910: Road Investment Strategy 2 survives legal challenge plus a quashing

Today’s entry analyses the recent High Court judgment on a challenge to the Road Investment Strategy 2 and a third quashed Development Consent Order (DCO).

First, the recent judgment; then the quashed DCO.

Context

The government may ‘set’ a Road Investment Strategy (interesting verb) giving objectives to National Highways and the resources to be used to meet those objectives (Infrastructure Act 2015, section 3). The law says ‘may’ but later says that if there isn’t one, then the government must set one as soon as reasonably practicable, so it’s effectively ‘must’.

The first Road Investment Strategy (RIS, pronounced rizz) was duly set in 2015 to last until 5 April 2020 and can be found here. It was amended once, in March 2016, via this document. It contains 112 highway projects, quite a few of which needed Development Consent Orders (DCOs).

The second RIS (inevitably called RIS2) was set on 11 March 2020 (just in time delivery) and can be found here. Of the 112 RIS1 schemes, 12 had been dropped, 55 completed, and 45 rolled forward to RIS2. Only five new schemes were proposed: the Lower Thames Crossing, the A66 Northern Trans-Pennine upgrade, the A46 Newark Bypass, the A417 Air Balloon dualling (Gloucestershire) and the M60 / M62 / M66 Simister Island junction upgrade north of Manchester.

The challenge

Environmental group Transport Action Network challenged the 11 March setting of RIS2 by the Secretary of State for Transport. The case was heard on 29 and 30 June; the judgment was issued on 26 July, and can be found here. The grounds of challenge were that in setting RIS2 the Secretary of State should have taken the Paris climate change agreement, the net zero target and the fourth and fifth carbon budgets into account but didn’t.

The first issue was that there is nothing explicit to say these things should be taken into account, but it is possible to fall foul of the law if despite that, something is so ‘obviously material’ that it would be irrational not to take it into account [see paragraph 10 of the judgment]. The defence argued that the SoS did take them into account, but even if not, apart from net zero they were not ‘obviously material’ [11] and the impact of RIS2 on net zero was insignificant. So, what did the judge decide?

RIS2 mentions net zero on pages 26 and 27, albeit not in a huge amount of depth. RIS2 refers to the 2017 Clean Growth Strategy on pages 25 and 61, which in turn refers to the Paris agreement and fourth and fifth carbon budgets in several places [82]. Et voila, the claim did not succeed. OK, it’s not quite as simple as that, but nearly.

On the ‘obviously material’ point, the judge decided that the Paris agreement was not obviously material, since net zero is in furtherance of it so the agreement does not need to be taken into account additionally [117]. The carbon budgets were also not obviously material for similar reasons [142].

And finally the insignificance point. The carbon emissions from the additional five projects (rather than the whole of RIS2, since the other projects had been previously taken into account and so were effectively the baseline), amounted to 0.016% of the UK’s carbon budget for 2028-32 (the fifth period) [138]. The claimants said it was wrong to compare to the whole of the UK’s emissions, since it would inevitably be a tiny proportion, but the judge said there wasn’t a sectoral target, and the significance of the contribution could still be assessed properly [156].

So that was that. Not surprisingly the Airports National Policy Statement Supreme Court case got quite a lot of airtime, as did Chris Packham’s challenge to HS2.

TAN are considering whether to appeal. They are also considering whether to challenge the Secretary of State’s decision not to suspend the National Networks National Policy Statement while it is being reviewed.

Analysis

There is probably not a great deal to read across from this decision to infrastructure planning generally, since, as the judge said, RIS2 is not an environmental decision-making document [121].

There is one area where I think the ratchet is going to turn, though, and statements similar to that in paragraph 157 will in time not be able to be made without further thought:

‘there is no requirement in the [Climate Change Act] 2008, or in government policy for carbon emissions, for all road transport to become net zero’.

That is certainly true at the present time, but soon I don’t think it will be good enough for a sector to have surplus emissions by 2050 without explaining how these will be offset, rather than just relying on the overall situation to get sorted out somehow because there is an overarching net zero obligation in law. Back in 2019 the Drax decision letter allowed a highly emitting power station (which in the end is not being built) on the basis that there were ‘pathways’ that would achieve net zero if it was included, without further discussion (paragraph 5.9). It would have contributed 3.5% of the fifth carbon budget, or 218 RIS2s. Surely emitting projects ought to do more than just expect everyone else to try harder, and give an idea of the pathway that would be required to achieve net zero and their project?

That said, road projects’ emissions are almost entirely due to the emissions of the vehicles travelling on them (97%, according to the judgment [107]), and National Highways can point to the Transport Decarbonisation Plan and its own 2030 / 2040 / 2050 plan, plus how it is minimising carbon from construction and maintenance – the other 3% – to show that RIS2 is compatible with net zero being achieved, and not all at the last minute. But for the moment, National Highways have this judgment in their pocket and the five projects in RIS2 are rather more immune from challenge on climate change grounds than they would otherwise have been.

Incidentally on the legal issues, I always advise that it is much safer to say you have taken something into account and give it very little weight than not to take it into account, as you are then subject to a test of irrationality rather than having made a legal error.

Quashed DCO

On 8 July the High Court quashed the third DCO to suffer such a fate, the A38 Derby Junctions DCO promoted by National Highways. Details have only recently been published.

The project was to widen parts of the A38 near Derby and was promoted by National Highways. Like the other two quashed DCOs, however (Manston and Norfolk Vanguard) the challenges were of the Secretary of State’s decision to grant the DCO rather than a challenge to anything the applicant did.

Like Manston but unlike Norfolk Vanguard, the challenge did not go to a hearing, the Secretary of State decided not to defend the challenge on one of its grounds, and the two sides agreed a form of court order that was then endorsed by the court, three weeks ago.

As this article by one of the challenger’s barristers says, the challenge was on five grounds but only (half of) one was the subject of the quashing, that the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 had been breached because in making the decision the Secretary of State had not provided an up-to-date reasoned conclusion on the significant effects of the project (regulation 21(1)(b) and (2)). Interestingly, ‘up to date’ is defined in regulation 21(2) and doesn’t involve any reference to time, just that the conclusion addresses the significant effects of the development that are likely to arise.

Like the other two quashed DCOs this one will now be reconsidered by the Secretary of State and a new decision taken after seeking views on matters on which he wishes representations to be made, it doesn’t go back any further in the process.

Tantalisingly this means that the number of decided applications is now 99 rather than 100 – 94 grants and five refusals. A further 28 are in progress, and if they stick to time will be back to 100 decisions in September. The 100^th DCO should be made in January 2022.

*UPDATE – the A303 Amesbury to Berwick Down DCO (ie the Stonehenge Tunnel) was quashed by the High Court on 30 July so there are now 98 made DCOs.  More details next week.