LDRA Ltd v Secretary of State for Communities and Local Government

The Claimants sought under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision, taken by an Inspector, allowing an appeal and granting planning permission for an on-shore marine operations and maintenance facility at Alabama Way, Birkenhead. The court applied the ordinary principles of judicial review to planning decisions, including the statutory planning test under section 38(6) of the Planning and Compulsory Purchase Act 2004 read with section 70(2) TCPA 1990 and the public sector equality duty under section 149 of the Equality Act 2010.

The court rejected challenges based on vibration risk, loss of slipway access for charter-boat operators and the refusal to impose a B2-exclusion planning condition, concluding the Inspector had addressed those matters lawfully and reached open planning conclusions. However, the court found legal error in two respects: (1) the Inspector failed to have due regard to the public sector equality duty under section 149 in considering the loss of the riverside car park and the consequent impact on disabled persons’ access to the river; and (2) there was a breach of procedural fairness and a failure to have proper regard to a potential alternative site (Seacombe/Kings Wharf) pointed out on the accompanied site visit. For those reasons the Inspector’s decision was quashed.

The claim was a first instance challenge under section 288 TCPA 1990 seeking quashing of the Secretary of State’s decision to allow an appeal for development of a marine operations building on a riverside car park adjacent to Priory Wharf, Birkenhead. The development was intended to serve offshore windfarm projects. The local planning authority (Wirral Borough Council) had previously refused permission on amenity grounds and loss of riverside access; the developer appealed and the Inspector allowed the appeal.

Parties and facts:

• Claimants: LDRA Ltd (occupier of adjoining offices), its managing director, a charter-boat operator and the Priory Wharf management company.
• Defendants: Secretary of State for Communities and Local Government (decision-maker), the appellant/developer (Cammell Laird) and Wirral Borough Council (who did not appear).
• The site: a large public car park and riverside footway; the development would occupy the car park and result in the loss of about 40m of riverside footway and of parking immediately adjacent to the river.

Relief sought: quashing of the Secretary of State’s decision made by the Inspector (i.e. permission to redevelop the car park).

Issues for the court: the Inspector’s treatment of (i) vibration risk to sensitive equipment at LDRA; (ii) the effect on disabled persons’ access to the riverside and compliance with the public sector equality duty (section 149 Equality Act 2010); (iii) loss of slipway access for charter-boat operators; (iv) refusal to impose a B2-exclusion planning condition; and (v) whether a materially different and acceptable alternative site had been identified and considered, including procedural fairness of the site visit.

Reasoning and conclusions:

• Vibration: the Inspector relied on a consultant report, British Standard 5228-2 and imposed conditions requiring a construction noise and vibration management plan. The court found no legal error in the Inspector’s assessment or reliance on monitoring and mitigation, and dismissed this ground.
• Equality duty (section 149): the court concluded that the Inspector had not had due regard to the public sector equality duty in substance. There was clear evidence that the car park provided a valued and perhaps unique riverside amenity for disabled people who could remain in vehicles and enjoy the river; redevelopment would require disabled visitors to park further away and descend/ascend a steep 119-metre route. The Inspector did not record consideration of the statutory factors in section 149 and the court was not satisfied the duty had been performed. This was an error of law and prejudiced the Claimants.
• Slipway access: the Inspector heard evidence from charter-boat operators but was not persuaded that their businesses would inevitably be lost; the court found no legal error in his approach, although it noted emergency access was not pursued before the court and could be addressed upon re-hearing.
• B2 use: the Inspector declined to impose the Claimants’ proposed condition excluding B2 uses because the application was made for B1/B2/B8 and such a restriction would be unreasonable; the court found no error in that conclusion.
• Alternative site and procedural fairness: the court concluded, on the balance of probabilities, that the Inspector had been shown the Seacombe/Kings Wharf alternative on the accompanied boat visit but had either not understood or had forgotten it and did not seek further clarification. That failure to take into account an alternative site that might avoid the adverse impacts gave rise to a breach of natural justice and substantial prejudice; the court quashed the decision. Subsequent planning permission for a facility at Kings Wharf (granted after the Inspector’s decision) supported the contention that the site was a realistic alternative.

The court concluded the Claimants’ application succeeded on the equality duty and alternative site grounds and quashed the Inspector’s decision; the other grounds failed.

The court allowed the claim in part and quashed the Inspector’s decision. The court held that (1) the Inspector had failed to have due regard to the public sector equality duty under section 149 of the Equality Act 2010 in relation to loss of disabled access to the riverside and that this was an error of law; and (2) there was a breach of procedural fairness in failing properly to consider a potential alternative site (Seacombe/Kings Wharf) identified on the site visit. The other grounds (vibration, slipway access, and refusal of a B2-exclusion condition) disclosed no legal error and failed.