First council-promoted Planning Act 2008 scheme survives judicial review

A High Court judge has dismissed a judicial review challenge to the first scheme to be promoted by a local authority under the infrastructure planning and consenting regime contained in the Planning Act 2008.

The Transport Secretary, Patrick McLoughlin, had granted consent in March for the Heysham to M6 link, a 4.6km dual carriageway promoted by Lancashire County Council.

The local authority promoted the £123m scheme to provide better access to Morecambe as well as industrial areas that include Heysham’s two nuclear power stations and the Port of Heysham.

In challenging the decision, the claimant – David Gate on behalf of campaign group Transport Solutions for Lancaster and Morecambe – advanced five grounds:

1. The defendant (the Secretary of State for Transport) had no power to make the relevant order, with part of the highway falling outside the scope of the 2008 Act.
2. The consultation process was flawed.
3. The defendant wrongly took into account inapplicable National Policy Statements.
4. The defendant wrongly dismissed alternative alignments of the proposed route.
5. Inadequate consideration was given to otter welfare.

In R (oao David Gate on behalf of Transport Solutions for Lancaster and Morecambe) v The Secretary of State for Transport and Lancashire County Council, Mr Justice Turner rejected the claim on all five grounds.

On the first ground, the judge said a central issue was whether, under section 22(2)(b) of the 2008 Act, that part of the Heysham/M6 development which did not fall within schedule 5 to the order was a highway to be “constructed for a purpose connected with a highway for which the Secretary of State is (or will be) the highway authority”.

Mr Justice Turner said he was “entirely satisfied” that the dual carriageway which was intended to fall within the auspices of Lancashire as highway authority was indeed constructed for such a purpose.

Giving his reasons, the judge said part of the purpose of the 2008 Act was to streamline the process of obtaining consent for national projects. “By the operation of section 33 of the Act, where a proposed project falls within the parameters of ‘development consent’ then it is not necessary to obtain any of that wide range of other consents, permissions and authorisations which would otherwise burden the developer.”

He added: “If section 22(2)(b) were given too narrow an interpretation then the danger would arise that many projects would be doubly encumbered by the need to obtain development consent in respect of one part of it and the requirement to comply with the residual panoply of consents which would otherwise be covered by section 33 in respect of the rest.

“Far from being streamlined, the process would become unattractively more elaborate than under the old regime. This is precisely the result which would ensue if the claimant were to succeed on this point in the circumstances of this case.”

Mr Justice Turner also said that the facts of the case fully justified the inclusion of the Lancashire highway within the parameters of the application for development consent.

“The works to the motorway junction and the relatively short length of dual carriageway leading towards Heysham are to a significant degree mutually dependent for the fulfilment of their respective and overlapping purposes,” he suggested. “To attempt to separate them would be wholly artificial.”

The judge added that even if he had found that the Lancashire highway had fallen outside the scope of the 2008 Act, he would have declined to exercise his discretion to grant relief in this case.

“The development consent process is thorough and comprehensive and it is overwhelmingly likely that consent would have been given regardless of the route by which it had been achieved,” he said. “The time, cost and inconvenience of re-starting the process would render judicial intervention at this stage to be wholly disproportionate.”

In other findings, the judge said:

• Although in one limited respect the consultation process “fell short of ideal, it is not the function of this court retrospectively to micromanage for perfection. Taken as a whole, the consultation process was a fair one and not susceptible to review.”
• The ground that the Transport Secretary wrongly took into account inapplicable National Policy Statements was “without merit”.
• It was neither necessary nor desirable that the consideration of possible alternative routes in the context of the determination of an application for development consent should be entered into with the same level of expert scrutiny and assessment as the development itself. “Such an approach would be likely to be disproportionate in time, effort and expense. The Examining Authority set out his reasons for rejecting alternatives in coherent and compelling detail. His conclusions were neither unlawful nor irrational.”
• The approach of the Examining Authority and the Transport Secretary on the issue of otter welfare was both pragmatic and in accordance with the relevant regulations.

Mr Justice Turner therefore ruled that the challenge failed.

Commenting on the ruling, Cllr John Fillis, cabinet member for highways and transport at Lancashire County Council, said: "The link road was given development consent because there's such a strong case for it in terms of value for money and the benefits to the economy and local transport it will bring. 



"We've always been confident of the case for the road, which enjoys wide support from people and businesses in the area and I'm very happy that we are closer to getting on with the job.

"The M6 Link will be an engine for economic growth for the whole region, it's always been more than just a road building scheme."