The Queen (on the application of the London Borough of Hillingdon Council) v The Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Baker |
| Judgment Date | 15 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1501 |
| Docket Number | Case No: C1/2021/0791 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
and
and
[2021] EWCA Civ 1501
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Baker
and
Lord Justice Lewis
Case No: C1/2021/0791
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(PLANNING COURT)
SIR DUNCAN OUSELEY (SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Craig Howell Williams Q.C. and Ms Melissa Murphy (instructed by the Solicitor to the London Borough of Hillingdon Council) for the Applicant
Mr Timothy Mould Q.C. (instructed by the Treasury Solicitor) for the Respondents
Mr David Elvin Q.C. and Mr Michael Fry (instructed by DLA Piper UK LLP) for the Interested Party
Hearing date: 20 July 2021
Approved Judgment
The Senior President of Tribunals:
Introduction
Few projects of major infrastructure have come before the courts more often than HS2. The railway is now being constructed. This case concerns the effect of a provision in Schedule 17, “Conditions of Deemed Planning Permission”, to the High Speed Rail (London-West Midlands) Act 2017 (“the HS2 Act”). The provision in question is paragraph 6, “Condition relating to road transport”. The dispute is about the arrangements for the routeing of lorries to and from construction sites in the London Borough of Hillingdon. A previous claim concerning Schedule 17, in different circumstances, succeeded on appeal to this court in July 2020 ( R. (on the application of London Borough of Hillingdon Council) v Secretary of State for Transport [2020] EWCA Civ 1005, [2021] P.T.S.R. 113), and the Supreme Court refused permission to appeal in February 2021. No new issue of law arises here.
The applicant, the London Borough of Hillingdon Council, seeks permission to appeal against the order of Sir Duncan Ouseley, dated 13 April 2021, dismissing its claim for judicial review of the decision of an inspector appointed by the first and second respondents, the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government, on an appeal under paragraph 22 of Schedule 17. The paragraph 22 appeal was brought by the interested party, High Speed Two (HS2) Ltd. (“HS2 Ltd.”), against the council's refusal to approve, under paragraph 6, its proposed lorry route arrangements for construction sites in the borough. The inspector's decision letter is dated 28 July 2020.
In the court below, and before us, the council has relied on the judgment of this court in the previous Hillingdon proceedings, which was handed down on 31 July 2020 – three days after the inspector's decision here. It has argued that the inspector's approach cannot be reconciled with the court's reasoning in that case. In a meticulous judgment, the judge rejected that argument. The council says he was wrong to do so.
On 11 June 2021, I ordered that the application for permission to appeal and the appeal itself, if permission were granted, be dealt with at a “rolled-up” hearing on 20 July 2021.
The issues in the appeal
The basic issue in the case is whether the inspector's approach was lawful. Each of the three main grounds in the claim asserts it was not. Ground 1 alleges that the inspector misconstrued and misapplied paragraph 6(5)(b)(ii) of Schedule 17 – wrongly believing that it imposed a legal “burden of proof” on the council (ground 1(a)), and that it empowers decision-makers to approve lorry route arrangements despite a lack of adequate information (ground 1(b)), placing unlawful reliance on the Environmental Minimum Requirements (“the EMR”) (ground 1(c)), and misunderstanding Parliament's intention in Schedule 17 (ground 1(d)). Ground 2 alleges that he failed to take into account material considerations; and ground 3 that his decision was irrational, because he lacked the requisite information to make it. These points were all argued again before us.
The relevant statutory provisions
Section 20(1) of the HS2 Act deems planning permission to have been granted for the construction and operation of HS2. Section 20(3) states that “Schedule 17 imposes conditions on deemed planning permission under subsection (1)”.
In Part 1 of Schedule 17, “Conditions”, paragraph 1 states that the requirements in paragraphs 2 to 12 are “conditions of the deemed planning permission under section 20(1)”. Paragraph 6 provides:
“6(1) If the relevant planning authority is a qualifying authority, development must, with respect to the matters to which this paragraph applies, be carried out in accordance with arrangements approved by that authority.
(2) The matters to which this paragraph applies are the routes by which anything is to be transported on a highway by a large goods vehicle to –
a working or storage site,
…
(5) The relevant planning authority may only refuse to approve arrangements for the purposes of this paragraph on the ground that –
…
(b) the arrangements ought to be modified –
(i) to preserve the local environment or local amenity,
(ii) to prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area, or
(iii) to preserve a site of archaeological or historic interest or nature conservation value,
and are reasonably capable of being so modified.
(6) The relevant planning authority may only impose conditions on approval for the purposes of this paragraph –
(a) with the agreement of the nominated undertaker, and
(b) on the grounds referred to in sub-paragraph (5)(b).”
Under paragraph 6(2), HS2 Ltd. required the council's approval for the routes by which material used in the construction of HS2 would be transported by “large goods [vehicles]”. The council is the “relevant planning authority”, and also, because it has given the Secretary of State the necessary undertakings under paragraph 13(1) of Schedule 17, a “qualifying authority”. HS2 Ltd. is the “nominated undertaker”. The undertakings given by the council are set out in the Planning Memorandum, dated February 2017.
Paragraph 22 of Schedule 17 provides for “Appeals”. Paragraph 22(1) provides that “[where] the nominated undertaker is aggrieved by a decision of a planning authority on a request for approval … (including a decision to require additional details) it may appeal to the appropriate Ministers … within 42 days of the notification of the decision”. Under paragraph 22(2), the appropriate Ministers “may allow or dismiss the appeal or vary the decision of the authority”, but may only make a determination involving the refusal of approval or the imposition of conditions on approval “on a ground open to that authority”.
Paragraph 26(1), “Guidance by Secretary of State”, provides that “[the] Secretary of State may give guidance to planning authorities in relation to the exercise of their function under [Schedule 17]”. Sub-paragraph (2) requires that “[a] planning authority must have regard to the guidance”.
The statutory guidance, the EMR and the Planning Memorandum
The statutory guidance issued by the Secretary of State states, in paragraph 4.4, that the approvals under Schedule 17 “have been carefully drafted to provide an appropriate level of local planning control over the works while not unduly delaying or adding costs to the project”, and that “[planning] authorities should not through the exercise of [Schedule 17] seek to … revisit matters settled through the Parliamentary process” or “… modify or replicate controls already in place, … specific to HS2 Phase One such as [the EMR] …”. Paragraph 10.3 says that “[when] determining any request for approval, conditions should not be imposed which conflict with controls or commitments contained in [the EMR,] … because these controls would have been considered necessary or sufficient by Parliament when it had approved deemed planning permission for the railway”.
The EMR provide controls on HS2 Ltd., as nominated undertaker, to which it was bound under a development agreement entered into with the Secretary of State for Transport in 2014 and amended in 2017. The “Introduction” to the EMR confirms the Secretary of State's intention that the project will be carried out “so that its impact is as assessed in [the environmental statement]”. The “General Principles” state that the controls in the EMR, the HS2 Act and the undertakings given by the Secretary of State “will ensure that impacts which have been assessed in [the environmental statement] will not be exceeded …”. HS2 Ltd., it is said, “will be contractually bound to comply with the controls set out in the EMRs”. As nominated undertaker, bound by the EMR, HS2 Ltd. was obliged to comply with the Planning and Environmental Memoranda and the Code of Construction Practice [“the CoCP”]. It was also required to comply with the Route-wide Traffic Management Plan (“RTMP”) and any relevant Local Traffic Management Plan (“LTMP”).
The CoCP provides, in chapter 14, for traffic management during the construction of HS2. It obliges HS2 Ltd. to require that “the impacts from construction traffic on the local community (including … users of the surrounding transport network) be minimised by its contractors where reasonably practicable” (paragraph 14.1.1), and requires “public access [to be] maintained, where reasonably practicable, and appropriate measures … implemented to ensure that … transport networks can continue to operate...
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