London borough fails in Court of Appeal bid to challenge routeing of lorries to HS2 construction sites

The Court of Appeal has refused Hillingdon Council permission to appeal in a dispute about the arrangements for the routeing of lorries to and from HS2 construction sites in the borough.

In The London Borough of Hillingdon Council, R (On the Application Of) v The Secretary of State for Transport & Anor (Rev1) [2021] EWCA Civ 1501 the local authority was seeking permission to appeal against the order of Sir Duncan Ouseley, dated 13 April 2021, dismissing its claim for judicial review of the decision of an inspector appointed by the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government, on an appeal under paragraph 22 in Schedule 17, "Conditions of Deemed Planning Permission", to the High Speed Rail (London-West Midlands) Act 2017.

The paragraph 22 appeal had been brought by the interested party, High Speed Two (HS2) Ltd, against the council's refusal to approve, under paragraph 6, its proposed lorry route arrangements for construction sites in the borough. The inspector's decision letter was dated 28 July 2020.

In the High Court, and before the Court of Appeal, the council relied on the judgment of the Court of Appeal in previous Hillingdon-initiated proceedings. The latter decision in R. (on the application of London Borough of Hillingdon Council) v Secretary of State for Transport [2020] EWCA Civ 1005, [2021] PTSR 113, in which the local authority's appeal was allowed, was handed down on 31 July 2020 – three days after the inspector's decision in this later dispute.

Hillingdon argued that the inspector's approach could not be reconciled with the court's reasoning in that case.

“In a meticulous judgment, the judge rejected that argument,” Lord Justice Lindblom, Senior President of Tribunals, said. “The council says he was wrong to do so.”

The Court of Appeal judge said that the basic issue in the case was whether the inspector's approach was lawful. Each of the three main grounds in Hillingdon’s claim asserted it was not.

• Ground 1 alleged that the inspector misconstrued and misapplied paragraph 6(5)(b)(ii) of Schedule 17 – wrongly believing that it imposed a legal "burden of proof" on the council (ground 1(a)), and that it empowered decision-makers to approve lorry route arrangements despite a lack of adequate information (ground 1(b)), placing unlawful reliance on the Environmental Minimum Requirements ("the EMR") (ground 1(c)), and misunderstanding Parliament's intention in Schedule 17 (ground 1(d)).
• Ground 2 alleged that he failed to take into account material considerations; and
• Ground 3 alleged that his decision was irrational, because he lacked the requisite information to make it.

Lord Justice Lindblom said however: “With the benefit of counsel's submissions at the hearing and applying the same principles as this court did in the previous Hillingdon case, I have concluded that the council's appeal has no real prospect of success on any of the grounds. Nor is there any other compelling reason for it to be heard. I would accordingly refuse permission to appeal.”

Lord Justice Baker and Lord Justice Lewis agreed.