The Williams-Schapps Plan for Rail: Back to the Future?


The Right Honourable Grant Schapps MP, the Secretary of State for Transport poses alongside Mallard at the National Railway Museum in York. Photo copyright the Department for Transport and reproduced under OGL permission.

On 20 May the Secretary for Transport, Grant Schapps, chose to launch the Government’s blueprint for the future structure of the rail system with a photo of himself posing alongside the Mallard (the world speed record holder for steam traction) at York Railway Museum. Nostalgia is certainly a prevalent theme in the rail sector at the moment and the names of some of the great railway companies from the past, such as the Great Western Railway (GWR) and the London and North Eastern Railway (LNER) have been resurrected by train operating companies. Mallard was, of course, a LNER locomotive and the LNER was one of the ‘Big Four’ railway companies of the inter-war years, which, as we shall see below, resulted from an earlier massive restructuring exercise. Whether it ultimately succeeds or fails, the Williams-Schapps plan (WS Plan) is set to become the latest watershed moment in the long rail history of the country which, as GM Trevelyan put it, gifted the railways to the world.

Background: a whistle-stop tour of railway restructuring

The ‘Big Four’ 

The ‘Big Four’ railway companies of the interwar years – the London and North Eastern Railway (LNER); the London Midland and Scottish Railway (LMS); the Great Western Railway (GWR); and the Southern Railway (SR).

As noted above, The ‘Big Four’ resulted from the first major national restructuring and rationalization of the industry in the early 1920s, almost exactly a century since Parliamentary authorization had been obtained to build the Stockton and Darlington Railway; which many regard as the first railway in the modern sense of the term. The construction and operation of the railways thereafter was driven by private enterprise operating in a largely uncoordinated manner resulting in more than 100 companies and a very fragmented system before the amalgamation into the Big Four under the Railways Act 1921.

Post-war nationalization

The creation of the Big Four was arguably a partial step towards nationalization in that, although the companies were private entities, they were created by statute pursuant to a strategic government plan. Full nationalization followed just 25 years later in the immediate wake of the Second World War under the Transport Act 1947. During the war, the railways had effectively been managed as a nationalized industry in any case and had been run into the ground due to the demands of wartime operating.

A class 45 at Exeter St David’s in a typical BR era scene: Photo Phil Richards from London (Creative Commons Attribution-Share Alike 2.0).

The railways were operated as a fully nationalized state-owned industry for the next four and a half decades under the auspices of the much-derided British Railways which was rebranded as British Rail (BR) in 1965. It is fashionable to ridicule BR as the archetypal state-owned leviathan synonymous with inefficiency, poor customer service, industrial strife, crumbling infrastructure, ancient dirty trains and stations, and terrible catering! Although, some commentators would argue that, at least in its latter years, much of this criticism is undeserved and the result of lazy caricaturing (for a more balanced analysis of British Rail, which focuses on the successes as well as the failures, see Terry Gourvish’s book, British Rail 1974–1997: From Integration to Privatisation (OUP, 2002).



A class 37 in Railfreight sector (petroleum division) livery in the early 1990s: Photo Murgatroyd49, CC BY-SA 4.0

The 1980s saw a radical programme of privatization under Margaret Thatcher’s administration. However, not even this most vehemently pro private sector administration was quite sure how to tackle BR due to its size, complexity, and vast number of moving parts (literally and metaphorically). Sectorization in the late 1980s constituted tentative steps towards securing this aim by dividing the industry into more manageable components. To this end a number of large passenger and freight sectors were created which (save for Network South East and Scotrail) corresponded with business sectors as opposed to geographic location.


From privatization to the Williams Review

John Major’s Tory administration of the early 1990s finally grasped the nettle and fully set about privatizing the industry under the Railways Act 1993. However, the sectorization approach was abandoned in favour of a model which has been a constant source of controversy and dissatisfaction in many quarters. The tracks and infrastructure were placed in the hands of a newly created state-owned company, Railtrack, which was placed at arm’s length from central government. Private train operating companies (TOCs) were then invited to bid for the right to run services on those tracks using rolling stock which had been acquired by leasing companies. The essence of that system has remained unchanged until the latest phase of developments although Railtrack was replaced with Network Rail at an early stage of the franchising era.

Sea Container’s GNER was one of the early franchisees but it lost the franchise early in the second term.

As I have already said in previous posts which have tackled this issue, the franchising system has been marred by failed franchises necessitating state intervention, increasingly complex fair structures, overcrowding, government tinkering with the system leading to diminished commercial freedom for TOCs, and the chaotic introduction of new timetables. Indeed, it was the latest of these timetabling fiascos in May 2018 which proved to be one of the main triggers for instigating the Williams Review.

The Williams Review was intended to feed into a White Paper to be published in the autumn of 2019 with reforms taking place from 2020. This schedule was upset by the onset of the Covid19 pandemic, however, as I noted in my previous post on this issue, the emergency necessitated unprecedented Government intervention in order to support the industry through lockdowns and travel restrictions. This brought forward the end of the franchising system under an ‘interim system’ whereby the Government absorbed much of the financial cost in return for gaining new controls in terms of the operation of services. For more detail on the interim measures and the Williams Review please see earlier post: 2020 Roundup.

Key Aspects of the Williams-Schapps Plan

There are a great many proposals set out in the paper and I do not propose to cover them all here and now. For present purposes I shall merely offer an overview and some initial thoughts on some of the key proposals. However, as the legislative process gets underway certain issues shall doubtless come to the fore and I may well be returning to aspects of the plan in due course in more focused posts.

Great British Railways

The headline proposal seized upon by most of the media is the creation of a new state-owned company, Great British Railways, which will bear a slightly modified version of the famous British Rail ‘arrow logo.’ Despite the demise of British Rail almost thirty years ago with privatization, the logo has never entirely gone away and has survived as the recognized symbol for stations on the national rail network. However, the new company shall reclaim it as the official corporate badge for the company charged with providing the nation’s rail network.

The well known original BR logo which survived privatization as the universally recognized symbol for the national rail network and is not set to be reclaimed as the official corporate logo for Great British Railways.

The company shall own and operate the tracks and infrastructure and shall replace Network Rail in that respect. However, it will not simply be a replacement for Network Rail in that the idea is to create a corporate identity which reunites track and trains as part of a cohesive system. From the passenger’s perspective they will enter a Great British Railways station and board a train bearing the same logo and possibly a standard livery which is the same throughout the land. So far this sounds very much like renationalization and the resurrection of British Rail. However, there is a key difference in that, despite the outward appearance of uniformity, the services operated under the GBR badge shall still be provided by private operators in many cases. However, as we shall see, the terms under which they provide those services shall differ significantly from the now defunct franchising system.

Passenger Service Contracts

It will come as little surprise to those who have followed the Williams Review to learn that the franchising system will be replaced by a concession model under agreements which shall be termed Passenger Service Contracts (PSRs). The key difference between franchising and concession-based systems is that, under the latter, the ‘revenue risk’ is borne by the public entity (in this case GBR) which grants the concessions. In other words, the company operating the concession is not solely dependent upon revenues for its profits. It will receive a fee for operating the services on behalf of GBR come what may. Should any revenue-based profits be generated on top of the fee the terms of the PSR will stipulate how the spoils should be divided between the parties. Although the Plan states that, ‘in most contracts, fare revenue will go to Great British Railways, with operators delivering to the specification and managing their costs in doing so.’ (see section 21, p 54).  Of course, in the longer term there will still be a major incentive for a TOC to operate profitably in that, whilst it may enjoy financial security for the duration of its current PSC, a failure to generate profits would not be conducive to the renewal of the contract (although the general tenor of the WS plan is to the effect that it may take some time to recover from the pandemic and one should not expect a return to profitability anytime soon). Moreover, the contracts will set demanding performance targets for reliability, punctuality, reducing overcrowding at peaks times, cleanliness of rolling stock, dealing with vandalism and overall customer satisfaction.

The other major difference from franchising is that the TOCs will have far less commercial freedom and will have to operate within the confines of a system designed and built by GBR. GBR will be responsible for timetabling, branding, setting fares and most other operational aspects of the business. This is all part and parcel of the desire to deliver a service which has a strong and uniform corporate identity. The model provided by Transport for London was cited many times in the proceedings associated with the Williams Review and features heavily in the WS Plan which emerged from that Review. At this point it should be noted that the legislative machinery for facilitating concession type arrangement has always been part of the privatized system and is facilitated by section 24 of the Railways Act 1993 which enables exemptions from normal franchising arrangements. However, it was regarded as an exception to the normal franchising system and was certainly never intended to be the norm. Clearly, the WS Plan constitutes a complete reversal of that approach with the end of the standard franchising model altogether.

London Overground is operated by Arriva on behalf of Transport for London under the model proposed by the WS Plan: photo Kevin B under Creative Commons Attribution-Share Alike 3.0.

It should also be noted that the plan emphasizes the need for flexibility and to avoid a ‘one size fits all’ approach. It is likely that PSCs will have some core features and common terms but there will also be substantial bespoke components designed to reflect regional variations and the different types of customer demand on particular routes. Clearly, there are major differences between commuter routes, long distance services and local rural services. Moreover, there may be some services, ‘predominantly the long-distance ones’ where operators may be afforded more commercial freedom and take on more of the revenue risk (see section 25, p 58). In other words, PSCs are likely to sit on a spectrum with most likely to operate as concessions but with some being more akin to the old franchising model.

The new system cannot be brought in overnight, due to the need for new legislation, thus, as an interim bridging measure, National Rail Contracts will start replacing the emergency agreements which were brought in as a result of the Covid-19 crisis.

Thoughts on the Legal Dimension: Reducing the Scope for Internal Conflict in the Industry

The main focus of the proposals is to create a national rail organization with a strong corporate identity (with some regional variations) where passengers know what they are getting whichever part of the network they are travelling upon; whilst at the same time keeping the benefits of competition and private enterprise. This aspiration is perhaps most concisely summed up by the following passage on page 31 of the WS Plan:-

Great British Railways will be responsible, and held accountable, for meeting the punctuality, quality, efficiency, safety and other goals set out in this white paper and by Ministers. The whole system, planning and operating functions needed to deliver a joined-up network will be directed by Great British Railways, working in partnership with devolved transport authorities where appropriate. There will be no excuse-making and blame-shifting. The cottage industry of costly commercial disputes over delay attribution will end.

As the latter part of this extract makes clear, one of the main criticisms levelled against the privatized system established in 1993 has been the fact that there has been fragmentation of the industry and too many different entities not always working together in a cohesive manner. The nadir of privatization was arguably epitomized by the Potters Bar rail crash of 2003 where arguments raged for a time over who was responsible for the defective points that caused the derailment. At one point it looked as though no one would accept liability with the maintenance contractor, Jarvis, suggesting the possibility of sabotage (a tactic to stop res ipsa loquitur from operating?). Network Rail (as successor to Railtrack) swiftly made the decision to take all routine track maintenance back ‘in-house.’ Jarvis and Network Rail admitted liability in 2004 and set aside £3 million to meet claims. In 2010 the Office of Rail Regulation instigated criminal proceedings against Network Rail and Jarvis and the former was convicted of Health and Safety offences having entered a guilty plea; the action was not pursued against Jarvis in the light of the fact that it had already gone into administration (see ORR report). (See Railways Archive for other reports and documentation pertaining to the incident).

The Potters Bar crash marked a watershed moment in terms of health and safety and brought about much needed clarifications in terms of roles and liabilities. Indeed, some research indicated that, overall, safety improved under privatization; for a flavour of the debate as to the impact of privatization on safety see BBC report, ‘Rail “safer” after privatization.‘ However, the franchising system left plenty of scope for internal conflict, especially in the field of track access agreements. The fact that the TOCs are effectively ‘customers’ of Network Rail in terms of using the fixed infrastructure instantly establishes a source of conflict and arguments as to who bears the loss when things go wrong, and delays occur. When the railways were privatized in 1993 so-called ‘Schedule 8’ payments were introduced which required Network Rail to compensate TOCs for delays caused by infrastructure issues – be it leaves nn the line, vandalism, points failure, or even something as dramatic as the 2014 storms and the collapse of the sea wall at Dawlish. Schedule 8 payments imposed a form of strict liability on Network Rail in that they were payable irrespective of any fault on the part of Network Rail. The Office of Rail Regulation (as it then was) explained the rationale for the payments as follows: to ‘align the interests of the infrastructure manager with those of train operators’ by ensuring that the former has a financial incentive to minimize disruption.’ This was intended to offset the effects of the ‘vertical separation’ between the infrastructure and the trains.

The contractual agreements between Network rail and the TOCs is governed by a vast and complex document called the Network Code which covers all aspects of the relationship and sets out detailed Access Dispute Resolution Rules (ADDR). This has given rise to a largely unseen hinterland of alternative dispute resolution which forms a large part of the work of any lawyer engaged in rail law. This is what the WS Plan means when it refers to a ‘cottage industry of costly commercial disputes over delay attribution…’ The franchising system clearly created much scope for conflict although, in fairness, the industry has tried very hard over the years to adopt a more collaborative and less confrontational approach to dispute resolution and set up the Delay Attribution Board to this end, which promotes good practice in terms of avoiding and resolving disputes. Nevertheless, the WS plan seems to suggest that the franchising system was largely designed for the benefit of lawyers!

Today’s railways are a maze of agreements between hundreds of different parties, drawn up and policed by battalions of lawyers and consultants, including an entire staff dedicated to arguing about who is at fault for each delayed train. (at p 8).

As I have said many times over the years it is easy to make lawyers the villains of the peace but the plane fact is that there would have been no rail system in the first place were it not for the likes of Francis Mewburn and Samuel Carter, both pioneering railway solicitors of the nineteenth century. Moreover, the rail system is vast, complex and highly regulated which means that it needs lawyers to make it work. Nevertheless, there is certainly a need to reduce the scope for conflict insofar as we can within the model which the WS plan proposes.

I shall be closely following future developments as the requisite legislation takes shape and at some point begins its passage through Parliament.

Rail Franchises, Competition and Public Service

The UK rail network has undergone a series of massive restructuring exercises throughout its history. Having been run into the ground during the First World War the myriad Victorian era companies were rationalised into the ‘Big Four’ under the Railways Act 1921 but were still set up as joint stock public companies. After a few halcyon inter-war years synonymous with speed record attempts and evocatively named express services ,such as the Flying Scotsman and the Cornish Riviera, the railways were again run into the ground in the Second World War. Post-war nationalisation was inevitable and British Railways (latterly British Rail) came into being under the Transport Act 1947. There then followed nearly fifty years of a much maligned nationalised system, often ridiculed as the ultimate example of an inefficient, strike prone, state owned leviathan synonymous with poor customer service –  as often epitomised by the British Rail sandwich! In fact it is now widely accepted that much of this criticism was unfair and, after a shaky first few years, the organisation had developed into one of the world’s more efficient networks by the end of its existence. Nevertheless, having survived the drive for privatisation throughout the Thatcher Government of the 1980s, it finally succumbed under the Major administration of the early 90s and the passing of the Railways Act 1993.

Those who dreamed of a return to the halcyon days of the 1930s and the resurrection of something along the lines of the Big Four were to be sorely disappointed. It was deemed impractical to recreate the original privately owned system whereby railway companies owned the track, rolling stock and other infrastructure. The track and infrastructure were separated from the provision of services and placed in the hands of a state owned company known as Railtrack (the descendant of which is Network Rail) whilst leasing companies acquired the rolling stock. Market conditions were created by enabling companies to bid for franchises in order to win the opportunity to use the infrastructure and rolling stock to operate services. Since then the franchising system has rarely been out of he news with much adverse comment focused on the bidding process (especially regarding miscalculations in how much to bid), fragmentation of the system, lack of seating capacity on key routes, fare structures and a failure to generate sufficient competition. Moreover there is the insoluble conundrum of, if it is a bad thing for railway services to be operated by the British state, why is it acceptable for overseas state owned companies to bid for services? The debate has finally entered the mainstream quality legal literature with an excellent article by Tony Prosser and Luke Butler in the Modern Law Review.

Whilst much of the article adopts an economic perspective it does examine the legal framework, starting with the Railways Act 1993, which allowed the current system to develop. Their central thesis is that successive governments have never fully trusted the market to deliver and have not been able to resist tinkering and meddling with the system. Franchises now have so many strings attached, in terms of minimum service requirements and so forth, the operator is effectively straitjacketed and has limited scope to make commercial decisions. Moreover, the state has maintained much of the commercial risk in many cases which was antipathetic to the original notion of franchising. They conclude that the franchising system has been used as a means of regulating the industry in very prescriptive and top-down manner which, ironically, has resulted in far less commercial freedom than that enjoyed by the state owned British Rail. As they state in their conclusion:

‘Flexible use of franchise contracts which gives operators space for responsiveness and innovation has simply not proved possible. Instead there has been a crude form of regulation characterised by the highly complex and over-prescriptive franchise agreements, coupled with ambiguity on the centrally important issue of risk transfer.’

The upshot of this is that the distinction between ‘franchises’ and ‘concessions’ has been blurred in a most unsatisfactory manner which very often leaves all parties with the worst of all worlds. In a true concession arrangement the revenue risk remains with the public entity providing the concession which retains responsibility for setting fares and so on. The agreement will specify how much the concessionaire must hand over to the public body and how this is to be calculated (eg whether a fixed amount or a percentage). Such arrangements are possible under section 23 of the 1993 Act which enables the Secretary of State to exempt the arrangement from normal franchising requirements. The London Overground and Merseyrail contracts are operated on this basis as will be the new Crossrail service – or to give it its new name, the Elizabeth Line. Prosser and Butler argue that there is much to be said for this approach, despite the relative lack of commercial freedom when compared to a pure franchise arrangement of the type originally envisaged. Aside from the aforementioned examples in the UK, it is a model which has been widely adopted in other European countries. The clear delineation of risk and responsibilities tends to be conducive to more stable long term relationships between the concessionaires and their clients and from this flows greater trust. From this in turn flows a greater willingness to afford concessionaires more discretion in terms of how they operate services. Transport for London as extolled the Overground Service as a paradigmatic example of the benefits of this type of relationship.

A somewhat less complicated argument focuses on the fact that, although there may be competition in terms of the right to provide services, from the rail travellers perspective there is limited competition at the point of delivery. Open Access Agreements have never really taken off, which means that passengers rarely have a choice as to which company to use on a particular journey.

Overall the articles shows clearly how, especially in the complex and fraught world of public/private partnerships, it is difficult to legislate for every eventuality and new systems tend to develop a life of their own. The system which has now emerged, whilst it has evolved within the framework of the 1993 Act and relevant EU legislation, may not equate with what was originally intended. As Prosser and Butler also acknowledge, nationalisation of the industry is also back on the agenda of the Labour Party although, in common with many others, they doubt the practicalities of joining all the bits back together again.

Seeing STARS again: Court of Appeal upholds High Court decision

As a postscript to the previous entry on the judicial review arising from the STAR project please note that the Court of Appeal has now upheld the decision of the High Court – albeit with some reservations: R (on the application of London Borough of Enfield) v Secretary of State for Transport [2016] EWCA Civ 480. To briefly recap, Enfield Borough Council sought judicial review of the terms upon which an invitation to tender had been issued in respect of the franchise for the East Anglia Franchise. In short, the Enfield BC argued that the Department for Transport had led them to believe that operators would be required to provide a 4 train per hour (4tph) service for a new station serving the Meridian Water development – a major £2.5 billion urban regeneration project. The communications with the Department for Transport were said to have created a legitimate expectation that this requirement would be included in the franchise agreement and that the failure to include it in the tender documents thwarted this legitimate expectation.

As regards the emails which were at the heart of the dispute the Court of Appeal agreed that they did not create a legitimate expectation for 2 main reasons. Firstly, it was held that the local authority was already firmly committed to the project as evidenced by the fact that it had already invested £70m. Secondly, its actions showed that it had taken a calculated risk in embarking upon the project. Both these factors demonstrated that the requisite degree of detrimental reliance was lacking. However, although it did not affect the outcome of the appeal, the Court of Appeal disagreed with the High Court’s finding that it was unforeseeable that the communications with the STAR working group would be communicated to the local authority. It also found that the emails were clear and unambiguous albeit mistaken. In this respect the Court of Appeal was highly critical of the performance of the Department for Transport in the matter:-

‘Regrettably, this was an inept performance on the part of the DfT, serving to undermine public confidence in its competence and the communications of its officials’ [para 49].

It was also argued that the Secretary of State had acted irrationally in failing to take into account the economic impact of the 4tph requirement and its effect on the regeneration project. The Court of Appeal held that, whilst various documents highlighted potential for local regeneration as a consideration to be taken into account in franchise agreements in so forth, such commitments were expressed with a ‘very high level of abstraction’. In this respect they were not sufficiently concrete to form the basis for judicial review of the decision. Moreover, the Department had adhered to its standard economic modelling practices and complied with the requirements of the Public Service (Social Value) Act 2012, s 1(3).



The existing Angel Road station. Nigel Cox

The existing Angel Road station.
Nigel Cox.


Enfield Borough Council recently sought judicial review of the terms upon which an Invitation to Tender (ITT) was issued for the East Anglia Franchise – London Borough of Enfield v Secretary of State for Transport [2015] EWHC 3758 (Admin) . The franchise includes a hitherto neglected stretch of track from Stratford to Angel Road on the West Anglia mainline to Hertfordshire. This section of line in question is due to be upgraded and stations refurbished as part of the STAR project (a convenient acronym for Stratford to Angel Road). Angel Road is the centrepiece of the development in that it will serve the Meridian Water property development and will be renamed as Meridian Water station to reflect its new purpose; at present the station is little used and has no facilities.


The ITT  for the East Anglia Franchise was issued by the Department for Transport on 17 September 2015 but the local authority was dismayed to find that it did not contain a minimum Train Service Requirement (TSR) for Angel/Meridian station. The Defendant is empowered to set minimum service requirements by virtue of section 23 of the Railways Act 1993. Given that the station redevelopment is central to their plans for good public transport links to the new development they considered that a TSR was essential. They had assumed that the ITT would include a TSR of 2 trains per hour (2tph) until May 2018 and then 4 trains per hour (4tph) thereafter following completion of the infrastructure upgrade work.


The Local Authority sought judicial review of the terms upon which the ITT had been issued on the grounds that they had a legitimate expectation that the aforementioned TSR would be included. This claim centred on two emails sent by an official in the Department of Transport. The first email (dated 29 July 2015) had been sent to the secretary of the STAR steering group. The steering group comprises a number of interested parties brought together to promote and manage the STAR  project. It includes Enfield BC, Network Rail, Haringey LBC, Transport for London, the GLA and the Department of Transport. The second email was a reply sent by the DoT official to a consultant working for the Council. The Council claimed that email confirmed the TSR in unequivocal terms and was described by a a Council official as ‘providing comfort on 4tph.’

By this time it seems that the Council had spent £70m on the project although must be emphasised that most of this expenditure had already been incurred and was not predicated on the email exchanges at the centre of the dispute. At one point it was claimed that the minutes of a STAR steering group meeting held on 29 May 2014 indicated the defendant’s support of a 4tph service following completion of the development; although this does not appear to have been relied upon in support of the claim.

After the current proceedings were under way the defendant wrote to the Council and stated that it had commissioned a new study into the business case for increasing the frequency of services calling at Angel Road. The conclusion was that, despite the substantial property development, there would not be sufficient demand to merit the TSR desired by the Council.

In short, the Council claimed that the emails from the DoT, especially when read in the light of other emails and evidence, afforded the Council a legitimate expectation that the TSR would be included in the ITT.


The law on legitimate expectation was summed up by the judge, Mrs Justice Laing, at paragraph 72 of the judgment thus:

‘A public authority may create a legitimate expectation (substantive or procedural) if it makes an unambiguous and unqualified promise on which it is reasonable for the promisee to rely.’

Moreover, a number of  authorities were cited to the effect that, even where a prima facie legitimate expectation has been created, it is not necessarily set in stone. The decision maker must be given some leeway to change his mind in the light of overriding public interest considerations or simply to correct miscalculations. The pattern which emerges from the case law is that the courts are slow to find that an irreversible legitimate expectation has been created where the issue has ‘multi-layered effects’ involving ‘wide-ranging issues of general policy.’ [para 75]

As regards the case at hand the judge considered whether the two emails relied upon by the claimant were sufficient to satisfy the aforementioned criteria. As regards the first email of 29 July 2015 the judge regarded it as significant that the Department of Transport official was dealing with a member of the STAR steering group as rather than directly with the Council. She rejected the notion ‘that the Defendant is to be fixed, by some process of ineluctable inference, with knowledge that this email would be transmitted to the Council, still less, that the Council might or would rely on it.’ [para 83]. Moreover, the Council could not ‘legitimately expect’ that they would be given a ‘reliable private insight into the ITT specification’ ahead of its publication [para 84]. In addition, she found that the Council had no reason for believing that the DoT official in question had any authority to make such binding promises regarding the content of the ITT. [para 84]

As regards the second email of 5 August 2015 from the DoT official to the consultant working with the council, the judge noted that there was a note of equivocation in the questions put by the consultant to the DoT. Thus he ‘asked a tentative question “I wonder if you could confirm…” ‘ and whether the DoT ‘could confirm the expected position.’ [para 85] In other words there was an element of seeking an opinion or a belief as opposed to a firm commitment. Once again the judge reiterated the point that the Council had no reason for believing that the DoT official had the requisite expertise or inside knowledge for making such promises. Also, she was confident that all parties knew that the Council’s request for greatly improved services on the line was ‘a huge challenge’. Thus, the Council should have treated any statements regarding the contents of the ITT with circumspection. In conclusion ‘it was unreasonable for the Council to rely on an “informal” email promising this great prize, elicited in the way that it was from the person from whom it was elicited.’


The judge then turned to the issue of detrimental reliance, an ingredient of legitimate expectation in most cases, and prefaced her findings on this issue by suggesting that the Department of Transport official had ‘got it wrong’ in terms of communicating the official position of the Department of Transport to the various parties involved [para 88]. He may have misunderstood the position or others in the organisation may have failed to make the position clear to him. In any event, the judge asserted that ‘I should be slow to fix the Defendant with the consequences of such a mistake.’ Thus, she would only be prepared to do so if there was clear evidence of the Council having acted to its detriment. On this point she concluded that the Council had in fact taken ‘a calculated risk’ and had already taken certain crucial steps towards the completion of the development ahead of the email correspondence at the heart of the dispute.


Having decided that no legitimate expectation had not been created in the first place the judge did not deem it necessary to dwell on the issue of whether the Department for Transport had been entitled to depart from it in the light of overriding public interest considerations. She concluded that they would have been entitled to do so given the fact that the scheme in question forms just one small part of the WAML and must be balanced against by the much larger public interest considerations arising therefrom.


The matter has now been appealed to the Court of Appeal.