Davies, R (on the application of) v Secretary of State for Communities and Local Government & Anor

This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash the defendant's decision, contained in a decision letter dated 7 February 2008, to grant planning permission, subject to conditions, for the construction of the Heysham to M6 Link Road. The application for planning permission was made by the interested party on 14 December 2005. The defendant called in the application for her determination, and appointed an Inspector to hold a public inquiry.

Following an inquiry over a five-week period from 10 July to 10 August 2007, the Inspector reported to the defendant on 21 November 2007. In his report the Inspector recommended that planning permission be granted subject to conditions. With one minor exception, which is not relevant for present purposes, the defendant agreed with all of the Inspector's conclusions and with his recommendation.

The claimant is a member of Transport Solutions for Lancaster and Morecambe (TSLM), a group of concerned organisations and individuals which opposed the proposed link road at the public inquiry. TSLM and the Environmental and Sustainable Transport Alliance (ESTA) presented a joint case to the inquiry and instructed the same counsel, Mr Pike, who appeared on behalf of the claimant in these proceedings.

The Inspector's report is a lengthy document, running to 99 pages excluding a number of annexes. To set the scene for present purposes, it is sufficient to refer to some of the Inspector's summary conclusions in paragraph 8.12 of the report:

In the order in which they were presented in Mr Pike's oral submissions to the court, the claimant's three grounds of challenge were:

In the call in letter the defendant set out a list of the matters about which she particularly wished to be informed. They included the following:

Mr James, one of TSLM's witnesses, gave evidence covering options, alternatives and national policy guidance. His proof of evidence said, in part:

In the summary section of Mr James' proof of evidence, he said:

The Inspector summarised this aspect of the claimant's case in paragraphs 6.2.3, 6.2.6, 6.2.17, and 6.2.18 of his report:

In paragraph 7.2.2 of the report, the Inspector summarised the interested party's response to the claimant's contention that TAG should have been applied in its entirety by the interested party:

The interested party's case, as summarised by the Inspector under the heading "Options and alternatives", was that:

That argument was further summarised by the Inspector in paragraphs 7.2.9 to 7.2.15 of the report. The Inspector's conclusions are set out in paragraph 8 of the report. Having concluded that the scheme accorded with the development plan for the area (8.2.10), a conclusion not challenged in these proceedings, the Inspector considered in paragraph 8.3 "whether the road alignment as proposed is, in principle, the most appropriate and sustainable route". He said in paragraph 8.3.1:

He then considered and rejected a western route, and concluded in paragraph 8.3.11:

Under the heading "A package of alternative measures", the Inspector turned-

It will be remembered that TSLM's complaint was that, in accordance with the advice in TAG, the interested party should itself have assessed the alternatives, starting with a wide base of possible options. Thus, in summary the complaint was that the interested party, in assessing alternatives, had not started from "a clean slate". The interested party contended that its assessment of alternatives was thorough and disputed the proposition that it was bound to follow the advice in TAG in each and every respect.

The Inspector's response to the underlying complaint that other options had not been properly examined was essentially a pragmatic one. In paragraph 8.3.14, he said:

That was an approach which was not merely open to the Inspector, it was, on its face, an eminently reasonable one. Notwithstanding the precise terms of the defendant's questions, the Inspector was prepared to start from "a clean slate", and would consider the widest range of possible options, but there had "at the least to be some basis for believing" that there was a package of alternative measures which was likely to meet the case.

The Inspector then proceeded to examine all of the possibilities which were canvassed before him, and concluded in paragraph 8.3.26:

He repeated that conclusion in paragraphs 8.4.2 and 8.4.3 of the report, when dealing with the Secretary of State's question as to the extent to which the proposed development was consistent with Government policies in Planning Policy Statement 1 (see above).

In paragraph 20 of the decision letter, under the heading "Alternative measures", the defendant said:

The claimant's complaint under ground (1) is therefore devoid of any real substance. The underlying complaint was that the interested party had "failed to examine the wide range of possible alternatives to major road construction to solve the problems of Lancaster District" (see Mr James' evidence above). The Department of Transport's advice in TAG was prayed in aid for the proposition that the interested party should have carried out such a broad assessment. Whether or not the interested party's assessment of alternatives was inadequate, which the interested party disputed, the Inspector was happy to, and did, consider any alternatives to major road building which were suggested to him by any party at the inquiry. He expressly recognised the limitations of ESTA/TSLM's financial and other resources, and therefore set a relatively low evidential threshold for those who suggested that a package of alternative measures would render a new road unnecessary. They merely had to show "some basis for believing" that such measures would be "likely to meet the case". Since after carefully examining all of the suggestions which were put forward at the inquiry, the Inspector concluded that there was no basis for such a belief, the claimant's criticism of the adequacy of the interested party's investigation of alternative options was of no practical consequence.

There was simply nothing before the Inspector which suggested that further investigations, whether by the interested party or indeed by anybody else, might realistically lead to the conclusion that an alternative package of measures would be likely to meet the case. Faced with these realities, Mr Pike submitted that the advice in TAG was that the interested party should assess the alternatives, starting from a wide base of options, and it had failed to do so. It was therefore incumbent on the defendant to consider whether TSLM's submissions as to the applicability of the advice in TAG were correct, and if she concluded that they were not, to give her reasons why. I do not accept that submission. Nor do I accept the underlying premise on which it is based, which would appear to be an overly legalistic approach to policy guidance, which would require it to be followed simply for its own sake, and quite regardless of the particular circumstances of an individual case.

Neither the Inspector nor the defendant was required to respond to each and every point raised by the parties at the inquiry. They were required to deal with the "principal important controversial issues" (see per Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 36). In relation to this ground of complaint, the principal important issue was not whether or not the interested party should have followed the Department of Transport's advice in TAG -- not merely in some, but in all respects -- but whether there was any evidence which suggested that a package of alternative measures would render a new road unnecessary. The Inspector concluded, and the Secretary of State agreed, that there was no such evidence. It follows that ground (1) must fail.

The complaint in ground (2) is another example of an over-rigid and legalistic approach to policy guidance, in this case PPS25. TSLM submitted to the Inspector that the interested party's assessment of flooding risk posed by the proposed development had been carried out in accordance with the advice in PPG25, which was published in 2001, and which had been replaced by PPS25, which was published in 2006. There had been no assessment under PPS25. The interested party's response was, in summary, that for the purposes of this particular proposal, there was no material difference between the two sets of policy guidance.

The complaint under ground (2) is that neither the Inspector nor the defendant referred to the claimant's submission that there should have been an assessment under PPS25, rather than PPG25, although the Inspector listed PPS25 as document 4.9 in the list of inquiry documents in Annex B to his report, and the defendant listed PPS25 as one of a number of Government policies which she had taken into account (see paragraph 15 of the decision letter).

In my judgment, the Inspector and the defendant did not refer to this criticism of the interested party's flooding assessment because there was no need to do so. While it is true that the advice in PPS25 differs, in some respects very markedly, from the earlier advice in PPG25, neither the Inspector nor the defendant was writing a learned treatise on the evolution of Government flood prevention policy. They were considering the flooding implications of a particular development, and if in respect of that particular development, there was no significant change in the policy advice, then there was no need to refer expressly to the new policy document.

The aspect of the scheme that was of concern in the present case was the impact of the low level bridge which was proposed to carry the new road across the River Lune to the west of the motorway (see paragraph 6.2.53-6.2.57 of the Inspector's report, where the claimant's case in that respect is set out. It was contended on behalf of TSLM that:

Thus the critical question was whether there was an increased flood risk. The interested party contended that the impact of the new bridge would be minimal, and that the bridge was, in any event "essential transport infrastructure" (see paragraphs 4.9.18-4.9.22 and 7.2.24 and 7.2.25 of the Inspector's report). The Inspector, in essence, agreed with the interested party, saying in paragraphs 8.3.45 and 8.3.46:

In the light of these conclusions, which the defendant accepted in paragraph 35 of the decision letter, coupled with the fact that there was no objection to the proposed development from the Environment Agency, which is the statutory authority particularly responsible for flood prevention, it is difficult to see how any reference to PPS25, rather than the earlier PPG25, could possibly have made any material difference to the outcome of the inquiry. When considering allegations that there have been failures to take policies into account, it is important to remember that policy guidance is just that -- guidance. It is intended to be an aid, not a hindrance to practical decision-making. Thus policies are not to be construed as though they were enactments, and must be applied with a measure of commonsense to the particular circumstances of the case.

In the present case, if there was to be a road linking Heysham with junction 34 of the M6, which is to the east of the River Lune, any link road would have to cross the river at some point. Thus, any bridge, save perhaps one with a huge clear span, would necessarily have to be constructed in the flood plain of the river, if not in the river itself. There was no suggestion before the Inspector that there was an alternative crossing point which would reduce the flood risk. Given the Inspector's conclusions as to the development plan and the need for the road, it plainly fell within the description "Essential transport infrastructure". Table D3 in PPS25 makes it clear that essential infrastructure is permissible in areas of the highest flood risk. But Mr Pike pointed out that that is subject to what is described in the document as "the exception test". The exception test is set out in paragraph D9 in Annex D to PPS25:

When these exceptions are considered, the lack of any substance in ground (2) can be readily appreciated. The defendant concluded that the bridge would not have any significant effect on flood risk (see paragraph 35 of the decision letter and paragraph (c) of the exception test). The defendant further concluded that the substantial environmental and economic benefits of the scheme were such as to amount to very special circumstances which justified inappropriate development in the Green Belt (see paragraph 41 of the decision letter and paragraph (a) of the exception test). Paragraph (b) of the exception test appears to be primarily directed to other more "footloose" forms of development, such as housing (see in particular footnote 23, which refers to PPS3, which is concerned with sites for housing development). But in any event, no "previously developed land" had been identified by any party at the inquiry as a more suitable site for the bridge over the River Lune. The claimant's submission thus amounts to no more than the proposition that since the interested party's failure to assess the flooding risk in accordance with PPS25 had been replied upon by TSLM in its submissions, that matter had to be referred to in the defendant's reasons. The defendant was not required to respond to that point because it was a non-point, ie it was devoid of any substance for the reasons set out above.

The Inspector accurately summarised the rival legal submissions at the inquiry in paragraphs 3.2 to 3.9 of the report:

The Inspector responded to these arguments in paragraphs 3.10 to 3.13 of the report:

The cross-reference to paragraph 4.6.4 is a reference to the interested party's case when dealing with the issue of economic appraisal. It said:

The Secretary of State dealt with "procedural matters" in paragraphs 4-10 of the decision letter. Having referred to the application and the application drawings in paragraph 4, and saying in paragraph 5 that in reaching her decision she had taken into account the environmental statement which was submitted under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) 1999 (the Regulations), she said in paragraphs 6-10:

At the outset of the hearing, it appeared that the claimant was submitting that, because of the alleged deficiencies in the Environmental Statement, the defendant could not lawfully have concluded that it was an Environmental Statement in compliance with the Regulations. That submission, however, was not pursued by Mr Pike in his oral argument before me. He expressly accepted that, whatever its deficiencies, the interested party's Environmental Statement was not so deficient on the basis of the information that was available at the time of the submission that the defendant could not reasonably have concluded that it was an environmental statement in compliance with the regulations: see R(on the application of Blewett) v Derbyshire County Council [2003] EWHC Admin 2775; [2004] Env LR 29 at para 41.

The claimant's case under ground (1), as presented by Mr Pike in his oral submissions, was that additional environmental information had been put forward by the interested party at the inquiry, and neither the Inspector nor the defendant should have taken that information into account. Alternatively, they should have taken it into account only after requiring the interested party to publicise the additional information and carry out a consultation exercise such as that prescribed by paragraphs (3)-(9) of Regulation 19 of the Regulations. The justification put forward for this submission was that if this was not done, then members of the public who had had an opportunity to comment on the environmental information in the original Environmental Statement would be deprived of an opportunity to comment on the additional information, unless they happened to have attended the inquiry.

Mr Pike relied on certain passages in the speech of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 213 (see paragraphs 8 and 9 at pages 615C-617F). I do not set out those passages because, in my judgment, they do not support Mr Pike's submission for the simple reason that there was no Environmental Statement in the Berkeley case. The Secretary of State argued that this was of no consequence since there had been "substantial compliance" with the requirements of the Directive because "the equivalent of an Environmental Statement" could be found if one examined the documents that had been produced by various parties at the inquiry. Unsurprisingly given those particular facts, the House of Lords did not accept "that this paper chase can be treated as the equivalent of an Environmental Statement" (see page 617D). The House of Lords was not concerned with a case such as the present case, where an Environmental Statement complying with the Regulations has been submitted, but further evidence as to the environmental impact of the proposal emerges, whether in evidence in chief or in cross-examination during the course of a subsequent public inquiry.

The submission that the Inspector and the defendant should not consider such additional information flies in the face of the well established principle that since a decision taker is bound to have regard to all material considerations, he or she is bound to have regard to the up-to-date position, whether in relation to environmental or any other matters, as it is disclosed by the evidence at an inquiry. Moreover, it ignores both the underlying purpose of holding an inquiry and its public character. In an ideal world the applicant's Environmental Statement would be the last word on the environmental impact of a proposal because it would contain the "full information" about its likely environmental impact. However, the Regulations are not premised upon such a counsel of perfection (see Blewett, paragraph 41). A local planning authority may accept that an Environmental Statement contains sufficient material to comply with the Regulations, but still contend that the assessments therein of the various environmental impacts are inaccurate, inadequate or incomplete. If planning permission is refused on the grounds of, inter alia, environmental impact, and the applicant for planning permission appeals to the Secretary of State or the application is called in by the Secretary of State for her determination, then those contentions will be examined in detail, often in very great detail, in written representations or at a hearing or a public inquiry. Whichever procedure is chosen, the relevant procedural rules ensure that the parties are required to give each other, and the Inspectorate, sufficient advance notice of their respective cases.

If the accuracy, adequacy or completeness of the applicant's Environmental Statement has been challenged, the applicant will almost certainly submit further evidence as to the likely environmental impact of the proposals. To take the most simple example, if the local planning authority contends that an applicant's Environmental Statement is deficient because the applicant's ecological surveys have failed to identify a protected species, for example bats, on the applicant's site, and the applicant has therefore failed to deal with the impact of the proposal on bat roosts, any reasonable applicant or appellant would provide further environmental evidence at the inquiry to address that issue.

The opportunity for evidence to be given orally and to be cross-examined is one of the recognised advantages of holding a public inquiry. As a result of skillful cross-examination, an applicant's witness may be constrained to concede, whether willingly or unwillingly, that, for example, an environmental impact described in the Environmental Statement as "slight" or "moderate" should more properly be described as "severe", or that an impact which was not considered to be significant is significant and should therefore have been assessed, et cetera. If there was no possibility of such additional or new environmental information emerging as a result of the inquiry process, then there would be little point in arranging inquiries where there had been an Environmental Statement, but environmental impacts were still in issue.

In addition to ignoring the essential function of the inquiry -- to elicit further information, including environmental information -- the claimant's submission ignores one of the inquiry's most important characteristics: that it is a public inquiry. Thus, any member of the public who is concerned about the environmental impact of a proposal is able to attend, and insofar as additional evidence is given in or reduced to writing, to obtain copies of the relevant documents.

The public nature of inquiries is recognised in Regulation 19 of the Regulations, which recognises that environmental statements as submitted may not contain full information. Paragraph (1) of Regulation 19 provides:

Sub-paragraphs (3)-(9) then make provision for the publication of that "further information" so that members of the public who wish to make representations in response have an opportunity to do so. In effect, the "further information" supplied pursuant to a request under Regulation 19 is publicised in the same manner as the environmental information in the original Environmental Statement. However, paragraph (2) makes an exception in the case of "further information" which is provided for the purposes of an inquiry:

In the present case, neither the Inspector nor the defendant thought it necessary to request further information under Regulation 19. They were satisfied that the Environmental Statement was "fit for purpose" (see paragraph 3.13 of the Inspector's report and paragraph 10 of the decision letter above). Had they requested further information under Regulation 19 and stated that that further information was required for the purposes of the inquiry, the interested party would not have been required to publicise that further information under paragraphs (3)-(9) of Regulation 19. In these circumstances, it is difficult to see why the interested party should have been required to publicise the additional environmental information it provided voluntarily at the inquiry in its evidence, whether in chief or in answer to questions in cross-examination.

The rationale underpinning paragraph (2) of Regulation 19 is obvious: there is no need for further publicity because one of the essential features of a public inquiry is that it is held in public. Mr Pike submitted that applicants for planning permission would be able to circumvent the Regulations by introducing new environmental evidence without any warning at the inquiry, but that ignores the overriding requirement that the Inspector must ensure that the inquiry process is fair to all concerned, including members of the public. The Inspector at an inquiry has ample powers under the procedure rules to ensure that the interests of the parties attending the inquiry, and those who have made written representations, are properly protected by, for example, adjourning the inquiry if more time is required to consider a "new" piece of evidence.

For these reasons, I do not accept the novel proposition that if additional environmental information, ie environmental information that is in addition to that which was contained in the Environmental Statement and the responses thereto under the Regulations, is produced at an inquiry, that additional information either should not be considered by the decision taker, or should not be considered by the decision taker unless it has been subject to the same degree of publicity and consultation as the information in the original Environmental Statement.

That leaves the claimant's submission that the defendant erred in not concluding that the Park and Ride scheme was "an integral part" of the overall scheme so that the Environmental Statement should have considered the cumulative effect of both the link road and the Park and Ride scheme. The short answer to that submission is that whether the Park and Ride scheme was or was not "an integral part of ... a more substantial development", namely the link road, was very much a matter of planning judgment for the Inspector and the defendant. Having minutely examined the scheme over a period of weeks, the Inspector was the person who was best placed to decide what was, or was not, comprised within it.

TSLM contended that the Park and Ride scheme was an integral part of the link road scheme (see paragraph 3.4 of the Inspector's report). That was disputed by the interested party, which contended that the two schemes were separate, and that the Park and Ride scheme had been included only in the major scheme business case at the request of the Department for Transport (see paragraphs 3.9 and 4.6.4 of the report). The Inspector agreed with the interested party (see paragraph 3.12), and the Secretary of State agreed with that conclusion in paragraph 8 of the decision letter.

Mr Pike submitted that the Inspector had merely concluded that the Park and Ride scheme did not form part of the link road application, but that is a pedantic approach to paragraph 3.12 of the Inspector's report, and moreover takes that paragraph out of context. It is well-established that Inspectors' reports should be read in a commonsense way and as a whole. In paragraph 3.12, the Inspector was clearly resolving the factual dispute between the claimant and the interested party as to whether or not the Park and Ride scheme was an integral part of the link road scheme.

Mr Pike referred to paragraph 46 of Circular 02/1999, which gives advice about Environmental Impact Assessment. Under the heading "Multiple applications", it says:

It will be noted that this advice is concerned with whether an EIA is required. In the present case, there was no doubt that an EIA was required for the link road, which was undoubtedly a "substantial development", and there was therefore no question of the aims of the Regulations and the Directive being frustrated by the submission of multiple smaller applications. The advice in paragraph 46 of the Circular reflects the judgment of Simon Brown J (as he then was) in R v Swale Borough Council ex parte RSPB [1991] 1 PLR 6 at page 16E-G, which was applied by Turner J in BAA Plc v the Secretary of State for Transport, Local Government and the Regions [2003] JPL 610, a case which was relied upon by Mr Pike in his submissions. In the latter case, Turner J concluded that the Secretary of State had not considered the question whether the two developments proposed were part of a single development, and further concluded that had the Secretary of State considered that issue, a conclusion that they were not part of a single development "would have been vulnerable to challenge on the basis of irrationality" (see page 627).

In the present case, both the Inspector and the Secretary of State did consider whether the Park and Ride scheme and the link road were parts of a single scheme and concluded that they were not, and there has been no irrationality challenge to their conclusions in that respect. As was submitted by the interested party to the Inspector, the claimant's submission to the Inspector effectively turned the judgment in the Swale case on its head. There was no question here of a developer slicing up a substantial development proposal into smaller components so as to "defeat the object of the Regulations by piecemeal development proposals". The link road had been the subject of an Environmental Impact Assessment. The defendant correctly concluded that any Environmental Impact Assessment necessary for consideration of the Park and Ride scheme, which was a separate scheme, should form part of the decision-making process in relation to that application.

For these reasons, I reject the challenge on ground 1.

For the reasons set out above, there is no substance in any of the three grounds of challenge. This case is yet another illustration of the need to introduce a requirement that claimants who wish to make a challenge under section 288 of the Act should have to obtain the court's permission to do so, just as they have to do in respect of appeals under section 289 of the Act. Had there been such a requirement, it is likely that permission to make this application would have been refused by the court. The "filter" mechanism in section 289 appears to work well, and there would seem to be no sensible reason why it should not be extended to section 288 applications.

The hearing of this application was expedited at the request of the interested party because of the impact of continued legal uncertainty on the programming and funding of what was described by the interested party as "the highest priority major road scheme ... due to its regional and local importance". Challenges under section 288 have the potential to delay much needed development, even though the grounds of challenge may well be devoid of merit. Moreover, the need to have a full hearing in respect of all challenges under section 288, regardless of whether or not the grounds of challenge are arguable, greatly increases the costs for all of the parties involved, and occupies the time of the court unnecessarily.

In those cases where there are arguable grounds of challenge, surely all of the parties, including the Secretary of State and the promoters of any scheme, would be assisted by an early statement from the court to that effect. An indication of the court's concerns when granting permission might well, in some cases at least, result in a consent order quashing the appeal decision at an early stage in the process, thus bringing an end to the state of uncertainty created by an unresolved legal challenge to a decision, and saving the parties much time and costs.

I express the hope that those particularly concerned with these challenges, including the Planning and Environment Bar Association, the Law Society's Planning Panel and the Treasury Solicitor will seriously consider whether it would be desirable to urge the Government to introduce amending legislation to introduce a filter provision in respect of challenges under section 288 of the Act.

That said, I dismiss this application.

MR BLUNDELL: My Lord, as your Lordship is aware, I appear in place of Mr Litton this morning. As you know, he is in the Court of Appeal. My Lord, we would ask for our costs, but we are aware that the claimant is legally funded. In those circumstances, I ask for the usual order for that purpose.

MR JUSTICE SULLIVAN: Yes. Can you resist that?

MR PIKE: My Lord, no. There is no opposition to the principle of costs in this case, my Lord.

MR JUSTICE SULLIVAN: So the application is dismissed. The claimant is to pay the defendant's costs. Those costs are to be subject to a detailed assessment, but the costs are not to be enforced without the leave of the court -- whatever the current form of wording is.

MR PIKE: My Lord, indeed.

MR JUSTICE SULLIVAN: I imagine there is no application in respect of the interested party's costs?

MR BUTTLER: My Lord, no.

MR JUSTICE SULLIVAN: Very wise, if I may say so. Any more for any more?

MR PIKE: My Lord, I do ask for permission to appeal, simply to preserve the claimant's position. In light of the way in which your judgment is framed, I am not expecting your Lordship to grant it, but I simply have to ask the question, my Lord.

MR JUSTICE SULLIVAN: I understand why you have to ask it and you will understand why I have to refuse it. So I refuse permission on the ground that there is no real prospect of success, for the reasons set out in the judgment. Thank you very much.