Legal Viewpoint - Judgement a boost for infrastructure

Last month's High Court dismissal of a local campaign group's challenge to the secretary of state for transport's decision to grant consent for the Heysham to M6 Link Road set out several points that will be useful for promoters of nationally significant infrastructure projects (NSIPs).

London's Royal Courts of Justice
London's Royal Courts of Justice

First, the claimants argued that Lancashire County Council's dual carriageway was not part of a single NSIP. Mr Justice Turner held that a project had to fall entirely within the general Planning Act 2008 definition for NSIPs and regard should then be had to its specific definitions for infrastructure. In this particular case, he was satisfied that the dual carriageway was for a purpose connected with the highway. Even had he not been so satisfied, he said he would not have held that the dual carriageway was "associated development", as this would usually be distinctly secondary in significance to the main development proposed.

Second, the court considered whether consultation had been adequate, given that the supporting documentation referred to "fixed design parameters". The judge agreed that it would have been more appropriate to present the consultation exercise "in terms which were not quite so unequivocally expressed". However, he ruled that the decision to make the order was not unlawful simply because it was possible, in hindsight, to conceive of a better consultation process.

Third, in the absence of a specific national policy statement (NPS) on highways, the challengers asked whether it was appropriate for other NPSs to be taken into consideration. The examining authority and the secretary of state had taken into account matters in the NPSs on port and nuclear power developments; the authority concluded only that they provided "some support". The judge held that this was permissible, since it was for the secretary of state to determine what weight should be given to those matters in his decision.

On the remaining grounds, the judge found it neither necessary nor desirable that consideration of alternative routes should be entered into with the same level of expert scrutiny and assessment as the proposed development. He also held that the appellants' commitment to carry out further surveys and, if necessary, apply for a European protected species licence answered concerns about the presence of otters near the route.

This clear decision is a reminder that challenges can only be brought on limited grounds. The judge made it clear that even if a court is persuaded on a point of law, the judge may still decide not to quash a decision, particularly where doing so would serve no useful purpose and lead to wholly disproportionate delays, increased costs and inconvenience.

R (Gate) v Secretary of State for Transport and Lancashire County Council; Date: 4 October 2013; Ref: [2013] EWHC 2937 (Admin).

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