Court of Appeal signals end of the line for challenge to Strategic Rail Freight Interchange

The Court of Appeal has refused permission to appeal in a judicial review claim aimed at stopping the development of a major Strategic Rail Freight Interchange in Hertfordshire.

In September 2023 Fight the Freight CIC brought judicial review proceedings challenging the decision of Hertfordshire County Council to sell land within its ownership at the former Radlett Airfield to SEGRO (Radlett) Plc. The challenge was brought on two grounds:

1. when the Council had originally bought the land it did so pursuant to the Green Belt (London and Home Counties) Act 1938 and it unlawfully failed to comply with the notification and consent requirements set out in s.5 of the 1938 Act before selling the land to SEGRO. Under this ground the Claimant sought an Order quashing the sale; alternatively; and
2. the Council had originally bought the Land under s.9 of the Open Spaces Act 1906, the Land was therefore held on trust for the public pursuant to section 10 of the 1906 Act, and the Council sold the land without complying with the publicity requirements set out in s.123(2A) of the Local Government Act 1972, meaning that the land was still subject to the s.10 trust. Under this ground, the Claimant sought a declaration to that effect.

Lieven J considered the claim at a rolled-up hearing on 11 June 2024. Very shortly before the hearing, the Claimant abandoned its argument that the Council had acquired the land under the 1938 Act. Lieven J refused the Claimant permission to apply for judicial review, upholding the Council and SEGRO’s arguments that the Council had not had the power to acquire the land under s.9 of the Open Spaces Act 1906 because at the time the Council acquired the land it did not fall within the definition of “open space” set out in s.20 of the 1906 Act; and that the evidence demonstrated that the Council did not intend to acquire the land for the purposes of holding it as open space for the benefit of the public and did not in fact do so. The Court also found that the claim had not been brought promptly as required by CPR 54.5(1).

Fight the Freight applied to the Court of Appeal for permission to appeal against Lieven J’s decision. By Order dated 27^th September 2024 Lewison LJ refused permission on the basis that the application for permission was itself made out of time and that there were in any event no reasonable prospects of success.

SEGRO is in the process of building the Strategic Rail Freight Interchange on the land, pursuant to a planning permission granted on appeal by the Secretary of State in 2014. The Court of Appeal’s decision means that it seems that the final legal hurdle to the delivery of this huge scheme, which has been in planning gestation since 2009, is finally over.

Robert Walton KC acted for the County Council, instructed by the Council’s Legal Services Department.

David Forsdick KC acted for SEGRO, instructed by Gowlings LLP.