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Judicial Review May Challenge Government’s Preferred Option for New Oxford to Cambridge Expressway

Karen Jones

Partner Karen Jones, in our Planning & Environmental law team, examines the latest situation regarding the Government's Road Investment Strategy 2 and the Oxford to Cambridge expressway and a likely judicial review of the decision due to the lack of any Strategic Environmental Assessment (“SEA”) or Habitats Regulation Assessment (“HRA”)

The Government announced in 2015 that it was preparing its Road Investment Strategy 2 and that studies were required to identify the right investment decisions. One such strategic study was in respect of the Oxford to Cambridge expressway.

A consultation by Highways England identified that there was no “single route” to travel the 80 miles between Oxford, Milton Keynes and Cambridge. The shortest route identified was at least 108 miles. Accordingly, the road network as it currently stands is described as a “barrier and risk to future growth” in a region “renowned for innovation”.

Three main corridors were considered:

  1. Corridor A: via Aylesbury
  2. Corridor B: the East-West Rail corridor
  3. Corridor C: the existing A421 corridor

Highways England announced on 12 September 2018 its preferred option for the Oxford-Cambridge corridor as Corridor B.

The announcement of “Corridor B” has been met with concern by wildlife groups such as the Berks, Bucks and Oxon Wildlife Trust (BBOWT) and Wildlife Trust for Bedfordshire, Cambridgeshire and Northamptonshire (BCNWT) who have announced their intention to apply for judicial review of the decision due to the lack of any Strategic Environmental Assessment (“SEA”) or Habitats Regulation Assessment (“HRA”).

SEAs are assessments of the effects of plans/programmes on the environment at a strategic level (as opposed to HRA for an individual project). The SEA Directive 2001 (Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment) requires an SEA to be carried out for certain public plans and programmes that are likely to have significant effects on the environment.

The aim of the SEA Directive is to ensure that environmental considerations are integrated into the preparation of these plans and programmes and an environmental assessment is made before they are adopted. The Royal Institute of Town Planners states that SEAs can “best influence the plan at the alternatives and mitigation stages”. The SEA Directive 2001 requires the reasonable alternatives to a plan or programme to be assessed (Article 5(1)). The SEA Directive 2001 is directly applicable law. The government published in October 2018 the draft Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018 which will ensure that the existing EEA regime can continue to operate after Brexit.

HRAs are necessary assessments of plans and projects which may have a significant effect on a European site (for example special areas of conservation and special protection areas). The Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) requires member states to undertake an "appropriate assessment" of any plan or project that is likely to have a significant effect on an SAC or SPA, to assess:

  • if it will have a negative effect; and
  • whether there is an alternative solution.

The Habitats Directive is implemented in England by the Habitats Regulations 2017.The appropriate assessment stage assists in identifying whether the project adversely affects the integrity of a European site.

A news item on BBOWT’s website in response to the announcement stated that due to a lack of the above assessments Highways England were unable to assess “the true environmental effect” of the proposed corridor and that it was disappointed that the government does not consider “the environment in equal balance with economic factors”.

During the consultation process the Wildlife Trusts had detailed its concerns about the impacts of the various corridors on the environment and had urged Highways England to undertake a SEA and HRA so that the impact of any future road infrastructure could be appropriately assessed.  Further, the Wildlife Trusts had made representations confirming that in the opinion of the Wildlife Trusts Corridor B was the worst option with exceptionally serious impacts on biodiversity. In particular BBOWT and BCNWT are concerned with the impact of Corridor B on designated sites and nature reserves including Cothill Fen, Bernwood Forest and Oxford Meadows.

Highways England’s Corridor Assessment Report confirms that a detailed assessment would be undertaken during the Preliminary Design stage of the project. BBOWT and BCNWT in their representation argued that conducting the relevant assessments at this later stage, after selection of a preferred route, was too late and would limit potential route changes.

The representation further refers to the judicial review challenge brought due to the lack of an SEA in respect of the HS2 phase 1 proposals and distinguishes the two projects. The Wildlife Trusts argue that the legal challenge in respect of HS2 failed “largely because the Courts considered the decision not to have been made until the Parliamentary process was completed”. The proposed expressway does not require the same Parliamentary process to be undertaken.

A pre-action protocol letter was sent to the Secretary of State for Transport in September 2018 following the preferred route announcement. On 21 November 2018 BBOWT announced that they had issued the claim for Judicial Review and were expecting a hearing in the New Year. We will need to wait and see whether the arguments by the Wildlife Trusts withstand the scrutiny of the Court. Watch this space!

For more information, please contact a member of our Planning & Environmental Law team.

This blog article was produced with support from Kayleigh Chapman.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.