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).

 

SEEING STARS: RAIL FRANCHISING AGREEMENTS AND LEGITIMATE EXPECTATIONS

The existing Angel Road station. Nigel Cox

The existing Angel Road station.
Nigel Cox.

THE STAR PROJECT

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.

TRAIN SERVICE REQUIREMENTS

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.

EMAIL EXCHANGES

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.

LEGITIMATE EXPECTATION

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.’

DETRIMENTAL RELIANCE

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.

PUBLIC INTEREST CONSIDERATIONS

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.

Noise, horses and the Evergreen 3 project

A Chiltern Railway's service from London Marylebone to Oxford Parkway appears around the new curve at Gavray Junction, Bicester, which allows these trains from Marylebone. The line to the left is the old freight route from Bletchley to Oxford. Since passengers trains ceased on this route in the 1960s many houses have been built in the area so a sound-proof fence is being built to reduce the noise nuisance to the railway's neighbours. Geoff Sheppard

A train from London Marylebone to Oxford Parkway negotiates the new Gavray junction which enables trains to run between Oxford and Marylebone for the first time. Construction of high fencing to reduce noise can be seen.
Photo Geoff Sheppard

The Evergreen 3 Project

The Chiltern Railways Evergreen 3 Project, which will establish the first new intercity mainline rail link since the close of the Victorian era, is now very nearly complete. The project has entailed upgrading large stretches of track and building a new chord linking the Oxford to Bicester line with the mainline between London Marylebone and Birmingham Snow Hill. On 26 October 2015 services commenced between a new Oxford Parkway station, situated four miles from the centre of Oxford at Water Eaton, and London Marylebone. The final link between the main Oxford station and Oxford Parkway is due to open in Spring 2016; this again entails replacing existing track and carrying out other major infrastructure improvements. Moreover, the scheme represents the first link in the East-West Rail project the ultimate aim of which is to reinstate the Varsity Line between Oxford and Cambridge.

By modern standards the project is ambitious, although it has not entailed building much line on virgin territory. In this respect it is not on the scale of its Victorian counterparts or the current HS2 project. Nevertheless, the promoters are perfectly correct to bill it as the first new intercity route since the opening of the Great Central in 1899. In fact, many of the objections raised by individuals and businesses residing along the route would have been very familiar to Victorian railway promoters; a case in point concerns noise and the impact of more rapid and frequent train movements on livestock.

Noise and planning requirements

As noted above, the new route currently terminates short of Oxford at a new ‘Oxford Parkway’ Station. Major track and infrastructure improvements must now be carried out  on this final short section of the new link. The Varsity Line between Oxford and Cambridge was severed in 1967; although it is surprising to note that Beeching’s axe was not actually to blame on this occasion. Since then residents in the suburbs of Oxford lying along the route have become accustomed to no more rail traffic than an infrequent and slow local train to Bicester. The opening of the route between the centre of Oxford and Marylebone will increase this to 74 train movements each day. When the next stage of the East-West Rail Link is completed in 2019, which would enable trains to run as far as Bedford, Rail 784 reports that this will rise to 171 train movements. Thus, it is not surprising that concerns were expressed regarding increased noise and vibration associated with the new rail services.

The project has been authorized by way of a ministerial order made under the Transport and Works Act 1992: see The Chiltern Railways (Bicester to Oxford Improvements) Order 2012 SI 2012/2679. The ministerial decision letter of 17 October 2012 which accompanied the Order added certain conditions to the deemed planning consent granted by the Order. Condition 19 requires noise and vibration mitigation measures to be adopted along the entire route insofar as this is reasonably practicable and necessary. As regards the final section between the main Oxford station and Oxford Parkway, Oxford City Council must satisfy itself that the promoters’ plans satisfy this requirement before approving the works. Network Rail (which is now the lead promoter having taken over from Chiltern Railways) submitted its noise mitigation proposals to the Council’s Planning Committee in early December following a public consultation demanded by condition 19. The noise mitigation measures mainly consist of the erection of 2.5m high fencing where the tracks run past housing. Having undertaken much research Network Rail maintain that the vibration will not be sufficient to merit additional measures. Modern track technology and trains means that vibration is now far less of an issue than it once was.

Nevertheless, the proposals may not be enough to assuage public concerns regarding the impact of the scheme on residents along the route. The proposals have already generated a large number of comments, many of which challenge the assertion that a 2.5m fence will be sufficient. Alternative suggestions  include higher fencing, speed restrictions and even the use of Tata ‘silent track.’ Further along the line towards Bicester, on the section that is already open, the proprietors of Wendlebury Gate Stables have fought a long battle with the promoters of the scheme regarding the adequacy of noise abatement measures where the line runs alongside their riding school. They argue that the noise problem is especially acute at that location because it  makes it difficult for riding instructors to make themselves heard during lessons and because of the susceptibility of horses to noise and sudden movements. These arguments were forcefully made during the public inquiry into the scheme which was held pursuant to procedures under the Transport and Works Act: see document OBJ/238/8. The Secretary of State agreed that noise mitigation must be undertaken at that location and Wendlebury Stables are specifically mentioned in condition 19. Nevertheless, arguments continued regarding the adequacy of the proposed fencing.

From the above it is clear that, although noise features prominently in the planning process and a myriad of detailed consultants reports have been produced, there can be no guarantee that the noise issue will be resolved to the satisfaction of all affected parties. This begs the question of whether any legal avenues may remain open once all planning consents have been granted and the line is in full scale operation.

Statutory Authority

Anyone contemplating an action in public or private nuisance with a view to gaining an injunction or damages, once the line is in full scale operation, would immediately run into the statutory authority defence. In short, railway operators are immune from liability in nuisance in respect of harms which are the inevitable consequence of exercising their statutory powers and duties. This was established by the very early railway case of R v Pease (1832) 4 B & Ad 30, 110 ER 366  which concerned the spooking of horses on the Yarm turnpike by steam engines grinding along the Stockton and Darlington Railway. The solicitor to the Stockton and Darlington Railway, Francis Mewburn, had had the foresight to insert a provision into the private Bill under which the scheme was authorized which specifically enabled the railway company to use steam locomotion. The Court of Kings Bench held that Parliament must have foreseen that travellers on the turnpike would be incommoded by the locomotives and deemed this to be a reasonable price to pay for the benefits of the technology. The importance of Mewburn’s clause was immediately apparent and brought about the adoption of section 86 of the Railway Clauses (Consolidation) Act 1848 which sought to standardise clauses used in the dozens of private Bills which came before Parliament at the height of the railway revolution. Section 86 established a defence of statutory authority and played a significant role in limiting the liability of railway companies for fires caused by stray sparks and burning embers emitted by steam locomotives. The case law did, however, bring about one important qualification in that the defendant would have to show that the harm was the inevitable result of exercising the statutory power.  This led to very lengthy and technical arguments about whether the railway companies has used the most appropriate technological means of reducing the emission of sparks. Given that the railway companies monopolised large proportion of the railway engineering expertise. It was very difficult for plaintiffs to challenge their assertions regarding what constituted the appropriate engineering solution.

As regards 21st century projects it is interesting to note that the HS2 Bill expressly incorporates section 86 of the Railway Clauses (Consolidation) Act 1848. More generally, section 122 of the Railways Act 1993 established a defence of statutory authority in respect of nuisances caused by trains operating on the national rail network. Given that the Evergreen 3 project forms part of the national rail network the fact that section 122 will come into play is beyond doubt. The courts have never had the opportunity to fully consider the scope of this section but it seems likely that it comes equipped with existing common law baggage. In this respect it may leave open the possibility of arguing that the harm was not inevitable. However, as regards Evergreen 3 and the completion of the Oxford to Oxford Parkway section, by the time that Oxford City Council gives its assent to the noise mitigation plans demanded by condition 19, the suitability of the proposed measures will have been very thoroughly investigated. A litigant would face an uphill struggle in terms of persuading the courts that the planning process had got it wrong. Added to which is the fact that any modern interpretation of the statutory defence is likely to incorporate cost considerations.

Conclusions

Until a new line is put into full scale operation one cannot ascertain whether all adverse consequences have been foreseen by the planning process. If one views the common law as a means of fine-tuning the planning process rather than as a mechanism for correcting ‘regulatory failure’, it is possible that the courts would be more receptive to augments that a nuisance at a particular location is not inevitable. As regards Evergreen 3 and the final link to Oxford centre, it is notable that Network Rail has already considered the judicious use of Tata silent track at locations particularly susceptible to nose such as Wolvercote Junction (see Oxford Mail). It is not beyond the realms of possibility that a court could be persuaded that more use should have been made of this system if the noise is worse and more widespread than originally contemplated when the line is put into operation. Having said that, it is one thing to install special track at the construction stage, it would be quite another to rip up new track and install it after litigation. In such circumstances it is still likely that cost would rear its ugly head as a decisive factor. There may be more scope for challenging the use made of less sophisticated noise abatement measures such as the height of fencing at riding schools.

 

 

Reversing Beeching Round table

Rowlands Gill Station. Photo courtesy of R J McNaughton

Rowlands Gill Station.
Photo courtesy of R J McNaughton

On 13th May the School of Law at the University of Reading hosted a round-table discussion entitled, ‘Reversing Beeching? Law and the New Railway Revolution.’

The event focused on the legal challenges and opportunities which has been created by the railway renaissance of the past 20 years or so covered everything from light rail projects to High Speed 2. Participants included specialist lawyers working in the field together with academics from law and economics. There was much debate about how the legal landscape has changed since the nineteenth century railway revolution and the impact of judicial review and environmental impact assessment. There was also a fascinating debate about how it is difficult for community rail projects to get off the ground due to competing interests in the industry.

We hope to run future events on various aspects of law and the railways as part of a long term project to establish a research hub in this field.

 

 

 

Judicial Review Challenge Against Radlett Railfreight Interchange Rejected

A decision by the Secretary of State for Communities and Local Government  to authorise the construction of a new rail freight interchange at Radlett near St Albans has survived a challenge by way of judicial review: St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655. In short, the case centred on whether the planning inspector and Secretary of State had fettered their discretion by treating criteria established by an earlier unsuccessful application in respect of the same development as a legal test. St. Albans City and District Council, which has resisted the development throughout, applied to have the decision quashed.

The saga of the St Albans freight interchange dates back to 2006 when the developer, Helioslough, submitted its first planning application. The development entailed building on green belt land and encountered much local opposition. Moreover, it engaged the National Planning Policy Framework, paragraph 89 of which provides that inappropriate development which could harm the green belt must be avoided unless there are very special circumstances. The planning authority rejected the application and the developer appealed triggering a planning inquiry by a planning inspector. In his report the inspector stated that the need for such strategic rail infrastructure could constitute a very special circumstance provided that there were no suitable alternative sites. However, in this case the inspector concluded that there had not been a sufficiently thorough inspect of over sites less harmful to the green belt and recommended that the application should be rejected. The Secretary of State accepted this recommendation.

The developer submitted a second application which was again rejected by the local authority. Once again the developer appealed against the decision.This time the Secretary of State accepted the inspector’s recommendation to the effect that planning permission should be granted because this time there had been a thorough investigation of other sites and that there were no suitable alternatives.

The local authority sought judicial review of this decision on the grounds that the criteria set out in the inspector’s report relating to the first application, to the effect that the strategic need for such infrastructure could justify green belt development if no suitable alternative sites could be found, was treated as a legal test in the second appeal. Thus, those determining the appeal had fettered their discretion in the sense that a finding that no suitable alternative sites existed would lead to the inevitable conclusion that the development should be allowed.

There was a second ground of review which focused on the fact that the Secretary of State had earlier refused to grant consent for the construction of a waste management facility on a greenfield site four miles away. It was argued that the decision to authorise the rail freight interchange was inconsistent with this earlier decision against allowing industrial development on a nearby greenfield site.

The High Court rejected the application to quash the decision in favour of authorising the development on the grounds that the planning inspector and Secretary of State had not regarded the criteria as a legal test. Where there has already been a thorough consideration of the issues the decision maker is entitled, as a matter of judgement, to regard the findings as persuasive. It does not follow that such findings are being applied as legal tests. The case of Kings Cross Railway Lands Group v Camden LBC [2007] EWHC 1515 was applied in this respect.

The second argument, pertaining to the inconsistency with the earlier decision not to allow the building of a waste incinerator, was rejected on the grounds that they were very different projects which raised very different considerations.