Sefton Metropolitan Borough Council, R (On the Application Of) v Highways England

Consultation fairness is fact-sensitive and is assessed by the court. A public body may ordinarily define the options on which it consults, particularly where an option lies outside the available funding and is not a realistic contender. It need not examine every discounted proposal in equal detail.

That discretion remains subject to procedural fairness. A proposal may need to be considered where its exclusion makes the consultation unfair, but the court must assess the consultation as a whole. A later statutory development-consent process, including environmental assessment and examination, may be relevant to whether adequate opportunities remain for objections and alternatives to be considered.

Highways England consulted on two proposed routes to improve access to the expanded Port of Liverpool: upgrading the existing A5036 or constructing a new dual carriageway through Rimrose Valley Park. It excluded a tunnel beneath the park because of its substantially greater cost and poor value for money.

Sefton Metropolitan Borough Council sought judicial review, arguing that the tunnel was a realistic alternative and that its exclusion made the consultation unlawful. It also relied on wording in a newsletter referring to consultation on options that had been dismissed. The central issues were whether Highways England was entitled to limit the consultation and whether the consultation was nevertheless procedurally unfair.

1. Nature of Highways England. Highways England exercised functions under a statutory regime, used public money and was amenable to judicial review. It was not in the same position as a private developer and had to act in the public interest. Nevertheless, within the Infrastructure Act 2015 and the Highways England Licence, it retained considerable freedom to perform its functions efficiently and economically.
2. Scope of consultation. The Licence imposed a general, non-specific duty of engagement with relevant stakeholders. It did not impose a direct duty to consult the council on a tunnel as an alternative to the two options being developed. Following Medway and Coughlan, a decision-maker may narrow the range of options, provided the consultation remains fair and those consulted receive sufficient information to make an intelligent response.
3. Highways England was entitled to treat the tunnel as an outsider option because it was estimated to cost substantially more than the available project funding and was regarded as poor value for money. It was not required to spend public money on detailed examination of a proposal lying beyond those funding constraints.
4. The consultation was not rendered unlawful by the June newsletter. Its reference to dismissed options meant that consultees could advocate them and seek to bring them back into consideration; it did not promise that they would be consulted on an equal footing with the two serious contenders. It was not a clear, unambiguous and unequivocal representation giving rise to a legitimate expectation.
5. Fairness had to be assessed in the context of the later development-consent process. The statutory pre-application consultation, environmental statement, public examination and decision by the Secretary of State provided appropriate forums for environmental objections and for the possibility of a tunnel to be revisited as a reasonable alternative.
6. The challenge therefore failed and the application for judicial review was dismissed. Had unfairness been established, relief would not have been refused under section 31(2A) of the Senior Courts Act 1981, since it was not highly likely that the outcome would have been substantially the same.