Town and country planning – Highway authority – Container port – Planned expansion of port being undertaken – Defendant highway authority declining to include option of building tunnel in consultation about new access route to port – Claimant applying for judicial review – Whether defendant acting unlawfully – Application dismissed
A major expansion of the Port of Liverpool was being planned and undertaken. It was to include a new deep-water container port with much increased capacity which would bring public benefit to the area in the form of productive economic activity and the creation of new jobs. The claimant council was in favour of the project. It was agreed that the present access route to and from the expanded deep-water container port was unsatisfactory. There was a stretch of slow-going traffic running from the junction of the M57 and M58 motorways to the port. Existing routes were beset with heavy traffic. The defendant, Highways England, was required to provide improved road access. The claimant agreed that a faster link road to and from the port was needed.
The claimant applied for judicial review of the defendant’s refusal to include, in a consultation about the new access route, the option of building a tunnel under the Rimrose Valley. The defendant said that the tunnel option was lawfully ruled out as too expensive and poor value for the taxpayer and that the two surface routes considered were the only realistic options, although those consulted were able to object to both options by advocating a tunnel and would be able to take the same objection again once a development consent order (DCO) was applied for. The claimant argued that the tunnel option was realistic and not unaffordable and that the chosen option, a new dual carriageway through Rimrose Valley Park, would do severe damage to the park, which harboured precious wildlife and offered rare tranquillity in the mainly urban built up area through which traffic bringing goods to the port had to pass.
Held: The application was dismissed.
(1) The defendant was a body appointed as a highway authority by an order of the secretary of state under section 1(1) of the Infrastructure Act 2015. It had to operate and manage its highways network in the public interest and, in exercising its functions, act in a manner best calculated to achieve its specified objectives. Those objectives included ensuring efficiency and value for money, co-operation with other persons or organisations for the purposes of coordinating day to day operations and long-term planning, minimising environmental impacts and conforming to the principle of sustainable development. The defendant was not in the same position as a private developer. It had to exercise its functions in the public interest, not just its own financial interest. It was not a commercial body; although it was in form a company limited by shares, its sole owner was the secretary of state and its brief was to build and maintain a roadwork using public money limited by a budget.
(2) The decision challenged in this case was amenable to judicial review. The defendant exercised its functions according to a regime established under statutory authority. It had to follow directions and have regard to guidance from the secretary of state. It was required to engage with bodies such as the claimant which had responsibility locally for planning and highways. On the other hand, the defendant was not a body whose functions had to be conducted according to a formula. It had considerable freedom to act in the manner it considered best calculated to perform its duties efficiently and economically. It did not have to consult widely or in detail on every decision, though in practice would doubtless do so where major infrastructure projects were contemplated. The duty to consult was non-specific, general and pitched at quite a high level. In the present case, the duty of engagement was performed in quite large measure through discussions with the steering group, which pre-existed the defendant and continued after it was created. There was no direct duty to consult the claimant about building a tunnel.
(3) The defendant had informed interested parties what it was considering and why. It gave a clear and simple explanation of why it did not consider the tunnel option to be viable. That did not prevent argument to the contrary being presented but it would not, in practice, be accepted unless the budget were substantially increased. On the facts, the defendant was entitled, absent any other vitiating feature, to limit the parameters of the consultation in the way it did. It was not obliged to consult on the tunnel option on an equal footing with the other two options. It did not have to expend time and public money on detailed examination of a proposal lying beyond the funding constraints to which it was subject.
(4) The adequacy of consultation was part of the law of procedural fairness whether the consultation was voluntary or mandated by law. What fairness required was notoriously fact sensitive. When the matter was taken up with the defendant and the secretary of state, the minister of state made it clear that the tunnel option was not practical, because it was too expensive. The consultation would be on the two possible preferred options and would not include any detailed proposal to build a tunnel. There was no unfairness in the government and the defendant taking that position. It was for government to set the budget. The argument that the tunnel should not be regarded as unaffordable was political rather than economic. The claimant did not make an economic case to meet the government’s argument that a tunnel would be too expensive. The funding of infrastructure projects was a matter for government, not the court. The balance to be struck between environmental protection and economic regeneration was a matter for the executive. The procedural elements in the DCO process provided opportunities for opponents of the new dual carriageway. The economic, political and environmental arguments, and the budget, might have changed by the time any DCO application was determined. The case advanced by the claimant was not made out.
Tom Cosgrove QC and Jack Parker (instructed by Sefton Metropolitan Borough Council) appeared for the claimant; Tim Buley (instructed by Highways England) appeared for the defendant.
Eileen O’Grady, barrister
