Comment: Does the new TfN strategy meet its legal requirements to protect the environment?

Anthony Rae writes 6th February 2018:  It’s not at all well-known that the content of the new Transport for the North’s strategic transport plan, and the process by which it is produced and consulted upon, are actually laid down by an act of Parliament. That is quite unusual for this type of strategy, and it means that it must – no ifs or buts – meet those requirements, otherwise it could ultimately be subject to legal challenge. So what are they and, consequently, how do we go about assessing whether the strategy actually meets them?

Maybe you’re not familiar with subsection 8 of section 102I of the Cities and Local Government Devolution Act 2016Transport strategy of an STB? [page 34 of the pdf] ‘STB’ stands for ‘subnational transport body’, of which Transport for the North is the first in the country. What subsection 8 says is that: ‘In preparing or revising its transport strategy an STB must (among other matters) have regard to …’ – and I’ll come back to that ‘have regard to’ at the end, although the ‘must’ is good and strong – ‘… must have regard to (a) the promotion of economic growth in its area’. Now there’s no doubt whatsoever that the strategy does fulfil that statutory requirement. Its pages are full of justification in terms of a claimed link between investment in ‘connectivity’ and increased GVA growth, with plenty of figures; and behind that is all the detailed analysis of the constituent reports of the Independent Economic Review published in June 2016.

But what about the next bit: ‘… must have regard to (b) the social and environmental impacts in connection with the implementation of the proposals contained in the strategy’? Surely that must include transport’s carbon emissions? And also the air pollution that results in around 40,000 premature deaths a year? (Made up of 23,500 from NO2, and 29,000 from PM2.5, with an overlap. Those figures are from the DEFRA 2015 air quality plan para.8, but appear to have mysteriously disappeared from the 2017 revision). And so much more: noise, landscape impacts etc etc. If the requirements of section (b) are to be treated with the same weight as (a) then surely we’ll be expecting to find an equal, and balancing, amount of the strategy to be given over to the analysis and mitigation of those ‘social and environmental impacts’, equally to be strongly supported by evidence. So that is a primary test that needs to be applied to the strategy.

And then there’s ‘… must have regard to (c) any current national policy relating to transport that has been published by or on behalf of Her Majesty’s Government’. So presumably that would include the policies required to achieve compliance with the Climate Change Act 2008, and in order to meet its carbon budgets (formally adopted by Parliament), and the recommendations of the Committee on Climate Change requiring ‘a reduction in emissions of 44% from 2016 to 2030’ CCC 2017 Progress Report p.111 – and please note that that excludes aviation emissions. So we should also expect the strategy to have identified the principal policies relating to transport to which it must adhere. That’s another test.

And finally there’s ‘… must have regard to (d) the results of the public consultation’. That’s actually quite handy because, if during the consultation, lots of people were to point out that the strategy hasn’t complied with (b) and (c) then TfN would be required by law to respond by making changes to the strategy.

Other subsections of section 102I are of interest too. 10) states that: ‘The constituent authorities of an STB must exercise transport functions with a view to securing the implementation of the proposals contained in the STB’s transport strategy.’ The implication of this would be that, for example, proposals in the transport strategy to reduce carbon emissions to a quantified target level would also have to apply to combined authority and local council transport strategies as well. Note that ‘must’ word again.

(1) is not quite so strong but still merits attention: ‘The transport strategy of an STB is a document containing the STB’s proposals for the promotion and encouragement of sustainable, safe, integrated, efficient and economic transport facilities and services to, from and within the area of the STB.’ Sustainability and integration within the TfN area are identified as important.

Now please don’t think this is all purely theoretical because in January 2017 the environmental transport organisations across the North wrote to the then chief executive of TfN, David Brown, pointing out that we were aware of the requirements of subsection 8 and that we would expect the strategy, when it eventually emerged, to be compliant with it. You can read the letter here.

And we got a reply, which said: “We are committed to compliance with all relevant legislation, including the Cities & Local Government Devolution Act 2016, and the Climate Change Act 2008 in relation to what is within our control in dealing with carbon emissions and pan-Northern transport.” 13 February 2017

So, forewarned is forearmed. When you go to the consultation events make sure you refer to subsection 8 of section 102I of the Cities and Local Government Devolution Act 2016, and do ask whether the strategy does indeed conform to sub-subsection (b)? If they look surprised it may be that they’ve not heard of these apparently technical details.

But above all do mention your expectation that the strategy must comply with these requirements, laid down by Parliament in order to make sure that the TfN strategy when approved does indeed fully integrate and incorporate its responsibility to respond to the ‘social and environmental impacts’ of its implementation.


Note on ‘have regard to’ There might be a view that the requirement on TfN to ‘have regard to’ an issue isn’t particularly strong. Maybe just a token reference to it might suffice, without any subsequent need to actually tackle the problem referred to. So could the fact that the strategy states ‘Reducing carbon emissions is now imperative.’ p.35pdf – accompanied by a few more generalised statements of that type – be sufficient to pass the ‘have regard to’ test? And what about if it goes one step further: includes the issue (e.g. carbon emissions) in a sustainability appraisal, which makes generalised references to the need to reduce emissions? Would that be sufficient?

I don’t think so. If the issue is regarded as significant in policy terms (as unquestionably climate change and carbon reduction is) then passing the ‘have regard to’ test will also require i) reference to the national policy framework, identifying its expectations; ii) the provision of evidence in support of the strategy’s analysis; iii) a quantification of the impacts (particularly in the case of carbon); iv) the modelling what the impact of the strategy will be over its life, and at its end date; and v) what mitigation measures the strategy consequently has incorporated to respond to all the previous i-iv). And if it doesn’t do that, it fails the test.