England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, PLANNING COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2A 2LL
		24 June 2015

LORD JUSTICE SALES:

1. This is a renewed oral application for permission to appeal in relation to a decision of Ouseley J - [2015] EWHC 727 (Admin) - in which the judge refused to give permission to apply for judicial review in relation to the grant by the Secretary of State of a development consent order in relation to the major Thames Tideway Tunnel infrastructure project.
2. The background, put very shortly, is that the project was the subject of examination at a strategic level through the formation of a National Policy Statement under Part 2 of the Planning Act 2008. National Policy Statements developed under that Part are subject to obligations of publicity and consultation, including under section 7, and there is a power to mount legal challenges in relation to them: see section 13.
3. The structure of the Act is that national policy should be decided subject to those processes and formulated in a National Policy Statement which will then inform individual planning decisions which are brought forward in respect of it. In this case, an application was made to the Secretary of State for a development consent order and that was subject to examination by an Examining Authority in accordance with Chapter 4 of the Act.
4. Section 87(3) provides as follows:

"The Examining authority may in examining the application disregard representations if the Examining authority considers that the representations—

...

(b)relate to the merits of policy set out in a national policy statement.

... "

5. In this case, the Examining Authority took a decision that it would not entertain representations designed to open up examination of strategic alternatives to the Thames Tideway Tunnel which the present claimant now wishes to advance, but which had not been advanced at the time of the development of the National Policy Statement.
6. Under the scheme of the Act, decisions on individual applications are made by the Secretary of State (see section 103), having regard to the report and recommendations made to him by the Examining Authority. Section 104 of the Act governs in relation to decisions in cases where a National Policy Statement has effect. Under section 104(3), the Secretary of State must decide the application in accordance with any relevant National Policy Statement, except to the extent that one or more of subsections (4) to (8) applies. Subsection (7) provides:

"This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits."

7. The argument for the claimant is that section 104(7) is of such width that the Examining Authority and the Secretary of State were obliged in substance in this case to consider the new arguments regarding whether there was need for a Thames Tideway Tunnel at the strategic level or whether problems in relation to effluent in London could be dealt with satisfactorily by some other form of scheme.
8. The judge decided that section 104(7) did not bear the interpretation which the claimant sought to place upon it, which was to the effect that it authorised the Examining Authority and the Secretary of State to open up at the second stage of considering whether an individual development consent order should be made the prior question decided at the determination of the National Policy Statement stage, namely whether there was indeed a strategic need for having a Thames Tideway Tunnel at all (see paragraphs [32] and following of the judge's judgment).
9. The judge was examining the question whether permission should be granted for judicial review according to the relevant arguability threshold. He considered that the point of construction put forward by the claimant was not an arguable one in the context of the Act and therefore refused permission.
10. An application was made to this court for permission to appeal on two grounds: the first in relation to the interpretation of section 104(7) of the 2008 Act; the second in relation to the effect of the EIA Directive and whether under that Directive again the Examining Authority and Secretary of State were obliged at the second, development consent order stage to reopen and examine the strategic merits of having the Thames Tideway Tunnel at all. The judge had dismissed those arguments as well.
11. On the application for permission to appeal, Sullivan LJ refused the application on the papers. So far as the first ground in relation to section 104(7) is concerned, he said this:

"Even though this application is still at the arguability stage the appeal does not have a real prospect of success. The two stage process was introduced by the 2008 Act in order to avoid precisely the outcome which this appeal seeks to achieve: the reopening at the second (examination by the panel) stage of the process, of alternatives to the option (in this case the tunnel) which has been adopted by the Government in the first (NPS) stage of the process. The provisions of the 2008 Act must be interpreted with the underlying objective of having a two-stage process for NSIPs in mind. Although the Claimant focuses upon the terminology of the final sentence of paragraph 16.25 of the panel's report (paragraphs 24 and 25 of the judgment), there was, in reality, no other way in which the panel could reasonably have exercised its discretion under section 87(3) given the statutory objective - to settle strategic alternatives at the first stage - and the flagrant conflict between the 'no alternatives to the tunnel' policy set out in the NPS (paragraphs 8 and 9 of the judgment) and the 'alternatives to the tunnel' put forward by the Claimant."

12. I agree with the reasoning of the judge and the reasons of Sullivan LJ. I do not consider that the argument based on section 104(7) and section 87(3) of the Act has any real prospect of success.
13. Today, Mr McCracken QC has contended that there are two reasons why the point is in fact an arguable one. First, he says that if new material comes forward regarding the strategic merits of a project such as the tunnel, it must be at the section 104(7) stage that those new arguments and possible changes of circumstances would need to be taken into account.
14. I do not agree. I do not consider that this gives rise to any arguable point unidentified by Sullivan LJ and Ouseley J. In my view, in a genuine case where new circumstances arise it would be open to a person to approach the Secretary of State to invite him to revisit the National Policy Statement. That would be the proper way in which such matters should be taken into account, since in revisiting the strategic need for a project the procedural protections which apply in relation to formation of a National Policy Statement would then again apply to ensure that proper consideration was given to the alleged change of circumstances and the impact they might have upon the National Policy Statement in question. There is no need to distort the interpretation of section 104(7) to take account of such a possibility: the statutory scheme allows for changes in circumstances to be catered for in a different and more appropriate way, as I have set out.
15. Secondly, Mr McCracken submitted that section 104(7) was in substance otiose on the interpretation given to it by Ouseley J since (as I understood the argument) any Secretary of State would simply have his hands tied by the determination of national need reflected in the National Policy Statement and so could never be satisfied that the adverse impact of the proposed development would outweigh its benefits. Accordingly, Mr McCracken submits that section 104(7) has to be given the wider interpretation for which he contends, or at least it is arguable that it must be.
16. Again, I do not agree. Section 104(7) allows the Secretary of State to bring into consideration the statement of national need, which appears from a National Policy Statement, as against particular detriments which may be identified in the process of examining the application for a specific development consent order in specific circumstances and to weigh them against each other: it allows for the possibility that the local and particular detriments may be so great as to outweigh in the particular circumstances of a specific application a national need reflected in the National Policy Statement. Indeed, what happened on the examination in this case illustrates the possibility of that happening, since (as Mr McCracken emphasised) the Examining Authority in this case said that the issues were finely balanced and it plainly gave serious consideration to the possibility of recommending refusal of an order for development consent.
17. Also on this ground, Mr McCracken referred also to section 104(2)(d), which states that:

"In deciding the application the Secretary of State must have regard to-

...

(d) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision."

18. Mr McCracken submitted that this showed the width of the discretion which the Secretary of State would enjoy at the section 104 stage and hence to which the Examining Authority ought to have regard in conducting its examination.
19. In my view, however, this argument goes nowhere because of the terms of section 104(3), which requires the Secretary of State to decide the application in accordance with any relevant National Policy Statement unless one of the exceptions in subsections (4) to (8) applies. This simply takes us back to the argument on subsection (7) which I have already addressed.
20. Finally on this ground, Mr McCracken submits that the point is an important one and therefore even if there is no realistic prospect of success, this is a case in which permission ought to be granted. I do not agree with that. In my view, the legal provisions are clear, there is not an arguable case in favour of the claimant's interpretation of the 2008 Act and I do not consider that there is any other compelling reason why permission to appeal should be granted on that ground.
21. I turn then to the second ground urged before me: that in relation to the effect of the EIA Directive. Here, again, I consider that permission to appeal should be refused, essentially for the same reasons given by Sullivan LJ when refusing permission on the papers. Sullivan LJ said this:

"The second ground of appeal ignores the role of the Strategic Environmental Impact Assessment Directive. The 'options' that are still open at the EIA stage may well have been narrowed by the consideration and rejection of alternatives to the project under an SEA. Ground 2 effectively argues that alternatives which have been rejected at the SEA stage must be reconsidered at the EIA stage because 'all options' must be left open. Construing those words in the EIA Directive in isolation and in a literal manner is not a sensible interpretation of the EIA Directive in a context which includes the SEA Directive. The two Directives are intended to compliment, not duplicate, each other."

22. The argument for the claimant on this issue essentially replicates the substance of the argument presented in the context of the domestic legislation by reference to the 2008 Act. The SEA Directive allows for a full assessment in terms of environmental acceptability of options at the strategic level. The EIA Directive allows for consideration of environmental impacts in relation to the application for particular planning consents taking as read the strategic options which have ex hypothesi already been subject to examination under the SEA Directive. There is no requirement that the EIA Directive should be given the expansive interpretation for which Mr McCracken contends and to do so would be contrary to the overall structure of European law in this area.
23. Again, therefore, I do not consider that the appeal has a real prospect of success on ground 2. Nor do I consider that there is any other compelling reason why permission to appeal should be granted. Accordingly, I refuse this application.
(Further submissions on the application by Mr Stevens for permission to appeal)

LORD JUSTICE SALES:

24. This is an application by Mr Stevens as a litigant in person seeking permission to appeal in relation to a decision of Ouseley J refusing Mr Stevens permission to apply for judicial review in respect of a development consent order granted by the relevant Secretaries of State in relation to the Thames Tideway Tunnel ([2015] EWHC 295 (Admin)). The basis on which Ouseley J refused permission was that he determined that Mr Stevens failed to satisfy the requirements of section 118 of the Planning Act 2008, which provides:

"(1)A court may entertain proceedings for questioning an order granting development consent only if—

(a)the proceedings are brought by a claim for judicial review, and

(b)the claim form is filed during the period of 6 weeks beginning with—

(i)the day on which the order is published."

25. The judge held that applying that statutory provision the last day for filing the claim was 23 October 2014. Mr Stevens filed his claim 1 day out of time, on the judge's interpretation, on 24 October 2014.
26. On the present application, I am prepared to extend the time required for Mr Stevens to put in his notice of appeal in relation to Ouseley J's judgment - should an extension of time be required for that - and I turn directly to consider the merits of the argument which Mr Stevens wishes to present.
27. So far as the judge's interpretation of section 118 is concerned (by which the judge determined that the 6-week period had to, as the statute says, be treated as commencing on the day on which the order was published, namely 12 September 2014), I do not consider that Mr Stevens has any real prospect of success on appeal. In my view, as a matter of interpretation of the statute, the judge was plainly right in the interpretation that he gave to the Act.
28. Mr Stevens says, however, that he, arguably at least, ought to be granted permission to appeal and permission to apply for judicial review because the Secretary of State wrote a letter which referred to the 6 weeks as a period being from the date of the relevant order, which suggested that the last day for filing would indeed be 24 October.
29. Although it is undoubtedly regrettable that the Secretary of State wrote in those imprecise terms, I agree with the reasoning of Ouseley J, that this is not a matter which is capable of being brought into account so as to create jurisdiction for the court which, by reason of the provision of the relevant Act of Parliament, namely section 118 of the 2008 Act, it does not have. Nothing that the Secretary of State said or did was, in terms of law, capable of altering the operation of the statutory provision.
30. Mr Stevens also submits that the court, arguably at least, should have granted him permission to apply for judicial review by reference to principles of European law, in particular as demonstrated in the case of C-406/08 Uniplex (UK) Ltd at paragraphs 39 and 40, specifically the principles of legal certainty and effectiveness in European law.
31. However, in my view, this again gives rise to no arguable ground of appeal since it cannot be contended on the facts of this case that the 6-week period identified in section 118 is in conflict with the principle of effectiveness or with the requirements of legal certainty identified in paragraph 39 of that judgment. The law contained in the relevant provision of the Act of Parliament is clear and is clearly to the effect that Ouseley J found it to be.
32. For these reasons, I consider that permission to appeal should be refused in Mr Stevens' case as well. There is no other compelling reason why permission should be granted.