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.

Consultation

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.

Effect

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'.

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