UK: Promoter Wins First Planning Act Judicial Review

Last Updated: 10 October 2013
Article by Angus Walker

Today's entry reports on the outcome of the first challenge to a decision under the Planning Act 2008.

On 19 March 2013, the Secretary of State for Transport granted development consent to Lancashire County Council for the Heysham to M6 Link Road, the first highway scheme to come under the Planning Act regime. The decision was challenged by a local group of objectors, Transport Solutions for Lancaster and Morecambe (TSLM) - or Transport Solutions 'fop' Lancaster and Morecambe, as the case citation seems to have it. The case was heard in the High Court in July and the judgment was finally issued on Friday and can be found here.

The judgment (not judgement, apparently) is interesting not only because it is the first decided case brought under the Planning Act, but contains some matters of relevance to other projects, particularly on consultation. Essentially TSLM lost on all of the five grounds it brought (and technically was refused permission to bring the claim, i.e. there was not an arguable case on any of them), but is seeking leave to appeal to the Court of Appeal. Here is a summary of the grounds and an analysis of the judgment.

Is it an NSIP?

First, TSLM said that the project (or at least the part other than some M6 slip roads) was not a nationally significant infrastructure project (NSIP, which the judge declared is officially pronounced en-sip). This is all to do with the phrase 'purpose connected with' in the Planning Act highway project threshold. Those words are no longer in the Act, so the issue is of diminishing importance, but there are a couple of other projects far enough ahead that they must use still the old definition.

The judge (Mr Justice Turner) is amusing on the arguments, saying he was taken on a 'jurisprudential voyage of discovery', including a railway shed in New Zealand and a schoolboy in possession of computer hard drives with extremist political material on them. The mind boggles. He dismisses all that and relies on the ordinary meaning of the phrase, concluding 'I am entirely satisfied that the dual carriageway ... was indeed constructed for a purpose connected with [the M6]'. Furthermore 'roads which lead from junctions [with trunk roads] are all likely to be connected to the purpose of the junctions which they serve to a greater or lesser extent and over a distance which will vary from case to case'. Pretty robust, and it seems to me suggestive that physically connecting more or less guarantees purposively connecting.

I must say it gives one a frisson to have legislation that one was responsible for analysed in court (my Lord, it is 'article 11', not 'paragraph 11', by the way).

There is one aspect in the judge's concluding remarks on this ground that is possibly a little troubling for future claimants. He says that even if he had found that it hadn't been an NSIP and should have proceeded as a planning application 'it is overwhelmingly likely that consent would have been given regardless of the route by which it had been achieved. The time, cost and inconvenience of re-starting the process would render judicial intervention at this stage to be wholly disproportionate'. Although this could be down to the planning history of the scheme in question, it suggests to me that by preventing judicial review from being launched between an application being made and decided, the Planning Act makes successful claims less likely, because by the time you've got to the decision, too much time and money has been spent to contemplate starting it again, even if there was an error.


The second ground was on consultation. One important principle here: can you say you have already decided the route you are using? The answer is 'well, not ideally'.

The pre-application consultation documentation said in terms that the choice of route was not open to question, it having been fixed by a previous but still extant planning permission. On this issue the judge said 'I consider that it would have been more appropriate for the consultation exercise to have been presented in terms which were not quite so unequivocally expressed. After all it was a free standing application for consent in respect of which [previous consultations were] not formally binding'. Having said that, he added that 'a decision following a consultation process is not unlawful simply because it is possible in hindsight to conceive of a process that would have been an improvement ...' He decided that the objectors had plenty of opportunity to object to the principle of the scheme, and did so, and so that was all right.

He thus concluded that although the consultation could have been improved upon it was fair and not susceptible to review - it is not the job of the court to 'micromanage for perfection'.

NPSs, alternatives and otters

The judge dismissed the last three grounds more quickly. The third ground was that the decision referred to the Nuclear Power National Policy Statement (since a nuclear power station is earmarked for one end of the new highway at Heysham), which was the wrong one for a highway (albeit there not being a highway NPS yet). The judge said that another NPS can still be important and relevant and therefore still influence the decision. It would be nonsense to suggest that the same factor could influence the decision if it hadn't been in an NPS, but wouldn't be able to if it had been in one.

The fourth ground was about discarding an alternative route without having considered habitats and green belt issues properly. The judge swatted that one away with 'it is neither necessary nor desirable that the consideration of possible alternative routes ... should be entered into with the same level of expert scrutiny as the development itself'. This would again be 'disproportionate in time, effort and expense'.

Finally, concerns about the effect of the project on otters were dismissed. If otters were found to have moved in just before work started, they would either not be disturbed or Natural England would be likely to grant a licence to disturb them.


Apart from the couple of local authority highway schemes, whose status as NSIPs has probably been strengthened, I would say that the main two lessons in this judgment are that forbidding the questioning of a chosen route is not recommended, and it is that much harder to overturn a decision if the reasons arose at the time of making the application.

TSLM seems undeterred, saying on its website: 'We have taken legal advice, and that is that there are errors in the judge's decision, and there are good grounds for a successful appeal against it. So we shall ask the courts for permission to appeal'. They probably don't mean when he said 'paragraph' instead of 'article'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Angus Walker
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.