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When fixation becomes legal irrationality

John Pugh-Smith examines two recent judicial review challenges where judges have upheld a ground of 'irrationality'.

As a public lawyer, while one sometimes includes a ground of “irrationality” as part of a judicial review challenge one knows that, in most instances, either reliance upon it will not be required, because of some lesser error, or, the Judge will discourage you from “going there”! Therefore, it has been with pleasant surprise that so far this year, not just one but two, Planning Court judgments have upheld this ground, and by judges not normally known for such robustness.

The UTAG Case

On 20 January 2021, in R ( United Trade Action Group Ltd & Ors) v Transport for London & Mayor of London [2021] EWHC 72 (Admin) (“the UTAG case”) Mrs Justice Lang upheld judicial review challenges brought by the London taxi trade against TfL’s Streetspace Plan, its Guidance and a specific scheme on Bishopsgate (A10). Whilst TfL has now lodged an  appeal, and seeks an expedited hearing, for now, the following trenchant comments of Mrs Justice Lang remain as a strong judicial rebuke

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Five grounds of challenge had been brought of which the last pleaded “irrationality”. Towards the end of her lengthy judgment, covering some 85 pages, Mrs Justice Lang states the following:

266. In my judgment, the flaws identified were symptomatic of an ill-considered response which sought to take advantage of the pandemic to push through, on an emergency basis without consultation, “radical changes”, “plans to transform parts of central London into one of the largest car-free zones in any capital city in the world”, and to “rapidly repurpose London’s streets to serve an unprecedented demand for walking and cycling in a major new strategic shift” (Mayor’s statements on 6 and 15 May 2020) …

267. The scale and ambition of the proposals, and the manner in which they were described, strongly suggest that the Mayor and TfL intended that these schemes would become permanent, once the temporary orders expired. However, there is no evidence to suggest that there will be a permanent pandemic requiring continuation of the extreme measures introduced by the Government in 2020.

274. In my judgment, it was both unfair and irrational to introduce such extreme measures, if it was not necessary to do so, when they impacted so adversely on certain sections of the public. The impact on the elderly and disabled who rely heavily on the door-to-door service provided by taxis is described at paragraphs 130 – 136 above. See also the adverse impacts identified in the EqIA (paragraphs 189-192 above) [1]. Taxis are a form of public transport. Travellers may wish to travel by taxi for legitimate reasons. Taxis have been valued by the NHS and vulnerable groups during the pandemic because they are safer than trains, buses and private hire vehicles …

275. I conclude that the decision-making processes for the Plan, Guidance and A10 Order were seriously flawed, and the decisions were not a rational response to the issues which arose as a result of the COVID-19 pandemic.

Accordingly, the Judge concluded that quashing orders rather than declarations were appropriate because of the nature and extent of the unlawfulness which she had identified, which affects not only taxi drivers, but also their passengers. She remarked that The Plan, the Guidance and the A10 Billingsgate Order all need to be re-considered and substantially amended in the light of her judgment. To reduce disruption, she directed that TfL and the Mayor could turn their minds to this task now, on a provisional basis, as there would be a stay and a delay whilst they pursue their appeal. If the appeal were unsuccessful, then they could apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders took effect.

Currently, TfL anticipate their appeal being listed for an expedited hearing in early June 2021. Its outcome has serious potential implications upon a series of High Court challenges of borough-specific schemes which are currently listed for hearing before Mr Justice Kerr from 6 June 2021.

The Norfolk Vanguard Case [2]

Within a month, on 18th February 2021, Mr Justice Holgate handed down judgment in R (Pearce) v Secretary of State for Business Energy And Industrial Strategy [2021] EWHC 326 (Admin), quashing the decision of the Secretary of State for Business, Energy and Industrial Strategy (“the SoS”) on 1 July 2020 to make the North Vanguard Offshore Wind Farm Order (“the Order”).

The North Vanguard project is closely related to the neighbouring Norfolk Boreas project, lying immediately to the north-east. Both are to be developed by Vattenfall Wind Power Limited (“Vattenfall”). Both are, individually and jointly, said to be one of the largest in the world. The promoter of the project, Norfolk Vanguard Limited (“NVL”) (a subsidiary of Vattenfall), proposed that the onshore infrastructure for the two projects (North Vanguard and Boreas) be co-located and share several common elements to help reduce construction costs and increase efficiencies. These currently involve a cable route carrying direct current for 60km from the proposed landfall at Happisburgh, North-East Norfolk, to a substation site near the village of Necton, Mid-Norfolk. There, the power would be converted and fed into the National Grid, with both sharing the grid connection. The Environmental Statement (“ES”) prepared by NVL for the North Vanguard project assessed cumulative impacts arising from both projects, including landscape and visual impacts from the infrastructure proposed at Necton. The ES asserted that sufficient information was available in order to undertake a meaningful assessment. Objections were received from many, including Mr Pearce, the Claimant, in relation both to the impacts of the Necton infrastructure for the Vanguard project, in isolation, and also the cumulative impacts which would occur if infrastructure for the Boreas project was added.

The approach of the Examining Authority (“ExA”) and the Secretary of State (“SoS”) only became apparent with the publication of the ExA’s report, the matter not having been the subject of discussion at the examination. The relevant paragraph stated: “Finally, whilst the Norfolk Boreas Offshore wind farm has been included in the Applicant’s LVIA cumulative impact assessment, the ExA have not considered it in this part of the assessment due to the limited amount of details available. The ExA considers it would most appropriate for cumulative impacts to be considered in any future examination into Norfolk Boreas.” The SoS followed this approach in his decision: “The ExA notes that, while the Applicant’s Landscape and Visual Impact Assessment cumulative assessment included the proposed Norfolk Boreas offshore wind farm, it was not considered by the ExA because of the limited information available on that project. The ExA concluded, therefore, that this matter should be considered in the future as part of the examination of the development consent application for the Norfolk Boreas offshore wind farm.”

However, the Judge found this approach had been unlawful: “The Defendant unlawfully deferred his evaluation of those effects simply because he considered the information on the development for connecting Boreas to the National Grid was “limited”. The Defendant did not go so far as to conclude that an evaluation of cumulative impacts could not be made on the information available, or that it was “inadequate” for that purpose. He did not give any properly reasoned conclusion on that aspect. I would add that because he did not address those matters, the Defendant also failed to consider requiring NVL to provide any details he considered to be lacking, or whether NVL could not reasonably be required to provide them under the 2009 Regulations as part of the ES for Vanguard.”

Indeed, unlike so many, it could not be defended on the basis of questions of planning or expert judgement.

Moreover, Mr Justice Holgate then found that the decision was irrational, concluding that irrationality arose from the SoS’s deferral of the evaluation of cumulative effects of both projects. Indeed, he notes that it had been common ground between the parties that the nature and level of information on the two projects, for the purposes of assessing landscape and visual impacts of the Necton substation development, was essentially the same. He also observes that the SoS must have proceeded on the basis that the information on the impacts of the Vanguard project was sufficient for him to be able to evaluate and weigh that matter. The decision was therefore ‘flawed by an obvious internal inconsistency.’ [3] [4]

It was an unfortunate result for the promoter of the scheme, who as the judge had pointed out, had expressly catered for any lack of detailed information on Boreas by proposing a “Rochdale envelope” parameters approach. There was no basis to do anything but quash the decision.

On the issue of relief, both the SoS and NVL contended that the Secretary of State would have made the same conclusion, even if he had taken into account the cumulative impacts (relying on section 31(2A) of the Senior Courts Act 1981). However, the Judge rejected the argument [5]. His view was that the consequence of the legal errors made by the SoS was that the Court did not have any notion as to what the evaluation of cumulative impacts by the Defendant would have been if he had considered the matter. The Court did not even have an idea as to how the ExA had evaluated the cumulative impacts, because they too had decided not to do so. As it would be impermissible for the Court to make findings on that issue for itself, instead, it was being asked to deduce from the SoS’s conclusions on the solus impacts of the Vanguard development at Necton and the way in which the overall balance was struck that it would be highly likely that the outcome would have been the same if the cumulative impacts had been evaluated as well.

“In my judgment, there is a fundamental flaw in the argument relying upon s.31(2A) which cannot be overcome. It flies in the face of the conclusion which the Defendant actually reached, namely that he would not assess cumulative impacts at Necton because the information on Boreas was “limited”. This criticism by the Defendant makes it impossible to deduce what his conclusion would have been if he had evaluated those impacts. But even if that point is put to one side, there are other flaws…”  [6]

However, the Judge declined the Claimant’s invitation to issue particular directions as to how either of the two project’s DCOs should be determined when they are re-visited; though he did observe that : “…it is very doubtful whether the Defendant could properly proceed to re-determine the Vanguard application, or to determine the Boreas application, without at least giving a reasonable opportunity for representations to be made by interested parties on the implications of this judgment for the procedures now to be followed in each application, considering those representations, and then deciding and explaining what course will be followed.” [7]

Conclusions 

Rarely, does the Court of Appeal seek to question the findings of the first-instance judge. So, here, the judicial brakes have been so firmly applied to two significant proposals, there will have to be commensurate appeal grounds for either judgment to be overturned. Perhaps, that may also be due to the common thread, namely, the manifest inadequacy in the decision making process and the seeming “fixation” with trying to push through the underlying objective with insufficient regard to the procedural consequences. Whatever the outcome of the re-taken decisions, it is to hoped, indeed, my expectation, as a public lawyer, that greater endeavours will be applied by the promoters and decision-makers to ensure that the desired outcome is, again, not at the expense of the necessary “due process”.

It is also to be hoped that the Faulks’ Independent Review of Administrative Law will take cognisance of the significance of these types of irrationality findings and why there remains a continuing necessity, in the wider public interest, for judicial review still to be sufficiently available and achievable; for expediency is not always the answer to good governance and decision-making in a mature democratic society.  

John Pugh-Smith is a barrister at 39 Essex Chambers. He and Daniel Kozelko are currently jointly engaged in a High Court challenge to the outworkings of the Streetspace programme within the London Borough of Hounslow and its effects on Chiswick High Road. John is also an advisory member to Norfolk Coastal Futures. An earlier podcast version of this article can be heard through this link.

[1] The EqIA aspect of the UTAG case  was discussed in a separate article, published on February 12, 2021, written  by John Pugh-Smith and Daniel Kozelko entitled: Planning and Equalities Impact Assessments.

[2] More detailed articles about this case and its contextual context, respectively, by my 39 Essex Chambers’ colleagues, Stephen Tromans C and Gethin Thomas, can be found through this link.

[3] Judgment, para. 131

[4] Para. 156-158

[5] Para. 156-158

[6] Para. 158

[7] Para. 179

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