Latest judicial review challenge involving the HS2 project fails (Buckinghamshire Council v SST)

Tue, 16 Aug 2022

Planning analysis: This is the latest judgment concerning consideration of the approval of arrangements relating to various aspects of the construction of the High Speed 2 (HS2) project. The claimant local authority challenged by judicial review the decisions in three appeals against the non-determination of applications for the approval of arrangements for large goods vehicles. The grounds of claim involved a range of issues, including the level of information a local authority can require and the jurisdiction to entertain appeals where there is a dispute about the sufficiency, relevancy, or necessity for the additional information sought. The applications for judicial review were dismissed.

Buckinghamshire Council v Secretary of State for Transport [2022] EWHC 1923 (Admin)

What are the practical implications of this case?

This judgment that shows that a major infrastructure project that has been challenged up to and including the Supreme Court can face further legal challenges in relation to decisions to approve arrangements several years after the project was granted parliamentary approval.

The detail of the judgment is likely to be of particular interest to HS2 Ltd (HS2L) and local authorities deciding approval applications under the High Speed Rail (London—West Midlands) Act 2017 (HSR(LWM)A 2017). For instance, the judgment clarifies the level of information a local authority can require and how a dispute about the sufficiency, relevancy, or necessity for the additional information sought is able to be resolved. Local authorities deciding approval applications should take note of the importance of suggesting modifications where they raise concerns about arrangements.

More generally, the case demonstrates the need to distinguish between the ratio decidendi (the reasons for deciding) of and the obiter dicta (things said in passing) in a court judgment. This distinction is taught at an early stage at universities and law schools but is sometimes forgotten in practice.

In the earlier case of R (London Borough of Hillingdon) v SST [2020] EWCA Civ 1005, the Court of Appeal suggested that a local authority could refuse to entertain a request for approval under HSR(LWM)A 2017 until it had the information it required, effectively precluding an appeal against non-determination.

If this had formed part of the ratio of the judgment, as was argued by the claimant in the present case, it would have been binding on the High Court. However, the judge held that the relevant parts of the earlier Court of Appeal judgment were obiter and were therefore not binding on him.

Thus, the distinction between the ratio of a case and that which is obiter is not academic. It can and does affect the outcome of cases.

What was the background?

HSR(LWM)A 2017, s 20 provides that planning permission is deemed to have been granted for the HS2 project subject to exceptions and conditions imposed by Schedule 17 (Schedule 17). The conditions require that an application is made to the relevant local authority for approval for certain works. Appeals against refusal of approval or non-determination may be made jointly to the Secretary of State for Transport and the Secretary of State for Levelling Up Housing and Communities (the Secretaries of State). Their appeal decisions may be challenged by judicial review.

The interested party, HS2L, made eight requests to the claimant, Buckinghamshire Council (the Council), as the relevant authority, for approval of arrangements for eight routes for large goods vehicles within its administrative area. The Council did not determine seven of these applications on the basis that insufficient information had been provided and argued that the period for determining the applications had not even begun. HS2L appealed against non-determination to the defendant Secretaries of State. This generated three appeals (the appeals), which were allowed by the inspectors appointed by the Secretaries of State (the appeal decisions). The Council challenged the appeal decisions in the High Court by judicial review.

The judgment was given by Sir Duncan Ouseley, sitting as a judge of the High Court.

What did the court decide?

Ground 1: Jurisdiction in all three decisions

Ground 1 was concerned with the jurisdiction of the Secretaries of State to hear the appeals. Sir Duncan Ouseley rejected that the suggestion of the Court of Appeal in R (London Borough of Hillingdon) v SST [2020] EWCA Civ 1005, that a local authority could refuse to entertain a request for approval under HSR(LWM)A 2017 until it had the information it required, effectively precluding an appeal against non-determination, was part of the ratio of the judgment, or that it was so closely bound up with the ratio that it should be treated as weighty (see above).

The judge noted that there were two aspects to the problem of jurisdiction: (i) the nature and level of information which a local authority could require before it had jurisdiction to determine a request under Schedule 17; and (ii) what jurisdiction there was to determine an appeal, where there was a contest over the sufficiency, relevance or necessity for the further information sought to be provided.

As to the nature and level of information which a local authority could require, the judge said that there was no express validatory process or requirement, but that HSR(LWM)A 2017 implied that sufficient information had to be supplied for the authority to reach a lawful determination on the issues. This did not mean, he said, that every possible material consideration had to be covered, rather the information sought had to be that without which no reasonable authority could proceed to a determination of the request pursuant to its functions. This encompassed, the judge said, the test of relevance, necessity and proportionality and applied to the implied duty the approach of SSES v Tameside MBC [1977] AC 104 (not reported by LexisNexis®UK) (which broadly requires decision-makers to ask themselves the right question and to take reasonable steps to acquaint themselves with the relevant information to enable them to answer it correctly). He said that it was an objective test, not a subjective one, and that there could be no necessary implication that the local authority was the ultimate judge of what was required, subject to judicial review, where there was an appeal process cast in very general terms.

Notwithstanding this, the judge said that the statutory guidance (published by the Secretary of State under Schedule 17 and which local authorities have to have regard to in exercising their functions under Schedule 17) may require more than would satisfy the implied duty. He explained that if HS2L wished to supply less it would need to explain why it was seeking to depart from the guidance, just as a local authority would need to explain why it sought more than the guidance required.

As to the appeal implications of a failure to supply, or refusal to supply, what a local authority sought as being fit, the judge said that unless the statutory appeal provisions excluded an appeal on validity, an appeal on validity could be entertained by the Secretaries of State and that there was no such express exclusionary provision in HSR(LWM)A 2017.

The judge concluded that the challenge to the appellate jurisdiction of the Secretaries of State failed. He said that each of the inspectors had jurisdiction to hear the appeals, that each was entitled to consider the need for the information sought, and that each was entitled to conclude that the information supplied was sufficient and to then reach a further conclusion on the planning merits.

Ground 2: the approach to the PFNs

Ground 2 was concerned with the approach of the inspectors to Planning Forum Notes (PFNs), which contained guidance about information HS2L should provide to local authorities when requesting approvals under Schedule 17. The claimant argued, inter alia, that the inspector who decided two of the appeals had treated compliance with certain PFNs as determinative of the adequacy of the material supplied and that this amounted to an error of law as the inspector had power to consider the need for documents or information outside the scope of the PFNs.

The judge accepted that the inspector in each appeal treated compliance with the PFNs as satisfying the requirement for sufficient information and further accepted that compliance with the PFNs did not of itself and necessarily mean that an application is valid. However, he said that the only judgment required on jurisdiction by the inspector was whether he had sufficient information for a lawful decision and that, if the Council thought that more information was required, it needed to submit this, which it did not do.

Grounds 3(i) and 3(ii): two of the appeal decisions

Grounds 3(i) and (ii) were concerned with the various criticisms made in relation to two of the appeal decisions. Broadly it was argued by the Council that the decisions took an overly narrow approach to the interpretation of Schedule 17 para 6. The judge rejected these criticisms. He mentioned several times that the Council had not proposed any modifications in circumstances where the Council raised concerns about the arrangements.

For instance, in relation to one of the appeal decisions, the inspector was criticised by the Council for failing to consider the possible need to secure improvements to the route by conditions. The Council argued that the inspector wrongly regarded such conditions as falling outside the scope of HSR(LWM)A 2017, instead relying on undertakings and assurances in the government’s Environmental Minimum Requirements, despite what was said by the Court of Appeal about the limitations of the role of such documents in R (London Borough of Hillingdon) v SST [2020] EWCA Civ 1005.

In rejecting the criticisms, the judge said that the Court of Appeal did not and could not treat the documents referred to by the inspector as irrelevant. He said that it was important to remember that an inspector was entitled to exercise his own judgment as to the weight to be given those documents in the exercise of his planning judgments.

The judge further said that even if the inspector had taken too narrow a view of the scope of Schedule 17 para 6, he could not see what the Council supposed the inspector could do once he had found that he had sufficient information to determine the appeal, as he lawfully did, and no modifications either specific or more general had been proposed: it was not for the inspector to ferret around for something. Thus, he said that he did not see that the legal debate about the scope of para 6 could advance the Council’s case, even if it were correct.

Collectively, the judge concluded that the claims on the various grounds taken as Ground 3 failed.

Ground 4: cumulative effects

Finally, in determining Ground 4, the judge considered whether the inspector had failed to consider the cumulative effects of large goods vehicle routes for the groups of sites in two of the appeals where the routes overlapped to a considerable degree.

The judge concluded that the cumulative effects were considered in the earlier of the two decisions. While the matter was not considered in the later decision, the judge said that this was because the inspector mistakenly anticipated that this would be the first decision and that the matter would be dealt with subsequently in the other appeal decision. The judge said that this made no difference as the earlier decision was not drawn to his attention and it did not fall within the category of a consideration so obviously material that it was a mandatory consideration (Baroness Cumberlege of Newick v SSCLG [2018] EWCA Civ 1305). He said that in circumstances where cumulative impact was considered in the earlier decision, it could not have made a difference to the second decision, the inspector would have concluded that the assessment had already been carried out.

Further, the judge said that if this was characterised as an error of law he would have exercised his discretion against granting relief as first he was satisfied that the outcome would not have been different and certainly highly unlikely to have been different, and secondly, the responsibility for making the inspector aware of the decision was primarily with the Council. He said that the Council should not have done nothing, letting the error it asserted arise, and then challenged the decision on the grounds of that error.

Overall conclusions

The judge concluded that the applications for judicial review failed and were dismissed.

Case details

  • Court: Administrative Court, Planning Court, Queen’s Bench Division, High Court of Justice
  • Judge: Sir Duncan Ouseley, sitting as a High Court judge
  • Date of judgment: 21 July 2022

No5's Richard Kimblin QC appeared for the Secretaries of State.

This article was written by No5's Howard Leithead and published in LexisNexis on 10th August 2022.

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