Highways England to re-consult following legal action by environmental campaigner

The High Court had given permission for the challenge to Highways England’s proposal for the new bypass which campaigners argued would destroy ancient woodland and pass through the South Downs National Park near Arundel, West Sussex. However, following the impending legal challenge, Highways England announced that they would undertake a fresh consultation on the new roadway. 

In July this year law firm Leigh Day issued proceedings in the High Court on behalf of local environmental campaigner Dr Emma Tristram, challenging Highways England’s decision of 11 May 2018 to select Option 5A as its preferred route for the A27 Arundel Bypass, West Sussex. 

Dr Tristram’s challenge was based on the grounds that the information in the consultation brochure was positively misleading, in particular:

• there were a number of errors and omissions in the consultation material that, cumulatively, could have materially impacted the consultation outcome; and
• the public did not have the opportunity to comment on revised traffic figures produced after the public consultation, which reduced the benefits attributed to all options and reduced the difference between the effect the three options had in reducing traffic on alternative routes in the Downs.

The High Court gave permission for Dr Tristram’s challenge to proceed in September 2018, observing that the legal claim: “raises arguable questions of law in relation to whether something went clearly and radically wrong with the consultation in relation to the traffic figures…”.

On 12 October 2018 Highways England announced “a further consultation on the A27 Arundel bypass options ... Highways England has decided to undertake a further consultation because there have been important changes in the evidence on the options since it went to public consultation last year”.

Following the new consultation there will be another preferred route announcement.

In correspondence with Dr Tristram, Highways England stated that “the further consultation now proposed will give the public the opportunity to consider the new traffic figures” and, in relation to the errors and omissions pointed out by Dr Tristram, made assurances that “relevant corrections will be included in the further consultation documents”.

In light of these concessions, Dr Tristram has agreed to withdraw her claim and Highways England has agreed to pay her legal fees. The claim will be withdrawn on the basis of a Consent Order that reflects Highways England’s assurances that include:

• there will be a fresh non-statutory consultation, which will be full and open, and carried out lawfully and in compliance with the rules of procedural fairness;
• a comprehensive suite of documents will be produced with updated environmental and traffic modelling data;
• the three route options (Option 1, Option 3 & Option 5A) will be open for selection and following the further consultation a new Preferred Route Announcement (PRA) will be made from one of those options.

In the meantime, the current PRA will remain in place so that landowners who have applied for compensation as a result of the original PRA can have their applications processed and are afforded a degree of certainty at least until the new PRA is made.

Tessa Gregory, a partner at Leigh Day stated:

“We are pleased that Highways England have committed to carrying out a new consultation which will correct errors in the previous consultation and allow our client and others a full opportunity to comment on each of the route options.  Our client will continue to fight to ensure that the environmental damage of the proposed route is fairly and properly considered and we will continue to work with our client to ensure that Highways England keeps the promises it has made.” 

Emma Tristram, environmental campaigner said:

“I am pleased at what’s been achieved and thank Leigh Day and my supporters. The 2017 consultation has been shown to be faulty, and it will be important to make sure Highways England stick to their agreement in the new consultation. Even better would be a complete rethink to include the locally-promoted New Single Purple Route, a wide single-carriageway version of one of Highways England’s options. This is a more modest traffic solution which takes account of the latest statements on climate change and species loss.”