R (Sefton MBC) v Highways England  EWHC 3059 (Admin)
The Planning Court in Manchester (Kerr J) has rejected a claim by Sefton Metropolitan Borough Council by which it sought to challenge the “preferred route decision” of Highways England relating to the routing of a new access road to improve transport links with the Port of Liverpool. Sefton argued that it was unfair for Highways England to consult on only two options, Option A, involving the upgrade of the existing and heavily congested A5036 route, and Option B, involving a new route through the Rimrose Valley Country Park. Sefton argued that Highways England should also have consulted on its preferred option, which had significant local support, of a tunnel running under the Rimrose Valley Country Park, thereby preserving the rural tranquillity of the park. In making this argument Sefton also argued that Highways England was under a duty to consult by reason of its “license”, which contains statutory guidance on how it should exercise its functions.
Kerr J rejected this argument, holding that, as a matter of principle, Highways England has “considerable freedom to act in the manner best calculated to perform its duties efficiently and economically” and “does not have to consult widely or in detail on every decision”, whether it may choose to do so in practice. The references to consultation in the License are “general and pitched at quite a high level”. Kerr J went on to say that he agreed with Maurice Kay J in the earlier case of Medway  EWHC 2516 (Admin) that, in general, a decision maker is entitled to “narrow … the range of options within which he would consult and eventually decide”, and further that on the facts of this case there was no unfairness in not consulting on the tunnel option.
This was the first judicial review of Highways England and it gives important clarification on the extent of its duties to consult and co-operate with stakeholders, demonstrating the freedom that it has when acting as a developer. More immediately, the judgment means that this important project in Liverpool, which is of major importance to the economic development of the area, can proceed.
Tim Buley acted for Highways England (Charles Banner having been instructed at an earlier stage but not being available for the hearing).