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Judge rejects legal challenge over £27.4bn roads programme

The High Court has thrown out a campaign group's legal challenge to the Government’s £27.4bn Road Investment Strategy 2: 2020-25.

Activist group Transport Action Network argued that the Secretary of State for Transport was obliged to take into account a quantitative assessment of the carbon emissions from the projects in the programme up to 2050 and to form a judgement on how these emissions would affect the achievement of key objectives in the UK.

These were the Paris Agreement’s provisions on rapid reductions in greenhouse gases, the net zero target for the UK in 2050 and the fourth and fifth carbon budgets under the Climate Change Act 2008.

The Department for Transport argued that these matters were taken into account by its officials, and that even the court held the Secretary of State did not have regard to them they were not ‘obviously material’ considerations for his decision on the roads programme and so there was no basis in public law for the court to intervene.

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The DfT also maintained that the effects on the climate change strategy of the road programme was so small as to be too trivial as a matter of law to require consideration.

In Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport [2021] EWHC 2095 (Admin) Mr Justice Holgate said: “It is well-established that where a decision-maker decides to take a consideration into account it is generally for him to decide how far to go into the matter, or the manner and intensity of any inquiry into it, which judgment may only be challenged on the grounds of irrationality

“Accordingly, the success of this challenge depends upon whether the claimant is able to show that the decision to set [the roads programme] was vitiated by irrationality.”

The judge said the real issue raised by this challenge was whether the Secretary of State failed to take into account implications for the net zero target and carbon budgets leading towards that target, “in the sense that these were obviously material considerations to which he was legally obliged to have regard”.

Transport Action Network argued that in addition to traffic the DfT should have taken into account carbon emissions arising from the construction phases, road maintenance and lighting and made had inadequate allowance for ’induced traffic’ generated by the creation of new road capacity,

Holgate J found that there was no basis for the court in a claim for judicial review to reject the analysis carried out by DfT.

The judge said: "I see no reason to question the judgment reached by the DfT that the various measures of carbon emissions from [roads programme] were legally insignificant, or de minimis, when related to appropriate comparators for assessing the effect on climate change objectives.

“I therefore accept the [Secretary of State’s] additional submission that the analysis carried out by officials was not an obviously material consideration which had to be placed before the Secretary of State for the purposes of setting [the programme].”

Responding to the judgment, Transport Action Network said: "We are in disbelief that the High Court has ruled that the DfT did not need to provide evidence to show Grant Shapps had considered the impact of the 'largest ever' roads programme on climate targets. We have already sought permission to appeal and will be crowdfunding once again to bring an appeal."

Mark Smulian

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