- Court of Appeal (Civil Division)
- 31 July 2020
- Lindblom, Haddon-Cave and Green LJJ
- [2020] EWCA Civ 1005
- [2020] PLSCS 152
Town and country planning – Local authority – Approval – Interested party nominated undertaker of HS2 rail project requesting approval of plans by appellant local authority – Appellant refusing request – Respondent secretaries of state overturning refusal – High court upholding decision – Appellant appealing – Whether interested party entitled to circumvent duty to perform impact assessment by conducting non-statutory investigation – whether interested party required to provide sufficient evidence and information to enable appellant to perform statutory duty – Appeal allowed
Issues arose, concerning the HS2 high speed railway line to be built between London and the West Midlands, in respect of the duties and obligations imposed by parliament upon the interested party nominated undertaker of the project and local authorities in relation to its actual implementation as it affected localised planning concerns.
A dispute arose relating to a failure by the interested party to submit any information or evidence with its formal request for approval which would enable the appellant to conduct what it considered to be its statutory duties to evaluate the plans and specifications for their impact on archaeological interests.
The interested party argued that it was under no obligation to furnish such information and evidence because it would itself conduct investigations into such potential impact and take any necessary mitigation and modification steps under a guidance document which formed part of its contract with the first respondent.
The appellant local authority refused to grant approval and the respondent secretaries of state overturning that decision. The High Court upheld that decision. The judge agreed with the respondents that documents at the core of the issue, namely, the environmental minimum requirements (EMRs) and statutory guidance relating to schedule 17 to the High Speed Rail (London–West Midlands) Act 2017 elevated the status of the EMRs in a way which substantially curtailed the powers of local authorities under the Act, including the appellant: [2019] EWHC 3574 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) The duty to perform an assessment of impact, and possible mitigation and modification measures under schedule 17, had been imposed by parliament squarely and exclusively upon the local authority. It could not be circumvented by the contractor conducting some non-statutory investigation into impact.
Schedule 17 operated upon the clear premise that an authority was under a duty to perform an evaluation of the impact of submitted plans and specifications on the identified planning interests. The schedule reflected a deliberate decision by parliament in the apportionment of democratic responsibility and accountability so that decisions on matters of local concern were determined by local planning authorities who were accountable to their council tax payers. There was no basis in the schedule for the duty imposed upon an authority to be delegated or sub-contracted to any third party, including the interested party, or for that duty to be abrogated by any other instrument (save for primary legislation) and in particular non-legislative guidance material. Nothing in the statutory guidance or the EMRs could, in law, oust the statutory duty or in any way modify or limit it; and nothing in those instruments purported so to do. At their highest, they contained matters which, in the performance of its statutory duty an authority should take into account.
In the present case, both the judge and the respondents erred in concluding that the references in the statutory guidance which urged planning authorities to avoid modifying or replicating controls already in place served to limit the power and duties of an authority. Such guidance could not in law have the effect of stripping from an authority the powers and duties it had imposed upon it under statute in relation to control. If the guidance was, fairly read, to be construed otherwise then the Act, including schedule 17, took precedence. The same inevitably went for the EMRs.
(2) It followed from the statutory scheme that, if the interested party failed to furnish an authority with information and evidence sufficient to enable the authority to perform its duty, then the authority was under no obligation to determine the request. Moreover, since the interested party could not proceed to carry out works without an approval, it had a concomitant duty to furnish an authority with such evidence and information as was necessary and adequate to enable the authority to perform its allotted statutory task. If the interested party failed to do so, the correct approach was to decline to process the request until such time as adequate evidence and information had been furnished. The eight-week period for consulting and then deciding upon the request would not start to run until adequate information had been provided.
Although approval had been granted by the respondents unconditionally, an issue arose whether it would have been lawful to grant approval subject to a so-called “Grampian” condition that the approval was valid only after investigations regarding the archaeological impact of the works had been undertaken and had not discovered anything of significance: Grampian Regional Council v City of Aberdeen District Council (1984) 47 P &CR 633 followed.
(3) Such a condition would fail on the basis that it was integral to the validity of the approval which was intended to confer a permit to conduct the development works, but at the time the condition was imposed the authority did not know whether the development works were to be permitted and it could not therefore fairly and reasonably relate to it; and it was irrational and unreasonable for an authority to be compelled to give what was intended to be a definitive approval to a request, but also subject it to a condition that required the authority to consider later whether the approval should have been granted in the first place: Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486; [2020] PLSCS 58 applied.
The statutory guidance confirmed that conclusion when it stated that conditions should not be imposed which reserved for future approval matters which were integral to the approval being sought. The satisfaction of the condition imposed under schedule 17 had to precede the decision of the authority on grant or refusal of approval.
(4) Accordingly, the respondents’ decision would be quashed and the matter remitted to them for reconsideration.
Craig Howell Williams QC and Melissa Murphy (instructed by Hillingdon London Borough Council) appeared for the appellant; Timothy Mould QC (instructed by the Government Legal Department) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
