Judgment handed down in London Borough of Hillingdon v Secretary of State and HS2 Ltd (No. 2) [2021] EWHC 871 (Admin): 13 April 2021

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Today Sir Duncan Ouseley (sitting as a High Court Judge) [2021] EWHC 871 (Admin) dismissed the application for judicial review brought by the London Borough of Hillingdon against the decision of an Inspector dated 28.7.20 allowing an appeal by HS2 from a refusal to approve without the imposition of conditions under para. 6 of Schedule 17 of to the High Speed Rail (London-West Midlands) Act 2017. He rejected the contentions of LBH that the case was substantially similar to the Court of Appeal’s judgment in the earlier R (London Borough of Hillingdon) v Secretary of State for Transport and another [2021] PTSR 113 where the Court had been concerned with a complete absence of submitted information on heritage issues and had concluded that the application was not a valid application under the special approval procedure in Schedule 17 which only granted limited rights of approval to qualifying authorities under those provisions. In this case LBH (which was a qualifying authority) had argued that conditions should be imposed in respect of HGV traffic as the Judge described at [1] and [2]

“1 … The approval of LBH had been sought by HS2L for the lorry routes to be used by construction lorries to and from the HS2 construction sites within LBH’s area.

2.  At the heart of LBH’s case is its contention that HS2L ought to have provided a traffic impact assessment of the routes it had selected. This is not because LBH contended that other routes should have been selected by HS2L instead, but because LBH, as planning and highway authority for the routes selected, wished to impose controls on the level of usage of those routes by construction traffic, particularly in the normal peak traffic hours. To select and justify the controls it might wish to impose, it needed information which it said HS2L was duty bound to supply. HS2L had not supplied that information and so the Inspector was wrong in law to allow HS2L’s appeal.”

Unlike Hillingdon 1, information had been provided in various forms to LBH but LBH contended that it was insufficient and sought the imposition of conditions that in effect required HS2 to provide further information and limits in relation to HGV usage. Although LBH mounted a detailed attack on the material available to the Inspector and on the approach to his decision, which was then in the context of the High Court judgment in Hillingdon 1 which had been reversed by the Court of Appeal, the Judge rejected the attack on general principles applicable to judicial review and on the basis that the Inspector was entitled to find that the evidence before him was sufficient to determine the question whether approval should be granted with or without conditions

“160. This was an appeal against a refusal of approval. The Inspector had to approach the appeal, as if the application had been made to him in the first place, save that he could impose conditions, without agreement from HS2L. He had to decide for himself how paragraph 6 should be applied, on all of the material before him. Although he had to make his decision within the confines of paragraph 6 of Schedule 17, as he saw the case before him, he had to assess and give the weight he thought appropriate to the various pieces of evidence or the absence of evidence, before him, and to do so in the light of various material considerations before him, including the Planning Memorandum and LBH’s undertakings, statutory guidance, EMRs, RTMPs, LTMPs, VMS and the Secretary of State’s undertakings. He was entitled to take a very different view of the evidence, and of the significance of the guidance and other material considerations, from that taken by LBH.

161. It was not an appeal about whether LBH had had sufficient information to enable it to determine the issues in the way in which it wanted to determine them, by seeking a scheme, which it would then approve and, on the basis of which, it would then enforce controls. LBH had not refused to entertain the application for want of the basic information necessary even to consider the application. The material required by the PFN6, issued by the Planning Forum of which LBH was a member, was supplied. The request for information arose out of LBH’s consideration of the merits of the application, and its consequent view that it should have some form of control, to impose which further information was, it thought, necessary. I note that the judgment that further information was considered necessary to that end was very much affected by an earlier Inspector’s decision, rather than supported by any analysis presented to this Inspector of why the information already supplied could not of itself provide a basis for some limit on the numbers of LGVs in the peak hours, or other measures specifically put forward.”

On specific issues relating to the need to satisfy the Inspector of the requirement for conditions and the information provided, the Judge held:

“196. …  First, the approach to conditions: on the correct interpretation of paragraph 6(5), the Council has to show why the proposals should be modified and why that is reasonable. That is consistent with the normal approach to planning conditions. The Inspector’s language about conditions would be normal for any planning appeal. It is not for the planning authority to impose whatever it wishes, and to leave it for the developer to strike it down by evidence. It is also in line with the Planning Memorandum, 7.7.3, to which the Council had to sign up in order to become a qualifying authority, and to be in a position to decide these applications for approval in the first place. It is not for the Council to adopt or to urge, with any legitimate expectation of success, a different approach while remaining a qualifying authority. LBH made its choice; Parliament did not leave local authorities with those functions; they had to qualify to be able to exercise them, by giving undertakings about their handling of applications. Their obligations in that respect are plainly material to an understanding of how its functions are to be interpreted. Indeed, the decision of the Court of Appeal in Hillingdon 1 is predicated on the obligation on the Council to make good its proposed modifications, because that is how the contradiction highlighted in [75] was resolved.

197. Second, the provision of information: the other side of that coin however was that there was implied into the Schedule an obligation on HS2L, which was otherwise found within the Planning Memorandum and the Development Agreement, to provide sufficient information to enable the authority to carry out its task. However, on an appeal, it is for the Inspector to decide what the evidence showed and what he needed for his decision. As I have endeavoured to explain, he reached unchallengeable conclusions as to what it showed. He pointed out that LBH had asserted that the evidence supported it, and it was only after explaining why it did not do so to or do so to the extent LBH claimed that it would, that he concluded that LBH had not made out its case. It needs to be remembered, despite LBH’s submissions to me, that it was not its case at all that it could say nothing, as it had no material. This was very different from the facts to which the Hillingdon 1 judgment was addressed, where nothing of significance about the archaeological potential or its extent or whereabouts on the site, was known to LBH or indeed to HS2L.”

The Judge rejected the contention that the reliance on Hillingdon 1 (which concerned a different part of Schedule 17) could have affected the outcome and also expressed some reservations about the interpretation advanced for part of the Court of Appeal’s judgment:

“208. I wish however, and with great respect, to enter a note of reservation about the obiter comments in [70] of the Court of Appeal judgment, and the suggestion that the local authority can refuse to entertain a request until it has had the information it requires, all of which has to be supplied when the application is made. If the PFN6 is set aside, for these purposes, the local authority would have greater powers here than in a normal planning application. The suggested approach does not allow for the fact that information is commonly supplied, as here, in stages. First a certain amount is required to accompany the application or to be part of it. In fact, under PFN6, it was a considerable volume of material. Then, the local authority considers that and may or may not seek more but it would be for a specific purpose and of a specific nature. It can be supplemented as time goes by with further material as either seeks it or it is supplied, as here; it can be enlarged on appeal. I do not think that the Court of Appeal intended that all of that, including the telecon notes, had to supplied before the application was entertained. In reality, entertaining and considering how to decide the application is just what LBH were doing in making its requests for information. The Court of Appeal was directing its remarks to a very different factual situation.

209. The professed aim of the step suggested by the Court of Appeal was to stop time running for the making of a decision, and hence to postpone the appeal rights. Yet the point of or need for the information may be highly contested, and may derive as here from the particular outcome which the authority, considering the outcome, desires. Requests lead to further requests, clarification, documents, evidence. This procedure, however, would leave HS2L without the sort of appeal rights it would have even on a normal application, leaving it able to contest the request only on an application for judicial review, which is not a merits review, or contractually, or by seeking the removal of the qualification of the authority. If the Inspector agrees with the need for the information which has not been supplied, it will succeed on appeal, and if not, not. The decision on the appeal in Hillingdon 1 was successfully challenged on the basis that the Secretaries of State erred in law in finding that the duty had been complied with; this did not require LBH to refuse to entertain the application. I do not think that in the circumstances of this case, as opposed to the circumstances of that rather extreme case, the suggested approach could be applied without collateral litigation and costly delays, which the Court of Appeal clearly did not intend.”

The Judge refused permission to appeal. Tim Mould QC represented the Secretary of State. David Elvin QC represented HS2 Limited. A copy of the judgment can be found here.

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