Application for judicial review refused: next stop, Court of Appeal?

April 12, 2016 by combehavendefenders

You must be choking protest, July 2015

The crowdfunder, launched to help with legal costs, has reached 77% of its target. It would be great if we could get to the target by 18 April. Please consider making a donation, however small, to this important case: see here for details. Note that whilst appealing the case may not stop the roadbuilders, most of the money raised if the crowdfunding target is met will go towards the cost of the case so far, whilst a small amount will go towards the appeal.

The application for judicial review of the decision by Hastings Borough Council to grant planning permission for the Queensway gateway road has been refused. The High Court ruled that there was an ‘inconsistency’ in the council’s case, but that this did not amount to sufficient grounds to allow a judicial review.

However, lawyers believe there may be a case for taking the case to the Court of Appeal. This would, very sadly, not stop SeaChange from carrying on building the road, but might be a stepping stone towards making an important legal point which could be of use to other campaigners.

Summary of situation

After the planning permission was quashed in June 2015 due to air pollution issues, SeaChange submitted new traffic and air quality reports, citing ‘methodological errors’ in the originals. The revised figures showed that the predicted air pollution from the QGR would now be fractionally under critical levels. The planning committee accepted these figures and passed the application for the second time in December 2015.

Emissions factors

In the revised figures SeaChange used emissions factors from a later year than those they used in their original figures (see here for more information on emissions factors and how they impacted on the air pollution levels in this case). However, there is evidence that the predicted decrease in air pollution from road transport (reflected in emissions factors for future years) is not materialising in the real world, and therefore there is a strong case to be made that more conservative emissions factors should be used to predict likely air pollution.

If a more conservative approach had been adopted (as was the case in the original planning application), predicted air pollution caused by the QGR would have exceeded critical levels. The planning committee was not informed about this.

You must be choking, July 2015

Council misinformed?

The application for judicial review centred on the fact that with the road likely to cause air pollution just below critical limits, the Council was materially misinformed by not being told about the inconsistencies in approach (with regard to emissions factors) which allowed SeaChange to produce figures just below the critical level.

No right to challenge the merits

However, the High Court stated that there is no right to challenge the merits of a planning decision – that is, was it right for the planning committee to reach the decision it did and thus to grant permission for a road that will be just below critical pollution levels? It appears that a decision can only be challenged, on this basis, if the Council erred by failing to take into account a particular law (as in the first – successful – legal challenge where the law on air pollution was not considered).

Court of Appeal?

The claimant (Gabriel Carlyle) is considering proceeding to the Court of Appeal. Although an appeal, even if successful, may not stop the Queensway Gateway, there is a bigger issue at stake which may have implications for other communities experiencing poor air quality and facing destructive new roads. That is, that international law ratified by the UK states that people should have the right to challenge the  merits of a decision. However, until our national courts accept this, that right cannot, it would appear, be enforced. Pursuing this case to the next level (the Court of Appeal) may be a stepping stone on the way to making cases such as this arguable in English courts.

Crowdfunder

The crowdfunder, launched to help with legal costs, has reached 77% of its target. It would be great if we could get to the target in the next few days. Please consider making a donation, however small, to this important case: see here for details.