QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|(1) HARRY TREHERNE MOGGRIDGE|
|(2) TERENCE MORGAN||(CLAIMANTS)|
|(1) NATIONAL ASSEMBLY FOR WALES|
|(2) CAERPHILLY COUNTY BOROUGH COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR LEWIS (instructed by the Treasury Solicitor) appeared on behalf of the 1ST DEFENDANT
MR STEPHENSON (instructed by Caerphilly County Borough Council) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
(1) In its case to the inspector the county borough council stated its primary purpose in seeking the orders was the regeneration of the former Oakdale colliery site as a business park. The inspector found the primary purpose not justified but advised that subject to the question of legality, the orders should be confirmed in support of the secondary stated purpose, namely the substantial reduction of traffic flows through the town of Blackwood. The minister accepted that advice, concluding that the side road order effecting the link with Oakdale Business Park was lawful under section 14(1)(a)(ii) of the Highways Act 1980. The claimants argued that, since the Oakdale Business Park link road was an essential component of the primary purpose, and since the primary purpose failed, there remained no lawful justification for the compulsory purchase and side road orders. It was, it is submitted, not permissible for the National Assembly for Wales to substitute a purpose to justify confirmation. The minister considered a public interest on which the county borough council had not relied, or relied upon as its priority. Furthermore, since the claimants were challenging the primary purpose relied upon by the county borough council, they were deprived of a fair opportunity of challenging independently the secondary purpose of relief of traffic congestion in Blackwood town centre. In other words, they never addressed the question whether the weight of public interest based upon the secondary purpose outweighed contrary considerations.
(2) It is common ground that the road construction would cause disturbance of a bat population in and in the vicinity of Woodfield Park. The works could not proceed without a licence granted under regulation 44 of the Conservation (Natural Habitats etc) Regulations 1994, made pursuant to Article 16 of the EEC Habitats Directive. By regulation 3, paragraph 4 of the 1994 regulations public authorities must have regard in the exercise of their functions to the requirements of the Habitats Directive and, subject to the grant of a licence under regulation 44, it is an offence under regulation 39 to disturb protected species, of which the bat is one.
".... every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."
The claimants contend that the minister has failed to have any regard to the requirements of Article 16, but merely put off to another occasion consideration of whether a licence should be granted. The effect of the decision to confirm the orders is either (1) to prejudge the merits of the licence application in the absence of the necessary evidence or (2) to have required compulsory purchase when the scheme could not proceed upon refusal of such a licence.
"To achieve the full potential of the Oakdale Business Park.
• the scheme is crucial to the full development of the Oakdale Business Park and the creation of up to 5000 jobs. Oakdale Business Park will be the largest of its kind in Wales.
• without Sirhowy Enterprise Way, development is limited by access considerations to only 70 of the 170 acres in total being available .... "
The second is "To improve economic development and regeneration". This objective is explained as a desire to provide local job opportunities over a wide area, together with sub-regional job opportunities in the neighbouring authorities of Torfaen and Blaenau Gwent. It is also designed to achieve traffic reduction by removing the necessity to travel to the coast for employment. The third is to "Provide access to strategic routes". The objective was intended to improve employment opportunities by reducing journey times and to strengthen the council's core network and road hierarchy. The fourth is "To improve access to existing industrial sites" at Penyfan, Newbridge Road and Penmaen Road, together with Croespenmaen and Woodfieldside Business Parks. The fifth is "To revitalise the urban centres" by the reduction of traffic through the centre of Blackwood, enabling commercial regeneration, revitalising commercial areas, creating opportunities for further investments, and residential development, reducing traffic and accidents in urban areas and supporting integrated transport. The sixth is "To improve local residential amenities" by improving accessibility linking both sides of the valley with each other, enabling the removal of heavy goods vehicles on Kendon Hill, improving safety and residential amenity, together with access to local markets; to improve the environment and to protect the natural environment from the impact of the road. The seventh and final is "To enhance community regeneration" by encouraging the population to remain, with their expenditure, within the local community.
"1.1 The orders are required for the improvement and construction of the A4048 through route and associated side roads, all in conjunction with the Sirhowy Enterprise Way.
1.2 The Sirhowy Enterprise Way will provide a single carriageway road between the existing A4048 at the northern end of Blackwood High Street near Sunnybank Road and Newbridge Road, Pontllanfraith. A short length of existing dual carriageway then connects the route from Newbridge Road to the A472 Mid Valleys strategic route. A single carriageway cross valley link connects the route to the southern end of Blackwood High Street at Libanus Road, whilst a single carriageway link gives access from the northern end of the new route to the Oakdale Business Park, on the site of the former Oakdale colliery complex.
.... .... ....
1.5 The scheme will improve economic development and regeneration by providing local job opportunities over a wide area of the County Borough, together with sub-regional job opportunities in the neighbouring authorities of Torfaen and Blaenau Gwent, thus helping to reduce the existing high unemployment rates in this part of South Wales. It will also achieve traffic reduction by removing the necessity to travel to the coastal belt for employment.
1.6 The scheme will significantly strengthen the Council's core network and road hierarchy and provide improved access to existing industrial areas".
Those industrial areas are identified and are the same as those contained in the statement of reasons.
"The main purpose for which the CPO land is required, as set out in the Statement of Reasons and the Statement of Case, is the regeneration of the former Oakdale colliery site by the present OBP. The secondary purpose is the reduction of traffic in BTC [Blackwood town centre]. The main route of the proposed SEW would run from the A4048 at Sunnybank Road across the valley, and then south and south-eastwards as far as Newbridge Road."
In describing the objectives of the proposed road at section 8, paragraph 17 of his report, he wrote:
"There are, in fact, several inter-locking objectives. As well as the primary objective of the full development of the OBP and the secondary objective of the reduction of traffic in BTC, others include the improvement of access to other industrial estates in the locality; the improvement of the town's retail economy; the reduction of traffic on the B4251, including of [heavy goods vehicles] on Kendon Hill; the reduction of accident rates; the improvement of operating conditions for bus services; and the improvement generally of links to the strategic road network."
And at paragraph 18:
"Since the various elements of the proposed SEW are inextricably linked, the scheme stands or falls as a whole. It would not be justified, therefore, for only parts of it to proceed on their own. The land included in the CPO is the minimum required for the construction of the proposed road, whilst also providing for essential landscaping. Partial confirmation of either Order, except in relation to the minor details included in Appendix A, would thus not achieve the stated objectives, and is not sought."
"The county borough council accepted the burden of demonstrating by clear and unambiguous evidence the necessity to expropriate private land for legitimate purposes."
The inspector, in his conclusions at section 10, paragraph 6 said:
"The council point out that the proposed [business park link] is only a side road because the 'main route' for the scheme is, in effect, the diversion of the A4048 between High Street north of [Blackwood town centre] to Newbridge Road, Pontllanfridd. The proposed main route would be classified and numbered accordingly. Whilst the proposed BPL is essential to the whole scheme, nevertheless it does not need to be part of the main route for the purposes of these Orders. There is nothing illogical, unlawful or procedurally incorrect about this."
The inspector's comment at paragraph 7 upon the submission was this:
"In my view it seems strange that the proposed BPL is no more than a side road. This prosed length of road would be about 1km and is clearly an essential part of the proposed SEW, irrespective of what is the primary objective of the scheme. Moreover, even without the full development of the OBP in the next 20 years or so, the proposed BPL would provide a valuable element of a new cross-valley route for journeys to work and for other purposes between Blackwood and Oakdale. It would also provide the northern end of an attractive route, including for [heavy goods vehicles], between the OBP and the M4 avoiding Kendon hill."
And at paragraph 8:
"Whether a side road may properly implement the main objective of the proposals could possibly have implications for the validity of the CPO. The [National Assembly for Wales] will, therefore, need to be satisfied such a long side road can properly come within the powers of section 14 and 125 of the Act. Similar considerations may apply to the proposed [southern cross valley link], which would also be a side road, though as this would more clearly fulfil the role of linking the proposed main route to the existing A4048, it would more obviously be a secondary element of the whole scheme. Notwithstanding the above, I have proceeded to deal with the other matters relating to these 2 Orders on their merits."
"Given the Council's self-imposed restrictions on the development of plateau No 1 of the OBP, there is a material risk that this plateau would not be developed at all by 2020. That being the case, it would not be justified to confirm either of these Orders on the basis of the primary purpose of the proposed road being to serve this business park. The proposed BPL should, though, remain part of the CPO land as it would be an important link between the proposed main route and the existing OBP spine road.
79. The proposed road would bring immediate, real and significant benefits to [Blackwood town centre] in that it would substantially reduce traffic flows in this shopping centre, irrespective of how much of the OBP were developed. The desirability of improving conditions for shoppers in BTC has been recognised for some 30 years and is as great today, if not greater, than ever it was. Without a major improvement in the shopping environment, this centre is unlikely to maintain its present bustling prosperity, never mind raise itself into a sub-regional centre. The opportunity of providing a town centre bypass along the former railway line to the east of the buildings in High Street has now disappeared. The proposed SEW thus presents the only realistic possibility of being able substantially to improve conditions for pedestrians in this town centre. Such an improvement would have important economic as well as environmental benefit."
"Overall, therefore, I conclude that the environmental, economic and transport benefits of the proposed road would decisively outweigh its mainly environmental disadvantages, and would be preferable to any of the alternatives that have been identified. There is thus a compelling need in the public interest for confirmation of these two orders."
Finally, at paragraph 84:
"Consequently, provided that [the National Assembly] considered that confirmation of both Orders would come within the powers of the relevant sections of the 1980 Act under which they have been made; that there would be no insuperable problem in confirming them bearing in mind the Council's mistaken identification of the primary objective for the proposed road; and that there would be no overriding conflict with national transport policy of new road building in this essentially urban area, I conclude that both Orders should be confirmed."
"Side Road Nos 1/A and 2/A consists of a new 7.3 metre wide single carriageway link road from the new Business Park Roundabout to the southern end of the recently constructed main spine road for the Oakdale Business Park. The route is approximately 1.0km long and will provide the main access to the Business Park. Part of Rhiw Syr Dafydd Hill will be stopped up. Part of the unnamed lane leading from the B4251 to River Row will be stopped up."
Section 14 of the Highways Act 1980 in its relevant part reads as follows:
"14(1) Provision may be made by an order under this section in relation to a trunk road or a classified road, not being, in either case, a special road, for any of the following purposes
(a) for authorising the highway authority for the road ....
(ii) to construct a new highway for purposes concerned with any such alteration as aforesaid or for any other purpose connected with the road or its construction, and to close after such period as may be specified in the order any new highway so constructed for temporary purposes; ....
and references in this section, with respect to an order made thereunder, to 'the road' and 'the highway authority' are references to, respectively, the trunk road or, as the case may, be classified road to which the order relates and the highway authority for that road."
The minister concluded at paragraph 10 of her confirmation letter:
"In consideration of these Orders the Minister has firstly had particular regard to the validity of the Orders, in respect of the Business Park Link and the Southern Cross Valley Link. On this, the Minister considers that the inclusion of these highways in the lengths of new road to be constructed under the authority of the Side Roads Order is entirely lawful and proper since these are both lengths of new road which are to join a classified road, namely the new length of the A4080 (sic) and are to be constructed for purposes connected with the construction of that road. This is so that traffic can obtain access to it in the manner for which the existing road network would not make provision. The Minister is satisfied that their inclusion falls within the powers granted by Section 14(1)(a)(ii) of the Highways Act 1980."
"The Minister agrees with the Inspector's conclusions as set out at Chapter 10 of the Report and his recommendation that the Side Roads Order be confirmed, and that the Compulsory Purchase Order be confirmed subject to the modifications identified."
It follows that the minister accepted the inspector's conclusion that the county borough council's secondary purpose was established and herself concluded that the Oakdale Business Park link road was thus appropriately the subject of the side road order. Since, as I have found, there was nothing irrational or illegal upon the identification of what was described by the county borough council as their secondary purpose as justification for the orders, it seems to me that the error made in paragraph 6 of the confirmation letter is in the result immaterial.
"According to both the Statement of Reasons and Statement of Case, the scheme has some 20 objectives, though it is clear that the 2 main ones are the provision of a new access route to OBP and, less importantly, the reduction of traffic in BTC, though not by much. Moreover, if town centre traffic were the only problem, the scheme as it now stands would not exist. It is only by adding the proposed access route to OBP that the scheme is anywhere near viable .... ."
It seems to me that the objectors clearly did address the question whether the scheme could be justified without the Oakdale Business Park primary purpose. There was in my judgment no procedural unfairness and the first ground of the claim must fail.
"It is clear that the planning permission for the proposed SEW could not be implemented without the necessary licence from [the National Assembly for Wales] to disturb bats which roost on the CPO land, mainly in holes in the side of trees which would be felled, or which feed in area, or which fly across the line of the proposed road. The Council are unlikely to make an application for this licence before October 2002. I make no comment on whether it is likely to be granted."
And at paragraph 10:
"However, a decision on the confirmation of these Orders does not need to be delayed until the matter of the bats licence has been resolved. If the Orders are confirmed before the necessary licence has been granted, the Council undertake not to serve any notice to treat in connection with the CPO until it has been granted. [That undertaking has been repeated before me.] This undertaking by a public body should be accorded substantial weight. Early confirmation of the Orders would not be onerous for any of the Objectors if notices to treat were not served until the bats licence had been granted, even if it did extend slightly the period of uncertainty about whether their land was to be acquired. If the Orders were not conformed, then an early decision might well be welcomed by the Objectors. However, if the reason for non-confirmation were wholly, or even largely, because of the absence of a bats licence, but one were subsequently granted, it is likely that the Council would then make new Orders which would seek to overcome any other reasons for non-confirmation. If objections were received to such new Orders, the present Objectors would then face a further period of uncertainty and, if they were again Objectors, would need to face a second enquiry."
Finally, paragraph 11:
"The decision on whether to confirm these Orders should be made, therefore, as soon as possible, irrespective of the timing of the decision on the likely application for a bats licence. However, if [the National Assembly for Wales] consider that confirmation of the Order should be delayed until it is known whether a licence has been granted, this would not be too inconvenient for either the council or the Objectors. Clearly, though, if confirmation of the Orders were to be refused for reasons unrelated to the bats licence, then there would be no disadvantage in the decision being made as soon as possible."
That conclusion was, in essence, repeated in section 10, paragraph 85 of the inspector's report.
"To the extent that the construction of the proposed road will result in such disturbance, damage or destruction then it will not be lawful without such a licence."
She noted that confirmation of the orders would therefore not mean, necessarily, that the scheme could proceed. A further quotation from paragraph 12:
"If an application for a licence under Regulation 44 is made to the National Assembly it will have to be considered on the basis of the entirety of the evidence available at the time. The Minister is aware that in accordance with the terms of the planning permission surveys of the bat population have been carried out and have continued during the period since the local inquiry took place. Without prejudging the significance of any evidence which will need to be considered if an application for a licence is made, the Minister anticipates that it will include this kind of up-to-date information relating to the impact on the bat population. In the circumstances, the Minister is satisfied that a decision whether to confirm these Orders can be made without prejudicing any decision on an application for a licence under regulation 44 and, indeed, that such a decision is likely to require careful consideration of evidence which was not before the inquiry."
She went on to note at paragraph 13 the inspector's own consideration of the submissions and evidence made to him, and continued:
"The Minister is mindful of the fact that the impact of the proposed road on bat habitats within and near the woodlands will need to be given careful consideration in relation to any application for a licence under regulation 44 of the Habitats Regulations, as referred to in paragraph 12 of this letter, but with respect to the present applications she agrees with the Inspector's overall conclusion at paragraph 10.83 of his report."
Thus, on the face of it, the minister clearly did have regard to the implications of the Habitats Directive and in essence concluded that no breach of Articles 12 and 16 could take place in the light of regulations 39 and 44 of the 1994 regulations.
"In my judgment, the grant of planning permission in this case was not lawful because the respondent could not rationally conclude that there were no significant nature conservation effects until they had the data from the surveys. They were not in a position to know whether they had the full environmental information required by regulation 3 before granting planning permission. I would therefore quash the planning permission dated October 25, 1999."
" .... the person concerned must first of all apply to the local planning authority for planning permission. The authority may refuse to grant permission on account of the danger of 'disturbance' of a protected species or grant it on the condition that a derogation licence under regulation 44 is obtained.
15. In exercising that discretion the planning authorities applied planning guidelines (in the case of Wales, Planning Guidance Wales 1999). Under those guidelines, in particular where there are protected species on the site in respect of which permission is sought, the local planning authorities must, before granting permission, consult the authority competent to grant derogation licences (Planning Guidance Wales paragraph 5.3.20). In any case, however, the planning permission applied for ought not to be refused 'if development can be made subject to conditions that will prevent damaging impacts on wildlife habitats .... or if other material factors are sufficient to override nature conservation considerations' (Planning Guidance Wales paragraph 5.3.21)."
"It also seems plain to me as to the United Kingdom government that the fact that two different authorities are called on in turn to assess the same facts is certainly not enough to make the decision of the first a prejudgment capable of binding the second, especially as, in the circumstances of this case, the authorities making their successive decisions applied different legislative models: on the one hand, the general duty to have regard to the directive laid down in regulation 3 paragraph 4, and on the other, the strict requirements under regulation 44."
The Advocate-General thus proposed that the action brought by the commission should be dismissed.