Legality of £27bn roads building programme in question due to climate targets
The legality of the government’s second Road Investment Strategy (RIS2) is to be determined by the High Court. Campaigners from Transport Action Network (TAN) say transport secretary Grant Shapps broke the law when approving the £27.4bn road strategy, by failing to consider its effects on the environment. The RIS2 is for road upgrades between 2020 and 2025 and includes the Lower Thames Crossing and the Stonehenge Tunnel. The challenge by TAN says there was a failure to take into account the UK’s net zero carbon emissions target as well as the Paris Climate Agreement. Also that the government “failed to carry out Strategic Environmental Assessment of RIS2”. The TAN claim uses the precedent of the legal challenge of the Airports National Policy Statement. The DfT is arguing that the road building should go ahead, using the precedent of the failure of the challenge by Chris Packham against HS2. TAN say: “If we are serious about tackling the climate emergency, improving quality of life after the pandemic and delivering a less congested future, we need to reduce traffic.” If TAN succeeds, blocking road building, it could set an important precedent, not only for the UK, but globally, (airports, not only roads) in the run up to COP26 in November.
Legality of £27bn roads building programme in question as court battle begins
29 JUN, 2021
BY ROB HORGAN (New Civil Engineer)
The legality of the government’s second Road Investment Strategy (RIS2) will be determined during a two day High Court hearing starting today.
Campaigners from Transport Action Network (TAN) claim that transport secretary Grant Shapps broke the law when approving the £27.4bn RIS2 by failing to consider its effects on the environment.
The investment plan, approved in March 2020, includes £14.7bn worth of road route upgrades between 2020 and 2025. The Lower Thames Crossing and the Stonehenge Tunnel (pictured) are among the major projects which will get underway by 2025.
In particular, the High Court claim states that there was a failure to take into account the UK’s net zero carbon emissions target as well as the Paris Climate Agreement. It adds that the government “failed to carry out Strategic Environmental Assessment of RIS2”.
The claim also uses the Friends of the Earth Ltd v Secretary of State for Transport  case as a precedent for blocking RIS2. In that instance, the Court of Appeal overturned the government’s Airports National Policy Statement ruling that it had failed to consider the Paris Climate Agreement, effectively putting an end to Heathrow’s expansion plans.
However, since the Transport Action Network submitted its claim, the Supreme Court has overturned the decision on Heathrow expansion.
In its official response to the Planning Court – obtained by NCE – the DfT uses TV presenter Chris Packham’s recent court defeat against HS2 Ltd as precedent for refusing the Transport Action Network’s claim for a Judicial Review.
Speaking ahead of the hearing, TAN director Chris Todd said: “If we are serious about tackling the climate emergency, improving quality of life after the pandemic and delivering a less congested future, we need to reduce traffic.
“This case, the biggest legal challenge to transport policy in British history, seeks to do just that.
“A ruling to quash the largest ever roads programme would be historic, not just for the UK, but for communities worldwide seeking to build back better in the run up to COP26.”
The hearing comes just a week after a separate High Court challenge was heard in relation to the planning permission granted for the Stonehenge Tunnel scheme.
That case specifically focuses on the legality of the scheme’s development consent order, granted by transport secretary Grant Shapps despite the Planning Inspectorate’s recommendation to throw out the planning application.
A judge is to rule on the Stonehenge Tunnel case in the coming weeks.
The wider RIS2 challenge will be heard over two days with the judge likely to reach a verdict at a later date.
DfT ‘refuses to back down’ over £27bn roads legal challenge over carbon emissions
In April the Transport Action Network (TAN) revealed its intentions to launch a legal application to the High Court, as the DfT ignored environmental legislation in approving the five-year funding plan. Now the DfT have given TAN’s lawyers its official response. It has “refused to back down”. The legal challenge by TAN was made, as a result of the judgement by the Appeal Court in February, on the Heathrow case. It ruled that the Airports National Policy Statement (ANPS) was illegal, as proper consideration had not been given to carbon emissions and the UK’s obligations under the Paris Agreement. The DfT letter claims, rather improbably, that decarbonisation will be addressed ‘at a society-wide level’ and its largest ever roads plan in fact ‘is a fully-integrated part of this wider effort to reach net zero emissions’. The legal challenge, by the same lawyers who won the Heathrow case, will proceed with the case on road building. As the courts found the ANPS was illegal, [but in December 2020, the Supreme Court decided it was indeed legal …] any other NPS will have to take carbon properly into account. Heathrow is appealing to the Supreme court on the February ruling, with a hearing on the 9th and 10th October.
Legal challenges against government – new one by the Good Law Project on aviation and Heathrow
Environmentalists are using the law to force the government to bring infrastructure plans into line with its climate change commitments. There are already legal challenges, on energy and roads. The challenge on road building is by the Transport Action Network, and the energy one is by the Good Law Project. Now the Good Law Project have started new legal action against the government, to the Airports National Policy Statement (ANPS). They insist that the ANPS must now be aligned with the Climate Change Act (2008), which is now in force and which demands almost zero emissions by 2050. The ANPS was first written when some believed (wrongly) that airport capacity in south-east England was becoming over-loaded. Good Law says the strategy should be reviewed due to the likely long-term reduction in business travel due to Covid. In addition there can be no justification for expanding Heathrow, with the UK’s climate commitments. Boris has been a long term opponent of a Heathrow 3rd runway, so would perhaps welcome a simple – and wise in terms of carbon – way to prevent it, once and for all. In another legal challenge, Plan B Earth intends to take the Heathrow case to the European Court of Human Rights.
NPS legal action – by the Transport Action Network
We first requested Transport Secretary Grant Shapps review the National Policy Statement for National Networks (NPSNN) back in March 2020. This is the policy used to determine applications for new roads. It was published in 2014 and is seriously out of date in a number of areas such as climate change, air pollution, natural capital (biodiversity) and design. It also effectively bars decision makers from taking into account the carbon emissions from new roads. Quite simply it is not fit for purpose during a climate and ecological emergency.
The Government dragged its feet for 7 months before making a decision on whether to review the NPSNN but then failed to tell us for nearly two weeks. That left us only around 4 weeks to launch a legal challenge which we did in December 2020. It has also refused to release all the documents associated with the decision, only releasing the advice to Ministers the day before we filed our claim.
Saturday 12 December, 2020: Announcing our legal challenge of the Government’s failure to review the National Policy Statement for National Networks:
See full press release at https://transportactionnetwork.org.uk/nps-press-releases/