Dale Vince, R (on the application of) v Secretary of State for Transport [2025] EWCA Civ 763

[2025] EWCA Civ 763Case No CA-2024-002571
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 2936 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Heather Williams
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/06/2025
Before
LORD JUSTICE COULSONLADY JUSTICE ANDREWSLORD JUSTICE HOLGATE
Between
R (ON THE APPLICATION OF DALE VINCE)AppellantSECRETARY OF STATE FOR TRANSPORTRespondent
Estelle Dahon KC and Jessica Van Der Meer (instructed by Leigh Day) for AppellantCain Ormondroyd (instructed by Government Legal Department) for RespondentHearing Hearing dates : 13 June 2025
Approved JudgmentThis judgment was delivered on 13 June 2025 and has been uploaded to the National Archives..............................
[1]The claimant appeals against the decision of Heather Williams J on 7 November 2024 refusing permission to apply for judicial review and ordering him to pay the respondent’s costs of preparing her Acknowledgement of Service. The challenge is to the Secretary of State’s decision of 2 October 2023 to withdraw guidance entitled “Traffic Management Act 2004: Network Management to Support Active Travel” (“the 2022 Guidance”) which was issued under s.18 of the Traffic Management Act 2004 (“TMA 2004”). “Active travel” refers to cycling and walking.[2]Permission to apply for judicial review had previously been refused on the papers by Lang J on 29 May 2024.[3]Part 2 of the TMA 2004 deals with the management by a local traffic authority or a strategic highways company (e.g. Highways England under the Infrastructure Act 2015) of its road network. These bodies are referred to as “network management authorities”.[4]Section 16 sets out “the network management duty”:
“The network management duty (1) It is the duty of a local traffic authority or a strategic highways company (“the network management authority”) to manage their road network with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives— (a) securing the expeditious movement of traffic on the authority's road network; and (b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority. (2) The action which the authority may take in performing that duty includes, in particular, any action which they consider will contribute to securing— (a) the more efficient use of their road network; or (b) the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic on their road network or a road network for which another authority is the traffic authority; and may involve the exercise of any power to regulate or co-ordinate the uses made of any road (or part of a road) in the road network (whether or not the power was conferred on them in their capacity as a traffic authority). (3) In this Part “network management duty”, in relation to a network management authority, means their duty under this section.”
Thus the objectives are focused on the expeditious movement of traffic on the road network. “Traffic” includes pedestrians (s.31) and, there is no dispute, cyclists. (a) securing the expeditious movement of traffic on the authority's road network; and (b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority. (a) the more efficient use of their road network; or (b) the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic on their road network or a road network for which another authority is the traffic authority; and may involve the exercise of any power to regulate or co-ordinate the uses made of any road (or part of a road) in the road network (whether or not the power was conferred on them in their capacity as a traffic authority).[5]Section 17(1) requires an authority to make such arrangements as they consider appropriate for planning and carrying out the action to be taken in performing its duty under s.16. Those arrangements must include processes to ensure (as far as reasonably practicable) the identification of causes, actual or potential, of road congestion or other disruption to traffic and possible action in response thereto (s.17(4)). The arrangements must provide for specific policies or objectives for different roads or types of road and for monitoring and assessment of management performance.[6]The TMA 2004 imposes the duties in ss.16 and 17 on traffic management authorities. There may be competing demands for the use of road space. Public funds are finite. Individual authorities are entitled to set priorities and make choices. They may strike a balance between the considerations relating to different modes of transport.[7]Section 18:
“Guidance to network management authorities (1) The appropriate national authority may publish guidance to network management authorities about the techniques of network management or any other matter relating to the performance of the duties imposed by sections 16 and 17. (2) In performing those duties a network management authority shall have regard to any such guidance.”
The appropriate national authorities are the Secretary of State in England and the National Assembly for Wales in Wales.[8]Thus, the respondent is under no obligation to issue any s.18 guidance, whether on any particular subject, such as active travel, or at all. But where guidance is issued, s.18(2) requires management authorities to have regard to it in performing their duties under sections 16 and 17. The TMA 2004 makes no further reference to s.18 guidance.[9]Section 19 enables the respondent to require a network management authority to provide information connected with the performance of their duties under ss.16 and 17. Sections 20 to 30 deal with the enforcement of those duties by way of inter alia intervention notices and orders (with the appointment of a traffic director) given by the Secretary of State.[10]The first, and now only, s.18 Guidance is the respondent’s “Traffic Management Act 2004: Network Management Duty Guidance” issued in November 2004 (“the 2004 Guidance”). The Foreword states that network management is one element of an authority’s transport functions and should complement other policies and actions, including Local Transport Plans. The document gives general guidance on the scope of the duty, main considerations, wider responsibilities, principles of network management, and good practice on techniques and approach.[11]Under the network management duty local traffic authorities have to take account of the needs of all road users, managing the road space for everyone, which will involve setting priorities and making choices (paras.17 and 26 of the 2004 Guidance).[12]The network management duty is not at the expense of an authority’s other duties and objectives (para.34). “Safety and environmental considerations remain important”. The expeditious movement of traffic should be safe for all road users, particularly pedestrians, cyclists and motorcyclists. An authority also needs to consider its other responsibilities such as those under environmental protection legislation and planning legislation (para.36). It is for the authority to decide on the most appropriate approach for managing demand on its own network. This includes making cycling and walking safer and more attractive (para.38). Although the duties in ss.16 and 17 are the same for all authorities, the issues each faces may differ (para.48). Authorities should have a clear understanding of the needs of different road users and have balanced policies for addressing them. It is for the authority to determine the level of priority given to different road users on each road (para.51).[13]On 9 May 2020 the respondent published supplementary s.18 Guidance entitled “Traffic Management Act 2004: network management in response to COVID-19”. This guidance was updated in May and November 2020 and January and July 2021, leading to the final version (with its altered title) dated 1 April 2022, the 2022 Guidance. It was this version which was withdrawn on 2 October 2023. These versions were all said to be additional to the 2004 Guidance.[14]In his Foreword to the 2022 Guidance, the then Secretary of State said this:
“This additional guidance was originally published as we emerged from the first Covid lockdown in May 2020. The aim was to build on and embed the increases in walking and cycling seen during that time, and an important part of that was the schemes installed under this network management duty (NMD) guidance since the beginning of the pandemic, through the Active Travel Fund. We have seen many positive changes in active travel policy since then. Gear Change made clear the expectations on local authorities and others to provide genuinely game-changing infrastructure. The Transport Decarbonisation Plan sets out how enabling more active travel will contribute to addressing the challenges of climate change. The forthcoming revision of the Manual for Streets will highlight the continuing need to design streets with people walking, cycling and taking public transport as the priority. Active Travel England is now a reality and has the task of making sure walking and cycling provision meets the standard required to deliver these objectives. This additional Network Management Duty guidance is still an important part of this picture. Reallocating space to walking and cycling, in the ways suggested here, is imperative to ensure the objectives in Gear Change and elsewhere are met. Local authorities should continue to make significant changes to their road layouts to give more space to cyclists and pedestrians and to maintain the changes they have already made.”
[15]The 2022 Guidance is a short document, which sets out “high-level principles to help local authorities to manage their roads and what actions they should take”.[16]The 2022 Guidance referred to a number of other Government policy documents including “Gear Change, a bold vision for cycling and walking” (published in July 2020) and the Transport Decarbonisation Plan (published on 14 July 2021). It also referred to official advice on the provision and design of infrastructure such as Local Transport Note 1/20: Cycle Infrastructure Design (“LTN 1/20”) and Manual for Streets 1 and 2. The Guidance also referred to the forthcoming establishment of Active Travel England (“ATE”) (in August 2022), the Department’s agency responsible for allocating funds for active travel schemes across the country. In addition, in July 2022 the respondent had adopted her second Cycling and Walking Investment Strategy under s. 21 of the Infrastructure Act 2015.[17]The following section of the 2022 Guidance is important to the issues in this case: “Reallocating road space: measures As set out in ‘Gear Change’, we continue to expect local authorities to take measures to reallocate road space to people walking and cycling. The focus should now be on devising further schemes and assessing COVID-19 schemes with a view to making them permanent. The assumption should be that they will be retained unless there is substantial evidence to the contrary. Authorities should be considering how to introduce further active travel schemes, building on those already delivered through the Active Travel Fund. Any measures for cycling should be designed to meet the requirements set out in Local transport note 1/20: cycle infrastructure design (LTN 1/20). The summary principles contained in LTN 1/20 should be followed as far as possible to implement safe cycling schemes for people of all abilities, including disabled people. With regard to designing for walking, following the principles set out in Manual for Streets and Manual for Streets 2 is likely to result in schemes that enable more active travel and help meet the objectives set out in Gear Change. Inclusive Mobility, updated in January 2022, provides detailed design advice to ensure the pedestrian environment is accessible to all. Active Travel England (ATE) is in the process of being set up and is intended to be a DfT executive agency with responsibility for reviewing proposed schemes and awarding funding for projects. For government-funded schemes, it will also inspect finished schemes. Funds may be required to be returned for any which have not been completed as promised, or which have not started or finished by the stipulated times. Sustrans have been delivering bespoke training on LTN 1/20 and its tools which have helped empower and enable local authorities to deliver safe, inclusive and good quality cycle infrastructure. None of the measures highlighted in this guidance are new – they are interventions that are a standard part of the traffic management toolkit and the step-change in their rollout should continue. They include:• installing cycle facilities with a minimum level of physical separation from volume traffic; for example, mandatory cycle lanes, using light segregation features such as flexible plastic wands; converting traffic lanes into cycle lanes (suspending parking bays where necessary); widening existing cycle lanes to enable cyclists to maintain distancing. Facilities should be segregated as far as possible, ie with physical measures separating cyclists and other traffic. Lanes indicated by road markings only are very unlikely to be sufficient to deliver the level of change needed, especially in the longer term• enabling walking and cycling to school, for example, through the introduction of more ‘school streets’. These are areas around schools where motor traffic is restricted at pick-up and drop-off times, during term-time. They have been effective in encouraging more walking and cycling, particularly where good facilities exist on routes to the school and where the parents, children and school are involved as part of the scheme development. Regulations giving effect to part 6 of the Traffic Management Act 2004 come into force on 31 May 2022. Local authorities who have taken on Civil Parking Enforcement powers will then be able to apply to take on enforcement powers for the signs used to create school streets.• reducing speed limits: 20mph speed limits are being more widely adopted as an appropriate speed limit for residential roads and many through streets in built-up areas. 20mph limits alone will not be sufficient to meet the needs of active travel, but in association with other measures, reducing the speed limit can provide a more attractive and safer environment for walking and cycling• introducing pedestrian and cycle zones: restricting access for motor vehicles at certain times (or at all times) to specific streets, or networks of streets, particularly town centres and high streets. This will enable active travel but also social distancing in places where people are likely to gather• modal filters (also known as filtered permeability); closing roads to motor traffic, for example by using planters or large barriers. Often used in residential areas, when designed and delivered well, this can create low-traffic or traffic-free neighbourhoods, which have been shown to lead to a more pleasant environment that encourages people to walk and cycle, and improved safety• providing additional cycle parking facilities at key locations, such as outside stations and in high streets, to accommodate an increase in cycling, for example, by repurposing parking bays to accommodate cycle racks• changes to junction design to accommodate more cyclists, as set out in LTN 1/20 – for example, low-level cycle signals, new forms of signal control such as ‘hold the left turn’ and two-stage turns• ‘whole-route’ approaches to create corridors for buses, taxis, cycles and access only on key routes into town and city centres• identifying and bringing forward permanent schemes already planned, for example, under local cycling and walking infrastructure plans The potential to encourage walking and improve public spaces through permanently retaining footways widened to permit social distancing should be carefully considered.”• installing cycle facilities with a minimum level of physical separation from volume traffic; for example, mandatory cycle lanes, using light segregation features such as flexible plastic wands; converting traffic lanes into cycle lanes (suspending parking bays where necessary); widening existing cycle lanes to enable cyclists to maintain distancing. Facilities should be segregated as far as possible, ie with physical measures separating cyclists and other traffic. Lanes indicated by road markings only are very unlikely to be sufficient to deliver the level of change needed, especially in the longer term• enabling walking and cycling to school, for example, through the introduction of more ‘school streets’. These are areas around schools where motor traffic is restricted at pick-up and drop-off times, during term-time. They have been effective in encouraging more walking and cycling, particularly where good facilities exist on routes to the school and where the parents, children and school are involved as part of the scheme development. Regulations giving effect to part 6 of the Traffic Management Act 2004 come into force on 31 May 2022. Local authorities who have taken on Civil Parking Enforcement powers will then be able to apply to take on enforcement powers for the signs used to create school streets.• reducing speed limits: 20mph speed limits are being more widely adopted as an appropriate speed limit for residential roads and many through streets in built-up areas. 20mph limits alone will not be sufficient to meet the needs of active travel, but in association with other measures, reducing the speed limit can provide a more attractive and safer environment for walking and cycling• introducing pedestrian and cycle zones: restricting access for motor vehicles at certain times (or at all times) to specific streets, or networks of streets, particularly town centres and high streets. This will enable active travel but also social distancing in places where people are likely to gather• modal filters (also known as filtered permeability); closing roads to motor traffic, for example by using planters or large barriers. Often used in residential areas, when designed and delivered well, this can create low-traffic or traffic-free neighbourhoods, which have been shown to lead to a more pleasant environment that encourages people to walk and cycle, and improved safety• providing additional cycle parking facilities at key locations, such as outside stations and in high streets, to accommodate an increase in cycling, for example, by repurposing parking bays to accommodate cycle racks• changes to junction design to accommodate more cyclists, as set out in LTN 1/20 – for example, low-level cycle signals, new forms of signal control such as ‘hold the left turn’ and two-stage turns• ‘whole-route’ approaches to create corridors for buses, taxis, cycles and access only on key routes into town and city centres• identifying and bringing forward permanent schemes already planned, for example, under local cycling and walking infrastructure plans The nine bullet points in this extract from the 2022 Guidance have been referred to as “the 9 measures”.[18]Although the 2022 Guidance has been withdrawn, the other policies and guidance to which it referred, such as Gear Change, the Transport Decarbonisation Plan, LTN 1/20 and Manual for Streets, remained in place (although some parts of Gear Change were also withdrawn). In addition, the guidance on 20mph speed limit continues to be replicated in DfT Circular 01/2013 (see the Summary Grounds of Resistance). The remainder of the 2022 Guidance cross-referred to guidance in LTN 1/20 on monitoring, evaluation, engagement with users and consultation. It also summarised legislation for the making of traffic regulation orders.[19]To summarise, the 2022 Guidance was high level and short and relied substantially on cross-references to other documents which continued to apply after it had been withdrawn.[20]The evidence on the decision-making process leading to the withdrawal of the 2022 Guidance covers the period from about March 2023 to 3 October 2023. I deal with this under ground 2 of the proposed judicial review.[21]The appellant’s Statement of Facts and Grounds initially raised 5 grounds of challenge. At the hearing before the judge Ms. Estelle Dehon KC, who together with Ms. Jessica van der Meer appeared for the appellant, withdrew ground 3. The judge decided that the remaining grounds were unarguable. The appellant does not pursue ground 5 in this appeal. We are left with grounds 1, 2 and 4 in the proposed judicial review. Ground of appeal 1 relates to the first ground for judicial review, grounds 2 and 3 relate to the second ground and ground 4 to the fourth ground. I shall refer to the grounds in the claim for judicial review.

Ground 1 of the judicial review

[22]At the hearing before the judge Ms. Dehon also abandoned para.36 of the Statement of Facts and Grounds.[23]The appellant submits that the decision to withdraw the 2022 Guidance undermined or thwarted an objective of the TMA 2004 and so is unlawful. That objective is to ensure that roads accommodate active travel and that such changes are made to roads as will secure and increase active travel (para.35 of the Statement of Facts and Grounds and para. 16 of the Appellant’s skeleton). The respondent’s decision “removes a key part of the statutory framework for active travel and leaves a lacuna”. The 2004 Guidance does not address targets such as active travel, transport sector decarbonisation targets, statutory air quality targets, the Net Zero target and 2028 particulate targets.[24]The appellant’s argument is misconceived. The objectives of the TMA 2004, in particular sections 16 to 18, are to be found in the language used by Parliament. There is nothing in the statute to indicate a statutory objective of requiring, or even encouraging, measures to secure or to increase walking and cycling, or, for that matter, any mode of travel. The objectives in the TMA 2004 of securing the expeditious movement of traffic, and related provisions, are not expressed so as to enhance or prefer any particular mode of travel.[25]Furthermore, the TMA 2004 does not require any s.18 guidance to be produced, whether to address the matters which the appellant alleges have fallen into a lacuna, or at all.[26]The publication of the 2022 Guidance simply involved the exercise by the Secretary of State of a discretionary power. It does not follow from the fact that she exercised her discretion by including a policy that supports retention of existing, and the promotion of additional, Active Transport schemes, that, as matter of law, that policy is to be treated as an objective of the TMA 2024. That is a non-sequitur. The simple point is there was nothing in the Act which required such a policy to be introduced as s.18 guidance in the first place. The authorities cited by the appellant, in particular R (Palestine Solidarity Campaign Limited) v Secretary of State for Communities and Local Government [2020] UKSC 16; [2020] 1 WLR 1774 at [26] and For Women Scotland Limited v Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 at [8]-[11], do not provide any support at all for this fallacious approach to statutory interpretation. The Palestine Solidarity Campaign case was simply a case where the statutory guidance was to the same effect as the primary and secondary legislation. Any guidance issued under s.18 of the TMA 2004 from time to time may change, but the statutory purposes of ss.16-18 do not alter according to changes in that guidance.[27]I would also add for completeness that the appellant has not made out an arguable case on the facts that the withdrawal of the 2022 Guidance has left a policy lacuna. As is apparent from the document itself, as well as from the Summary Grounds of Resistance, much of the Guidance cross-referred to other policies and guidance dealing with active travel and other subjects, which continued to apply. Indeed, because of those cross-references, the 2022 Guidance did not itself dela specifically with subjects such as climate change and air quality, or, for example, in relation to the 9 active transport measures.[28]Accordingly, I agree with the essential reasoning given by the judge for her conclusion that ground 1 is unarguable.

Ground 2 of the judicial review

[29]In summary, the Statement of Facts and Grounds raised three issues which the judge accurately distilled in her judgment at [48]:(i) It was disproportionate for the whole of the 2022 Guidance relating to active travel to be removed for reasons that related only to low traffic neighbourhood schemes (“LTN schemes”). It was only necessary to withdraw the LTN part of the Guidance;(ii) The respondent failed to have regard to the wider role of the 2022 Guidance in “embedding active travel measures”, addressing climate change and improving air quality;(iii) The respondent’s decision was taken for an improper purpose unrelated to the statutory purpose. The LTN reason could not itself accord with the statutory purpose relating to active travel more widely (see ground 1), or provide a lawful basis for the wholesale removal of the wider guidance on active travel.[30]It will be seen straight away, that point (iii) depends on the appellant’s contentions on statutory purpose under ground 1 which, for the reasons already given, are misconceived.[31]These three points have been reordered in the appellant’s two skeletons for this hearing. Ground of appeal 2 relates to point (ii) and ground of appeal 3 relates to points (i) and (iii).[32]Underlying all these points is a factual issue. What were the considerations upon which the Secretary of State’s decision was based? Were they limited to concerns regarding LTN schemes? It is convenient to deal with this next.[33]The 2022 Guidance identified 9 measures for reallocating road space to people walking and cycling, that is to active travel. The document states that none of the measures were new. They already formed “a standard part of the toolkit”. What the 2022 Guidance did was to promote a “step-change in their roll out”.[34]One of the 9 measures was the use of “modal filters” to close roads to traffic by using planters or other barriers. “This can create low-traffic or traffic-free neighbourhoods”. But the document did not say that this measure represented the only way of creating a LTN scheme. Another measure involves the introduction of pedestrian and cycle zones, restricting access by motor traffic at certain times or at all times. Such measures also were treated as LTN schemes in the ministerial briefing on the LTN review dated 31 August 2023.[35]The respondent considered concerns about “15 minute cities” in a submission by officials in March 2023 (see para.35 of the Summary Grounds of Resistance). The paper recognised that the Government’s ambition was to encourage active travel and modal choice, rather than restricting private car access or travel. The supplementary s.18 Guidance sought to embed and build on increases in active travel seen during the pandemic by reallocation of road space to people walking and cycling. That was plainly a reference to the Secretary of State’s Foreword and the 9 measures in the 2022 Guidance. Officials advised that that s.18 guidance could be updated to say that measures which restrict vehicle movement are not favoured. They also advised that the 2022 Guidance could either be updated to remove reference to modal filters, or the Guidance could be removed altogether, and new s.18 guidance issued taking “a stronger stance on traffic filters and measures which restrict vehicular movement”. Ministers requested further consideration of those options. The significant point is that from the outset, the respondent’s concerns were not limited to only one out of the 9 measures in the 2022 Guidance. There was a broader concern about measures restricting vehicular movement.[36]On 1 August 2023 officials made a ministerial submission advising on next steps regarding LTN’s. The paper put this issue into a wider context. An emerging policy document “Plan for the Motorist” proposed that only those schemes restricting access for drivers that are well-designed and have broad support would be taken forward. Paragraph 7 recommended that as a first step the 2022 Guidance on “road space reallocation for active travel” be withdrawn. Paragraph 8 recommended the preparation of new supplementary guidance setting out how authorities should ensure that traffic management schemes are well-designed and enjoy wide support. That suggestion was not limited to LTNs. Authorities would be directed to use a toolkit developed by ATE to ensure rigorous, consistent assessment of proposals. Paragraph 9 advised that the new guidance should set high standards for community engagement in scheme development. There would be an opportunity for ATE to inspect a much wider range of schemes for compliance with the guidance (para.10). The briefing referred to research commissioned on 20 large “active travel” schemes, including, but not limited to LTNs, which would address inter alia, modal shift (para.13).[37]Ministers agreed to a note being sent to No.10 setting out that course of action and stating that the immediate withdrawal of the 2022 Guidance would itself “send a clear message that things have changed” (para.40 of the Summary Grounds of Resistance).[38]The judge also referred at [22] to [23] to a “tactical update note” submitted to ministers in August 2023 with an annex.[39]A further ministerial submission was made on 31 August 2023 seeking approval for the approach proposed for the Departmental review of LTNs. It was noted that an additional evaluation of the impacts of “various types of schemes (including LTNs)” funded by the Active Travel Fund had already been carried out (para.5). It was proposed that updated s.18 guidance be considered which could address the use by local authorities of traffic management measures (para.8). Officials recommended that the 2022 Guidance be withdrawn. The advice it contains “now feels dated and no longer in line with Ministerial priorities. We would look to replace it in due course with new guidance shaped by the outcomes of the LTN review” (para.9).[40]Ministerial approval was given to the withdrawal of the 2022 Guidance on 12 September 2023. The decision to withdraw was announced on 2 October 2023, the same day as the publication of the policy paper “The Plan for Drivers”.[41]It appears that draft s.18 guidance was published in March 2024 alongside the report of the LTN review. Consultation with key stakeholders was to take place by 24 May 2024. But that was the date on which Parliament was prorogued prior to the General Election that year and so that process did not continue.[42]In my judgment the judge was entitled at [52] to accept the respondent’s submission in para.45 of the Summary Grounds of Resistance that the withdrawal of the 2022 Guidance was not solely concerned with LTNs. It was part of a wider emerging policy that the shift to sustainable transport should be delivered in a way that was less hostile to the interests of drivers and to encourage authorities to develop new traffic management measures, including but not limited to LTNs, with increased community involvement. The Government wished to replace the 2022 Guidance with an updated policy.[43]Paragraphs 31 and the 32 of the appellant’s skeleton fail to grapple with the judge’s careful analysis of the 2022 Guidance and the sequence of submissions made by officials to ministers. Paragraph 31 selectively criticises the judgment at [55]. Paragraph 32 ignores the references in the submissions to active travel and other matters in addition to LTN’s. When dealing with the 2022 Guidance the briefing referred to active travel measures and the reallocation of road space to cycling and walking.[44]With regard to climate change and air quality, the 2022 Guidance barely referred to those matters. Climate change issues were addressed in the Transport Decarbonisation Plan. The withdrawal of the 2022 Guidance did not affect that plan. It is not arguable that the briefing to ministers was legally deficient, applying the approach approved in R (Save Stonehenge World Heritage Site Limited)v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726 at [91]-[97]. The briefing did not fail to draw attention to any obviously material consideration. Instead, the briefing in March 2023 stated that the 2022 Guidance intended to build on and embed increases in walking and cycling seen during the pandemic, a plain reference to the Secretary of State’s foreword.[45]All of the appellant’s contentions raised under point (ii) are unarguable.[46]Point (iii) is also unarguable. It wrongly assumes that the reasons for the change in policy direction were limited to LTNs.[47]That leaves point (i). It is contended that the respondent acted disproportionately by withdrawing the whole of the 2022 Guidance when the Government’s concerns were related only to LTNs.[48]As the judge rightly pointed out at [50] there is no allegation in this case of a breach of the ECHR or of a fundamental common law right. Disproportionality is not a freestanding ground of challenge in judicial review. Instead, Ms. Dehon submits that disproportionality may support an allegation of irrationality. She relies inter alia on Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G and McGrath v Secretary of State for Work and Pensions [2012] EWHC 1042 (Admin) at [33]. Likewise the submission that a decision is unlawful where manifestly disproportionate weight has been given to a consideration depends upon the irrationality principle (Humber Landlords Association v Hull City Council [2019] EWHC 332 (Admin) at [57]).[49]In this context it should be remembered that the court is dealing with policy-making at the national level in the macro-political field by a Minister accountable to Parliament. The legal approach to cases of this nature is sensitive to the circumstances involved, but in my judgment a relatively “light touch” or “low intensity of review” is required here (see e.g. R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1005; [2021] Env. L.R. 215 at [47]-[51]).[50]In any event, the complaint is unarguable. As I have previously explained, the decision being challenged was based on wider considerations requiring the withdrawal of that guidance and the issuing of new guidance than simply concerns about LTN schemes.

Ground 4

[51]The appellant submits that the respondent’s decision was irrational because(i) it was founded on an error of logic or(ii) there was no evidence to support an important step in the decision-maker’s reasoning.[52]The appellant seeks to criticise a statement made by the Secretary of State in Parliament where he referred to the 2022 Guidance as “outdated COVID guidance”. That argument could give rise to issues under Article 9 of the Bill of Rights 1689. But in any event the appellant relies upon further material in pre-action disclosure by the respondent which does not engage that provision. First, a ministerial submission stated that some commitments in Gear Change were a response to the pandemic which was no longer appropriate; the focus there on the rapid roll-out of LTNs no longer reflected current political priorities. Second, a ministerial submission referred to the Guidance as having been first issued at the height of the pandemic and revised in 2022 and the advice it contains “feels dated” and no longer reflects current political priorities.[53]The appellant submits that a “serious logical error” was made in that the Secretary of State failed to appreciate that for 2 years the Guidance had ceased to operate as COVID guidance and was meant to be in place long-term with the intention of “making permanent and capitalising on the changes made during the pandemic”.[54]I would not have described the complaint as relating to an error of logic. Instead, the allegation is simply that the decision-maker misunderstood his own policy. That is how the point is now put in the skeleton for the hearing before this court. It is said that the Guidance was amended in 2022 so that it no longer focused on Covid measures, but aimed to embed active travel well into the future, at least 2050, given its reference, for example, to the Transport Decarbonisation Plan.[55]There is nothing here which could be said to amount to an arguable error of law. It would have been obvious to officials and to the respondent that the pandemic had ended. Briefing to Ministers made it clear that the Guidance had been updated in April 2022 and sought inter alia to embed and build on increases in walking and cycling during the pandemic. But by October 2023 the respondent’s policy approach had changed to the extent that she considered it necessary to withdraw the 2022 Guidance and to set in motion an updating of that document. The reasoning which led to that decision betrays no arguable error of law in understanding the 2022 Guidance. The 2022 version did not indicate that it would remain in place for a lengthy period of time. Policies on active travel, such as the Transport Decarbonisation Plan, remained in place. But the respondent decided to alter the approach taken in the 2022 Guidance to that subject, as she was entitled to do. She was also entitled to treat that guidance as out of date in the sense that it did not reflect the altered approach she wished to take. The appellant’s case is really a disagreement about the merits of that change in approach.[56]The appellant’s skeleton argument reveals that the “no evidence” complaint is not based upon any additional point. It simply recycles contentions which I have already addressed.

Conclusion

[57]I would refuse the applications for permission to appeal against the order of Heather Williams J and for permission to apply for judicial review.[58]I agree.[59]I also agree.