The Queen (on the application of Transport Action Network Ltd) v The Secretary of State for Transport

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Holgate
Judgment Date26 July 2021
Neutral Citation[2021] EWHC 2095 (Admin)
Docket NumberCase No: CO/2003/2020

[2021] EWHC 2095 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HON. Mr Justice Holgate

Case No: CO/2003/2020

Between:
The Queen (on the application of Transport Action Network Limited)
Claimant
and
The Secretary of State for Transport
Defendant

and

Highways England Company Limited
Interested party

David Wolfe QC and Peter Lockley (instructed by Leigh Day) for the Claimant

John Litton QC and Andrew Byass (instructed by Government Legal Department) for the Defendant

The Interested Party did not appear and was not represented

Hearing dates: 29 th and 30 th June 2021

Approved Judgment

Mr Justice Holgate

Introduction

1

This is a challenge by judicial review to the decision by the Secretary of State for Transport (“SST”) made on 11 March 2020 to set the “Road Investment Strategy 2: 2020–2025” (“RIS 2”) pursuant to s.3(1) of the Infrastructure Act 2015 (“ IA 2015”).

2

The claimant, Transport Action Network Limited, is a not for profit company that campaigns for “more sustainable transport.” This includes opposing road schemes that it considers to be damaging.

3

The Interested Party, Highways England Company Limited (“HE”) has been appointed by the SST under s.1 of the IA 2015 as the highway authority in place of the defendant for the strategic road network (“SRN”) in England and as the “strategic highways company” for that network.

4

There are about 247,100 miles of roads in Great Britain of which 189,100 miles are located in England. The SRN comprises about 4,500 miles of motorways and trunk roads or about 2% of the overall road network in England. The remainder of the network is the responsibility of local highway authorities. The SRN is used more intensively than most other roads and so, for example, the greenhouse gas (“GHG”) emissions from the use of that network in England, accounts for about 39% of GHG emissions from all English roads. By far the main component of GHG emissions is carbon dioxide.

5

RIS 2 sets out the government's expenditure priorities for the operation, maintenance, renewal and enhancement of the SRN. HE is to develop the schemes listed in the Strategy and to construct those for which funding has been authorised, so long as they continue to provide value for money and be deliverable, which includes satisfying any statutory requirements such as need to obtain planning and environmental consents.

6

“The Road Investment Strategy: 2015–2020” (“RIS 1”) had been adopted on 1 December 2014 and covered the period 2015–2020. It contained 112 schemes. Some 12 schemes were subsequently dropped from the strategy because they were found not to offer value for money or to be deliverable. Of the remaining 100 schemes, 55 were completed by 2020. The 45 other schemes were rolled forward into RIS 2.

7

The Strategy for 2020–2025 adds a further 5 new schemes which would create or improve about 40 miles of the SRN:-

(1) Lower Thames Crossing (14.5 miles of new dual carriageway);

(2) A66 Northern Trans-Pennine: 18 miles of dual carriageway to replace a single carriageway;

(3) A46 Newark bypass: converting 3 miles of single carriageway to dual carriageway;

(4) A417 Air Balloon: 3.6 miles of dual carriageway to replace single carriageway;

(5) M60/M62/M66 junction: new slip road.

The government has committed £27.4 billion of funding for the period 2020–2025 (Philip Andrews' first witness statement (“WS”) paras. 28, 42–5 and second WS para.14). Only the Air Balloon scheme is expected to open before 2025. The others are unlikely to be completed until the period 2030 to 2035.

8

Section 3(5) of the IA 2015 requires the SST when setting a road investment strategy to “have regard, in particular, to the effect of the strategy on (a) the environment”. In summary, the claimant submits that the defendant failed to comply with that obligation in that he failed to take into account the effect of the strategy in RIS 2 on achieving:-

(i) the objective of the Paris Agreement for State Parties to reach peaking in GHG emissions as soon as possible and to achieve “rapid reductions” thereafter in accordance with best available science;

(ii) the net zero target for the UK in 2050 contained in s.1 of the Climate Change Act 2008 (CCA 2008);

(iii) the fourth and fifth carbon budgets (“ CB4” and “ CB5”) in s.4 of the CCA 2008.

9

The claimant says that the defendant was obliged (a) to take into account a quantitative assessment of the carbon emissions from the projects in RIS 2 not only in 2050 but also in the period running up to that year and (b) to form a judgment on how these emissions would affect the achievement of those three objectives in the UK. Mr. David Wolfe QC who, together with Mr. Peter Lockley, appeared on behalf of the claimant, accepted that (b) could lawfully be addressed in qualitative, and not necessarily quantitative terms. But they emphasised that it is the effect of the strategy in RIS 2 which needed to be assessed.

10

Mr. Wolfe QC also accepted that the IA 2015 does not mandate that those matters be taken into account, whether expressly or by implication. In these circumstances, Mr. Wolfe QC agrees that the claimant has to show that the SST was legally obliged to take them into account because they were “obviously material” to his decision to set “RIS 2”, such that it was irrational for him not to have taken them into consideration. He accepts that if he cannot satisfy that test then the challenge must fail.

11

The defendant submits that the matters in question were taken into account by officials in the Department for Transport (“DfT”) and, in essence, by the defendant himself, on the basis of his knowledge of relevant policies and climate change objectives and the briefing he received on RIS 2. Secondly, the defendant submits that, even if it is held by the court that he did not have regard to the matters identified by the claimant, they were not “obviously material” considerations for the purposes of his decision to set RIS 2 and so there is no basis in public law entitling the court to intervene. In other words, the SST says that the climate change issues raised by the claimant were matters that he was entitled, but not legally obliged, to take into account. This second submission is based on a very specific argument, namely that the evidence before the court shows that the effects of the strategy in RIS 2 are so small as to be de minimis, that is, too trivial as a matter of law to require consideration.

12

It is well-established that where a decision-maker decides to take a consideration into account it is generally for him to decide how far to go into the matter, or the manner and intensity of any inquiry into it, which judgment may only be challenged on the grounds of irrationality ( R (Khatun) v Newham London Borough Council [2005] QB 37 at [35]; R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] PTSR 1709 at [256]). Likewise, it is for the decision-maker to decide how much, if any, weight to attach to a factor he takes into account, a judgment which cannot be challenged unless irrational ( Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, 780).

13

Accordingly, the success of this challenge depends upon whether the claimant is able to show that the decision to set RIS 2 was vitiated by irrationality. The concept of irrationality refers to a decision which is beyond the range of rational responses by different decision-makers to a given set of circumstances or information, or which is based upon flawed logic ( R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at [65]. As to the former Lord Diplock observed in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064:-

“The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.”

The court must be careful to avoid trespassing into the forbidden territory of evaluating the substantive merits of the decision to set RIS 2 (see e.g. Bingham LJ, as he then was, in R v Chief Constable of Thames Valley Police ex parte Cotton [1990] IRLR 344, 352; R v Secretary of State for Trade and Industry ex parte Lonro plc [1989] 1 WLR 525, 535 B-C).

14

The adoption of a programme for the building or improvement of strategic roads and its effect upon climate change is a subject attracting many widely differing views, whether for or against. As the Divisional Court said in R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2021] PTSR 553, 559 at [6];-

“It is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the relevant procedures and legal principles governing the exercise of their decision-making functions. The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies. The choices may be matters of legitimate public debate, but they are not matters for the court to determine. The court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”

...

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