Campaign group wins Court of Appeal challenge over £200m funding cut to Cycling and Walking Investment Strategy

Lady Justice Elisabeth Laing said in the judgment that the case concerned a decision by Kerr J and raised a short point of statutory construction about section 21 of the Infrastructure Act 2015.

In July 2022, the Secretary of State specified a second cycling and walking investment strategy but in March 2023 reduced by £200m the capital funding for its last two years.

The strategy’s foreword said that the government had “committed £1.2bn of funding for active travel over five years”.

Kerr J had quoted the witness statement of Jessica Matthew, the co-director for local transport’ in the Department for Transport (DfT), which said in practice the amount of funding would fluctuate during the life of a strategy as the projections within it were based on best information available at the time of publication, including estimates of the proportion of wider funding programmes spent on active travel.

But the DfT saw its budget reduced in the Autumn Statement of 2022 and active travel was among areas vulnerable to cuts.

The Secretary of State later made a statement reducing the active travel budget and TAN issued a claim for judicial review that argued this statement was inconsistent with section 21 and that the Secretary of State failed to take into account a mandatory relevant consideration.

Before Kerr J, the Secretary of State argued that the ‘prescriptive element’ in section 21 was that “the strategy must state objectives and resources required to achieve them”.

Kerr J thought TAN’s interpretation of section 21 was rigid and could have adverse consequences, Laing LJ noted, as this would tie a minister’s hands on varying the amount spent on active travel.

Laing LJ said: “Two aspects of section 21 are immediately significant. First, the stability of any strategy is a theme which runs through section 21. Two particular features of section 21 exemplify this theme.

“First, the word ‘set’ connotes stability. It is used five times in section 21. Second, section 21(6) articulates this theme clearly by describing a dual factor which the Secretary of State must take into account when considering whether to set or to vary a strategy; ‘the desirability of maintaining certainty and stability…’

“Second, the setting and varying of a strategy are linked. This linked pair of verbs is used twice in section 21 (and many times in section 3 and in Schedule 2).”

She said the Secretary of State is required to particularise the resources available and had a power both to set, and to vary, a strategy and imposed requirements if it was to be varied.

“The Secretary of State may not vary a strategy, once ‘set’, without considering whether to vary it (section 21(6)), without having regard to ‘the desirability of maintaining certainty and stability’ in the strategy (also section 21(6)), or without consultation (section 21(5), “ Laing LJ said.

“The Secretary of State must also consult before setting a strategy (also section 21(5)). The procedural requirements which must be met before the Secretary of State can lawfully vary a strategy are more onerous than those which apply to setting a strategy; by design, because once a strategy has been ‘set’ (but not before) section 21(6) applies to any proposed variation.”

She allowed TAN’s appeal and Holgate and Dingemans LJs both agreed.

TAN director Chris Todd said: “Given how good walking and cycling is for the economy, for improving access to jobs, for the NHS and people’s health, in fact all of Labour’s missions, it has been a mystery why Labour continued defending a Conservative cut.

"It doesn’t make sense unless Rachel Reeves has been captured by the Treasury groupthink. Investing in small scale schemes, rather than glossy mega-projects like roads, means higher returns for the country and real benefits for communities.”

TAN said it understood the Government would seek permission to appeal to the Supreme Court.

Mark Smulian