Home > News > 15.10.21 Court of Appeal rejects second Hillingdon challenge to HS2 consents

In R (London Borough of Hillingdon Council) v. Secretary of State for Transport [2021] EWCA Civ 1501 the Court of Appeal (Sir Keith Lindblom, Baker and Lewis LJJ) upheld the judgment of Sir Duncan Ouseley [2021] EWHC 871 (Admin) dismissing the London Borough of Hillingdon’s second judicial review of the consent obtained by HS2 on appeal with regard to a consent under para. 6 of Schedule 17 of the the High Speed Rail (London-West Midlands) Act 2017 Sch.17 Pt 1 para.6 for lorry routeing within the borough. Unlike the first Hillingdon case, reported at [2021] PTSR 113, HS2 had provided information with regard to the routeing and likely traffic flows and, although Hillingdon contended the information was inadequate, the Inspector hearing the appeal determined that it was sufficient and allowed HS2’s appeal.

In a detailed judgment, the Court refused permission to appeal. Sir Keith Lindblom SPT, giving the only judgment, distinguished the circumstances which had caused the Court of Appeal to strike down the approval in the first Hillingdon case which had also been dealt with by the Judge and did not criticise the use of the EMRs (environmental minimum requirements) which formed part of the Parliamentary process:

“69. The situation here is not comparable to that in the previous proceedings. In that case there was no evidence on the focal issue of the site’s archaeological value. There was no information available to the council, or to the inspector and the Secretaries of State, on the presence and importance of any archaeological remains on the site, and thus nothing by way of evidence on which to base a decision under paragraph 3. So the decision-maker was deprived of the opportunity to do what the statute required. The question therefore arose, in those particular circumstances, whether the Secretaries of State could lawfully avoid responsibility for addressing HS2 Ltd.’s request on its merits.

70. That is not this case, or even remotely like it. Here, the decision-maker was able to do what the statute required. The inspector had substantial evidence about the asserted need for the conditions, including evidence on the volumes of traffic on the parts of the highway network that were going to be used by the lorries travelling to and from the construction sites, and the likely levels of construction traffic on those roads if the proposed lorry routes were to be used. It cannot be said that, in presenting its evidence, the council found itself constrained by the first instance judgment in the previous case. And there was, in fact, no dearth of information on the decisive issues. On the contrary, the information was ample. To illustrate this, Mr David Elvin Q.C., for HS2 Ltd., took us to some of the detail on LGV movements in the evidence – in HS2 Ltd.’s written statement, in the ROMIS, and in the LTMP – including, for example, what was said in the LTMP about specific limitations on HGV movements at Swakeleys Roundabout in the morning and evening peak hours.

71. Whether the information provided to him was “adequate” for the inspector’s purposes in making the decision he had to make, and in particular whether, in its totality, it enabled him to judge whether there was a need to impose the council’s two conditions, does not, in itself, constitute a matter of law for the court. It was, in the first place, for the inspector himself to gauge, as decision-maker. His view on that question, an archetypal matter of planning judgment for him, is amenable to the court’s intervention only on public law grounds, not because the court might have taken another view had the judgment been for it to make.

72. From the inspector’s decision letter, unlike the inspector’s report in the previous case, one can see he was quite satisfied that he had enough information to decide the issues he had identified. Nowhere did he suggest otherwise. And on any reasonable view the information he had before him can properly be described as “adequate”. Once again, I agree with the judge. There is, in short, no basis for the court to conclude that the inspector erred in law in regarding the information he had as sufficient for the purposes of making his decision on HS2 Ltd.’s appeal.”

“78. He [the Inspector] did not fall into the same error as did the Secretaries of State in the previous case. He did not look upon the EMR as a substitute for the statutory process itself, allowing a decision-maker on a Schedule 17 request to avoid responsibility for considering a request on its merits. He did not refrain from the decision-maker’s proper role under the statutory scheme. He engaged fully with the issues in the appeal before him. He considered whether the proposed arrangements for lorry routes could be accepted without adding to, or adjusting, the commitments and controls in the EMR. He examined all the evidence said by the council to support its case for refusal or the imposition of the two conditions, and all the evidence said by HS2 Ltd. to compel the opposite result. He was mindful of the traffic monitoring and traffic management measures provided for in chapter 14 of the CoCP, the RTMP and the LTMP. He was entitled to assume that these measures would be implemented by HS2 Ltd. and would achieve their intended effects. There is nothing to suggest that he misinterpreted any of the relevant constituents of the EMR, ignored the qualified language in which they were expressed, or misdirected himself on the nature and degree of control they contained. And the passages complained of in paragraphs 20, 65 and 70 to 76 of his decision letter are faithful to the advice in paragraph 4.4 of the statutory guidance not “to modify or replicate controls already in place”.

79. It is therefore not right to say that the inspector placed “complete reliance” on the EMR, or that he failed to appreciate their flexibility. He did neither. He took the EMR into account as an indispensable component, but only one component, in the process of deciding whether the proposed arrangements “ought to be modified”, and gave them the weight he thought right in forming his own judgment on the acceptability of those arrangements. None of this involved any legal flaw.”

“82. It was open to him under the statutory scheme, and appropriate, to assess the evidence in the light of the parliamentary process preceding the passage into law of the HS2 Act, and draw logical inferences. Naturally, he took into account the assessment of traffic impacts in the environmental statement submitted in support of the HS2 Bill, on which Parliament had relied when legislating for the deemed planning permission and the imposition of conditions upon it. That assessment was clearly relevant, and useful to him, in evaluating the likely impact of lorry movements to and from the construction sites, and thus in reaching the conclusions called for under paragraph 6(5)(b) and (6))b) of Schedule 17. Again, it was one part, but only one, of a multipartite assessment. How much weight to give it was for the inspector to judge, within the bounds of reasonableness. It was, as he saw, an important part of the evidence. But he did not regard it as automatically determining the issues he had to tackle in deciding HS2 Ltd.’s appeal. He did not draw the simplistic inference that the proposed lorry route arrangements must be acceptable because their effects were likely to be less than those assessed in the environmental statement. His decision letter would have been a good deal shorter if he had thought that. Much of what he said would have been redundant.

83. The relevant assumption, stated in paragraph 46 of the decision letter, and in my view perfectly reasonable, was that since it had imposed no specific limits on “LGV flows”, Parliament must have concluded that the assessed impacts were acceptable, though it also expected that further work would be done to reduce them. The same assumption comes through in paragraph 70, in the inspector’s reference to “matters settled through the parliamentary process”. He acknowledged (in paragraph 46) Parliament’s acceptance of the assessed impacts, having “no doubt had regard to the EMRs and the various undertakings and agreements of the EMRs, legal agreements and statutory mechanisms in reaching its conclusions …”. This also seems sensible to assume, nowhere near “Wednesbury” unreasonable. As the judge said, the inspector plainly treated it as relevant when considering whether further controls were justified. He went on to consider the TfL report in depth, before discussing, again in depth, the claimed justification for each of the council’s two conditions, and ultimately whether, on all the evidence before him, including but not limited to the environmental statement, the proposed arrangements “ought to be modified”. His assessment was, in my view, legally impeccable.”

Tim Mould QC represented the Secretary of State.

David Elvin QC represented HS2 Limited.

For the full judgment, click here.

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