Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport

Factual and Procedural Background

This appeal concerns a statutory construction issue regarding section 21 of the Infrastructure Act 2015 ('the Act'). The Secretary of State for Transport ('the Secretary of State') published a second Cycling and Walking Investment Strategy ('the Strategy') on 9 July 2022. Subsequently, by a Ministerial Statement dated 9 March 2023 ('the Statement'), the Secretary of State purported to reduce the capital funding allocated for the final two years of the Strategy by £200 million. The Appellant, Transport Action Network Limited ('the Appellant'), challenged the lawfulness of this funding reduction.

Prior to the Act, public funding for active travel (cycling and walking) was unstructured. The first Strategy was published in 2017, setting objectives and funding projections for active travel. The second Strategy complied with the duties under section 21 and projected funding of over £3 billion across government sources, including £1.298 billion from Department for Transport programmes.

Following government budgetary pressures announced in late 2022, officials recommended reducing active travel funding by £200 million, which was reflected in the Statement. The Appellant sought judicial review of this decision on three grounds: that the Statement was inconsistent with section 21 and that the Secretary of State failed to consider a mandatory relevant factor. Permission for judicial review was granted after an oral hearing.

Legal Issues Presented

1. Whether the Secretary of State lawfully reduced the capital funding for the latter years of the Cycling and Walking Investment Strategy without complying with the statutory variation procedure under section 21 of the Infrastructure Act 2015.
2. Whether section 21 imposes a duty to maintain the financial resources specified in the Strategy or permits changes without following the variation process.
3. Whether the Secretary of State failed to consider a mandatory relevant consideration when making the funding reduction.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State was required by section 21 to specify financial resources in the Strategy and to adhere to those specifications unless the statutory variation procedure was properly followed.
• The reduction in funding constituted a variation of the Strategy that required consultation and consideration of the desirability of maintaining certainty and stability, which was not done.
• The Secretary of State failed to take into account a mandatory relevant consideration in deciding to reduce funding.
• The phrase "financial resources to be made available" in section 21 should be interpreted as an imperative, not a mere target or projection.

Secretary of State's Arguments

• Section 21 requires only specification of objectives and resources but does not impose a duty to comply with or adhere rigidly to the Strategy’s financial projections.
• The financial resources specified are projections or estimates subject to change during the Strategy period.
• No inconsistency exists between the Strategy and the funding reduction since funding levels are inherently subject to fluctuations.
• The reduction did not require the formal variation procedure because it did not change the objectives of the Strategy.
• The Strategy’s figures for funding were not ring-fenced commitments, and the Secretary of State retained discretion over spending within the Strategy period.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a detailed statutory construction exercise focusing on section 21 of the Infrastructure Act 2015. It emphasized that section 21 grants the Secretary of State a power to set and vary a Cycling and Walking Investment Strategy but imposes specific procedural requirements for varying an existing Strategy, including consultation and consideration of maintaining certainty and stability.

The court rejected the Secretary of State’s argument that the financial resources specified in the Strategy were mere projections subject to unilateral change without following the variation procedure. It held that the word "specify" in section 21(3) imposes a clear duty to particularize the financial resources to be made available, and any change to those specified resources amounts to a variation requiring compliance with the statutory process.

The court distinguished between the duty to specify resources and any duty to spend them, clarifying that the Strategy does not mandate expenditure but requires stability and certainty in the financial commitments stated. The court found that the Secretary of State’s reduction in funding, made without following the variation procedure, was unlawful.

The court also addressed and dismissed arguments that the Secretary of State was not required to adhere rigidly to a costed programme of works, affirming that changes to the specified financial resources must nonetheless comply with the statutory variation process.

Holding and Implications

The court ALLOWED the Appellant's appeal, holding that the Secretary of State acted unlawfully by reducing the capital funding for the final two years of the Cycling and Walking Investment Strategy without complying with the statutory variation procedure under section 21 of the Infrastructure Act 2015.

The direct effect is that the Secretary of State must adhere to the statutory process when varying the financial resources specified in the Strategy. No new precedent beyond the interpretation of section 21 was set, and the decision reinforces the procedural protections designed to ensure stability and certainty in government investment strategies for active travel.