Government's Thames Tunnel safeguarding direction could be challenged

The Government Direction restricts the decisions that the London Borough of Wandsworth and the London Borough of Hammersmith can take in respect of any land "safeguarded" under the Direction.

It is argued that DCLG has acted outside of its powers in issuing the Direction and it is thought that local landowners could launch a judicial review to challenge the lawfulness of the Direction.

The Secretary of State had acted "outside of his powers in trying to impose a safeguarding direction in the extent that he has...The section of the Act is very clear. What the secretary of state is proposing goes far outside of that," said Charles Mills of surveyors Daniel Watney, according to Planning Magazine.

A decision on whether to launch a legal challenge would depend on the outcome of discussions with the department over the Safeguarding Direction, said Mills.

DCLG issued the safeguarding Direction in February, which covers land on Carnwath Road in Hammersmith and Fulham and Kirtling Street in Wandsworth, both sites that are proposed to be used for the construction of the Thames Tunnel "Super Sewer".

The Direction prevents local planning authorities from granting planning permission; entering into any agreement, or passing any resolution that could influence the site's planning status without ministerial authorisation.

DCLG issued the Direction under section 74 of the Town and Country Planning Act (TCPA) 1990 and article 25 (1) of the TCPA (Development Management Procedure) (England) Order 2010, however it is claimed that the Government has acted outside of the powers conferred to it under the legislation.

The London Borough of Hammersmith & Fulham has also said that is "highly likely" that the Council will proceed with a judicial review challenge of the Direction, according to Planning Magazine.

Marcus Bate, a planning expert at Pinsent Masons said that few will be surprised if LBHF decides to judicially review the Secretary of State’s February 2012 Safeguarding Direction. 

"The Council has long been one of the more vociferous opponents of Thames Water’s proposals to use the Carnwath Road land as a construction site for the Thames Tunnel works, said Bate. The difficulty for LBHF, and for the landowners threatening judicial review proceedings, is that the legal powers of safeguarding in Section 74 of the Town and Country Planning Act 1990 and Article 25 of the Development Management Procedure Order 2010 are drafted so widely, making a challenge based on ‘vires’ difficult to establish.

"That said, any legal challenge is likely to delay the operation of the Safeguarding Direction and may assist the Council, landowners and developers with implementing further defensive strategies, Bate said.”

Thames Waters' proposed Thames Tunnel 'Super Sewer' will capture storm sewage from 34 sewer overflow points along the River Thames. The 20 mile tunnel would run through central London, broadly following the path of the river, but up to 75 meters beneath the riverbed.

The proposed tunnel route would run from Acton Storm Tanks in Ealing to Abbey Mills Pumping Station in Newham.