The High Court has ruled that the Secretary of State for Transport ('the SoS') did not fall foul of the law in approving the £27.4bn Road Investment Strategy 2: 2020-2025). ('RIS2') (R(Transport Action Network Limited v Secretary of State for Transport [2021] EWHC 2095 RIS2, which set Highways England’s ('HE') objectives and funding resources for the expansion of the UK’s strategic road network, was held to be in line with legal obligations and, contrary to the Transport Action Network’s ('TAN') challenge, did not fail to comply with environmental considerations under the Infrastructure Act 2015.
Background
RIS2 was launched on 11 March 2020 and detailed the government’s long term strategy for the expansion and funding of the strategic road network in England. The strategy includes schemes such as the Lower Thames Crossing, the A303 Stonehenge tunnel and the A417 Missing Link. HE is responsible for the delivery of RIS objectives, as the designated highway authority.
The Infrastructure Act 2015 provides the Secretary of State with powers to set a RIS containing objectives to be achieved by HE and the funding resources for the delivery of those objectives. However, section 3(5) of the 2015 Act provides that when the Secretary of State adopts a Road Investment Strategy (RIS), they must have regard, in particular, to the effect of the RIS on the environment and the safety of highways users.
TAN’s challenge
TAN, a non-profit campaign group for sustainable transport, applied for a judicial review against the adoption of RIS2. TAN argued that the SoS failed to properly account for the effect on the environment, particularly in ensuring the RIS2’s compliance with (i) the Paris Agreement, (ii) the UK’s net zero target and (iii) the fourth and fifth carbon budgets set under the Climate Change Act 2008.
In particular, TAN argued that through the adoption of RIS2, the SoS was under a legal obligation '(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 [i-iii above] in the UK.' While TAN accepted that the 2015 Act did not mandate those matters to be taken into account, the judicial review application was submitted on the basis that those considerations were 'obviously material' and such that it was irrational for them to not be considered.
It was recognised that where a decision-maker decides to take a matter into account it is for that decision-maker to decide the manner and intensity of any inquiry into it. The decision-maker’s judgement may only be challenged on the grounds of irrationality. Consequently, TAN’s challenge was based on the SoS’s alleged irrationality from failings to consider 'obviously material considerations', such as the Paris Agreement. This argument would only succeed if TAN was able to show that the SoS’s decision to adopt RIS2 was vitiated by irrationality. To be irrational, a decision must have gone beyond the range of rational responses by different decision makers with the same information, or be based on flawed logic.
The SoS disputed TAN’s submissions. The SoS argued that the above matters were considered by the Department for Transport (“DfT”) and by the SoS himself. His consideration was based on his knowledge of relevant policies and client change objectives and a briefing from officials on the impacts of RIS2. Further, even if the High Court found that he failed to have regard to the matters identified by TAN, they were not 'obviously material' considerations that the SoS was obliged to consider. The SoS argued that the emissions from the various projects within RIS2 were de minimus and would have insignificant effects under the Climate Change Act 2008 and Paris Agreement. Consequently, they were too trivial for consideration.
It was recognised that the High Court’s role in this application was to ensure that public bodies act within the limits of their legal powers and in accordance with relevant legal principles. It was not for the court to be concerned with the merits of policy decisions or associated political, economic or social choices.
What was the Judge’s decision?
Mr Justice Holgate dismissed TAN’s application for judicial review. The key conclusions on the legal issues submitted by TAN’s challenge were:
- That the RIS was a high-level strategy focusing on public investment in the strategic road network and rejected TAN’s assertion that the RIS was an environmental decision-making document. This meant that only a low intensity approach to the judicial review was necessary and TAN would bear the heavy evidential onus to prove that the decision was 'irrational, absent bad faith or manifest absurdity' (citing R (Spurrier v Secretary of State for Transport [2020] PTSR 240).
- The SoS’s knowledge when setting RIS2 was sufficient. For example, his understanding of the contents of RIS1 and relevant targets under the Climate Change Act 2008. It was determined that the SoS’s awareness of national policy, supported by briefings by officials on RIS2 implications, meant that it was immaterial whether the SoS should have been shown supporting numerical analysis. What material the SoS could have been supplied with was 'not the test for a public law challenge'.
- The SoS did not have to consider numerical assessments of predicted carbon emissions. The SoS had not been irrational in failing to consider an ‘obviously material’ consideration. That said, Mr Justice Holgate accepted the DfT’s judgment that the carbon emissions from RIS2 would be legally insignificant. So, even if the SoS had taken them into account, they would not have materially affected his decision.
What are the practical consequences of this matter?
This decision comes less than two weeks after the publishing of the ‘Transport decarbonisation plan’ which sets the government’s pathway to net zero transport. The plan also promises a governmental review of the National Policy Statement for National Networks, which underpins the current road investment and planning policy, however this review will not be concluded until Spring 2023. TAN has already publically stated that it is 'unacceptable' to keep the National Policy Statement for National Networks in use for a further two years.
In a period of heatwaves, unprecedented fires and floods, addressing carbon production in the transport sector will continue to be of critical and urgent importance. Whether the government’s current road investment policy is sufficient is not a matter for the courts to determine, but will likely continue to be at the forefront of public scrutiny.
How can we help?
Burges Salmon has significant experience advising clients in transport and infrastructure sectors. If you wish to discuss any of the matters raised in this article, please contact Gary Soloman or Cathryn Tracey.