Transport Secretary sees off legal challenge to decision to cut investment in “active travel” schemes

A High Court judge has rejected a legal challenge over the Transport Secretary’s decision to cut funding for investment in "active travel" schemes.

The Secretary of State’s decision was revealed in a written ministerial statement to Parliament on 9 March 2023.

In Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport [2024] EWHC 1405 (Admin) the claimant, Transport Action Network, submitted that a statutory "Cycling and Walking Investment Strategy" (CWIS) made under the Infrastructure Act 2015 enacts a mandatory framework for making or varying such decisions, including setting objectives and making available resources sufficient to meet them.

TAN claimed the decision was unlawful because it "was made outside the framework provided for the setting and varying of the CWIS … and was contrary to … CWIS2 (as updated) for the period to 2025" and without regard to "necessarily material considerations".

According to the claimant, those disregarded material considerations were:

1. the objectives of CWIS2;
2. the statutory public sector equality duty (the PSED);
3. air quality targets, specifically a kind of harmful particulate matter called PM2.5; and
4. certain policy documents setting "carbon budgets", published from 2021 onwards, namely "Decarbonising Transport - a Better, Greener Britain", also called the Transport Decarbonisation Plan (the TDP); "Net Zero Strategy: Build Back Greener", also called the Net Zero Strategy (the NZS); and the Carbon Budgets Delivery Plan (the CBDP).

The defendant Secretary of State argued that funding levels in a CWIS were estimates based on projections and that funding over the CWIS2 period could change.

A change in the level of funding did not mean there was inconsistency with CWIS2; thus the statutory scheme was not engaged, the Transport Secretary said.

Nor did the decision mean the CWIS2 objectives necessarily could not be met. The considerations referred to were, apart from the PSED, not mandatory but were properly taken into account, according to the Secretary of State. The PSED, i.e. the duty to have "due regard" to the statutory equalities considerations, was properly performed, they added.

Rejecting the claim, Mr Justice Kerr said there was nothing incompatible with section 21 Infrastructure Act 2015 about the decision stated in the ministerial statement to reduce the active travel budget by 65%, for obvious reasons of financial stringency.

“Even if TAN were correct in describing the funding allocation as a ring-fenced expenditure commitment, the commitment still might be met by the end of March 2025 if (which seems unlikely, but is possible in principle) the £225 million is restored to the active travel budget by a future decision in, say, August 2024, a decision TAN would no doubt welcome but of which others (e.g. supporters of projects from which funds are diverted) might complain,” the judge said.

The judge meanwhile said it was “unreal to say that the SoS did not take into account the likely effect of cuts of that order on the viability of the objectives set in CWIS2”.

Mr Justice Kerr also found that due regard was had to the equalities considerations in section 149 of the Equality Act 2010. 

In relation to air quality, the judge concluded that the statutory PM2.5 targets were not a mandatory relevant consideration.

“The SoS was entitled but not bound to consider PM2.5 levels or air quality more widely. The DfT had to cut some £3 billion from its overall budget for the two financial years ending in March 2025. The reduction of £200 million (as adjusted later) in active travel funding was a small part of that exercise, without any obvious, immediate and probable impact on PM2.5 levels. There was no quantified relationship between active travel projects and PM2.5 levels. A perceived correlation between storm overflow levels and the abundance of particular species cannot be read across to the present case,” he said.

Turning to carbon budgets, the judge said the impact of proposed transport measures on carbon budgets and the path to Net Zero by 2050 was, in general, likely to be a mandatory relevant consideration because of its obvious materiality. “Transport of various kinds not involving self-propulsion is a well known source of carbon emissions and is undergoing a thorough re-examination for that reason.”

However, Mr Justice Kerr accepted a submission by counsel for the Transport Secretary that the minister adequately considered the impact on carbon budgets of the decision under challenge.

“There is, as the policy documents recognise, a relationship between increased walking and cycling and reduced carbon emissions because walking and cycling does not emit carbon, while driving in vehicles instead does. But the relationship is indirect and I accept that meeting the CWIS2 targets would not lead to a swift, dramatic and measurable reduction in emissions.”

He added that the Transport Secretary did consider the impact on carbon emissions of a 13% reduction in active travel dedicated funding. “I do not accept TAN's submission that he was obliged to revisit the carbon budget modelling looked at in the deep dive sessions by reference to a 65 per cent reduction in funding. The consideration given to the issue was.... proportionate to its likely impact, which was small. I therefore reject this ground of challenge.”

Mr Justice Kerr dismissed the claim.

Chris Todd, TAN’s director said: “When Parliament included active travel in the Infrastructure Act 2015, it was with the clear intent of stable funding and stronger ambition. We are therefore bitterly disappointed by the judgment, which appears to set an unhelpful precedent.

"TAN is hugely grateful for the generosity shown by individuals and local campaign groups in crowdfunding the legal challenge. This has already revealed how ministers were sitting on evidence that their plans and budgets were completely inadequate.

"While party manifestos published so far pitch positively for walking and cycling, they lack firm commitments in terms of funding, infrastructure or outcomes. We now urgently need to raise funds for an appeal, to set the law straight and put the next government on the right path to boosting healthy travel.”

In January this year campaigner Dale Vince launched a judicial review challenge of the Department for Transport's decision to withdraw active travel guidance.