HIGHWAY CONSULTATION

November 23rd, 2018

In R (Sefton MBC) v Highways England (2018) EWHC 3059 (Admin) Kerr J dismissed an application for judicial review by Sefton Council and held that Highways England, when considering options for a new link road, to improve access to the Port of Liverpool, were not acting unlawfully by declining to include in their consultation on their preferred option of an access road through a country park the alternative option of a tunnel. There was no procedural unfairness in dismissing the tunnel option, and excluding it from the consultation, on grounds of expense.

There was no legitimate expectation to the contrary. Highways England was entitled to limit the parameters of its consultation in the way that it did; and the consultation was, in the Court’s determination, fairly conducted. What fairness requires is fact sensitive. Consultees remained free to advocate so-called “dismissed” options and bring them back to centre stage.

Fairness does not require time and public money to be spent on a proposal costing substantially more than the allocated budget for the project would bear. Indeed the arguments that the tunnel should not be regarded as unaffordable, that alternative claims on public funds should be given a lower priority, and that the budget should be revised upwards, are political arguments, for government, not a matter for the Courts. There were appropriate processes available to consider environmental issues, including the processes with respect to a Development Consent Order.

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