Written evidence submitted by the Arundel Bypass
Neighbourhood Committee (SRI0001)

1. Introduction

The Arundel Bypass Neighbourhood Committee is one of the four local organisations making up the Stop the Arundel Bypass Alliance. Its website is www.arundelbypass.co.uk. The other members of the Alliance are Arundel SCATE (part of the South Coast Alliance on Transport and the Environment), Walberton Friends and Neighbours, and the Arun Countryside Trust. The Alliance was formed as a result of the Statutory Consultation in 2022 to fight the Preferred Route for the scheme, known as the Grey Route. All four organisations support a much smaller, locally promoted scheme known as the Arundel Alternative – a short section of single-carriageway new road cutting out 5 of the present pinch points, and aimed at making the traffic flow better without providing new ‘capacity’ or an increase in traffic: www.arundelalternative.org.

2. Summary

This paper mainly deals with misuse of the consultation process. National Highways have misused the consultation process throughout the history of the scheme. In the 2017 and 2019 consultations they used false statements, confusing labelling, tendentious diagrams and maps, untrue press releases, failure to survey wildlife on additional routes, unfair allocation of resources, and other methods as described below.

This should lead to a ‘risk’ that the scheme will not succeed in planning. Other ‘risks’ to the progress of the scheme, not dealt with in detail here, have been mounting costs, with a predicted maximum of £1.2bn, far above what has been stated in consultations; a Low to Poor cost-benefit ratio; and choice of a Preferred Route which is not wanted by consultees and is very damaging to communities, possibly leading to a risk of civil disobedience if the scheme goes any further. The new road would bisect two villages and cause unacceptable rises in traffic in two more. A further risk is that the scheme contradicts policy on carbon emissions. This is a risk that applies to all new road schemes.

3.         Background to the scheme

A bypass of the historic town of Arundel was built in the 1970s. However it divides the town from its newer suburb, Torton Hill. That bypass is single carriageway and connects two further sections of single carriageway on either side, both winding and descending steep hills, linking sections of dual carriageway. Plans for a further bypass to link the sections of dual carriageway have been mooted ever since the 1950s.

The area south and south-west of Arundel which the bypass would have to traverse consists of the river Arun floodplain, known as the Arundel Watermeadows, with its iconic view of the hilly town of Arundel with its castle; a large area (170ha) of woodland, now a Local Wildlife Site, made up of Binsted Woods (the western and larger part) and Tortington Common; two ancient spread-out villages (Tortington and Binsted), both with 12th century churches; and tracts of unspoilt countryside – farmland with many species-rich hedges, ditches, ponds, trees, field edges, chalk streams, wetlands, pasture and hay meadows.

This large area of superb and varied countryside, the two woodland areas together with the fields, villages and other habitats, has been researched in 2015-2018 by MAVES (Mid Arun Valley Environmental Survey) and found to be on a par with designated areas such as Ebernoe Common and the Mens in its wildlife richness (see www.maves.org.uk). For instance, it is of international importance for bats and supports 16 of the UK’s 17 species.[1]

a) The 1990s: Pink-Blue route (later Option 3, Crimson)

Back in 1992, with the aim of saving Binsted Woods, the Sussex Wildlife Trust proposed a route (known as Pink-Blue) which avoided both Binsted village and Binsted Woods, instead cutting across Tortington Common, woodland partly coniferised in the 1970s and damaged in the 1987 hurricane. This route passed through Tortington village and crossed the Arundel watermeadows south of the town. A Department of Transport comparison of this route with routes further west said that Binsted Woods (100 ha) are ‘nationally important’. The route was chosen as the Preferred Route (1993), but was not built. The South Coast Multi Modal Study (SoCoMMS) recommended in 2002 that the route should be built. The scheme was cancelled in 2003 by the Transport Secretary, Alistair Darling, on account of the beauty of the watermeadows.

b)    Creation of the National Park and new Ancient Woodland legislation

Tortington Common has been regenerating over the years since 1987 as mainly semi-natural woodland, and both it and Binsted Woods are now in the South Downs National Park (first drafted 2001, created in 2009). The current National Policy Statement for National Networks (2014) states that major new roads cannot be built through National Parks unless there is no alternative. Tortington Common is classed as PAWS (Plantation on an Ancient Woodland Site) – a type of Ancient Woodland. Stronger legislation protecting Ancient Woodland (defined as wooded since 1600) has meant that the old Preferred Route would now be very expensive to build. Current regulations require 7h (or more) of new woodland to be planted for each hectare of Ancient Woodland lost.

The new legislation also gives the recovering replanted woodland of Tortington Common greater protection than the ‘nationally important’ woodland of Binsted Woods, since 5 out of 20 named woods in Binsted Woods are not designated as Ancient Woodland, though Binsted Woods as a whole have existed since the Domesday Book (over a thousand years) in much the same areas. The non-designated areas of Binsted Woods are as important as the rest of Binsted Woods in wildlife and landscape terms, and similarly species-rich.

4.         The 2017 public consultation and the 2018 Preferred Route

In August to October 2017, Highways England ran a ‘public consultation’ in which they offered three dual carriageway options: a route similar to the old Preferred Route across Tortington Common and through Tortington village (Option 3), a route through Binsted Woods and Binsted and Tortington villages (Option 5A), and an improvement of the present A27 with a short section of new road (Option 1). In May 2018 they announced that Option 5A was their ‘Preferred Route’.

Fig. 1. The three Options for the Arundel Bypass consultation 2017

The consultation documents contained many serious omissions, errors and false statements, which hid the damage from Option 5A, and financial and traffic data favourable to Option 5A that were then shown to be false by Highways England’s own Scheme Assessment Report (SAR), published June 2018.

a)     False description in the launch press release

On the first day of the consultation, 22 August 2017, the Highways England press release stated 5A went ‘between Binsted Woods and the National Park’. This was a falsehood since Binsted Woods are in the National Park. It was doubly false in implying 5A damaged neither Binsted Woods nor the National Park: 5A destroyed parts of both.

This description was never recalled or corrected (except on the Highways England website), despite complaints, and was still being quoted in newspapers 10 months later as if it was correct. The untrue description was repeated in the front-page article in the West Sussex Gazette of 2 May 2018.

b)    Misinformation about 5A in the consultation

False statements hid the damage from 5A to Binsted village (partly in the National Park), Binsted Woods (entirely in the National Park) and the historic parkland called Binsted Park (entirely in the National Park).

i.                    Damage to Binsted village

Option 5A was wrongly stated to pass 500m north of Binsted village (HE, Environmental Study Report (ESR), 12.4.19). In fact Option 5A went through Binsted village, 75m from the nearest three houses and separating 4 from the other 34. It passed through the village from one end to the other with 11 houses just outside the 200m line.

ii.                 Damage to Binsted Woods

5A would have severed 20 ha of Binsted Woods, destroyed between 6 and 13 ha (or more, depending on the design of the junction), and degraded at least 15 ha of what was left. This damage was hidden both by errors and omissions:

-          Failure to define or describe Binsted Woods as distinct from Tortington Common – including misuse of the name ‘Binsted Wood’ for the whole area (e.g. Environmental Survey Report/ESR, 8.6.6).

-          False statement that ‘no semi-natural woodland’ was harmed by any of the options (ESR, Table 8.5).

-          Omission of important sections of Binsted Woods on many maps.

A majority of the base maps used in the consultation documents simply omitted the non-designated parts of Binsted Woods – five out of 20 named woods (e.g ESR, Appendix A, Figs 6.1, 7.1, 8.1, 8.2, 9.1, 11.1, 13.1, Preliminary Environmental Assessment Appendix A Fig. 1, Technical Appendix F1, F2, F3, etc.). On other maps, purporting to show all woodland, the erroneous outline of Binsted Woods (only showing designated woodland) was what stood out, as in Fig. 1 above (e.g. Consultation brochure, Fig. 1). The different mustardy green for non-Ancient Woodland was hardly distinguishable, and its outline was not correct, bleeding into fields.

iii.               Destruction of Binsted Park

Binsted Park is a ‘historic parkscape’ (defined as such by Historic England), i.e. an attractive landscaped park wholly surrounded by woodland. It contains large trees, some now 300 years old, and was designed to be viewed from Binsted House (c. 1600 - now rebuilt). Option 5A would pass through it and destroy it.

-          Most of the woodland surrounding Binsted Park was not shown on HE’s maps.

-          The ESR contained a photograph captioned ‘Binsted Park’ but showing a tarmac road on Tortington Common (ESR Fig. 7.9, ‘Viewpoint 6, Binsted Park’).

-          Part of Tortington Common was erroneously labelled ‘Binsted Park’ on maps (e.g. ESR Fig. 7.2, ‘Landscape context’).

-          The name ‘Binsted Park’ was misused apparently to refer to the whole woodland area of Binsted Woods and Tortington Common (e.g. ESR 16.2.95).

-          A Table incorrectly stated that Binsted Park was outside the scheme area (Table B26, ESR, Appendix B).

c)     Misinformation on the other options

The consultation made Options 3 and 1 appear more damaging than they really were.

• Option 1 was designed with a 40 mph speed limit. But this did not appear anywhere in the consultation documents and you had to speak to someone at a manned exhibition to find this out.
• Option 3 passed through the recovering conifer plantation of Tortington Common. Tortington Common was twice erroneously stated to be ‘all semi-natural’ (ESR 8.6.6 and 7.4.8b).

d)    Misinformation on biodiversity/environmental impact

The consultation’s Environmental Study Report (ESR) was extremely faulty, with many errors and omissions. It was based on a three-day visit in January, when most species are dormant, and one car journey. For instance, it stated there are no badgers in the area, when in fact Binsted Woods and their associated fields are at capacity for badgers, so that new setts are being built in fields. An analysis of the ESR’s faults by a professional ecologist can be found in ABNC’s evidence to the consultation (www.arundelbypass.co.uk/consultation-2017, Evidence C4).

The Mid Arun Valley Environmental Survey group (MAVES) had submitted bat surveys in 2016 and 2017 showing that 14 species of bat, including Annex II species barbastelles and Bechstein’s bat, and the very rare alcathoe bat, were found in the area. The 2017 consultation ignored these data and merely said that five species of bat were probably present, and rare bats were unlikely to be present.

e)     Misinformation on Benefit-Cost Ratios

The Benefit-Cost Ratio (BCR) Highways England gave in their May 2018 Scheme Assessment Report for Option 5A was 1.51 (table 6.14, p.100 of their SAR). In the 2017 consultation they had stated that 5A had a BCR of 2.60 (Economic Assessment Report, Table 6.11, page 31). A BCR of between 2.00 and 4.00 is considered high value for money. The higher BCR quoted in the consultation played a major part in the choices by Local Authorities to support 5A.

In the 2015 Feasibility Study the route most similar to 5A had had a BCR of 1.7. The change to 2.6 was explained at consultation events by 5A’s costs having reduced, even though the route now had a complex, 8-lane junction at the western end instead of an at-grade roundabout, so this seemed unlikely.

f)      Misinformation on traffic figures

The traffic information given in May 2018 (SAR, 2018) was based on a new model using mobile phone information and showed predicted traffic levels as 37 per cent higher than previously calculated. It included induced traffic whereas previous figures did not.

In 2017, 5A was presented as giving much better ‘traffic relief’ to Downland villages than the other options. In the 2018 report this advantage disappeared, and all three options were said to give similar relief. The much greater relief supposedly provided by 5A played a major part in the choice by Local Authorities to support 5A.

g)     Unfair distribution of resources and dissemination of information

Engagement and advocacy were not equally distributed among affected communities during Stage 2. For example, in 2017 Arundel Town Council was treated as a Tier 1 local authority and briefed in person on confidential route options by the former Chief Executive of Highways England six weeks before formal consultation. There was a secret meeting on 7 July 2017, six weeks before the consultation began on 22 August, between Highways England’s CEO, Jim O’Sullivan, and representatives of West Sussex County Council, Arun District Council, and Arundel Town Council, at which the route options for the consultation were revealed in advance. Walberton Parish Council, on the same level of local government as Arundel Town Council (by definition a Parish), was not invited or told about the routes.

The result of this meeting was a ‘Memorandum of Understanding’ between Arundel Town Council and Arun District Council with the effect that Arun District Council was committed to supporting an offline, not a part-online route. This took place before the consultation had even started. The MOU was Agenda Item 6 of the Cabinet meeting of 31 July 2017.

The availability of public exhibitions and brochures at the 2017 consultation was much greater for people at the Arundel end of the scheme, who would benefit from an offline bypass, than for people such as residents of Walberton, Binsted and Tortington villages, who would be impacted by an offline bypass.

During successive non-statutory public consultations in 2017 and 2019, National Highways allocated 9 times more engagement resources to holding staffed consultation events in Arundel compared to Walberton. The former program leader did not attend a single public event in Walberton during his entire tenure of the option selection process. No advocates were selected by National Highways from among residents, their representatives or community groups in the western villages.

h)    Continuing misinformation in 2018 SAR

The 2017 consultation contained no information at all on views in Tortington and Binsted except one wrongly captioned one. The new information in the 2018 SAR on the effect of Option 5A on views highlighted 26 viewpoints. But despite being improved, the new viewpoint information still hid the impact of 5A on Binsted Woods and their environs.

Of the 26 new viewpoints, there were none in Binsted Woods. Four in Tortington Common were erroneously captioned as in Binsted Woods. These new views, together with some in Binsted Woods, should have been included in the consultation (with correct captions).

The new viewpoints showed that the damaging effect of Option 5A on Binsted Woods was still being hidden by errors in the information given.

5.         Legal challenges to the 2018 Preferred Route decision

The South Downs National Park decided in May 2018 to pursue a Judicial Review of Highways England’s Preferred Route decision on planning policy grounds. It considered that in its 2017 consultation HE did not fulfil the relevant paragraphs of the National Planning Policy Framework about major infrastructure developments in National Parks.

A second Judicial Review was applied for by local resident Dr Emma Tristram (author of this paper) on the grounds of the errors and omissions in the consultation which prevented respondents from being able to make a properly informed decision. Both Judicial Reviews were given permission to proceed.

a) The Ancient Woodland error

During the exchange of Witness Statements which took place in 2018, another very serious error in the 2017 consultation came to light. The witness statement of Charles Evans of the consultants WSP stated that the calculation of the amount of Ancient Woodland (AW) that would be destroyed by Option 3 had radically changed. The figure quoted in the 2017 consultation was 24.31 hectares. The new figure given by Charles Evans was 12.15 hectares.

One of the figures used to persuade consultees to support 5A in the 2017 consultation was the figure of c.24 ha of Ancient Woodland supposedly taken by Option 3 - and the multiple of 7, or up to 30, replacement planting now required by the latest legal protection for Ancient Woodland. If the multiple was 7, 7 times 24 is 168 ha. If multiplied by 30 it was an impossible-sounding 720 ha. Throughout the consultation, HE declined to reveal how much mitigation for Ancient Woodland would cost for each option, or what multiple it had used, and the possible multiples of 7 and 30 were used to influence opinion at exhibitions and talks. The higher cost given for Option 3 (£260m), it was suggested, was due to the large amount of Ancient Woodland it would take. Immediately after the consultation HE revealed that it had used a multiple of 7 in its costings. If the true figure of AW taken by Option 3 was now 12 ha, not 24 ha, the 'scare tactic' of a multiple of 30 used in the consultation is shown to have had even less basis in reality.

The new figure would have affected the costings and therefore the BCRs and business case for each of the options. It is likely that Option 3 - shown to be £10m more expensive than Option 5A in the 2017 consultation - would no longer have been the most expensive option. The BCR of Option 5A fell from 2.6 (in the consultation) to 1.5 (in the SAR). The change in the AW figure could be expected to affect the BCR for Option 3, giving it a higher benefit, and this might have changed the relative BCRs of the two routes.

Charles Evans suggested the error came about through a software incompatibility. At para 6.3.4 of his witness statement he said: 'A particular piece of software used to calculate the overlapping areas of an option footprint and Ancient Woodland did not function correctly when interfacing with the main GIS software'. He also stated at para 6.3.2 that the error was discovered by consultants WSP on 14 May 2018 and notified to HE on 21 May 2018 - a few days after the Preferred Route announcement on 11 May 2018.

The 2019 consultation also contained an important error about woodland, markedly affecting the comparison of the various routes – an error which made the offline routes HE wanted look less damaging than the part-online routes they did not want (see below).

b) Result of the two legal cases

Both legal cases were withdrawn when Highways England offered a new consultation. This decision was announced on 12 October 2018. The two claimants, myself and the South Downs National Park, and Highways England, signed a Consent Order dated 13 November 2018. This stated:

‘1. The Defendant will conduct a fresh non-statutory public consultation process in relation to its selection of the preferred route for the proposed A27 Arundel Bypass.

2. The further consultation will be full and open, and carried out lawfully and in compliance with the rules of procedural fairness.

3. The further consultation will allow consultees to comment on all three route options consulted upon in 2017: namely Option 1, Option 3 and Option 5a.

4. The Defendant will ensure that a comprehensive suite of documents is published, including a main consultation document, an updated Environmental Assessment Report, an updated Combined Modelling and Appraisal Report and an interim Scheme Assessment Report. This material will be supplemented by materials prepared for and displayed in a series of public exhibitions.

5. The Claimant will have the opportunity to make substantive representations on the options as part of the new consultation exercise.

6. The further consultation will give the Claimant and the public the opportunity to consider the new traffic figures based on the Defendant's PCF Stage 2 traffic model; relevant corrections to materials published in the previous consultation; and full Stage 2 assessments of Options 4 and 5B.

7. Following the end of the further consultation process, the Defendant will make a new Preferred Route Announcement (PRA) in respect of the selected route option, including if that is Option 5A. The new PRA will have the same status as is usually afforded to PRAs.’

Highways England stated at the time, and continued to state, that the decision to have a new consultation was the result of the discovery of ‘new information’. No mention was made of the legal cases. It has not been possible to discover exactly what this ‘new information’ was. Their own announcement of the new consultation said: ‘This new information includes a redesign of the western end of the scheme where it re-joins the existing A27, updated traffic modelling results and updated data on and enhancements of the alternative Options 1 and 3.’ Arundel bypass – further consultation next spring - GOV.UK (www.gov.uk)

In section 18, ‘Scheme development’, of the Scheme Assessment Report of October 2020, the following explanation is given (18.2.1.2-3). After the announcement of 5A as the Preferred Route in May 2018, ‘The preliminary design of this preferred route then began, to further develop the design and progress the Scheme towards applying for development consent from the Secretary of State. This included looking at design refinements for minimising impacts on protected ancient woodland and biodiversity at the western end of the route. During this process new information was discovered which led Highways England to decide to undertake a further public consultation on route options to ensure the public's views on the Scheme were based on the latest available information.’ No mention is made of updated traffic modelling or updated data on enhancements of Options 1 and 3.

6. The new consultation in 2019

A new consultation followed in August to October 2019. It offered six routes, the old three (one in two versions), and two more further west and south (see Fig. 3). The 2019 consultation was better prepared than the 2017 consultation. But it had just as many flaws.

a)     The whole consultation was biased in favour of the offline routes

The consultation was biased against a near-online solution. The Cyan and Beige (part-online) options, now designed at 50-70 mph where the previous consultation offered this route at 40mph, were not reasonable in the location. An elevated road (Cyan) or an 8-13 lane junction at Ford roundabout (Beige) would be eyesores close to the historic town of Arundel. A similar bias was demonstrated at the 2017 consultation with the ludicrous walking and cycling 'bridge' at the Ford Road junction.

The bias was also shown in the publicity accompanying the consultation, the erroneous, and highly misleading, figures for woodland impact, the problems with naming the routes and errors of naming, and the fact that there were no wildlife surveys for the two new routes, Magenta and Grey. Instead, only surveys of the ‘old’ three routes from the 2017 consultation were offered, and even the choice of the new Preferred Route was based on these inadequate surveys.

b)    Pro-offline bypass bias in the scheme’s publicity

HE produced two videos as part of the campaign. Both were called ‘The A27 at Arundel’. One was an animation, the other consisted of filmed interviews. The interviews included speakers from OneArundel, but no other community groups were represented, and no environmental groups. OneArundel is a pro-offline-bypass pressure group which claimed 600 members in 2017. Its aim is to move the A27 far away from Arundel regardless of the consequences. It does not represent the range of opinion in Arundel, or the communities such as Walberton, Binsted and Tortington which would be affected by a new bypass. According to the Highways England website, 132 key stakeholders sent in written responses to the 2017 consultation. Only 5 were invited to contribute to this video. This was highly unbalanced. Both videos were subsequently removed from HE’s website due to complaints about misuse of data.

The films also contained untruths. A key benefit was stated to be that the road will ‘limit air and light pollution, protecting our local environment.’ On the contrary - any new dual carriageway at Arundel would severely damage ‘our local environment’, damaging the National Park, villages, woodland, historic countryside, and the Arun valley. Air and light pollution across the area would increase.

c)     A major error in the woodland figures, highlighted in the brochure, biased the consultation in favour of offline routes

In the 2019 consultation brochure, the crude figures given by HE of woodland ‘impacted’ were much larger for the online routes (Cyan and Beige) than for Magenta, Amber and Grey. The woodland figures given (highlighted, with space around, with a ‘logo’ of a hand holding a leaf, in italics to catch the eye) were: Beige 7.44ha; Cyan 8.37ha; Crimson, 20.57ha; Magenta 3.51ha; Amber, 5.33ha; Grey, 1.49ha.

By the way the figures were presented, with a ‘topic’ at the side giving an aim to ‘minimise environmental impact’, these woodland figures were made to stand for the environmental impact of the routes overall. Absurdly, this was taken by Arundel Town Council and others to mean Cyan and Beige routes (both part-online) were more damaging environmentally than the wholly offline routes Amber and Magenta.

Figure 2: excerpt from table on p. 15 of the 2019 consultation brochure (from left: figures for Cyan, Beige, Crimson, Magenta, Amber and Grey routes)

These woodland figures are incorrect. The figures of woodland impact for Cyan and Beige – the part-online routes - should have been considerably lower and almost the same as those for Magenta. The maps for woodland lost to Cyan and Beige (Figures 2-1 and 2-2 of the EAR, Appendix 7.3) show an area of woodland where a junction would be built, but the similar maps for the four offline options show it as open land. It was once woodland, but was cleared some years ago and is now pasture. The other diagrams reveal that Highways England were aware that this field is not woodland. Putting these erroneous figures in a prominent position in the brochure misled the public.

The corrected figure for Ancient Woodland taken by Option 3/Crimson, 12 hectares, given by Charles Evans of WSP in his witness statement to one of the 2018 court cases against the 2018 Preferred Route decision (as described above), was replaced by a new figure for Crimson of 20.57 ha of woodland impacted. Since all the woodland Crimson would pass through is defined as Ancient Woodland, this is puzzling. There is no other woodland for it to impact. Either the supposedly erroneous figure from the previous consultation was not erroneous, and there was no computer error (in which case why mention it in a court case which was not even challenging the Ancient Woodland figures?), or Highways England were distorting the figures to prevent people from choosing to support the Crimson route, since, as in the previous consultation, they regarded it as too expensive to build because of the amount of Ancient Woodland it would take.

A new dual carriageway through the countryside would do incalculably more damage to the environment than widening the existing A27. Vital wildlife corridors would be severed in all the areas the offline routes would go through, including the Grey route which avoids woodland. The misleading table and use of misleading figures for woodland impact seem designed to cover up this fact.

d)    Pro-offline bypass bias shown by route names confusion and errors

Colour names were used for the routes in the consultation brochure, but in the Scheme Assessment Report (SAR) and Environmental Assessment Report (EAR) names such as 4/5AV1 for Magenta and 4/5AV2 for Amber were used. This made inaccessible the large amount of information in the documents. Naming errors were noted in the EAR, Appendix 7.1 (Landscape Effects Schedule), and EAR, Appendix 1.1 (Effects on the Special Qualities of the National Park). In both Appendices, some of the descriptions given for Magenta (always referred to as Option 4/5AV1) were incorrect for Magenta but correct for Amber (referred to as Option 4/5AV2), and vice versa. Such errors made these sections nonsensical and served to further cover up the damage the offline routes would do.

The decision not to use the colour names for the routes was even more confusing in the very extensive wildlife surveys. Not only were the number and letter names used, but the route colours were wrong in the multiple figures and maps. This made the wildlife reports almost impenetrable.

e)     There were no wildlife surveys of the two new routes, Magenta and Grey

The extensive wildlife surveys provided in the 2019 Environmental Assessment Report (EAR) covered only the three routes from the 2017 consultation – now called Cyan/Beige, Crimson and Amber – not the two new routes, Magenta and Grey. They included surveys carried out in 2017 and further surveys done in 2018.

Fig. 3. Screen shot from Environmental Assessment Report, 2019, Appendix 8-23, Figure 5-2, showing that a large part of the Grey route was surveyed only by a minimal Phase 1 Habitat Survey

The choice of the new Preferred Route was based on the surveys of the ‘old’ three routes, and a Phase 1 Habitat Survey (a very basic, child’s-drawing-standard survey of habitat types, performed from public footpaths) of the un-surveyed areas. Most of the area Grey passes through was not properly surveyed. Throughout the EAR, Highways England stated that option selection would be based on the surveys done on the previous three options, not on surveys of Magenta and Grey, since these were ‘too far west’ to have been included in previous surveys.

There was therefore no ‘full stage 2 assessment of Options 4 and 5B’ (Magenta and Grey) as Highways England undertook to provide in the Consent Order.

f)      Damage to Binsted and Tortington villages was hidden

Highways England hid the damage the Magenta and Grey routes would do to Binsted and Tortington villages by their presentation of data. As a Binsted resident wrote: ‘The Highways England maps and materials presented by Highways England do not show Binsted as the thriving community we are.’ Another resident wrote: ‘The maps that Highways England have published name only 3 random houses, our 12th century church, Binsted Nursery and the pub. The other 35 homes, small holdings, businesses and Community Barn are nowhere to be seen and Binsted Lane, which defines and ties our scattered settlement together, is barely discernible.’

Deep in an obscure Appendix (EAR, Appendix 6-2), hidden by using number and letter names instead of the colour names of the routes, there are summaries of the effects on individual listed houses. But they state damage would be minor when life in houses neighbouring the road and its 8m high overbridge over Binsted Lane would be unliveable – and a major change from the present situation where houses are part of a historic village in beautiful countryside partly in the National Park.

7. The Preferred Route announcement of October 2020

In October 2020 the Grey route was announced as the Preferred Route, despite the fact that only 7% of responders in 2019 had supported it. Highways England did not conscientiously take the result into account, but ignored it. This is not ‘acting in compliance with the rules of procedural fairness’, which they had undertaken to do in the Consent Order following legal action in November 2018.

Two thirds of responders had wanted either a part online route (Cyan or Beige) or nothing at all. Of those two thirds, more than half asked for the ‘Arundel Alternative’ – the much smaller, much less damaging, wide single carriageway scheme put forward by local people, which would ease traffic flow without providing extra capacity and therefore increased traffic.

This had not been an option in the consultation. It was very difficult to state that this was your preference since there was no ‘Other’ box in the multiple choice questions. Highways England had refused to include the Arundel Alternative as an option because it would not, they said, cater for the predicted increase in traffic. As Craig Bennett, then CEO of Friends of the Earth, said when he visited the scheme, ‘That’s the point’. It is well known that new roads increase traffic, hence carbon emissions, and the Climate and Biodiversity Emergency means that building new roads which increase traffic has to stop. This is the thinking behind the Arundel Alternative (www.arundelalternative.org).

Fig. 4. Responses to the 2019 Arundel bypass consultation

8. The March 2021 ‘Scoping Report’

Highways England’s ‘Scoping Report’ of March 2021, on the Planning Inspectorate website, contained important errors which continued to hide the true damage from the Grey route.

One serious error was that the Report stated many times that the Grey route goes ‘south of Binsted village’ (e.g. 13.4.4). The truth is that the Grey route splits Binsted village in two, with 16 houses south of it and 23 north of it. It crosses U-shaped Binsted Lane twice. The same is true of the 2022 version of the Grey route presented in the Statutory Consultation. See Figure 5 below for a map of the route with the houses in the village.

Another serious error was that the Report stated that there are ‘no community facilities directly alongside the new route’ (13.4.10). The truth is that the Grey route passed 10m from the churchyard wall of Grade II* listed, 12th-century St Mary’s Binsted, crossing the remote Binsted valley on a viaduct.

The error-filled Scoping Report was presented, along with responses to it by statutory bodies and National Highways’ (often unsatisfactory) responses to those, as part of the 2022 Statutory Consultation (see Section 8 below). They were presented as ‘technical appendices’ supporting the other information in the consultation – whereas in many cases, such as the above points, the Scoping Report contradicted what the other consultation documents said.

9. The suppressed bat surveys of Grey and Magenta routes: further legal action

New bat radiotracking surveys were performed in 2019 called Scope 1 and Scope 2. Scope 2 was focused on the two new routes, Grey and Magenta. But neither survey was made available to respondents to the consultation. And neither survey was taken into account in the Preferred Route decision. Neither has been published. The surveys state they are aimed at evaluating the importance of the area and designing mitigation. The surveys confirm that bats go everywhere, throughout the area south-west of Arundel, including across the Grey route, to foraging areas as far away as Ford and Barnham (villages to the south). They also confirm the importance of the Binsted Rife Valley (which the Grey route would cross) as a commuting route for many species of bat, including rare Barbastelles.

The surveys were sent to the author of this paper by mistake in May 2021 in reply to an FOI request for something else. I started a new legal action on the basis of these surveys claiming that HE had behaved irrationally in not presenting the new survey evidence in the 2019 consultation, and not using it in their Preferred Route decision. In response HE sent a bundle of 500 pages of documents, including a ‘bat technical note’ and summary arguing that the surveys would have made no difference to their decision.

Wildlife consultant Jacqueline Thompson of Wildlife Splash, BSc (Hons) MSc MCIEEM, has commented on these documents showing that Highways England’s arguments are false. They graded the impact of Grey on bats as ‘Moderate Adverse’, the same as the part-online Cyan and Beige routes, whereas Magenta was graded ‘Large Adverse’. She commented: ‘One has no other option than to conclude that this is meant to be misleading, in order to pretend that the impact of building 7 km of highway along a floodplain and swathe of dark countryside across a ditch network, hedgerows, tree-lines and rifes is no more damaging than widening an existing carriageway.’

However, this would have been hard to argue in a court case, since it is not an argument about process. My action was also likely to be considered out of time, as I could have asked for further bat surveys earlier, following the Preferred Route decision of October 2020. So when Highways England offered not to charge any legal fees if I withdrew, I did not take the case any further.

More bat surveys have been performed in 2020 and 2021, but this was too late to influence the consultation or the Preferred Route decision. And the quality of the surveys may be low. Bat surveyors have been noted surveying in unsuitable weather, when bats would not be flying, and refusing to climb trees obviously suitable for bat roosts because they were ‘too high’ and instead looking at trees with completely smooth trunks.

8. The ‘Statutory Consultation’ in 2022

In the 2022 Statutory Consultation, National Highways (the new name for Highways England) chose to state that there would be no permanent damage to bats, or any other wildlife except barn owls, from the Grey route. Bats have thus been ‘scoped out’ of the scheme completely. The most cursory look at the copious bat surveys in the 2019 EAR – even though they are only of the ‘old’ three routes’ – shows that bats go everywhere in the area the Grey route would cross and that it would be just as damaging as the routes surveyed. This point has been made in my separate paper ‘Blind Eye to Bats’.[2]

The Planning Inspectorate’s Advice Note 7, Section 8 says: ‘There is no prescribed format as to what PEI [Preliminary Environmental Information] should comprise and it is not expected to replicate or be a draft of the ES [Environmental Statement].’ ‘A good PEI document is one that enables consultees (both specialist and non-specialist) to understand the likely environmental effects of the Proposed Development and helps to inform their consultation responses to the Proposed Development during the pre-application stage.’ National Highways did not produce a ‘good PEI’.

a) Essential information was wrong or missing

i. Bats and other wildlife

The area the route would go through is called ‘internationally important’ for bats by Natural England (NE).[3] NE have also expressed the view that any offline bypass (a major bypass through the countryside), such as the one proposed, would be too damaging for bats.[4] Highways England/National Highways has been performing bat surveys, and other wildlife surveys, on this area since 2017. None of these surveys was made available in the consultation, and the damage the route would do to wildlife is misleadingly described as ‘temporary’. In the table on pp. 42-3 of the brochure, under the column ‘operation stage’ (i.e. permanent damage), ‘permanent adverse effects to barn owls’ are stated, but only ‘temporary adverse effects’ to all species except barn owls.

In truth, the permanent effects on bats and other wildlife from the scheme are likely to be severely damaging as is made clear in the ‘National Highways: A Licence to Kill’ report by wildlife consultant Jacqueline Thompson, submitted to the consultation by Arun Countryside Trust. She sums up at 5.12: ‘The only harm that National Highways state will be ongoing is that to Barn Owls. This is an absolute nonsense as has been shown above regarding bats, birds, Water Vole etc. Without the evidence base, to say that the only on-going harm is to Barn Owls is simply nothing more than misleading.’

ii. Traffic (local impacts)

Traffic is an important subject for responders to the consultation because the minimal figures that are given show that the scheme would markedly increase traffic in sensitive local areas. By introducing a long (8 km) stretch of road with very few access points the scheme would redirect traffic into small, unsuitable, residential local roads.

A figure of a 42% increase in traffic in The Street, Walberton was given in the brochure (map, p. 37). This is a very narrow street in a conservation area providing access to a school and already has serious issues with traffic trying to negotiate two-way flow, including buses, at busy times. This figure is applies to a daily forecast but the true effect will be at the busiest time between 4pm and 7pm, so percentage peak increases will be far higher. It has been estimated as an increase of 300% at peak times of day.[5] This effect is very worrying for safety and air quality for the village of Walberton.

‘Changes in Journey Times’ (pp 38-39 of brochure) gave prominent labelling of ‘9.3 time saving minutes with bypass scheme’. It was only in the body text on the previous pages on traffic flows that mention was made of an increase in delay to traffic travelling westwards through Fontwell Roundabouts due to the scheme. Net peak savings should have been prominently identified as 6.3 minutes. In addition, baseline traffic figures were not provided. Changes presented were calculated from forecast ‘Do minimum’ figures which are notoriously unreliable and present exaggerated scheme benefits.[6] Baseline figures should have been provided in the brochure for meaningful comparison.

iii. Costs and Value for Money

Because this scheme is so damaging and the main argument for the scheme is for improvement of the economy, it was essential for responders to know the probable costs of the scheme, and Value for Money and BCR figures, in order give an intelligent response to the consultation. Very little information was given.

The business case for the scheme was so poor that in 2020 it required ministerial support. In the 6 August 2020 request by Jason Hones, then Project Manager, for support from ministers (acquired by Freedom of Information),[7] the Benefit Cost Ratio is given as 1.46 and the Value for Money of the Grey route had dropped to LOW.

In the Scheme Assessment Report, October 2020, BCR was given as 1.95 (Table 10-10), but a letter of 14 September 2020 from Highways England to the Department of Transport (FoI), shows that the Benefit Cost Ratio had dropped to 1.37.[8] This inconsistency requires clarification or could otherwise be viewed as deception.

The cost estimate for the Grey route in the 2019 consultation was £320-455m. These are the costs still provided when NH is asked. A 2019 ‘internal business case’ (also acquired by FOI) refers to a possible ‘maximum cost’ of £1.185bn.[9] The decision to include a viaduct across the Arun valley (rather than an embankment) will have added significantly to the cost of the scheme. The Interim Scheme Assessment Report, Chapter 8, from the 2019 consultation, at 8.13.1.2 stated that ‘The evidence available at this stage suggests a viaduct would be more expensive than an embankment’.

Slide 13 from the Highways England powerpoint ‘A27 Corridor Briefing, 19th October 2017’ suggested that the viaduct itself would cost £302m (deducting the Most Likely figure from the figure ‘with viaduct’). This 2017 cost for the viaduct (almost as much as the 2019 lower estimate for the whole scheme), and the possible maximum of £1.185bn, suggest that current estimates will be far exceeded and reflect the extreme uncertainty on costs which made it hard to give an ‘intelligent response’ to the consultation without more information.

b) Information on the effect of properties being within the ‘Draft Order limits’ was contradictory

Contradictory information was given on what it meant when a property was included in the ‘red line’ or Draft Order limits. This was cruel to the residents and owners of the properties, who are living with the threat that the properties will be demolished and they will lose their homes, and also having to cope with the uncertainty caused by the contradictory statements. Five properties in Binsted Lane are included within the ‘red line’ – Lake Copse (house), Oakleys Barn, 1 and 2 Oakley Cottages, Grove Lodge, and Goosewing. Lake Copse has been bought by NH and would be demolished. When the owners and tenants of the other properties asked National Highways what this meant, whether their property was blighted, whether it would be compulsorily purchased, and whether they would lose their home, they were told that the area was required for ‘re-routing services’ and that it did not mean the property would be demolished.[10]

However in the PEIR, at 12.6.2, it says that ‘five residential properties on Binsted Lane are on land within the draft Order Limits, which would be required for the scheme and therefore they are likely to be demolished’. And PEIR Chapter 12, para 12.8.2, says ‘Construction of the scheme would require permanent land take from five residential properties in Binsted Lane, resulting in loss of these properties’. Even this advice is contradictory.

Three of the buildings mentioned above are historic properties which help make up the character of the village. The loss of these buildings, of historic flint construction, would severely damage the integrity of Binsted as a village. This equivocation is not ‘helping local people understand the nature and possible impact of the scheme’. It is failing to give clear information about whether people’s houses would be demolished. If the truth is that they would be, it is obscuring the true extent of the damage from the scheme.

c) The error-filled, outdated ‘Scoping Report’ was presented without being corrected

The Scoping Report, submitted to the Planning Inspectorate in March 2021, formed PEIR volume 4a of the 2022 consultation. It was full of errors. The ‘Scoping Opinion’, produced by the Planning Inspectorate, formed Volume 4b. This included reactions of Statutory Consultees to the Scoping Report, pointing out many of the errors. The response of National Highways formed volume 4c.

These three documents were wrongly described. The ‘About this report’ section (PEIR 4b, first page) says: ‘Volume 4 – PEI Report Technical Appendices, which provide further information in the form of technical information (in three parts) to support the initial findings presented in Volume 2’.

These appendices (Volumes 4a-c) did not ‘support the initial findings’ presented in Volume 2. In some cases they contradicted them – see below. They are from an earlier stage in the process. If responders only read PEIR Volume 4a, they would be seriously misled about the damage the route would cause. Since the mis-statements underestimated or glossed over the damage from the route in every case, responders referring to Volume 4a would be left with a far too rosy picture of the environmental effects of the scheme. A few examples are given below.

i. Untrue statement leaving out Binsted church

PEIR Volume 4a, Scoping Report, 13.4.10 says: ‘No community facilities are located directly alongside the new route’. This directly contradicts PEIR volume 2b (12.5.11) which says ‘The church of St Mary’s, Binsted, is located directly alongside the scheme alignment’. Binsted’s 800-year-old church and churchyard, which are still a place of worship and a graveyard, are directly alongside the route. 

In the version of Grey given in the 2020 Preferred Route announcement the route would be 30m from the church on a viaduct with traffic level with the top of the churchyard wall. This has been changed in the 2022 consultation so the new road would be c.100m from the church itself, 70m from the churchyard wall. The road height has also been lowered. There is a 50mph limit on the proposed new road from Fontwell to where it passes the church – but this would mean an increase in engine noise as traffic sped up to the 70mph limit.

The church, listed Grade II*, is the heart of the village’s community life, the only public building in the village, and is used for church services, meetings, social events, and for events in the Binsted Arts Festival. Upkeep of the church’s ancient fabric is the main spur for the yearly Strawberry Fair which attracts over 1000 visitors each year and has raised over £100,000 in the past 32 years. The slight increase in distance from the new road and lowering of height would make little difference. These community events, and the church’s function as a church, would cease.

ii. Saying Grey is ‘south of’ or ‘passes’ villages when it goes through them

The Grey route goes through Binsted, not south of it, dividing 16 houses from the other 23. See Figure 5 below. But the Scoping Report states more than once (e.g. 10.4.15, 13.4.4) that the route goes ‘south of’ Binsted. In other places the route is stated to ‘pass’ villages when it goes through them (e.g. 13.4.5).

iii. Misrepresenting the effect on Walberton School

PEIR Volume 4a, Scoping Report, 12.4.2: Walberton C of E School is mentioned as a ‘potential sensitive receptor within 600 metres of the boundary [of the study area]’ along with Arundel C. of E. School. The route is 170m from Walberton School.

iv. Major underestimate of numbers of listed buildings

PEIR Volume 4a, Scoping Report, 7.4.2. ‘The remaining listed buildings are Grade II and include a combination of structures located within the surrounding settlements and isolated buildings, such as farmhouses. Those within settlements include 20 within Walberton and six within Slindon to the north west.’ There is no mention of Binsted which has 9 houses listed Grade II, and St Mary’s church, listed Grade II*. The number of Grade II listed buildings in Slindon is 62, not 6.[11]

Fig. 5. The 2022 Arundel Bypass route (slightly modified from the 2020 Grey route) and homes and church in Binsted village showing that the route splits the village. Red: homes in Binsted not ‘listed’. Blue: homes listed Grade II and St Mary’s church listed Grade II*. Green: homes (including the Black Horse Pub) on the list of ‘buildings and structures of character’.

d) Flaws in the PEIR hid information or made it difficult to interpret

i. Layer missing in printed version of important maps

In the printed version of the Preliminary Landscape and Environment Masterplan (PEIR Volume 3, Figure 2-1, six sheets), lines joining the labels to the item referred to are missing. This means that the labels appear to be in the wrong place. The lines joining the labels to the features they describe are present in the version on the National Highways website. A ‘layer’ of the map appears to have been left out in the printing process. This means that anyone consulting the printed versions of the maps was not given enough information to understand the proposed preliminary mitigation measures.

ii. ‘Tortington’ instead of ‘Binsted’ in crucial discussion of bridge designs

Chapter 2a, para 3.5.34, gave reasoning for the choice of bridge design where the proposed road crosses Binsted Lane twice. It said: ‘Design development options b, c and d would have the benefit of moving traffic on Tortington Lane further from sensitive receptors’. The paragraph is discussing Binsted Lane, not Tortington Lane. The mistake obscures the factors affecting the choice of bridge design and makes discussion of the alternatives difficult.

iv. Confusion over figure numbering in the PEIR

The large Figures were in a separate volume (PEIR Volume 3) rather than integrated with the text. The Figures in that volume are captioned 1-1, etc., with the first number referring to the chapter number within Volume 2 (a and b). ‘Figure 1-1’ in PEIR Volume 3 is a large map with the draft order limit in red. However, in Volume 2a, there is a reference to ‘Figure 1-1 in Volume 1: Non-Technical Summary which highlights the draft order limits’ (2.3.15). Figure 1-1 is in Volume 3 of the PEIR, not Volume 1. In Volume 1, the Non-Technical Summary, there is only a ‘Figure 1’ – a simple map within the text. If internal references are confused, it is likely responders will also have been confused.

e) Advice about how to respond to the consultation was contradictory

The advice about responding was inconsistent, which made it unclear whether you could respond with an email stating your response, rather than filling in the ‘feedback form’. The contradictory advice may have deterred people from responding altogether. The advice to fill in the Feedback Form (rather than emailing your response) may have restricted answers to the questions in the Form.

1. Statement of Community Consultation (section 12): fill in the form, ‘email your response’, or ‘write to us’.

2. Feedback Form itself: only mentions emailing the Feedback Form, not emailing a response. It says (p.2): ‘Tell us your thoughts and comments by:

-         Completing this feedback form online: www.nationalhighways.co.uk/a27arundel

-         Posting your comments or this completed feedback form to Freepost A27 Arundel

-         Emailing your completed form to A27ArundelBypass@highwaysengland.co.uk.’

This is inconsistent – you can post ‘comments’, but should email ‘your form’. It is also contrary to the advice quoted above, given in the SoCC and the Consultation Brochure.

3. Main website: All the ways of responding mentioned involve filling in the Feedback Form. This time, responders by post are not given the option of ‘comments OR this completed Feedback Form’.

4. Consultation brochure: p. 3: ‘There are lots of ways you can take part…email us at A27ArundelBypass@highwaysengland.co.uk.’ But on p. 50 the same advice as on the main web page is reiterated. This conflicts with the advice given on p. 3 which included ‘email us’ and ‘write to us’.

f) Questions in the Feedback Form did not include questions about the scheme as a whole

The Brochure stated: ‘We would like to know what you think about our proposals’. The Feedback Form stated: ‘You are invited to comment on any Section of the proposed route… or the scheme as a whole’. But there was no question in the Feedback Form about the ‘proposals’ in general or ‘the scheme as a whole’. The Feedback Form questions were about details of the scheme such as alternatives for reinstating the Golf Course, sites for tree planting, etc. The important question ‘Are you in favour of the scheme’ was omitted.

This means the analysis of the form will not correctly show the proportion of responders who objected to the scheme overall. This is especially important since the Grey route (as this route was then known) was the preferred choice of only 7% of responders to the 2019 consultation and 64% objected to any offline scheme.

The last question was ‘Do you have any further comments or suggestions regarding the information presented in this consultation?’ It should have been ‘Do you have any further comments or suggestions about the scheme?’ This is particularly important as a lot of essential information has been left out of the consultation.

g) The maps and tables in the Brochure misrepresented the facts

On 3 maps, e.g. Brochure, p. 7, the Arundel label was over the 20th-century suburb of Torton Hill, not the historic town. There was no label on the historic town centre. This overstated the damaging nature of the present road by suggesting it goes through the centre of historic town, misrepresenting current conditions to respondents unfamiliar with the area. The current A27 bypasses the historic town and almost all of the built-up areas.

The labels Walberton, Binsted and Tortington (three villages) were placed far from where the road would do most damage. In the map on p. 18 the ‘key’ text was placed over Walberton village, hiding the school, playing field, nursery, play centre and toddler group. The plans did not show the school or childcare facilities or housing that would be affected by the proposed road. Walberton school and the pre-school facilities are not identified in the ‘fly-through’ video.

The tables on pp. 42-3 contained mistakes which misrepresented the damage from the route. Under Cultural Heritage the list of four ‘permanent adverse effects’ was under the ‘construction stage’, not the ‘operation stage’, where permanent effects should be. 

This made the ‘operation stage’ look less damaging, as it contained only two entries, one a ‘beneficial effect’, and one about the permanent adverse effects on Binsted Church. It suggested that these two entries balance each other out – whereas if the four ‘permanent adverse effects’ that are in the wrong column had been included in the ‘operation stage’ column, the five ‘permanent adverse effects’ and one ‘beneficial effect’ would have given a truer picture. These effects are subtle but combined to give an untrue picture of the scheme and hide the damage it would do.

9. The Supplementary Consultation in Nov-Dec 2022

The proffered improvements in the Supplementary Consultation of Nov-Dec 2022 were not only unconvincing, but they seemed to be mere tinkering around the edges of an absolutely unacceptable scheme. They included predicted traffic figures in two villages affected that were overall worse than before, and were in some cases completely wrong when compared to known traffic counts.

The consultation consisted of questions about four subjects: a proposed ‘bat crossing’ at Tye Lane, Walberton; a new scheme supposedly to improve the forecast growth of traffic in Walberton village; a new plan for a reduced golf course; and a new design for the overbridge/roundabouts at Crossbush.

The proposed bat bridge at Tye Lane would make very little difference to the immense damage the Grey route would cause to the extraordinary bat population of the area south and south-west of Arundel, now known to include 16 of the UK’s 17 bat species. The ’green bridges’ at Binsted Lane and Tye Lane proposed in the Statutory Consultation have been downgraded to mixed use bridges. The mixed-use bridge for Binsted Lane is not on the existing bat corridor. The extremely busy area at the eastern end of the scheme, with very high numbers of bats (including Barbastelle), has been totally ignored and no crossings proposed.

The Statutory Consultation version of the Arundel Bypass Grey route had shown a number of forecasts of increased traffic on local roads in Walberton and Fontwell villages. The Supplementary Consultation figures showed that in order to be able to predict a drop in the increase of traffic in the Street east of Tye Lane, where Walberton and Binsted C of E School, Walberton Pre-School and Walberton Nursery School are situated, predicted traffic has been increased in many other roads in Walberton and Fontwell.

The proposed re-opening of Tye Lane and Arundel Road to the A27 (lanes which had been closed to the A27 in the Statutory Consultation version) would lead to many more rat-running opportunities, particularly important since two new sets of traffic lights are proposed at the two roundabouts at Fontwell, which will cause congestion.

Some of the forecast traffic figures are obviously wrong when compared with known surveys. For instance, National Highways’ ‘without-scheme forecast’ for Arundel Road, Fontwell (in 2027) is 400 AADT (Supplementary Consultation brochure, page 20, LH column), but the traffic count performed by Obtrada for Walberton Parish Council in January 2022 showed a figure of 1520 AADT for Arundel Road.

10. The National Park and the ‘QCs’ advice’

A major misuse of the consultation process and ‘risk’ to the scheme appears to have been that the consultations of 2017 and 2019 were based on out of date legal advice. In August 2020 the head of the project asked the Department for Transport for permission to choose the Grey route as the Preferred Route, citing new legal advice (summer 2020) which said that only a route outside the South Downs National Park could succeed in planning.[12] A Freedom of Information request for the legal advice itself has been refused, and a decision by the Information Commissioner that the advice should be made public has been appealed by National Highways (December 2022).

The letter showed that legal advice on the possibility of a new road within the South Downs National Park had changed during the course of the scheme. Para 8.2 of the letter says that ‘the NNNPS [National Networks National Policy Statement] and status of the National Park were always known to be a key risk for gaining DCO consent and so the project team have been continuously engaging with external legal expertise to advise on option identification and selection. [The] previous Preferred Route (in 2018) that went inside the SDNP was selected, following discussions with Pinsent Masons (planning law experts), in the understanding that the NPS could be challenged and that there was a good chance of success at DCO. During the preparation for the further consultation in Spring 2019, Pinsent Masons and QCs were fully engaged throughout. Work was then undertaken to look at how to increase this success rate.’

‘Route MAGENTA (which ‘clips’ the SDNP) was deemed by Pinsent Masons to have a ‘nearly 50% chance of success’ at DCO if the impact on the SDNP was reduced from 700m to no more than 300m length of road inside the Park, and having factored in the increased noise impact on the residents of Walberton and a new housing development currently in construction. Upon providing further evidence, QC over-ruled Pinsent Masons’ legal opinion and advised that the probability of success was still [less than] 20% since the noise impact needs to be greater (thousands of people affected rather than low hundreds) to classify as exceptional circumstances to the presumption against development in a National Park. This has been confirmed subsequently by a second QC.’ A further FOI request has recently shown that the two QCs’ advice was dated 7 July 2020 and 23 July 2020.[13]

The letter implies that HE had already decided, before the 2019 consultation, to choose either Magenta or Grey as the new Preferred Route. They preferred Magenta, but the new advice in 2020 made them decide on Grey. They wanted to argue that Magenta would cause less noise impact than Grey, and was preferable despite being partly in the National Park, but were told by the new advice that not enough houses were impacted to make this a viable argument. Magenta still bisects the villages of Tortington and Binsted but has less impact on Walberton than Grey.

HE may also have decided not to provide wildlife surveys of the two new routes in the 2019 consultation, in the hope that this would prevent the decision for Grey or Magenta being derailed by wildlife survey findings, and enable them to disguise the true damage that the routes would do.

11. Conclusion

In the light of this newly discovered legal advice, since 8 out of the 9 routes offered in the two consultations were partly within the National Park, both the 2017 and 2019 consultations appear to have been charades, a waste of money, and unnecessary. The situation is complicated by the fact that the far less damaging part-online routes are partly within the National Park. They are much preferred by all environmental organisations, including Natural England. It seems that National Highways have never really been concerned about what damage their road schemes would do, but only with their chances of success at DCO.

Throughout all four consultations, the use of misrepresentation, distortion, and suppression of evidence have appeared to be part of Highways England’s continuing strategy in trying to gain approval for the road schemes it wishes to build. This is not acceptable in a commercial organisation wholly owned by the government, spending money raised by taxes paid by the public.

December 2022

Endnotes