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London borough fails in High Court challenge over HS2 construction traffic routes

The London Borough of Hillingdon has lost a High Court judicial review against two Whitehall departments over routes for HS2 construction traffic in the borough.

It took the case against the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government over a planning inspector’s decision to allow an appeal by HS2 Ltd (HS2L) against Hillingdon’s rejection of an application for lorry routes across the borough for materials used in HS2 works.

In London Borough of Hillingdon v The Secretary of State for Transport & Anor [2021] EWHC 871 Sir Duncan Ouseley, sitting as a High Court judge, said: “At the heart of Hillingdon's case is its contention that HS2L ought to have provided a traffic impact assessment of the routes it had selected.

“This is not because Hillingdon contended that other routes should have been selected by HS2L instead, but because Hillingdon, as planning and highway authority for the routes selected, wished to impose controls on the level of usage of those routes by construction traffic, particularly in the normal peak traffic hours.

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“To select and justify the controls it might wish to impose, it needed information which it said HS2L was duty bound to supply. HS2L had not supplied that information and so the Inspector was wrong in law to allow HS2L's appeal.”

A complication was that both the council’s decision and that of the inspector were made between the decision of Lang J in a related earlier case, and the subsequent decision of the Court of Appeal overturning that.

Sir Duncan said the inspector “was clearly applying the law as set out by Lang J. The fundamental issue here is how material that was to his decision”.

He said Hillingdon ”relied strongly" on the judgment of the Court of Appeal in R(London Borough of Hillingdon) v Secretary of State for Transport and another [2020] EWCA Civ 1005, which also concerned the duty on HS2L to supply information for these approvals.

Hillingdon argued the inspector had taken an unlawful approach because he had relied on the judgment of Lang J which had been overturned by the Court of Appeal. He had failed to take material considerations into account and his decision was irrational.

But Sir Duncan concluded that the decision would have been the same had the inspector followed either Lang J’s judgment or that of the Court of Appeal.

Were it necessary to do he would apply s31(3C) Senior Courts Act 1981, he said.

“Had the inspector applied the judgment of the Court of Appeal, it is highly likely that the outcome would have been the same because his substantive evaluation of the issues would have been the same, leading to the same outcome,” Sir Duncan concluded.

Mark Smulian

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