Gate (oao on balhalf of Transport Solutions FOP Lancaster and Morecambe), R (on the application of) v Secretary of State for Transport & Anor

For the purposes of the Planning Act 2008, a highway-related project falls within the nationally significant infrastructure regime where the statutory conditions apply to the project or to a connected part of it. The words “a purpose connected with” are ordinary words whose meaning depends on statutory context; they require no judicial gloss where the language is clear. A consultation is not unlawful merely because it could have been improved with hindsight. The court considers whether, taken as a whole, it was fair, sufficiently informative and practically effective. A decision-maker may consider matters contained in a national policy statement that is not directly applicable, provided those matters are important and relevant. Alternative routes need not receive the same exhaustive assessment as the proposed development. Protected-species issues may be addressed pragmatically where later surveys and licensing arrangements provide adequate safeguards.

The claimant sought judicial review of development consent granted for the Heysham/M6 link road. The challenge concerned whether the project fell within the Planning Act 2008 regime, the adequacy of consultation, reliance on national policy statements, assessment of alternative routes, and protection of otters.

The project included roads for which different highway authorities would be responsible. The claimant argued that only part of the scheme was a nationally significant infrastructure project and that the consultation and environmental assessments were legally deficient. The court also considered the relevance of national policy statements concerning ports and nuclear power, and the implications of the Conservation of Habitats and Species Regulations 2010.

1. Development consent. Sections 14 and 22 of the Planning Act 2008 require the relevant project or highway development to satisfy the statutory definitions. The words “a purpose connected with” in section 22(2)(b) bear their ordinary meaning in context. The Lancashire highway was constructed for a purpose connected with the highway for which the Secretary of State was to be highway authority. The scheme was therefore properly treated as falling within the 2008 Act regime. The statutory purpose of streamlining consents supported that conclusion, and separating the mutually dependent works would have been artificial.
2. The effect of section 33(4), preventing an order under section 10 of the Highways Act 1980 in the circumstances described, did not prevent a later lawful reallocation of highway responsibilities. Nor did the criminal offence in section 160 justify a narrow construction of section 22.
3. Consultation. The principles in R v North and East Devon HA, ex p Coughlan [2001] QB 213 applied. Although the consultation material expressed the route as fixed more unequivocally than was ideal, the process, viewed as a whole, was thorough and fair. The public had in practice raised objections to the route and alternatives, and no material prejudice was demonstrated. Judicial review does not require retrospective micromanagement of consultation for perfection.
4. National policy statements and alternatives. Section 105(2)(c) permitted consideration of matters contained in national policy statements that were not directly applicable to highway development, provided they were important and relevant. The references to port and nuclear policy did not make the decision unlawful. Alternative routes required coherent and rational consideration, but not the same level of expert scrutiny as the preferred development. The conclusions on ecological effects, green belt and comparative merits were lawful and rational.
5. Otters. Under regulations 9(3), 41 and 53 of the Conservation of Habitats and Species Regulations 2010, the decision-maker could proceed where there was no likely prohibited harm, or where any such harm was likely to be licensed. Applying R (Morge) v Hampshire CC [2011] 1 WLR 268, the defendant was entitled to rely on further surveys before construction and the prospect of licensing by Natural England. All five grounds failed and the application for judicial review was dismissed.

First-instance judicial review in the Administrative Court. The application was dismissed.