Council fails in legal challenge over frequency of trains to regeneration site

The London Borough of Enfield has failed in a legal action brought against the Transport Secretary over the number of trains per hour stopping at the nearest station to a major regeneration site.

In London Borough of Enfield v Secretary of State for Transport [2015] EWHC 3758 (Admin) the council challenged a decision by the defendant minister to issue an Invitation to Tender ('the ITT') for the East Anglia Franchise ('the EAF') on 17 September 2015.

The ITT contained a train service requirement ('TSR'). The EAF covers an area which extends to Peterborough in the North West, Cromer and Sheringham in the North East, and Great Yarmouth, Felixstowe, Harwich, Clacton on Sea, Southminster and Southend in the East. It also includes Cambridge and a significant part of London and outer London. It serves 131 stations.

Enfield's complaint was that the TSR did not have a minimum requirement that the bidder must initially provide a service of two trains per hour (between 6 am and midnight) for the Angel Road/Meridian Water station, and then, from May 2018, when a new track will be built, a service of four trains per hour.

This minimum requirement was, the London borough argued, crucially important to the success of its plans for the development of Meridian Water. This development was described by the council as the biggest development in London since the 2012 Olympics.

Enfield contended that two emails containing statements from the Department for Transport generated a substantive, alternatively, a procedural legitimate expectation that the TSR would require four trains per hour to stop at Angel Road.

The council also argued that the defendant took into account an irrelevant consideration (that it would not technically be possible to provide such a service), failed to take into account a relevant consideration (it did not factor the value of the regeneration at Meridian Water into its economic modelling), made an irrational decision, and acted with conspicuous unfairness by failing to give the council an opportunity to make further representations about the impact of the failure to include a four trains per hour service to Angel Road in the TSR.

The DfT countered that Enfield could not reasonably rely on the emails to generate a legitimate expectation, or an argument that the defendant had acted unfairly by resiling from the emails. It argued that the emails were not clear enough to generate any legitimate expectation, and that the claimant did not rely on them to its detriment.

On the irrationality arguments, the Department suggested it had a wide discretion to decide what factors were relevant to a transport procurement decision such as this one. The DfT added that it had not acted irrationally in its approach to the analysis which underpinned the TSR.

Mrs Justice Elisabeth Laing concluded that all of the grounds advanced by Enfield were arguable and she granted permission to apply for judicial review.

“The Defendant's contradictory and confusing messages about the TSR for Angel Road station did not generate a legitimate expectation, as I have held, but they merited investigation and full explanation, as they cast arguable doubt both on the decision embodied in that part of the TSR, and on the process by which it was reached,” she said.

However, the judge said she did not consider that the Transport Secretary had generated any legitimate expectation, whether substantive or procedural.

She added that she did not believe the DfT had: acted with conspicuous unfairness; taken into account irrelevant considerations or failed to take into account relevant considerations; or otherwise acted irrationality.

Mrs Justice Elisabeth Laing went on to reject the council’s claim over it being not allowed to make further representations.