is unsuitable for its current use. Over the last five years accidents involving injury have exceeded the rate of one every two months.
ii) The works relating to roads for which the defendant will be the highway authority are very considerable both in terms of the lengths of such roads and the proportionate cost of this part of the project.
iii) The development will involve works to the junction which are likely to take about two and a half years and will have an impact on very substantial volumes of traffic.
iv) The national importance of the development as a whole is reflected in the fact that 90% of the cost is to be borne by national government.
v) The 2008 Act was intended to provide a "one stop shop" and splitting up homogenous projects would be contrary to this policy aim.
Notwithstanding these features, I do not accede to the submission that the development as a whole should be treated as an NSIP. This is because:
i) The wording of section 14 of the 2008 Act establishes that a "nationally significant infrastructure project" means a project "which consists of any of the following…" In their ordinary meaning the words "consists of" require that the project must fall entirely within the relevant definition of an NSIP to fall within the...
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