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The Court of Appeal (LJ Dingemans, LJ Elisabeth Laing and LJ Holgate) has allowed an appeal by Transport Action Network in respect of a judicial review of the decision of the previous Government to cut funding for active travel by £200m for the years 2023/4 and 2024/5.
S16 of the Infrastructure Act 2015 requires the Secretary of State for Transport to set a cycling and walking investment strategy (“CWIS”) which must specify the objectives to be achieved and the financial resources to be made available by the SoS for the purpose of achieving those objectives. Statutory variation provisions allow for the CWIS so set to be varied.
The CWIS for the period 2021 to 2025 specified the resources to be made available for active travel including (broadly) £300m for dedicated capital investment in the final two years.
In the Autumn Statement 2022, the Chancellor indicated that, because of financial and economic pressures, departments would be required to make savings the extent of which would be announced in March 2023. The Department for Transport initially decided not to make cuts to the dedicated capital funding for active travel but on 9th March 2023, the decision the subject of this challenge was made reducing dedicated capital funding by £200m or 65%.
The High Court (Kerr J) dismissed TAN’s application for judicial review but the Court of Appeal allowed TAN’s appeal. Elisabeth Laing LJ gave the judgment with which Dingemans and Holgate LH agreed. The Judgement may be accessed here.
S21 requires a strategy or plan to be set. Once set, the stability of the strategy “is a theme which runs through s.21” [J:31]. S21 imposed a “precise and clear duty” to specify in the CWIS the resources to be made available. Once so set, the SoS could not vary the strategy without going through the statutory variation provisions [J:35-36]. Thus “the financial resources to be made available [by the SoS] have to be specified in the strategy, and if the [SoS] wishes to change what has specified in that regard, he must comply with the procedure for variation”.
A secondary argument that the CWIS contained only estimates and thus there was no departure from it was rejected: J:45.
David Forsdick KC and Charles Bishop acted for the Transport Action Network, instructed by Rowan Smith at Leigh Day, in the High Court and Court of Appeal.
