There is much to ponder about the High Court decision to reject Sefton Council’s legal challenge to plans for a new access road to the Port of Liverpool.

The Council questioned Highways England’s decision to exclude the option of building a tunnel as part of the route. Both the route options which featured in a pre-application consultation were unacceptable to the local community. One, called the online route was to build over the existing roads to great inconvenience to local residents, and increased noise and air pollution. The other, labelled the offline option, meant going through the much appreciated Rimrose Valley, affecting a nature reserve and the habitats of ecologically-significant species. For many local people, a tunnel was the obvious solution.

The case matters because this was the first time that Highways England was challenged, particularly on its difficult task of determining the routes for roads which are, inevitably going to attract some and upset others in a community. Unlike the NHS, there is no statutory requirement to involve the public in its options development process, but the Statutory Guidance comes close. The Minister’s Foreward contains the following fine words. The role of Highways England …”is about more than just complying with the letter of the law. We expect the company to go the extra mile in the way it engages with road users and collaborates with other organisations to develop shared solutions…”

Sefton Council does not feel that what emerged from the pre-consultation process was a ‘shared solution.’ It feels that excluding the tunnel option was a fait accompli stemming from Highways England being given a £250m budget to work with, and which effectively ruled out any tunnel. Now part of Sefton’s complaint is that such a budget contrasted with the £50bn spent on Crossrail in the south, and that infrastructure investment in the north was being done on the cheap. It is a classic case of The Politics of Consultation where the choice of options for a consultation is thought to be influenced by political considerations.

As far as the law is concerned, none of this matters. Mr Justice Kerr, in one of the clearest, most readable judgments the Institute has ever seen (not a single paragraph exceeds 100 words !!) ruled that Highways England had every right to exclude from the consultation options it regarded as unaffordable. In part, however, this reflects the role of pre-application consultations in the wider planning process. Before this case could be built, there would have to be a Development Consent Order or DCO, and the procedure for this is demanding. It provides an opportunity for objectors to state their case for a tunnel and for the environmental considerations that drove them to their conclusions to be considered in great depth. In other words, excluding the tunnel option at this stage did not prevent the idea from being resurrected later on.

The Judge acknowledges that a consequence of excluding the tunnel option from the pre-application consultation is that it will not have received the benefit of the engineering assessments that focused the two other routes under consideration. It might explain why local people faced conflicting advice as to the projected costs of the tunnel (from £380m to £2bn) and undoubtedly places them at a disadvantage in the future if advocating this alternative to a Planning Inspector. Future litigants will surely seize upon this unfairness in the system.

For now, however, the lesson of Sefton is that Highways England clearly has the power to exclude options if it has a sound case for doing so. The message to Councils and other stakeholders is to build excellent relationships with the agency so as to maximise the chances of reaching ‘shared solutions’. If there are issues about overall funding, then these may best reserved for debate with Government departments in the corridors of political power, and not for legal challenges with the road-builders.