Davies, R (on the application of) v Secretary of State for Communities and Local Government & Anor

Policy guidance must be applied with practical judgment. It is not construed as though it were legislation, and a decision-maker need not address every submission if the principal important controversial issues have been considered.

In a planning challenge, an alleged failure to follow guidance is immaterial where the substance of the relevant issue was examined and the outcome could not realistically have differed. Environmental information emerging during a public inquiry may be considered without the publicity procedure applicable to information formally requested under regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Whether separate developments form one integral scheme is ordinarily a matter of planning judgment.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision granting planning permission for the Heysham to M6 Link Road.

The Secretary of State had called in the application after a five-week public inquiry and accepted the Inspector’s recommendation. The claimant alleged failures to consider Transport Analysis Guidance, Planning Policy Statement 25, and environmental information concerning the Environmental Statement, including the relationship between the link road and a proposed Park and Ride scheme.

The central questions were whether those alleged failures were legally material and whether the Secretary of State could lawfully rely on further environmental information emerging during the inquiry.

The application was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment and not enforceable without leave. Permission to appeal was refused because there was no real prospect of success.

1. Transport Analysis Guidance. The Inspector considered the suggested alternatives, including measures that did not involve significant new road construction. He adopted a relatively low evidential threshold, requiring only some basis for believing that an alternative package was likely to meet the case. After examining the options, he concluded that the scheme’s objectives could not be met by alternative measures. The Secretary of State was therefore not required to resolve every argument about the detailed application of TAG or provide separate reasons for rejecting it.
2. The decision-maker was required to address the principal important controversial issues, not every point raised at the inquiry. The approach in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 was applied.
3. Flood-risk guidance. The absence of an express assessment under PPS25 was immaterial. The relevant flood-risk issue was whether the bridge would materially increase water levels. The Inspector and Secretary of State found that it would not. The development also constituted essential transport infrastructure and satisfied the relevant considerations in the PPS25 exception test. Policy guidance was an aid to practical decision-making, not an enactment requiring rigid treatment.
4. Environmental information. The claimant accepted that the original Environmental Statement was not so deficient that the Secretary of State could not reasonably treat it as compliant with the Regulations. Further environmental information arising during the public inquiry could properly be considered. The duty to consider up-to-date material considerations, and the public nature of the inquiry, supported that conclusion. Regulation 19(2) itself distinguished information formally requested for an inquiry from information requiring the wider publicity procedure.
5. The reasoning in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 did not govern a case where a compliant Environmental Statement had been submitted. The Environmental Statement and further information were sufficient for the application to be determined, consistently with R (on the application of Blewett) v Derbyshire County Council [2003] EWHC Admin 2775; [2004] Env LR 29.
6. Whether the Park and Ride scheme was an integral part of the link-road development was a matter of planning judgment. The Inspector and Secretary of State had considered the issue and rationally concluded that the schemes were separate. The principles in R v Swale Borough Council ex parte RSPB [1991] 1 PLR 6 and BAA Plc v Secretary of State for Transport, Local Government and the Regions [2003] JPL 610 did not require a different conclusion.

First-instance application under section 288 of the Town and Country Planning Act 1990. The application was dismissed by the High Court (Administrative Court), and permission to appeal was refused.