Transport Action Network Limited, R (on the application of) v Secretary of State for Transport

Consultation on a national policy statement must be assessed in its statutory and policy context. Where the consultation concerns high-level policy with wide economic and social effects, the decision-maker may have a predisposition and established views, provided there is no predetermination and the responses are genuinely considered.

The duty of conscientious consideration does not require adoption of consultees’ submissions, consideration of every detail, or a fully reasoned response to every point. The decision-maker must, however, take account of legally relevant matters and respond rationally to important issues.

The reasons duty under section 5(7) of the Planning Act 2008 requires reasons for the policy, not an explanation of every consultation response or policy consideration. Changes to a draft national policy statement require further consultation only where the Secretary of State considers, and the court finds, that they materially affect the policy.

Transport Action Network challenged the Secretary of State’s designation of the 2024 National Networks National Policy Statement following review of the 2015 statement under section 6 of the Planning Act 2008.

The claim alleged that the consultation was unlawful because modal shift and demand management responses were not conscientiously considered; that the Secretary of State failed to explain continued reliance on the Transport Decarbonisation Plan after Friends of the Earth; and that post-consultation amendments required renewed consultation under section 6A.

The central issues were the scope of the consultation, the statutory reasons duty, the rationality of reliance on transport decarbonisation policies, and whether amendments concerning carbon emissions materially affected the policy.

1. Ground One dismissed. The consultation was directed to the NNNPS’s specific statutory function: providing a framework for deciding applications for nationally significant road, rail and strategic rail freight infrastructure. It was not a consultation on the Government’s wider transport strategy or modal-shift policy. A reasonable reader would have understood that distinction.
2. The Secretary of State nevertheless considered the substance of the modal-shift issue insofar as it affected the need for new networks. Demand forecasts and different scenarios were taken into account. The Government was entitled to choose which variables and scenarios to model and was not required to accept the Claimant’s preferred policy.
3. The consultation duty varies with context. For high-level national policy, it is realistic for the decision-maker to have formed strong views before consultation. The requirement is absence of predetermination, together with genuine consideration of responses. Conscientious consideration does not require a fully reasoned decision letter, consideration of every detail, or adoption of a consultee’s position.
4. Ground Two dismissed. Section 5(7) of the Planning Act 2008 requires reasons for the policy, rather than reasons for every consultation response or policy choice. The Secretary of State could give supporting reasons in accompanying documents. There was no separate duty to explain expressly why reliance on the Transport Decarbonisation Plan remained justified.
5. The challenge to continued reliance on the Transport Decarbonisation Plan was in substance a rationality challenge. In the context of national policy and a technically complex field, the hurdle was high. The Secretary of State knew of Friends of the Earth and had been told that there was reasonable to high confidence in delivery of the relevant transport policies. He was not required to reassess all delivery risks across Government. Continued reliance was rational.
6. Ground Three dismissed. The Secretary of State had considered whether the amendments between the consultation draft and final NNNPS required renewed consultation. Reintroducing the material-impact wording concerning carbon emissions was clarificatory and did not substantively alter the policy. Removing reference to statutory sectoral targets was also clarificatory because no such targets had legal effect. No duty to reconsult arose under section 6A.
7. The claim was dismissed.