Fingle Glen Junction Business & Community Action Group, R (on the application of) v The Highways Agency

A public authority’s established practice may create a legitimate expectation of consultation even without an express promise. The expectation is assessed substantively and fairly. It is not necessarily breached where affected persons later have a genuine and adequate opportunity to make representations before the formal decision takes effect. Any departure from the expectation must in any event be objectively justified and proportionate to a legitimate public aim. In assessing proportionality, the court considers the strength of the representation, reliance, its specificity, the competing public interests and the practical consequences of delay. Judicial review is not an appeal on the merits. A temporary traffic order may be used to address an urgent safety risk while gathering evidence for a subsequent permanent order.

The claimant sought judicial review of the Highways Agency’s decision to close the central reservation gap at Fingle Glen Junction on the A30 by a temporary traffic regulation order. The closure would prevent particular right-turning movements and was intended to address a history of serious accidents. The Agency had previously consulted on alternative improvement schemes, including a scheme involving slip roads, but funding for that preferred scheme was unavailable.

The claimant alleged that the Agency had breached a legitimate expectation of consultation arising from its previous practice. It also alleged that relevant objections had not been considered and that using a temporary order to precede a permanent closure was disproportionate. The central issues were whether any expectation arose, whether it had been breached, and whether any breach was objectively justified.

1. Application dismissed. The claim challenged the legality of the decision, not its merits. The court could not weigh for itself the safety benefits of closure against the disadvantages identified by the claimant.
2. There was no statutory duty to consult before making a temporary order under Road Traffic Regulation Act 1984, section 14. Nevertheless, the Agency’s earlier consultation concerning the same junction meant that there was arguably some expectation of prior consultation, despite the absence of an express promise.
3. That expectation was not breached in substance. After the December 2006 decision letter, objectors had ample opportunity to make detailed representations before the formal notice of the proposed order. The Agency considered and answered the objections, including concerns about diversionary traffic, local accidents, journey times and business effects. A complaint that the representations were not accepted was not a failure to consider them.
4. Alternatively, any breach was objectively justified and proportionate. The Agency pursued the legitimate public aim of reducing the risk of further serious or fatal accidents. The temporary order enabled urgent safety action while allowing the effects of closure to be monitored and relevant evidence to inform the permanent-order process. Objections could be made to any permanent order and could lead to a public inquiry; an improperly exercised decision not to hold one could itself be challenged.
5. The proposed temporary order was contemplated by the statutory scheme as a possible precursor to a permanent order. The claimant’s irrationality argument was not pursued. The application was therefore dismissed.
6. The claimant was ordered to pay the defendant’s costs. The case concerned the particular circumstances of one junction and raised no wider legal issue sufficient to justify departing from the usual costs rule. Given the amount claimed, costs were sent for detailed assessment rather than summarily assessed. Permission to appeal was refused because there was no real prospect of success and no other compelling reason.