Mandatory Statutory Variation Procedure for Specified Funding under Section 21 of the Infrastructure Act 2015

Introduction

Transport Action Network Ltd (“TAN”) challenged the Secretary of State for Transport’s decision to reduce by £200 million the capital funding allocated in the second Cycling and Walking Investment Strategy (“the Strategy”) without following the variation procedure set out in section 21 of the Infrastructure Act 2015. Kerr J had refused relief, concluding that the Strategy’s financial projections were estimates and not ring-fenced commitments. On appeal, the Court of Appeal (Dingemans LJ, Baker LJ and Holgate LJ) reconsidered the scope of section 21(3) and the related variation process in section 21(5)–(6). They allowed TAN’s appeal, clarifying that once the Secretary of State “specifies” resources in a Strategy those figures can only be lawfully changed by complying with the statutory variation requirements—including consultation and regard to certainty and stability.

Background and Key Issues

• The Infrastructure Act 2015 created two parallel schemes: one for Road Investment Strategies (RIS) under section 3 and Schedule 2, and one for Cycling and Walking Investment Strategies under section 21.
• Section 21(3) requires any Cycling and Walking Investment Strategy to “specify” (a) objectives and (b) the financial resources to be made available for achieving those objectives. Section 21(5)–(6) prescribes consultation and a requirement to have regard to “certainty and stability” when varying a Strategy.
• TAN argued that the Minister’s Statement of 9 March 2023, which reduced the figures, was a variation of the Strategy’s specified resources and had to follow the section 21 procedure. The Secretary of State contended that these figures were mere projections and not statutory commitments.

Summary of the Judgment

The Court of Appeal unanimously held that:

Section 21(3)(b) imposes a mandatory duty on the Secretary of State to specify in a Strategy the precise resources “to be made available”.
Once a Strategy is set, any change to those specified figures is a variation requiring compliance with section 21(5)–(6)—namely consultation and regard to the desirability of maintaining certainty and stability.
The Ministerial Statement unlawfully amended the Strategy’s specified funding without following the statutory variation procedure.
TAN’s appeal was allowed and the decision below was set aside.

Analysis

Precedents and Statutory Context

While no directly analogous appellate decisions on section 21 had been decided, the court drew on:

Road Investment Strategy regime (section 3 and Schedule 2) – demonstrating that “setting” and “varying” investment plans requires a structured multi-step process with consultation and procedural safeguards.
Principles of statutory interpretation – the mandatory meaning of “must specify” and the requirement to give effect to procedural protections enacted by Parliament.
Lang J’s first-instance observations – endorsing that specified figures are more than estimates and not free-floating projections.

Legal Reasoning

1. Duty to specify vs. duty to spend: Section 21(3) does not compel the Secretary of State to expend the resources, but it does compel him to state in the Strategy the amount he intends to make available. This “specify” obligation is precise and not satisfied by vague estimates.

2. Statutory variation mechanism: Parliament imposed a bespoke procedure for any change to a set Strategy—consultation (s. 21(5)), and regard to “certainty and stability” (s. 21(6)). Allowing a unilateral adjustment outside this framework would render those protections meaningless.

3. Interpretation of “to be made available”: The court refused to read into the statute a “may be made available” gloss. The natural meaning is that the figure is the amount intended—once stated—any change amounts to a variation.

4. Purpose of section 21: To replace piecemeal ad hoc active-travel spending with a coherent, stable, accountable framework. The parliamentary design was to secure transparency and ministerial accountability via fixed commitments in the Strategy, subject to controlled variation.

Impact

The decision has significant consequences:

Ministers must now treat the financial figures in any Cycling and Walking Investment Strategy as protected unless changed by the formal variation process.
Future reductions or reallocations of active-travel funding will require prior consultation and a reasoned analysis of certainty and stability.
The judgment reinforces the principle that statutory plans with specified resources carry procedural safeguards that cannot be bypassed by ministerial statements.
It may encourage similar challenges in other areas where statutory investment strategies are used (e.g., rail or road).

Complex Concepts Simplified

Specify: To state precisely in the Strategy the amount of funding the Secretary of State intends to make available.
Strategy: A formal plan published under section 21, listing objectives and resources for active-travel investment over a period.
Variation procedure: The statutory steps (consultation and regard to stability) required before any change to a set Strategy.
Ring-fenced vs. Projected: “Ring-fenced” suggests a binding commitment; the court held the Strategy figures are stronger than mere projections but binding in as much as they cannot be changed without following the variation rules.

Conclusion

Transport Action Network Ltd v Secretary of State for Transport establishes that under section 21 of the Infrastructure Act 2015, once the Secretary of State has “specified” financial resources in a Cycling and Walking Investment Strategy, those figures enjoy statutory protection. Any amendment to them must comply with the variation procedure—consultation and regard to certainty and stability—enacted by Parliament. This ensures transparency, accountability, and the integrity of long-term active-travel funding commitments.