Highway scheme — Public consultation — Legitimate expectation — Expectation that choice of routes would be presented for public consultation — Whether presentation of a single route breaching requirement for consultation at formative stage — Claim dismissed
The claimant was a member of an action group formed to make representations to the Highways Agency in connection with proposals for a road improvement scheme. A government study, published in 2001 following public consultation, recommended a new three-lane carriageway, which was shown on a “preferred plan”. The plan stated that the precise alignment of the road would be the subject of further consultation. A report in 2003 proposed three possible routes for the road. However, a single route, the alignment of which differed from that on the preferred plan, was subsequently presented for public consultation.
The claimant brought a claim for judicial review, challenging the adequacy of the consultation on the grounds that: (i) a legitimate expectation had arisen that the alignment of the road, including a choice between different alignments, would be the subject of public consultation, and would be based upon the alignment shown on the preferred plan; (ii) there had been a breach of the requirement that public consultation be undertaken at a formative stage of the decision-making process, since, by the time of the consultation, the defendant had already reached a decision. In support of her case, the claimant cited documents in the public domain, but also sought to rely upon unreleased departmental documents that had emerged in the course of disclosure relating to the claim.
Held: The claim was dismissed.
The documents placed in the public domain did not, individually or collectively, give rise to the legitimate expectation contended for by the claimant. The 2001 report had indicated, and it had transpired, that the public would be consulted before the final route was implemented. Where the government had set out its intentions in public documents the claimant could not rely upon unreleased documents of which, at the time, she had been unaware; R on the application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744; [2005] INLR 550 distinguished; R (on the application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin); [2003] JPL 583; [2002] 49 EGCS 123 (CS) applied. In the context of major highway schemes, single-route consultation was not unusual or, in itself, unlawful. The requirement for consultation at a formative stage did not require consultation on the reduction of the alternative routes to one, followed by further consultation on that choice. In any event, the interested parties had had an opportunity to comment on the route during the earlier stages of the process.
Paul Brown (instructed by Richard Buxton, of Cambridge) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
