London Borough of Hillingdon v The Secretary of State for Transport & Anor

On an appeal under Schedule 17 to the High Speed Rail (London-West Midlands) Act 2017, the appellate decision-maker must determine the approval request on the evidence and material considerations before it. The local authority must justify any refusal or proposed condition by showing that the arrangements ought to be modified on an authorised ground and that the proposed modification is reasonably capable of preventing or reducing the relevant prejudice.

The information duty recognised in [2020] EWCA Civ 1005 does not require an Inspector to reject an appeal where sufficient information exists for a lawful merits decision. Statutory guidance, the Environmental Minimum Requirements and related traffic-management controls remain material considerations. A condition may properly be refused where it would duplicate or modify those controls without sufficient justification.

The claimant local planning authority challenged an Inspector’s decision allowing an appeal by High Speed Rail (HS2) Ltd against refusal of approval for construction-lorry routes. The approval was sought under paragraph 6 of Schedule 17 to the High Speed Rail (London-West Midlands) Act 2017.

The authority argued that HS2 Ltd had failed to provide adequate information about peak-hour traffic movements, congestion and site access arrangements. It sought conditions controlling lorry numbers, monitoring and reporting, and access and egress arrangements. The central issues were whether the Inspector had unlawfully applied an evidential burden, whether the information before him was sufficient, and whether reliance on the Environmental Minimum Requirements unlawfully displaced the authority’s Schedule 17 functions.

1. Claim dismissed. The Inspector had to determine the appeal as if the application had been made to him initially, while applying paragraph 6 of Schedule 17 and considering the Planning Memorandum, statutory guidance, Environmental Minimum Requirements, traffic-management plans and related undertakings.
2. The Inspector was entitled to assess the evidence independently. The case was materially different from [2020] EWCA Civ 1005, where essential archaeological information was absent. Here, the authority had substantial information about routes, baseline traffic, predicted lorry movements and proposed controls. Its complaint concerned information needed to devise its preferred controls, rather than information necessary for any lawful decision.
3. The Inspector rationally concluded that the Environmental Statement and the TfL report relied on substantially higher traffic figures than those proposed. They did not establish that the lower proposed movements would cause prejudicial effects on traffic flow. The authority’s evidence therefore failed to justify the first proposed condition.
4. The Inspector was entitled to conclude that existing controls under the Environmental Minimum Requirements, the Hillingdon Agreement, the CoCP, RTMP, LTMP and VMS were material and sufficient. The proposed conditions would duplicate or modify those controls and conflicted with statutory guidance discouraging such duplication. That conclusion did not unlawfully delegate the authority’s statutory functions.
5. The second condition was also properly rejected. The evidence concerning site access and egress amounted largely to general assertions and did not establish that lorry movements would, rather than might, prejudice traffic flow or highway safety. The Inspector was entitled to rely on the existing access-management measures and to assume that they would be implemented.
6. The court expressed reservations about obiter observations in [2020] EWCA Civ 1005 concerning refusal to entertain an application until all required information had been supplied, but held that those observations did not govern this materially different case. Any errors in the Inspector’s formulation were immaterial because the substantive evaluation would have produced the same result.

The authority refused HS2 Ltd’s application for approval of lorry routes under paragraph 6 of Schedule 17. An appointed Inspector allowed HS2 Ltd’s appeal on written representations. The High Court dismissed the authority’s judicial review challenge to that decision.