Oxfordshire CC Jan 20 Head of Legal 600

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Transport Secretary defeats High Court challenge over decision on Oxford to Cambridge Expressway

A High Court judge has dismissed a legal challenge to the Transport Secretary’s decision to accept recommendations from Highways England on the choice of a preferred corridor for the proposed new Oxford to Cambridge Expressway.

The claimant in Berks, Bucks And Oxon Wildlife Trust, R (On the Application Of) V Secretary of State for Transport [2019] EWHC 1786 was a regional charity which operates under the umbrella of the Royal Society of Wildlife Trusts.

Supporting evidence, expressing concern about the impacts of the Expressway Scheme, was provided by other wildlife trusts, the Royal Society for the Protection of Birds, the Council for the Protection of Rural England (Bedfordshire), Plantlife International, Horton-cum-Studley Parish Council and Horton-cum-Studley Expressway Group.

The claimant's grounds for judicial review were that, prior to the decision, the defendant unlawfully failed to carry out:

  1. a Strategic Environmental Assessment, under the Environmental Assessment of Plans and Programmes Regulations 2004; and
  2. a Habitats Regulations Assessment under the Conservation of Habitats and Species Regulations 2017.

The Transport Secretary’s response was that there was no legal requirement to undertake these assessments at this early stage, when no definite decisions on corridor or route had been made. The environmental impacts of the Expressway Scheme, including the choice of corridor and routes within a corridor, would be assessed as part of the forthcoming Development Consent Order process, which would comply with Directive 2011/92/EU and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.

Rejecting the challenge, Mrs Justice Lang said in relation to ground 1 that the claimant had not succeeded in showing that the decision in this case came within the scope of the SEA Directive. “Even adopting a purposive construction, the decision under challenge does not meet the specific criteria set out in the SEA Directive and the SEA Regulations 2004.”

The judge also addressed the claimant’s reference to other road projects in which assessments under the SEA Directive had been undertaken, and its submission that it was inconsistent to adopt a different approach in this case. “I did not accept this submission, as the facts in the other projects were readily distinguishable from this one,” she said.

In relation to ground 2, the claimant submitted that the decision should have been subject to an appropriate assessment under article 6(3) of the Habitats Directive, as it was a "plan" which was likely to have a significant effect on European designated sites. The focus of concern was two Special Areas of Conservation – the Oxford Meadows SAC and the Cothill Fen SAC, which are both located to the west of Oxford, within Corridor B1.

However, Mrs Justice Lang said that, on a proper interpretation, article 6(3) of the Habitats Directive, was not engaged unless there was a "plan" or "project" in existence.

The judge said: “In deciding whether or not the decision in this case amounted to a plan, it is appropriate to have regard to the same factors as were considered in deciding this question under the SEA Directive….. The decision merely accepted the recommendation of the CAR [Corridor Assessment Report] to take forward to the next stage of development two mutually exclusive preferred corridors, but it did not prevent consideration of routes outside the preferred corridors at a later stage. It was a step taken in the course of the preparation of a project, and not a plan.

“As the decision was not a ‘plan’, article 6(3) of the Habitats Directive was not engaged.”

Mrs Justice Lang said that, in any event, the minister’s decision “was not likely to have a significant effect on the SACs as it would not result in the execution of work or any intervention in the environment. It was an early preliminary step in the definition of a project yet to take shape.

“In this regard, it was clearly distinguishable from Case C-6/04 Commission v UK, 20.10.05 where a statutory development plan, which gave rise to a statutory presumption when determining planning applications, did have a considerable influence on development decisions, and as a result, on the designated site.”

The judge concluded that the claimant had failed to establish that article 6(3) of the Habitats Directive was engaged by the decision and so ground 2 did not succeed.

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