Thames Blue Green Economy Ltd, R (On the Application Of) v The Secretary of State for Environment, Food And Rural Affairs

Under the two-stage regime of the Planning Act 2008, strategic need and strategic alternatives are settled through the National Policy Statement process. They are not reopened when a particular application for development consent is examined. Section 104(7) instead permits the Secretary of State to weigh the national need established by the statement against the particular adverse impacts of the proposed development.

The SEA and EIA Directives perform complementary functions. Environmental impact assessment at the project stage may proceed on the basis that strategic options have already been examined.

The six-week period for challenging a development consent order begins on the day of publication. An imprecise statement by the Secretary of State cannot alter that statutory limit or confer jurisdiction on the court.

Two claimants renewed applications for permission to appeal against refusals by Ouseley J to permit judicial review of development consent for the Thames Tideway Tunnel.

Thames Blue Green Economy Ltd challenged the refusal reported at [2015] EWHC 727 (Admin). It contended that sections 87(3) and 104(7) of the Planning Act 2008, or alternatively the EIA Directive, required strategic alternatives to the tunnel to be examined at the development consent stage.

Mr Stevens challenged the refusal reported at [2015] EWHC 295 (Admin). His judicial review claim had been filed one day after the six-week period prescribed by section 118. He relied on an imprecise letter from the Secretary of State and on the European Union principles of legal certainty and effectiveness.

1. Both renewed applications for permission to appeal were refused. Neither proposed appeal had a real prospect of success, and there was no other compelling reason to grant permission.

2. The Planning Act 2008 establishes a two-stage process. Strategic need and strategic alternatives are examined when a National Policy Statement is formulated. Section 87(3) permits an Examining Authority considering a particular application to disregard representations concerning the merits of policy in that statement. Sections 104(7) and 87(3) did not arguably require the strategic case for the tunnel to be reopened at the development consent stage.

3. Genuinely new circumstances may be placed before the Secretary of State through a request to revisit the National Policy Statement. That route preserves the consultation and procedural protections applicable to national policy. It supplies no reason to distort section 104(7).

4. Section 104(7) is not otiose. It permits the national need stated in the National Policy Statement to be weighed against the local and particular detriments revealed by examination of a specific proposal. Those detriments may, in an appropriate case, outweigh the proposal's benefits. Section 104(2)(d) does not create a broader discretion to reconsider strategic policy because it remains subject to section 104(3).

5. The SEA and EIA Directives are complementary. Strategic environmental assessment may narrow the options remaining at the project-level environmental impact assessment stage. The EIA Directive does not require strategic alternatives already considered and rejected at the SEA stage to be reconsidered.

6. Under section 118, the six-week period for questioning an order granting development consent began on the day the order was published. The first instance interpretation was plainly correct. An imprecise letter from the Secretary of State could neither alter the statutory period nor confer jurisdiction which Parliament had withheld.

7. The prescribed six-week period did not, on the facts, conflict with the European Union principles of effectiveness or legal certainty discussed in Uniplex. The relevant statutory rule was clear. An extension of time for Mr Stevens's notice of appeal was allowed if required, but permission to appeal was refused.

• Court of Appeal (Civil Division): Refused both renewed applications for permission to appeal: [2015] EWCA Civ 876.
• High Court, Planning Court: Ouseley J refused Thames Blue Green Economy Ltd permission to apply for judicial review of the development consent order: [2015] EWHC 727 (Admin).
• High Court, Planning Court: Ouseley J refused Mr Stevens permission to apply for judicial review because the claim was filed outside the period prescribed by section 118 of the Planning Act 2008: [2015] EWHC 295 (Admin).