Highways England’s new statutory powers and duties in the spotlight
Planning and Environment, Public Law and Judicial Review
In R(Sefton MBC) v Highways England [2018] EWHC 3059 (Admin), the Court has analysed for the first time the nature and scope of the duties imposed on Highways England as a ‘strategic highways company’ charged with operating, maintaining and improving major road infrastructure in England (as was formerly the responsibility of the Highways Agency).
By virtue of its appointment by Order as a ‘strategic highways company’ under section 1 of the Infrastructure Act 2015, the Defendant acts as a highway authority for the strategic road network. One of its functions is the delivery of any Road Investment Strategy set by the Secretary of State.
In performing that role, Highways England must have regard to the environment and cooperate with others exercising highways or planning functions (s.5 IA 2015). It must also comply with the conditions set out in its “licence” (see s.6 IA 2015) which include a requirement to “cooperate with, consult and take reasonable account of the views of, amongst others, local authorities, road users, local communities and relevant stakeholders” in a way that is “open and transparent.”
Sefton MBC challenged a decision by Highways England to adopt, as the preferred route for a new access route to the Port of Liverpool, a new road through the Rimrose Valley. The Council, concerned about the environmental impacts of the new road, challenged the decision on the basis that Highways England had unlawfully excluded the option of building a tunnel from the consultation process.
The Court upheld the Council’s argument (resisted by Highways England) that Highways England was not akin to a private developer: “[Highways England] must exercise its functions in the public interest, not just its own financial interest. Indeed, it is not a commercial body; although it is in form a company limited by shares, its sole owner is the Secretary of State and its brief is to build and maintain a roadwork using public money limited by a budget” (see paragraph 69).
However, in dismissing the claim, the Court held that Highways England was not a body “whose functions have to be conducted according to a formula. Within the limits of the 2015 Act and the Licence, it has considerable freedom to act in the manner it considers best calculated to perform its duties efficiently and economically” (paragraph 71).
The Court held that Highways England was not obliged by reason of its statutory duties or licence conditions to consult on the possibility of a tunnel and nor was the exclusion of the tunnel option unfair in the circumstances.
Tom Cosgrove QC and Jack Parker acted for the Council.
