A12 widening Development Consent Order: legal challenge update

Plans to widen the A12 (Chelmsford to A120) have been stalled as a result of a legal challenge to the Secretary of State’s decision to make a Development Consent Order (‘DCO’) for this £1.2bn scheme.

Holmes & Hills LLP have seen a copy of the claim form and its supporting statement of facts and grounds (‘SoFG’) and can report as follows.

• A claim for Judicial Review was issued on 26 February 2024.
• The claim form incorrectly states the Defendant as the Secretary of State for Levelling Up, Housing and Communities - the SoFG correctly identifies the Defendant as the Secretary of State for Transport however.
• National Highways are the Interested Party.
• There are five grounds of challenge which can be summarised as follows:
  • Ground 1: alleged breach of the EIA Regulations by reason of an unlawful and/or irrational conclusion on the “significance” of greenhouse gas emissions for EIA purposes.
  • Ground 2: a misinterpretation as to applicable policy.
  • Ground 3: alleged breach of the EIA Regulations by failure to carry out a lawful cumulative assessment.
  • Ground 4: an alleged failure to consider whether the Scheme would have a material impact on the Government’s ability to reduce emissions by at least 68% by 2030.
  • Ground 5: an alleged failure to consider whether the Scheme would have a material impact on the Government’s ability to achieve “Net Zero’’ Target by 2050.
• The claim asks for the DCO to be quashed.

It is not yet known whether an acknowledgement of service and/or summary grounds of resistance to the claim have yet been filed – the standard timetable/deadline for which is 21 days after service of the claim form. We would anticipate an update from the Secretary of State and/or National Highways at an appropriate time.

It is understood that pending Court proceedings concerning the A47 Blofield and North Burlingham Scheme ‘A47BNB’ concern similar issues. Elsewhere, two other climate-focused legal challenges are likewise awaiting a decision. It may well be the case that the A12 legal challenge is “held up” until after a decision in these other legal proceedings/challenges.

Holmes and Hills LLP will continue to monitor the situation and provide updates directly to affected clients and via our website as appropriate. In the meantime the construction schedule for this scheme will undoubtedly be subject of delay whilst the application for Judicial Review of the DCO works its way through legal process.

Update: 29th April 2024

Following our earlier article Holmes & Hills LLP have now seen a copy of the response to the Judicial Review application. We further report as follows.

• Both the Secretary of State for Transport (SoS) and National Highways have resisted the claim – both instructed Kings Counsel to prepare their “Summary Grounds of Resistance”.
• The SoS assert that “each of the grounds of land is unarguable and the [SoS] respectfully invites the Court to refuse permission for the Claimant to pursue [a Judicial Review]”.
• National Highways invite the Court to be “cautious before granting permission to… grounds of claim which have already been lost and/or which the Court has already considered to be unarguable”; this being a reference to 3x challenges on materially similar grounds but concerning improvement works to the A47 which have been refused by the High Court and Court of Appeal.
• Both the SoS and National Highways assert it would not be appropriate to Stay (i.e. delay) this Judicial Review application regarding the A12 simply because an application to the Supreme Court has been made in respect of another scheme [the A47].
• Both the SoS and National Highways assert that the claim should be designated a “Significant Planning Court Claim” – the effect of which is, simply, to apply an expedited procedure and bring the Court decision forward to its earliest possible date. National Highways assert that a Stay would “would delay a much needed Scheme [i.e. the A12 widening] from progressing thereby potentially causing unjustified cost to the public purse”.
• National Highways make the case that, even if there is any technical error (which it denies), then it is likely that the decision would be the same - i.e. to make the Development Consent Order – and so ask that the Court decline to quash/allow the Judicial Review on this basis. The law behind this is s31(2A) of the Senior Courts Act which requires the High Court, if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, to refuse relief (i.e. not quash the decision under challenge and send it back for re-determination). Readers should note that the High Court has a discretion to disregard this statutory requirement - i.e. that it must refuse relief – for reasons of exceptional public interest.
• It is not known whether the Claimant has, or will, exercise a right of Reply – the formal right to do so only becoming effective recently [6 April 2024] and subject to prescribed, and strict, rules.

As before, Holmes and Hills LLP will continue to monitor the situation and provide updates directly to affected clients and via our website as appropriate.

If you are affected by the A12 widening proposals and need advice on your current options, please do not hesitate to contact one of our dedicated team of specialist CPO solicitors, Michael Harman, Catherine Hibbert or Mel Francis.