Council loses High Court battle over new access road to Port of Liverpool

A High Court judge has rejected a legal challenge brought by Sefton Council over Highways England’s consultation on a new access road to the Port of Liverpool.

The agency is planning a £250m investment in the A5036 between Switch Island and the port.

In Sefton Metropolitan Borough Council, R (On the Application Of) v Highways England [2018] EWHC 3059 the local authority sought to argue that Highways England acted unlawfully by declining to include, in its consultation about the new access route, the option of building a tunnel under the Rimrose Valley.

Highways England argued before Mr Justice Kerr that the tunnel option was lawfully ruled out as too expensive and poor value for the taxpayer and that the two surface routes considered were the only realistic options, although those consulted were able to object to both options by advocating a tunnel and would be able to take the same objection again once a development consent order (DCO) was applied for.

Sefton meanwhile argued that the tunnel option was realistic and not unaffordable and that the chosen option – a new dual carriageway through Rimrose Valley Park – would do severe damage to the park.

The council added that the park harboured precious wildlife and offered rare tranquillity in the mainly urban built up area through which traffic bringing goods to the port has to pass.

The plans for the major expansion of the Port of Liverpool include a new deep water container port with much increased capacity. Sefton is “as much as anyone in favour of the project”, the judge noted.

Rejecting Sefton’s challenge, Mr Justice Kerr concluded “from the authorities and the factual context that Highways England was entitled, absent any other vitiating feature, to limit the parameters of the consultation in the way it did.

“It was not obliged to consult on the tunnel option on an equal footing with the other two options. It did not have to expend time and public money on detailed examination of a proposal lying beyond the funding constraints to which it was subject,” he added.

Mr Justice Kerr said he did not find any unfairness in the government and Highways England taking the position that the tunnel option was not practical because it was too expensive.

“It must be for government to set the budget for this project, as part of the RIS (road investment strategy). It is difficult to sustain an argument that fairness requires time and public money to be spent on a proposal costing substantially more than the budget will bear.”

The judge added that the funding of infrastructure projects such as this one was a matter for government, not the court.

“The balance to be struck between environmental protection and economic regeneration is par excellence a matter for the executive. It will be further debated if and when a DCO is applied for in the present case. In the factual context here, the requirements that must be met before a DCO is granted are relevant to the fairness issue.”

Mr Justice Kerr accepted that advocates of a tunnel may be at some disadvantage in objecting to a DCO that would permit a new dual carriageway. “They will be vulnerable to the argument that a tunnel has already been ruled out as too expensive. But I do not think that point alone establishes unfairness in conducting the consultation. The DCO process does provide an appropriate forum for the environmental case against the new dual carriageway.”

The ruling was welcomed by Highways England, which insisted that the new dual carriageway through Rimrose Valley would be “transformational”. It said it would now begin statutory consultation over its plans.

Tim Gamon, the agency’s regional delivery director for the North West, said: “We note the outcome of the judicial review and would like to say that now, more than ever, we want to work with the community surrounding Rimrose Valley to deliver a solution which benefits everybody

“Our message is whether you are a resident, road user, business or regular user of the park please come and get involved in the consultation events so we can work together to get this right for everyone.

“Our legacy approach to delivery will ensure both the park’s facilities and the existing A5036 will be improved while the new road will help relieve congestion across the whole of the local road network – providing more reliable journeys and freeing up more opportunities for jobs and homes.”