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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Davies, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2008] EWHC 2223 (Admin) (28 August 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2223.html Cite as: [2008] EWHC 2223 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 August 2008

MR JUSTICE SULLIVAN:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash the defendant's decision, contained in a decision letter dated 7 February 2008, to grant planning permission, subject to conditions, for the construction of the Heysham to M6 Link Road. The application for planning permission was made by the interested party on 14 December 2005. The defendant called in the application for her determination, and appointed an Inspector to hold a public inquiry.
2. Following an inquiry over a five-week period from 10 July to 10 August 2007, the Inspector reported to the defendant on 21 November 2007. In his report the Inspector recommended that planning permission be granted subject to conditions. With one minor exception, which is not relevant for present purposes, the defendant agreed with all of the Inspector's conclusions and with his recommendation.
3. The claimant is a member of Transport Solutions for Lancaster and Morecambe (TSLM), a group of concerned organisations and individuals which opposed the proposed link road at the public inquiry. TSLM and the Environmental and Sustainable Transport Alliance (ESTA) presented a joint case to the inquiry and instructed the same counsel, Mr Pike, who appeared on behalf of the claimant in these proceedings.
4. The Inspector's report is a lengthy document, running to 99 pages excluding a number of annexes. To set the scene for present purposes, it is sufficient to refer to some of the Inspector's summary conclusions in paragraph 8.12 of the report:

"8.12.1 I have concluded above that the scheme is an express element of development plan policy. I also take the view, having regard to the history of

the matter and such contextual documents as the City Council's Core Strategy, that it is to the promoted northern route that the development plan refers ... A western route would also fall within the terms of the development plan, but I have concluded above that on legal and other grounds such a route is unlikely to prove viable.

8.12.2 In these circumstances, and having regard to section 38(6) of the 2004 Act, this application falls to be determined in accordance with the development plan unless material considerations indicate otherwise. I have considered the main thrust of the case presented by ESTA/TSLM, namely that no new road is necessary as the traffic problems of the area could be resolved by a package of other measures. My conclusion is that this proposition has not been made out, not least because no credible means has been identified of carrying existing and expanding volumes of freight to Heysham except by road.

...

8.12.6 Few significant adverse ecological impacts would remain after mitigation. The impact on geology is predicted to be broadly neutral. I do not believe that the new lower level bridge proposed across the River Lune would have any significant effect on flood risk.

8.12.7 The scheme would have an adverse landscape impact and amount to inappropriate development in the Green Belt. I do not accept that its impact would be as extreme as that suggested by some objectors. Nevertheless, there would clearly be harm, including that arising from inappropriate development, to which significant weight must be afforded. To my mind, however, this harm would be clearly outweighed by the very special circumstances relied on by LCC [Lancashire County Council, the interested party in these proceedings] ... I have concluded above that there is no viable alternative route which would avoid the Green Belt. After mitigation, there would be a significant residual impact on landscape, but for similar reasons I do not consider that this would be unacceptable.

...

8.12.9 Whether taken individually or cumulatively, I do not find the residual impacts of the scheme of sufficient weight to overturn the presumption in section 38(6) of the 2004 Act that the determination of planning applications should be made in accordance with the development plan. I have therefore decided to recommend that conditional planning permission be granted."

The claimant's grounds of challenge

5. In the order in which they were presented in Mr Pike's oral submissions to the court, the claimant's three grounds of challenge were:

(1) The defendant failed to have regard to a material consideration, namely the interested party's failure to follow the Department of Transport's Transport Analysis Guidance (TAG) when considering whether there were alternatives to the proposed road scheme. Alternatively, she failed to give adequate reasons as to why the guidance in TAG need not be followed.

(2) The defendant failed to have regard to a material consideration, namely her own Department's Planning Policy Statement 25 (PPS25), which deals with 'development and flood risk'. Alternatively, she failed to give adequate reasons for not applying that Policy Guidance.

(3) The defendant erred in rejecting the claimant's contention that the interested party's Environmental Statement was inadequate in a number of respects so that planning permission could not lawfully be granted for the scheme.

I will deal with each of these grounds in turn.

Ground (1): TAG

6. In the call in letter the defendant set out a list of the matters about which she particularly wished to be informed. They included the following:

"b) Whether the road alignment as proposed, is, in principle, the most appropriate and sustainable route.

c) The extent to which the proposed development is consistent with Government policies in Planning Policy Statement 1: Delivering Sustainable Development and its emphasis on the importance of sustainable development as the core principle underpinning the planning system.

In particular, the requirement to reduce the need to travel and encourage accessible public transport provision, to secure more sustainable patterns of transport development, should be considered, together with the Government's commitment to promote a strong, stable and productive economy that aims to bring jobs and prosperity for all.

g) The extent to which the proposed development is consistent with the advice in Planning Policy Guidance Note 13: Transport, in particular on the need to promote more sustainable transport choices and reduce the need to travel especially by car."

7. Mr James, one of TSLM's witnesses, gave evidence covering options, alternatives and national policy guidance. His proof of evidence said, in part:

"1.5 Under b), as set out in the joint TSLM/ESTA statement of case, the issue is felt to be more about whether the proposed Heysham-M6 Link (HM6L) is the most appropriate and sustainable solution to the area's transport needs. The view of TSLM, which I share, is that solutions led by major road schemes are not the most appropriate and sustainable solutions, so choice of routes for major road schemes is very much a secondary issue. This does not preclude solutions with elements of road improvement to make best use of existing capacity, but schemes which involve significant increases in road capacity and enhanced travel times primarily for one sector only of transport users are another matter.

1.6 Options, alternatives, and national guidance have been brought together in one proof of evidence because of the inextricable links between them. A central issue in this proof is that Lancashire County Council (LCC) has failed to examine the wide range of possible alternatives to major road construction to solve the transport problems of Lancaster District. In doing so LCC has failed to follow the WebTAG guidance which specifically calls for an option identification and distillation process to ensure that the optimal solution has been correctly identified and that there is an audit trail to explain the choice of preferred option. PPG 13 provides the sustainable transport framework on which WebTAG is based."

8. In the summary section of Mr James' proof of evidence, he said:

"2.3 Although refined and strengthened over the years, the principle of beginning an appraisal with as wide a range of options as possible was established in GNATA (Guidance on NATA, also 1998) so has been around for almost 10 years. The April 2005 guidance on LTP major schemes, although it only just predates the submission on the MSBC [Main Scheme Business Case] for the HM6L, repeats the guidance on option identification and appraisal from the April 2003 revision of the LTP major scheme guidance, which itself reiterates the guidance in WebTAG.

2.4 There is therefore no reason why this guidance should not have been followed in the preparation of HM6L as a submission for LTP major scheme Programme Entry in July 2005. TAG Unit 1.4 Section 2.9.3 clearly states: 'The assessment of alternatives should start from an initial wide base of possible options. The Department [of Transport] requires a clear understanding of why some particular options are preferred to others. Each option must be assessed against both local and central Government objectives, and in terms of the contribution to LTP objectives'.

2.5 LCC's description of the background to the HM6L northern route proposal reveals that there was a 'preferred modal solution' from an outset over 50 years ago. The overarching principle of current guidance on options is that the preferred option emerges from a pool of diverse contenders, and it is clear why it did so. In complete contrast, the HM6L northern route emerged out of a pool of two road options, and then only because the other option was deemed unviable."

9. The Inspector summarised this aspect of the claimant's case in paragraphs 6.2.3, 6.2.6, 6.2.17, and 6.2.18 of his report:

"6.2.3 In its assessment of the scheme, LCC has followed DfT Transport Analysis Guidance ('TAG') only in certain respects, relying on DMRB [Design Manual for Road and Bridges] guidance for much of its environmental assessment. The extent to which that TAG Guidance has (not) been followed is relevant to the SoS's decision whether to grant planning permission. It is not sufficient for LCC to claim that TAG is relevant only to its MSBC. Following TAG guidance throughout would significantly increase the adverse impacts of the scheme.

...

6.2.6 Planning permission should not be granted for the scheme. Instead, LCC should carry out a holistic study of the transport needs of the area, and propose and implement an alternative package of sustainable measures. It is for LCC and not for ESTA/TSLM to propose these measures. As urged by Counsel in his closing submissions on ESTA/TSLM's behalf: 'policies exist to reduce traffic and can be applied' (Counsel's emphases).

...

6.2.17 There has been no or no proper assessment of alternatives. In its assessment of alternatives, LCC failed to follow TAG guidance even in the preparation of the scheme's MSBC. This provides that the assessment of alternatives should start from an initially wide base of possible options ...

6.2.18 Contrary to this guidance, LCC's assessment is based on a preferred modal option, a new link road, which has been pursued for some 50 years or more, as LCC's evidence of the history of the scheme confirms. The only other option considered at all was an alternative western route for the link, an option choice which LCC's own case states would be perverse and unbuildable. This conclusion was reached at latest by 2004, yet LCC subsequently modelled the western route as the next best option for the purposes of the MSBC."

10. In paragraph 7.2.2 of the report, the Inspector summarised the interested party's response to the claimant's contention that TAG should have been applied in its entirety by the interested party:

"7.2.2 It is claimed on behalf of ESTA/TSLM that all LCC's assessments should have been based on TAG. However, TAG itself (at Unit 3.3.2 – section 2) recognises that DMRB is the appropriate guidance for environmental assessment. TAG is relevant to the application by way of the MSBC to the SoS for Transport for funding which is not a primary issue in the context of the current application."

11. The interested party's case, as summarised by the Inspector under the heading "Options and alternatives", was that:

"There has been a full consideration of options and alternatives in an iterative process extending back for at least 15 years. The scheme is the result of an assessment of as wide a base of practical options as is available. The County Council has experience of putting alternative traffic measures in place, and, based on that experience, it is LCC's view that such measures cannot alone meet the objectives of the scheme. There is nothing of substance in the case of ESTA/TSLM to gainsay this."

12. That argument was further summarised by the Inspector in paragraphs 7.2.9 to 7.2.15 of the report. The Inspector's conclusions are set out in paragraph 8 of the report. Having concluded that the scheme accorded with the development plan for the area (8.2.10), a conclusion not challenged in these proceedings, the Inspector considered in paragraph 8.3 "whether the road alignment as proposed is, in principle, the most appropriate and sustainable route". He said in paragraph 8.3.1:

"There are two main strands of objection to the proposal, namely opposition to the northern alignment in favour of a western route, and outright opposition to a new road on any alignment ..."

The Inspector concluded that if there was to be a new road on a northern alignment, "it must essentially follow the route currently promoted by LCC" (8.3.4).

13. He then considered and rejected a western route, and concluded in paragraph 8.3.11:

"It follows that, if the admitted congestion problems of Lancaster and the Morecambe/Heysham peninsula are to be addressed by building a new road to link Heysham directly with the M6, the only viable and therefore by definition the most appropriate and sustainable alignment is that promoted by LCC."

14. Under the heading "A package of alternative measures", the Inspector turned-

"to the issue canvassed at the inquiry principally by ESTA/TSLM, namely, whether the traffic problems of the area could be adequately or indeed more effectively addressed through a programme of measures which does not involve any significant new road building. It is clear to my mind that such a claim does not fall within the plain wording of the SoS's matter set out above. The SoS seeks information relating to the choice of route for a new road. It seems likely to me, however, that the SoS will wish to be informed, having regard to PPS1 and PPG13 (addressed in sections 8.4 and 8.8 below), whether ESTA/TSLM have made out their claim that no new road alignment is appropriate and sustainable, because the adoption of a programme of other measures would render a new road unnecessary and obviate its acknowledged adverse impacts."

15. It will be remembered that TSLM's complaint was that, in accordance with the advice in TAG, the interested party should itself have assessed the alternatives, starting with a wide base of possible options. Thus, in summary the complaint was that the interested party, in assessing alternatives, had not started from "a clean slate". The interested party contended that its assessment of alternatives was thorough and disputed the proposition that it was bound to follow the advice in TAG in each and every respect.
16. The Inspector's response to the underlying complaint that other options had not been properly examined was essentially a pragmatic one. In paragraph 8.3.14, he said:

"There is general recognition both by LCC and supporters of the scheme that the new road would not and could not alone resolve the traffic problems of the area. ESTA/TSLM believe that alternative measures could alone effect a resolution. I accept that ESTA/TSLM do not have the necessary financial or other resources to carry out the modelling and the other full assessments necessary to put together a detailed alternative package of measures. Nevertheless, the burden of establishing the truth of a proposition rests with its propounder. It seems to me that if I am to recommend that planning permission be refused (contrary, as I have concluded above, to the clear terms of the development plan), there must at the least be some basis for believing that there is available a package of alternative measures which is likely to meet the case. In these circumstances, it is not enough to my mind for ESTA/TSLM to submit, as Counsel did in his closing submissions on their behalf, that 'policies exist and can be applied'."

17. That was an approach which was not merely open to the Inspector, it was, on its face, an eminently reasonable one. Notwithstanding the precise terms of the defendant's questions, the Inspector was prepared to start from "a clean slate", and would consider the widest range of possible options, but there had "at the least to be some basis for believing" that there was a package of alternative measures which was likely to meet the case.
18. The Inspector then proceeded to examine all of the possibilities which were canvassed before him, and concluded in paragraph 8.3.26:

"I conclude that the objectives of the scheme cannot be met by alternative measures and that a new road is accordingly required."

19. He repeated that conclusion in paragraphs 8.4.2 and 8.4.3 of the report, when dealing with the Secretary of State's question as to the extent to which the proposed development was consistent with Government policies in Planning Policy Statement 1 (see above).
20. In paragraph 20 of the decision letter, under the heading "Alternative measures", the defendant said:

"For the reasons in IR8.3.12-8.3.23, the Secretary of State agrees with the Inspector that, no credible means has been identified of carrying existing and expanding volumes of freight to Heysham except by road (IR8.12.2); that the objectives of the scheme cannot be met by alternative measures; and that a new road is accordingly required (IR8.3.26)."

21. The claimant's complaint under ground (1) is therefore devoid of any real substance. The underlying complaint was that the interested party had "failed to examine the wide range of possible alternatives to major road construction to solve the problems of Lancaster District" (see Mr James' evidence above). The Department of Transport's advice in TAG was prayed in aid for the proposition that the interested party should have carried out such a broad assessment. Whether or not the interested party's assessment of alternatives was inadequate, which the interested party disputed, the Inspector was happy to, and did, consider any alternatives to major road building which were suggested to him by any party at the inquiry. He expressly recognised the limitations of ESTA/TSLM's financial and other resources, and therefore set a relatively low evidential threshold for those who suggested that a package of alternative measures would render a new road unnecessary. They merely had to show "some basis for believing" that such measures would be "likely to meet the case". Since after carefully examining all of the suggestions which were put forward at the inquiry, the Inspector concluded that there was no basis for such a belief, the claimant's criticism of the adequacy of the interested party's investigation of alternative options was of no practical consequence.
22. There was simply nothing before the Inspector which suggested that further investigations, whether by the interested party or indeed by anybody else, might realistically lead to the conclusion that an alternative package of measures would be likely to meet the case. Faced with these realities, Mr Pike submitted that the advice in TAG was that the interested party should assess the alternatives, starting from a wide base of options, and it had failed to do so. It was therefore incumbent on the defendant to consider whether TSLM's submissions as to the applicability of the advice in TAG were correct, and if she concluded that they were not, to give her reasons why. I do not accept that submission. Nor do I accept the underlying premise on which it is based, which would appear to be an overly legalistic approach to policy guidance, which would require it to be followed simply for its own sake, and quite regardless of the particular circumstances of an individual case.
23. Neither the Inspector nor the defendant was required to respond to each and every point raised by the parties at the inquiry. They were required to deal with the "principal important controversial issues" (see per Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 36). In relation to this ground of complaint, the principal important issue was not whether or not the interested party should have followed the Department of Transport's advice in TAG -- not merely in some, but in all respects -- but whether there was any evidence which suggested that a package of alternative measures would render a new road unnecessary. The Inspector concluded, and the Secretary of State agreed, that there was no such evidence. It follows that ground (1) must fail.

Ground (2): PPS25

24. The complaint in ground (2) is another example of an over-rigid and legalistic approach to policy guidance, in this case PPS25. TSLM submitted to the Inspector that the interested party's assessment of flooding risk posed by the proposed development had been carried out in accordance with the advice in PPG25, which was published in 2001, and which had been replaced by PPS25, which was published in 2006. There had been no assessment under PPS25. The interested party's response was, in summary, that for the purposes of this particular proposal, there was no material difference between the two sets of policy guidance.
25. The complaint under ground (2) is that neither the Inspector nor the defendant referred to the claimant's submission that there should have been an assessment under PPS25, rather than PPG25, although the Inspector listed PPS25 as document 4.9 in the list of inquiry documents in Annex B to his report, and the defendant listed PPS25 as one of a number of Government policies which she had taken into account (see paragraph 15 of the decision letter).
26. In my judgment, the Inspector and the defendant did not refer to this criticism of the interested party's flooding assessment because there was no need to do so. While it is true that the advice in PPS25 differs, in some respects very markedly, from the earlier advice in PPG25, neither the Inspector nor the defendant was writing a learned treatise on the evolution of Government flood prevention policy. They were considering the flooding implications of a particular development, and if in respect of that particular development, there was no significant change in the policy advice, then there was no need to refer expressly to the new policy document.
27. The aspect of the scheme that was of concern in the present case was the impact of the low level bridge which was proposed to carry the new road across the River Lune to the west of the motorway (see paragraph 6.2.53-6.2.57 of the Inspector's report, where the claimant's case in that respect is set out. It was contended on behalf of TSLM that:

"6.2.57 Constructing the new bridge in the teeth of evidence as to increased flood risk runs counter to advice in PPG25. It also conflicts with development plan policy; Policy ER8 of RPG13 recognises the Lune Valley as an area of high flood risk where built development is to be regarded as 'wholly exceptional and limited to essential transport ... infrastructure'. Similar requirements are to be found in Policy E11 of the LDLP and in Policy EM5 of the emerging RSS."

28. Thus the critical question was whether there was an increased flood risk. The interested party contended that the impact of the new bridge would be minimal, and that the bridge was, in any event "essential transport infrastructure" (see paragraphs 4.9.18-4.9.22 and 7.2.24 and 7.2.25 of the Inspector's report). The Inspector, in essence, agreed with the interested party, saying in paragraphs 8.3.45 and 8.3.46:

"Flood risk

8.3.45 I have had careful regard to the concerns expressed by residents of Halton as to the increase in flood risk which they fear would arise from the construction of the bridge proposed to carry the link road over the River Lune, and I have considered the summary of the report commissioned by the residents. I have also borne in mind the evidence of residents as to events during earlier flood peaks.

8.3.46 I also have before me the expert evidence presented on behalf of LCC as to the minimal impact which the bridge piers would have on water levels. This evidence has been reassessed by Halcrow in the light of the evidence presented by the Halton residents about the 1995 and 2005 flood events, and Halcrow's earlier predictions remain valid. I accept on the basis of this evidence that, even in the 'worst-worst-case' circumstances postulated by residents, the presence of the bridge would not materially increase water levels. While residents claim that the existing Halton Bridge does not effectively operate as a debris filter, it seems to me to be self-evident that an ancient stone bridge with several low arches must have a more radical impact in damming debris than one with a single span which would remain clear of the water by a margin of some 2 metres even in the most severe flood event so far experienced."

29. In the light of these conclusions, which the defendant accepted in paragraph 35 of the decision letter, coupled with the fact that there was no objection to the proposed development from the Environment Agency, which is the statutory authority particularly responsible for flood prevention, it is difficult to see how any reference to PPS25, rather than the earlier PPG25, could possibly have made any material difference to the outcome of the inquiry. When considering allegations that there have been failures to take policies into account, it is important to remember that policy guidance is just that -- guidance. It is intended to be an aid, not a hindrance to practical decision-making. Thus policies are not to be construed as though they were enactments, and must be applied with a measure of commonsense to the particular circumstances of the case.
30. In the present case, if there was to be a road linking Heysham with junction 34 of the M6, which is to the east of the River Lune, any link road would have to cross the river at some point. Thus, any bridge, save perhaps one with a huge clear span, would necessarily have to be constructed in the flood plain of the river, if not in the river itself. There was no suggestion before the Inspector that there was an alternative crossing point which would reduce the flood risk. Given the Inspector's conclusions as to the development plan and the need for the road, it plainly fell within the description "Essential transport infrastructure". Table D3 in PPS25 makes it clear that essential infrastructure is permissible in areas of the highest flood risk. But Mr Pike pointed out that that is subject to what is described in the document as "the exception test". The exception test is set out in paragraph D9 in Annex D to PPS25:

"The Exception Test

D9. For the Exception Test to be passed:

a) it must be demonstrated that the development provides wider sustainability benefits to

the community that outweigh flood risk, informed by a SFRA [Strategic Flood Risk Assessment] where one has been prepared. If the DPD [Development Plan Document] has reached the 'submission' stage – see Figure 4 of PPS12: Local Development Frameworks – the benefits of the development should contribute to the Core Strategy's Sustainability Appraisal;

b) the development should be on developable previously-developed land or, if it is not

on previously developed land, that there are no reasonable alternative sites on developable previously-developed land; and

c) a FRA [a site-specific Flood Risk Assessment] must demonstrate that the development will be safe, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall."

31. When these exceptions are considered, the lack of any substance in ground (2) can be readily appreciated. The defendant concluded that the bridge would not have any significant effect on flood risk (see paragraph 35 of the decision letter and paragraph (c) of the exception test). The defendant further concluded that the substantial environmental and economic benefits of the scheme were such as to amount to very special circumstances which justified inappropriate development in the Green Belt (see paragraph 41 of the decision letter and paragraph (a) of the exception test). Paragraph (b) of the exception test appears to be primarily directed to other more "footloose" forms of development, such as housing (see in particular footnote 23, which refers to PPS3, which is concerned with sites for housing development). But in any event, no "previously developed land" had been identified by any party at the inquiry as a more suitable site for the bridge over the River Lune. The claimant's submission thus amounts to no more than the proposition that since the interested party's failure to assess the flooding risk in accordance with PPS25 had been replied upon by TSLM in its submissions, that matter had to be referred to in the defendant's reasons. The defendant was not required to respond to that point because it was a non-point, ie it was devoid of any substance for the reasons set out above.

Ground (3): The environmental statement

32. The Inspector accurately summarised the rival legal submissions at the inquiry in paragraphs 3.2 to 3.9 of the report:

"3.2 The gist of the submissions is as follows: This is an application which requires an Environmental Impact Assessment ('EIA') under Regulation 3 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. The Regulations provide that the SoS shall not grant planning permission in respect of such an application without first taking the environmental information into account. The environmental information means the ES, any further information, and representations made. 'Further information' is defined as the responses to a notification either from the SoS or the inquiry inspector that she/he considers that the ES should contain additional information.

3.3 It follows that unless the SoS has before her an ES which is fit for purpose, any grant of planning permission would be unlawful (see Berkeley v Secretary of State for the Environment [2001] 2 AC 603). The ES is required to include such information as is reasonably required to assess the environmental effects of the scheme; the minimum extent of the information required is defined in Part II of Schedule 4 to the Regulations.

3.4 Among the respects in which the ES in this case is deficient are the following:

• The information on which LCC now relies in relation to the impact on LMC, including data showing the present and predicted noise levels and the noise mitigation measures proposed, is not contained in the ES;

• The impacts of the proposal on the setting of the historic city of Lancaster, and on the Green Belt generally are not addressed in the ES;

• Landscape mitigation is admitted to be necessary, but no scheme for this purpose or any information as to the maximum extent of the adverse landscape impact is included in the ES;

• Similar considerations apply to the ecological information, where the magnitude of the ecological impacts described in the ES differs from that in other sources. At the inquiry, a further account was given of this magnitude with reference to proposed mitigation measures which had not been previously published. The criticisms made of the scheme in 2006 by the LCC's ecological advisor have not been addressed; and

• The Park and Ride ('P&R') site now proposed is an integral part of the road scheme and was not considered at all in the ES. In the light of the decision in R v Swale BC ex parte RSPB (1991) PLR 6 and the guidance in Circular 2/1999, the failure to assess an integral element of the scheme renders the ES in breach of the Regulations.

3.5 LCC's response is set out in the closing submissions made on its behalf (LCC/INQ/35), and the relevant extracts (pages 37 to 42 and 51 to 54) are also included in the bundle of legal submissions which forms Schedule 2 to this report. It is not accepted that the ES is not fit for purpose or that a grant of planning permission would therefore be unlawful. As Carnwath LJ said in Jones v Mansfield DC [2003] EWCA 1408, the environmental assessment process is not intended to be an obstacle course that a developer has to overcome. The purpose of the Regulations is to allow the opportunity to debate the environmental impacts of a proposal so that, when the decision is made, full account of the impacts and proposed mitigation can be taken. To this end, the ES should identify the likely significant environmental effects. Final details of mitigation can properly be left for approval after the debate has taken place, and be imposed by condition attached to any grant of planning permission or by obligation under section 106 of the 1990 Act.

3.6 The detailed criticisms of the ES are in any event not accepted. The impacts on LMC are considered in the ES. It has always been accepted that there would be adverse impacts and that the College is a sensitive receptor. It is listed as a receptor likely to be disrupted by construction in section 8 of the ES and as a location affected by landscape impacts in section 10. The noise impacts are assessed in the noise assessment tables (in Part D of ES Volume 1 – CD 1.13), and the tables are incorporated in section 12 of the ES. That it was necessary to carry out additional work to respond to the case made on the College's behalf at the inquiry and further to investigate the impacts previously acknowledged and as far as possible to agree the necessary mitigation is neither unusual nor improper.

3.7 The impact of the road on the historic setting of Lancaster was not and is not considered likely to be significant. That the issue was nevertheless addressed appears from the worksheets in the Environmental Impact Tables (CD 1.13). The impact on the Green Belt is a policy consideration rather than an environmental impact, but was nevertheless considered in the same worksheets. Landscape mitigation is addressed in principle in the relevant report in ES Volume 1 (CD1.10). The ecological mitigation scheme was submitted in the relevant Technical Assessment Report (CD 1.16). Amendments to it were proposed at the time of submission of the revised planning application report (CD1.21); both the Environment Agency and Natural England then withdrew their objections to the scheme. The criticisms of the ecological advisor were addressed to her satisfaction in September 2006 (see LCC/INQ/29), and the issues are now to be addressed in the proposed draft planning conditions.

3.8 In the view of LCC, it is a normal concomitant of the preparation of a scheme that detailed environmental information should continue to be forthcoming as the scheme proceeds. It is also normal and natural that mitigation should be developed as the scheme proceeds, including at the detailed design stage, and that details of mitigation should be left to be approved in accordance with planning conditions or section 106 obligations. To do otherwise would be to place promoters and local authorities in a strait-jacket fitted at a time when less than full information is available. This would be of little service in reaching a fully-informed judgment of the likely environmental impacts of a scheme and the selecting of the most effective methods of detailed mitigation.

3.9 As to the P&R site application, the interpretation which objectors seek to place on the Swale BC decision is wrong, in the view of LCC. That case was concerned with preventing the use of piecemeal applications or a series of applications for smaller developments as a means of defeating the object of the EIA Regulations. The relationship between the link road and the P&R application is the opposite. The application for planning permission for the P&R site, which is independent of the application the subject of this report, would in due course be subject to a full EIA."

33. The Inspector responded to these arguments in paragraphs 3.10 to 3.13 of the report:

"3.10 As I said at the inquiry, matters of law fall not to me but to the SoS to determine. My own view, however, is that the ES and its accompanying Tables, taken with the further environmental information supplied prior to and in the course of the inquiry, adequately address the main potential environmental impacts of the scheme. The further detailed work carried out by LCC and other parties in preparation for the inquiry is in my experience both a normal and a necessary element in the inquiry process, being part of a debate intended to lead to the narrowing of areas of dispute and to the agreement as far as possible of the best means of mitigation.

3.11 Under the Regulations, account can be taken of any further environmental information supplied in response to a request from the SoS or from me. I have not found it necessary to call for any significant further information for the purposes of reaching conclusions and making a recommendation. It remains open to the SoS to request such information should she find this necessary.

3.12 The proposed P&R site does not form part of this application. It has been included only in the Major Scheme Business Case ('MSBC') at the request of the Department for Transport ('DfT')(see paragraph 4.6.4). It seems to me that any environmental impact assessment necessary for consideration of the separate application now registered in respect of the P&R site properly forms part of the decision-making process in relation to that application.

3.13 It is accordingly my own view that the ES is fit for purpose and that the SoS is therefore not lawfully precluded from considering and if so advised granting planning permission in respect of the application to which this report relates. This is, as I say above, a matter for the SoS to determine."

34. The cross-reference to paragraph 4.6.4 is a reference to the interested party's case when dealing with the issue of economic appraisal. It said:

"4.6.4 Although it does not form part of this application, LCC has, at the invitation of the DfT, included the costs of the proposed P&R site at Croskells in the MSBC funding bid. The NPV [Net Present Value] and the BCR [Benefit Cost Ratio] have been recalculated to take account of the impact on the economic appraisal of these additional costs. The result, taken with an appropriate adjustment for optimism bias, is to reduce the BCR to 6.24. Even following these adjustments, the outturn remains robustly positive."

35. The Secretary of State dealt with "procedural matters" in paragraphs 4-10 of the decision letter. Having referred to the application and the application drawings in paragraph 4, and saying in paragraph 5 that in reaching her decision she had taken into account the environmental statement which was submitted under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) 1999 (the Regulations), she said in paragraphs 6-10:

"6. The Secretary of State has had regard to the objectors' case that the Environmental Statement is deficient, and specifically to the detailed criticisms summarised in IR3.4 concerning the impact of the proposal on: Lancaster and Morecambe College; landscape; ecology; the setting of the historic city of Lancaster and the Green Belt; and the fact that the park and ride site is not considered in the Environmental Statement at all.

7. The Secretary of State has also had regard to LCC's rebuttal that the impacts on Lancaster and Morecambe College are considered in the Environmental Statement; that it is listed as a receptor likely to be disrupted by construction (in section 8) and as a location affected by landscape impacts (section 10); and that the noise impacts are assessed in the noise assessment tables (section 12). She has also had regard to LCC's view that it was necessary to carry out additional work to respond to the case made on the College's behalf at the inquiry, and as far as possible to agree the necessary mitigation (IR3.6). She has also taken into account LCC's case that impact of the road on the historic setting of Lancaster, and on the Green Belt was addressed in the worksheets in the Environmental Impact Tables; that landscape mitigation is addressed in principle in the relevant report in Volume 1 of the Environmental Statement; that the ecological mitigation scheme was submitted in the relevant Technical Assessment Report, amendments to which were proposed at the time of submission of the revised planning application report (IR3.7).

8. The Secretary of State agrees with the Inspector that, for the reasons set out in IR3.12, any environmental impact assessment necessary for consideration of the park and ride site should form part of the decision-making process in relation to that application (IR3.12).

9. The Secretary of State concludes that the Environmental Statement and its accompanying Tables, taken with the further environmental information supplied prior to and in the course of the inquiry, adequately address the main potential environmental impacts of the scheme. She agrees with the Inspector that the further detailed work carried out by LCC and other parties in preparation for the inquiry is a normal and a necessary element in the inquiry process (IR3.10).

10. The Secretary of State is content that the Environmental Statement complies with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and that sufficient information has been provided for her to determine the application (IR3.13)."

36. At the outset of the hearing, it appeared that the claimant was submitting that, because of the alleged deficiencies in the Environmental Statement, the defendant could not lawfully have concluded that it was an Environmental Statement in compliance with the Regulations. That submission, however, was not pursued by Mr Pike in his oral argument before me. He expressly accepted that, whatever its deficiencies, the interested party's Environmental Statement was not so deficient on the basis of the information that was available at the time of the submission that the defendant could not reasonably have concluded that it was an environmental statement in compliance with the regulations: see R(on the application of Blewett) v Derbyshire County Council [2003] EWHC Admin 2775; [2004] Env LR 29 at para 41.
37. The claimant's case under ground (1), as presented by Mr Pike in his oral submissions, was that additional environmental information had been put forward by the interested party at the inquiry, and neither the Inspector nor the defendant should have taken that information into account. Alternatively, they should have taken it into account only after requiring the interested party to publicise the additional information and carry out a consultation exercise such as that prescribed by paragraphs (3)-(9) of Regulation 19 of the Regulations. The justification put forward for this submission was that if this was not done, then members of the public who had had an opportunity to comment on the environmental information in the original Environmental Statement would be deprived of an opportunity to comment on the additional information, unless they happened to have attended the inquiry.
38. Mr Pike relied on certain passages in the speech of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 213 (see paragraphs 8 and 9 at pages 615C-617F). I do not set out those passages because, in my judgment, they do not support Mr Pike's submission for the simple reason that there was no Environmental Statement in the Berkeley case. The Secretary of State argued that this was of no consequence since there had been "substantial compliance" with the requirements of the Directive because "the equivalent of an Environmental Statement" could be found if one examined the documents that had been produced by various parties at the inquiry. Unsurprisingly given those particular facts, the House of Lords did not accept "that this paper chase can be treated as the equivalent of an Environmental Statement" (see page 617D). The House of Lords was not concerned with a case such as the present case, where an Environmental Statement complying with the Regulations has been submitted, but further evidence as to the environmental impact of the proposal emerges, whether in evidence in chief or in cross-examination during the course of a subsequent public inquiry.
39. The submission that the Inspector and the defendant should not consider such additional information flies in the face of the well established principle that since a decision taker is bound to have regard to all material considerations, he or she is bound to have regard to the up-to-date position, whether in relation to environmental or any other matters, as it is disclosed by the evidence at an inquiry. Moreover, it ignores both the underlying purpose of holding an inquiry and its public character. In an ideal world the applicant's Environmental Statement would be the last word on the environmental impact of a proposal because it would contain the "full information" about its likely environmental impact. However, the Regulations are not premised upon such a counsel of perfection (see Blewett, paragraph 41). A local planning authority may accept that an Environmental Statement contains sufficient material to comply with the Regulations, but still contend that the assessments therein of the various environmental impacts are inaccurate, inadequate or incomplete. If planning permission is refused on the grounds of, inter alia, environmental impact, and the applicant for planning permission appeals to the Secretary of State or the application is called in by the Secretary of State for her determination, then those contentions will be examined in detail, often in very great detail, in written representations or at a hearing or a public inquiry. Whichever procedure is chosen, the relevant procedural rules ensure that the parties are required to give each other, and the Inspectorate, sufficient advance notice of their respective cases.
40. If the accuracy, adequacy or completeness of the applicant's Environmental Statement has been challenged, the applicant will almost certainly submit further evidence as to the likely environmental impact of the proposals. To take the most simple example, if the local planning authority contends that an applicant's Environmental Statement is deficient because the applicant's ecological surveys have failed to identify a protected species, for example bats, on the applicant's site, and the applicant has therefore failed to deal with the impact of the proposal on bat roosts, any reasonable applicant or appellant would provide further environmental evidence at the inquiry to address that issue.
41. The opportunity for evidence to be given orally and to be cross-examined is one of the recognised advantages of holding a public inquiry. As a result of skillful cross-examination, an applicant's witness may be constrained to concede, whether willingly or unwillingly, that, for example, an environmental impact described in the Environmental Statement as "slight" or "moderate" should more properly be described as "severe", or that an impact which was not considered to be significant is significant and should therefore have been assessed, et cetera. If there was no possibility of such additional or new environmental information emerging as a result of the inquiry process, then there would be little point in arranging inquiries where there had been an Environmental Statement, but environmental impacts were still in issue.
42. In addition to ignoring the essential function of the inquiry -- to elicit further information, including environmental information -- the claimant's submission ignores one of the inquiry's most important characteristics: that it is a public inquiry. Thus, any member of the public who is concerned about the environmental impact of a proposal is able to attend, and insofar as additional evidence is given in or reduced to writing, to obtain copies of the relevant documents.
43. The public nature of inquiries is recognised in Regulation 19 of the Regulations, which recognises that environmental statements as submitted may not contain full information. Paragraph (1) of Regulation 19 provides:

"Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as 'further information'."

44. Sub-paragraphs (3)-(9) then make provision for the publication of that "further information" so that members of the public who wish to make representations in response have an opportunity to do so. In effect, the "further information" supplied pursuant to a request under Regulation 19 is publicised in the same manner as the environmental information in the original Environmental Statement. However, paragraph (2) makes an exception in the case of "further information" which is provided for the purposes of an inquiry:

"Paragraphs (3) to (9) shall apply in relation to further information, except in so far as the further information is provided for the purposes of an inquiry held under the Act and the request for that information made pursuant to paragraph (1) stated that it was to be provided for such purposes."

45. In the present case, neither the Inspector nor the defendant thought it necessary to request further information under Regulation 19. They were satisfied that the Environmental Statement was "fit for purpose" (see paragraph 3.13 of the Inspector's report and paragraph 10 of the decision letter above). Had they requested further information under Regulation 19 and stated that that further information was required for the purposes of the inquiry, the interested party would not have been required to publicise that further information under paragraphs (3)-(9) of Regulation 19. In these circumstances, it is difficult to see why the interested party should have been required to publicise the additional environmental information it provided voluntarily at the inquiry in its evidence, whether in chief or in answer to questions in cross-examination.
46. The rationale underpinning paragraph (2) of Regulation 19 is obvious: there is no need for further publicity because one of the essential features of a public inquiry is that it is held in public. Mr Pike submitted that applicants for planning permission would be able to circumvent the Regulations by introducing new environmental evidence without any warning at the inquiry, but that ignores the overriding requirement that the Inspector must ensure that the inquiry process is fair to all concerned, including members of the public. The Inspector at an inquiry has ample powers under the procedure rules to ensure that the interests of the parties attending the inquiry, and those who have made written representations, are properly protected by, for example, adjourning the inquiry if more time is required to consider a "new" piece of evidence.
47. For these reasons, I do not accept the novel proposition that if additional environmental information, ie environmental information that is in addition to that which was contained in the Environmental Statement and the responses thereto under the Regulations, is produced at an inquiry, that additional information either should not be considered by the decision taker, or should not be considered by the decision taker unless it has been subject to the same degree of publicity and consultation as the information in the original Environmental Statement.
48. That leaves the claimant's submission that the defendant erred in not concluding that the Park and Ride scheme was "an integral part" of the overall scheme so that the Environmental Statement should have considered the cumulative effect of both the link road and the Park and Ride scheme. The short answer to that submission is that whether the Park and Ride scheme was or was not "an integral part of ... a more substantial development", namely the link road, was very much a matter of planning judgment for the Inspector and the defendant. Having minutely examined the scheme over a period of weeks, the Inspector was the person who was best placed to decide what was, or was not, comprised within it.
49. TSLM contended that the Park and Ride scheme was an integral part of the link road scheme (see paragraph 3.4 of the Inspector's report). That was disputed by the interested party, which contended that the two schemes were separate, and that the Park and Ride scheme had been included only in the major scheme business case at the request of the Department for Transport (see paragraphs 3.9 and 4.6.4 of the report). The Inspector agreed with the interested party (see paragraph 3.12), and the Secretary of State agreed with that conclusion in paragraph 8 of the decision letter.
50. Mr Pike submitted that the Inspector had merely concluded that the Park and Ride scheme did not form part of the link road application, but that is a pedantic approach to paragraph 3.12 of the Inspector's report, and moreover takes that paragraph out of context. It is well-established that Inspectors' reports should be read in a commonsense way and as a whole. In paragraph 3.12, the Inspector was clearly resolving the factual dispute between the claimant and the interested party as to whether or not the Park and Ride scheme was an integral part of the link road scheme.
51. Mr Pike referred to paragraph 46 of Circular 02/1999, which gives advice about Environmental Impact Assessment. Under the heading "Multiple applications", it says:

"For the purposes of determining whether EIA is required, a particular planning application should not be considered in isolation if, in reality, it is properly to be regarded as an integral part of an inevitably more substantial development. In such cases, the need for EIA (including the applicability of any indicative thresholds) must be considered in respect of the total development. This is not to say that all applications which form part of some wider scheme must be considered together. In this context, it will be important to establish whether each of the proposed developments could proceed independently and whether the aims of the Regulations and Directive are being frustrated by the submission of multiple planning applications."

52. It will be noted that this advice is concerned with whether an EIA is required. In the present case, there was no doubt that an EIA was required for the link road, which was undoubtedly a "substantial development", and there was therefore no question of the aims of the Regulations and the Directive being frustrated by the submission of multiple smaller applications. The advice in paragraph 46 of the Circular reflects the judgment of Simon Brown J (as he then was) in R v Swale Borough Council ex parte RSPB [1991] 1 PLR 6 at page 16E-G, which was applied by Turner J in BAA Plc v the Secretary of State for Transport, Local Government and the Regions [2003] JPL 610, a case which was relied upon by Mr Pike in his submissions. In the latter case, Turner J concluded that the Secretary of State had not considered the question whether the two developments proposed were part of a single development, and further concluded that had the Secretary of State considered that issue, a conclusion that they were not part of a single development "would have been vulnerable to challenge on the basis of irrationality" (see page 627).
53. In the present case, both the Inspector and the Secretary of State did consider whether the Park and Ride scheme and the link road were parts of a single scheme and concluded that they were not, and there has been no irrationality challenge to their conclusions in that respect. As was submitted by the interested party to the Inspector, the claimant's submission to the Inspector effectively turned the judgment in the Swale case on its head. There was no question here of a developer slicing up a substantial development proposal into smaller components so as to "defeat the object of the Regulations by piecemeal development proposals". The link road had been the subject of an Environmental Impact Assessment. The defendant correctly concluded that any Environmental Impact Assessment necessary for consideration of the Park and Ride scheme, which was a separate scheme, should form part of the decision-making process in relation to that application.
54. For these reasons, I reject the challenge on ground 1.

Overall conclusions

55. For the reasons set out above, there is no substance in any of the three grounds of challenge. This case is yet another illustration of the need to introduce a requirement that claimants who wish to make a challenge under section 288 of the Act should have to obtain the court's permission to do so, just as they have to do in respect of appeals under section 289 of the Act. Had there been such a requirement, it is likely that permission to make this application would have been refused by the court. The "filter" mechanism in section 289 appears to work well, and there would seem to be no sensible reason why it should not be extended to section 288 applications.
56. The hearing of this application was expedited at the request of the interested party because of the impact of continued legal uncertainty on the programming and funding of what was described by the interested party as "the highest priority major road scheme ... due to its regional and local importance". Challenges under section 288 have the potential to delay much needed development, even though the grounds of challenge may well be devoid of merit. Moreover, the need to have a full hearing in respect of all challenges under section 288, regardless of whether or not the grounds of challenge are arguable, greatly increases the costs for all of the parties involved, and occupies the time of the court unnecessarily.
57. In those cases where there are arguable grounds of challenge, surely all of the parties, including the Secretary of State and the promoters of any scheme, would be assisted by an early statement from the court to that effect. An indication of the court's concerns when granting permission might well, in some cases at least, result in a consent order quashing the appeal decision at an early stage in the process, thus bringing an end to the state of uncertainty created by an unresolved legal challenge to a decision, and saving the parties much time and costs.
58. I express the hope that those particularly concerned with these challenges, including the Planning and Environment Bar Association, the Law Society's Planning Panel and the Treasury Solicitor will seriously consider whether it would be desirable to urge the Government to introduce amending legislation to introduce a filter provision in respect of challenges under section 288 of the Act.
59. That said, I dismiss this application.
60. MR BLUNDELL: My Lord, as your Lordship is aware, I appear in place of Mr Litton this morning. As you know, he is in the Court of Appeal. My Lord, we would ask for our costs, but we are aware that the claimant is legally funded. In those circumstances, I ask for the usual order for that purpose.
61. MR JUSTICE SULLIVAN: Yes. Can you resist that?
62. MR PIKE: My Lord, no. There is no opposition to the principle of costs in this case, my Lord.
63. MR JUSTICE SULLIVAN: So the application is dismissed. The claimant is to pay the defendant's costs. Those costs are to be subject to a detailed assessment, but the costs are not to be enforced without the leave of the court -- whatever the current form of wording is.
64. MR PIKE: My Lord, indeed.
65. MR JUSTICE SULLIVAN: I imagine there is no application in respect of the interested party's costs?
66. MR BUTTLER: My Lord, no.
67. MR JUSTICE SULLIVAN: Very wise, if I may say so. Any more for any more?
68. MR PIKE: My Lord, I do ask for permission to appeal, simply to preserve the claimant's position. In light of the way in which your judgment is framed, I am not expecting your Lordship to grant it, but I simply have to ask the question, my Lord.
69. MR JUSTICE SULLIVAN: I understand why you have to ask it and you will understand why I have to refuse it. So I refuse permission on the ground that there is no real prospect of success, for the reasons set out in the judgment. Thank you very much.