London Borough of Enfield, R (on the application of) v Secretary of State for Transport & Ors

A clear and unambiguous assurance by a public authority does not automatically create a legitimate expectation. The claimant must show that reliance would have been reasonable. Detrimental reliance is not legally essential, but its absence is significant. In a large, macro-political procurement exercise, the authority may change course or decline further representations where the claimant’s case was already fully made and other affected interests would require consideration. A broad statutory discretion in a complex technical and quasi-commercial field is not irrational merely because the decision-maker uses a consistent, demand-led methodology rather than separately valuing one proposed development. General commitments to regeneration and social value do not prescribe a particular methodology.

Enfield sought judicial review of the Department for Transport’s Invitation to Tender for the East Anglia Rail Franchise. The ITT did not require a four-trains-per-hour service to Angel Road/Meridian Water throughout the day. Enfield relied on mistaken Departmental emails and alleged legitimate expectation, unfairness and irrationality in the failure to consider the benefits and risks of its Meridian Water regeneration project.

Laing J granted permission following a rolled-up hearing but dismissed the claim in [2015] EWHC 3758 (Admin). The appeal concerned whether the emails created a procedural expectation, whether natural justice required further representations, and whether the statutory and social-value framework required the regeneration project to be taken into account.

The court granted permission to appeal but dismissed the appeal on all grounds.

1. Legitimate expectation. The emails of 29 July and 5 August 2015 were clear and unambiguous statements that a four-trains-per-hour service would be specified. The Department was also taken to know that the first email would reach Enfield. The statements were mistaken and reflected an inept failure of communication.
2. Those matters did not create a legitimate expectation on which Enfield could reasonably rely. Enfield had already committed substantial sums to a major project. It knew that the service was not a settled decision and that it created difficulties for other users of the franchise. The evidence did not establish that the emails materially changed Enfield’s conduct. The project was being pursued as a calculated risk.
3. Even if a legitimate expectation had arisen, the Department could depart from it because of the wider public interest in the franchise. It was not required to invite further submissions. Enfield had already put its case fully in the consultation response, and reopening the matter would have required a corresponding opportunity for other affected stakeholders.
4. The natural-justice ground depended on the same matters and failed for the same reasons. R (USA Tobacco) v Secretary of State for Health [1992] QB 353 concerned materially different circumstances and did not assist Enfield.
5. Irrationality. The Railways Act 1993 conferred a broad discretion in a complex, technical and quasi-commercial field. The Department’s consistent, demand-led transport-economics methodology was rational. The broad regeneration and social-value objectives did not require a particular appraisal method or an assessment of the economic value of one development. The adverse effects and performance risks of a four-trains-per-hour service, together with the absence of a positive business case, reinforced that conclusion.
6. The controversial parts of the fresh evidence were excluded under Ladd v Marshall [1954] 1 WLR 1489 because the evidence could and should have been adduced below and its admission would have been unfair.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal dismissed. The controversial parts of the fresh evidence were not admitted.
• Administrative Court: Laing J granted permission following a rolled-up hearing but dismissed the judicial review claim in [2015] EWHC 3758 (Admin).