England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2015

Mrs Justice Elisabeth Laing DBE :


 


Introduction

1. The Claimant ('the Council') challenges a decision by the Defendant to issue an Invitation to Tender ('the ITT') for the East Anglia Franchise ('the EAF') on 17 September 2015. The ITT contained a train service requirement ('TSR'). The EAF covers an area which extends to Peterborough in the North West, Cromer and Sheringham in the North East, and Great Yarmouth, Felixstowe, Harwich, Clacton on Sea, Southminster and Southend in the East. It also includes Cambridge and a significant part of London and outer London. It serves 131 stations.
2. The Council's complaint is that the TSR did not have a minimum requirement that the bidder must initially provide a service of two trains per hour ('2tph') for Angel Road/Meridian Water station, and then, from May 2018, when a new track will be built, a service of four trains per hour ('4tph'). By '2tph' and '4tph' the Council means a service running the required number of trains every hour from 6am to midnight; see Mr George's second witness statement. This minimum requirement is, so the Claimant says, crucially important to the success of the Council's plans for the development of Meridian Water. This development is described by the Council as the biggest development in London since the 2012 Olympics.
3. The Council relies on two documents as 'unequivocal' statements that the Defendant 'would specify as a requirement a 4tph service to run between Stratford and Angel Road/Meridian Water'. They are an email dated 29 July 2015 from Mr Ben Stafford of the Defendant to Ms Margaret Kalaugher, a principal transport policy officer at the Greater London Authority ('the GLA') and an email dated 5 August 2015 from Ben Stafford to Mr Jonathan Roberts of JRC, consultants employed by the Council. I say more about these below.
4. The Council's case is that those two documents generated a substantive, alternatively, a procedural, legitimate expectation that the TSR would require 4tph (as defined by the Council) to stop at Angel Road. The Council also argues that the Defendant took into account an irrelevant consideration (that it would not be technically possible to provide such a service), failed to take into account a relevant consideration (it did not factor the value of the regeneration at Meridian Water into its economic modelling), made an irrational decision, and acted with conspicuous unfairness by failing to give the Council an opportunity to make further representations about the impact of the failure to include a 4tph service to Angel Road in the TSR.
5. The Defendant's case, briefly, is that in their context, the Council could not reasonably rely on the emails to generate a legitimate expectation, or an argument that the Defendant has acted unfairly by resiling from the emails (if it has in fact done so). The Defendant also argues they are not clear enough to generate any legitimate expectation, and that the Claimant did not rely on them to its detriment. If there is a legitimate expectation, the Defendant argues that the wider public interest entitled it to defeat any such expectation. The Defendant's answer to the irrationality arguments is that it has a wide discretion to decide what factors are relevant to a transport procurement decision such as this, and that it has not acted irrationally in its approach to the analysis which underpins the TSR. Finally, it argues that, pursuant to section 31(3C) and (2A) of the Senior Courts Act 1981 ('the 1981 Act'), I should refuse permission to apply for judicial review, or relief, because I can be satisfied that it is 'highly likely that the outcome for the [Claimant] would not have been substantially different if the conduct complained of had not occurred'.
6. Because both parties need a decision urgently, the Council's claim was listed as a 'rolled-up' hearing of the applications for permission to apply for judicial review and for judicial review. The Defendant contends that I should refuse permission because the claim is unarguable, and/or pursuant to section 31(3C) of the 1981 Act. I considered that, regardless of my decision on the application for permission, I should decide the merits of the claim and have done so.
7. The Council was represented by Miss Carrs-Frisk QC and Miss Collier, and the Defendant by Mr Sheldon QC and Mr Bates. I am grateful to all counsel for their clear and helpful skeleton arguments and further written submissions, and to leading counsel for their focussed oral submissions. I am also grateful to Mr Bates, who followed Mr Sheldon on an argument about the Public Services (Social Value) Act 2012 ('the 2012 Act') which surfaced for the first time on the second day of the hearing, for his lucid and economical submissions.

The facts

The current service to Angel Road

8. Angel Road is on the railway line from Stratford to Hertfordshire, that is, the West Anglia Main Line ('the WAML'). The current service is described in the witness statement of Rowan Smith. Angel Road is a 'low usage station'. On average, two northbound WAML trains stop there each evening in the weekday evening peak (16.00-18.59). Off-peak, there are no trains between 10.00 and 16.00 and one train between 19.00 and 22.00. On average, one southbound WAML train calls each hour at Angel Road in the weekday morning peak. As he explains, there is no opportunity for trains to overtake in the area of Angel Road, so with the existing tracks, any extra stops there would affect the services to other stations on the line. This point is accepted in a report produced for the Council by its consultant, Jonathan Roberts (which I say more about below).

The Meridian Water development

9. Angel Road station is an area known as the Meridian Water development area. The Council has spent about £70m so far on assembling land, and on other expenses associated with the development. Angel Road will in due course be replaced by a new station, Meridian Water, which is to be built as part of a planned development of Meridian Water. Meridian Water station will be in a more convenient position than Angel Road.

The Council's hopes for an improved train service

10. The Council considers that significant improvement of the train services is essential to the success of the development. It would wish to see a 4tph service to and from Meridian Water station. A new track for a Stratford - Tottenham Hale - Angel Road line ('STAR') is due to be built in 2018. The new track will enable a shuttle service of two more trains an hour to run between Stratford and Angel Road/Meridian Water. On their way to Meridian Water those trains will stop at Lea Bridge, Tottenham Hale and Northumberland Park. For the Council's aspiration to be met, the WAML service would need to increase to 2tph throughout the day, a significant increase in the current provision. The report of Jonathan Roberts shows that the current service to Angel Road is 110 trains per week. For that service to be increased to the level sought by the Council would require 1100 trains per week, including the STAR service. That is an increase by a factor of ten.

The STAR steering group and STAR

11. The STAR steering group was set up in about February 2014. It included representatives of the Council, Network Rail, Haringey London Borough Council, Transport for London ('TfL'), the GLA and the Defendant. At that stage, it was not known that the Defendant would be procuring the STAR service as part of the EAF, as it was thought that Transport for London Overground Services ('LOROL') would be responsible for STAR. As Ms Karen Letten, the Defendant's project director of the EAF competition explains, it did not become clear that this would change until June 2015.
12. The minutes of the meeting of the STAR steering group for 26 February 2014 record that Mr Ben Stafford was not present from the Defendant's department, but rather, a Mr Roger Jones. Ben Stafford's title is 'Principal Project Sponsor'. His evidence nonetheless, is that he, and not Roger Jones, was present. His evidence is also that he went to six meetings of this steering group and was not an active contributor. The minutes also record the draft terms of reference of the steering group. Those were to provide a decision-making body to oversee the development and delivery of two schemes: the STAR scheme and the scheme to improve Angel Road station. The steering group was to advise on risks, funding and costs overruns in co-ordination with other projects in the Lea Valley Area, and to report to the London Enterprise Panel ('the LEP') and to the GLA's Investment and Performance Board. The group would only oversee the section of the line which was funded by the LEP, that is, the part between Tottenham Hale and Angel Road.
13. Under the heading 'STAR', the minutes described STAR. It would introduce a third track in order to improve frequency and reliability of local services between Stratford and Angel Road and 'to enable a 4tph service throughout the day'. It was anticipated that central Government would fund a 4tph service between Stratford and Tottenham Hale and that the LEP would provide a further £25m 'to extend the 4tph service from Tottenham Hale to Angel Road'.
14. The minutes of a meeting of the STAR steering group of 29 May 2014 record that there was broad agreement that 'the strategic priority is for a 4[tph] service'. Ben Stafford was not present at that meeting. He received the minutes in September 2014. The Claimant says he did not dissent from them, but he had no reason to, as he was not at the meeting and therefore would have had no reason to think that they did not accurately reflect the discussion at that meeting. Box 8 of the 'Actions' table said that Ben Stafford would 'Ensure that infrastructure facilitated and procured for a 4tph service is factored into the next franchise period, especially for the STAR extension and establish whether any financial benefit (via franchise/fares revenue) could be captured to contribute to the cost' (emphasis supplied).
15. After 28 November 2014, the first meeting which he is shown as attending, the minutes of the STAR steering group show that the Council's consultant, Jonathan Roberts, regularly attended those meetings on the Council's behalf (with one exception). He attended meetings which were attended by Ben Stafford. I infer that, as a result, he became acquainted with Ben Stafford. The minutes for 28 May 2015, a meeting which Ben Stafford attended, record in box 9 of the 'Actions' table, that he was to 'Speak to colleagues regarding the East Anglia Rail Passenger Franchise and desire for a 4tph service up to Angel Road'.

The new WAML franchise – first steps

16. In the meantime, the Defendant had begun to prepare for the expected expiry of the current EAF on 16 October 2016. The process for letting the new contract began in December 2014 with a public consultation. A notice was sent to the Publications Office of the European Union ('the EU') on 19 February 2015. The Defendant issued a consultation document. The purpose of the consultation was to inform the specification for the ITT for the EAF. I say more about the questions in the consultation document below, in my summary of the Council's response to it.

The Council's response to the consultation

17. The Council responded to the consultation on 16 March 2015. As its title page shows, its response was drafted by Jonathan Roberts, the Council's consultant. As he explains in his witness statement, his firm provides consultancy services 'in respect of technical rail transport logistics, planning and politics of transport projects, business case modelling, public inquiries and scheme funding'. The response provided seven 'objectives'. Those were summarised in boxes A – G, with explanatory text below each box. The general tenor of the Council's objectives, as expressed in this document, is that the Council was dissatisfied with the priority given to local overground services in the franchise scheme, and wanted TfL to take them over, or at the very least, that TfL standards should be applied to local overground services.
18. Objective C was a general aspiration for train services across the borough: 'Outer London Trains 4 trains per hour frequency'. It was introduced by text headed 'Sparse local Lea Valley services below TfL standards'. These services were 'severely constrained in frequency' by the 'compromise timetable forced on all users by the limitations of a two-track main line' with no passing loops. The current 'sparse offering' was 'totally unacceptable for an urban railway'.
19. It said that the Council 'requires' that the output specification raises planned local service levels at the borough's stations to 4tph on weekdays 'as soon as possible'. Sunday services should be 'at least doubled to 2tph and preferably 4tph'. The text frankly acknowledged the physical constraints on this aspiration. In order to achieve it, a combination of new trains, shorter intervals between trains in the Rules of Plan (the current headway is a minimum of three minutes), and new track to allow local trains to be overtaken would be needed.
20. Objective G was 'TfL involvement with Lea Valley services'. It was introduced by some text which said that the Council wanted this as soon as possible. The STAR service (2tph) 'in combination with the existing 2tph Stratford - Herts service is the critical link to persuade developers, new residents and new jobs' to the Angel Road/Meridian Water development area. Failure to use TfL standards for those services could harm the prospects of the development, 'since the main line train operator is not considered a credible brand nor able to focus single-mindedly on urban quality outputs being delivered reliably'.
21. The text in the box said that the Council wanted to discuss with stakeholders, before the issue of the ITT, how TfL could become involved with the Lea Valley stopping services during the new franchise. Bidders, it said, should be made aware that a change in contractual arrangements for 'the remaining inner West Anglia services may arise during the period of the franchise.' Under the box, there was one bullet point: 'Service Improvements at Angel Road/Meridian Water'. The text below said that there was 'not yet certainty that a 2tph Stratford - Herts service will call at all times at Angel Road…Meridian Water. This is an essential priority for the first new timetable recast for the new franchise'. The text referred to the planned development at Meridian Water, and to the STAR line from 2018. It went on, 'A 4tph service frequency is essential at Meridian Water, to stimulate developer engagements and sufficiently high housing densities. The STAR line service will be 2tph, so there is an urgent requirement for the new franchise operator to revise the West Anglia route timetable to schedule a consistent 2tph service throughout the week, with the Stratford - Hertfordshire service. Other papers on this topic are available from [the Council]' (emphasis supplied).
22. Question 3 on the Defendant's consultation document asked whether there were any changes to current passenger rail services which consultees felt should be considered. Consultees were asked to explain why they wanted the change. The question was framed by reference to paragraph 5.8 of the consultation document, which in turn referred to the outline weekday off-peak timetable for the services covered by the franchise. The Council's answer was 'Yes'. The frequency should, as a minimum, be 4tph in outer London. The GLA's plans for the Upper Lea Valley made this a basic requirement for stations in the Lea Valley in Enfield. The borough was expecting 'large scale housing and jobs growth, with greater volumes than already projected in GLA planning.' Indeed a higher frequency might become necessary. There would be a related need to spend money on trains. Enfield objective C was said to be 'relevant' to this question; but not objective G (which specifically refers to improvements at Angel Road/Meridian Water).
23. Question 7 asked whether the consultee wanted to submit a proposal for a future third party promoted scheme that would involve a change in the current rail service in the franchise. The Council's answer was that the Council was advocating 'a minimum 4tph service at local Lea Valley stations in the borough, because of foreseen changes in housing and jobs growth. See the response to question 3, and Enfield Objectives A, C, D and H'. Objective G (which specifically refers to improvements at Angel Road/Meridian Water) was not referred to here.
24. Question 17 asked for observations which might help the Defendant in its 'commitment to have due regard to the Environment, Equality and Social Value and the Family…in the development of the specification of passenger services for East Anglia'. The preceding text referred, among other things, to improving the environmental performance of the railway, to section 149 of the Equality Act 2010, and to 'the Family Test'. At paragraph 6.18 it said, 'In line with [the 2012 Act] we will be considering how the [EAF] might improve the economic social and environmental wellbeing of the area it serves; and how, in conducting the process of procurement [the Defendant] will act with a view to securing that improvement'. The Council's response to this question was '[The Council] is content that the specifications aimed for with the general TfL Overground standards, will address, for urban areas, the level of quality of outputs required from local National Rail services.'
25. Question 18 asked which three aspects of 'your current East Anglia rail journey would you like to see improved…?' The Council's answer included, as the first bullet point, 'Provision of a 2tph all week service at Angel Road/Meridian Water to achieve 4tph there in conjunction with the STAR line service, along with actions to achieve 4tph at other Lea Valley stations in Enfield'. The Defendant knew that the Council wanted 4tph throughout the day, submits the Council, because Ms Letten in her witness statement for the Defendant says that Mr Bradshaw, who was seconded from Leigh Fisher to help with the operational specification, was aware of this.

The Defendant's evidence about the TSR

26. Mr Benedict Franklin is an associate director of LeighFisher Inc ('LF'), a firm which was advising the Defendant on, among other things, the specification for the franchise. He explains in his witness statement that one of LF's tasks was to prepare the TSR. The TSR is given to all bidders and sets out the minimum number of calls at each station and the first and last train times. As Mr Rowan Smith, the Defendant's Passenger Services Deputy Director South, East & London explains, a TSR provides for a minimum service requirement for the successful bidder, including a minimum number of calls at stations in a given time band. A bidder can exceed this requirement, so long as it can show that any extra services it proposes in its bid can be provided and will be efficient. A bidder is obliged to exceed the TSR to the extent that its projections of customer demand, which are included in its bid, show that more capacity is needed to meet the Defendant's targets about overcrowding. The TSR for the EAF is in two parts. The first provides for the current timetable until May 2019 and the second provides a higher level of service for the second part of the franchise.
27. Benedict Franklin summarises the complex process by which different priorities were identified, and a long list of options was developed for detailed assessment. The key factors which produce demand for rail services are GDP per capita, population and employment. Demand by station and train call for each route and business segment was established, using demand growth forecasts. Those are based on economic projections provided by the Defendant's Demand Driver Growth ('DDG') forecasts (except that the GLA's employment projections are used for employment in Central London).
28. The GDP per capita forecast in the DDG is regional: the forecast used (East of England or London) depends on which bit of the area covered by the EAF the demand comes from. The population forecasts come from the National Trip End Model zone, which represents a smaller area than that covered by local authority population forecasts. A population growth forecast for each flow segment is created by weighting local authority forecasts. He also explains how employment growth forecasts are fed into the DDG.
29. After the long list was made, from January 2015, LF started to prepare business cases. This involved an assessment of the transport business economic case for each option taking into account the economic impact of each, by reference, for example, to journey time, ambience, railway safety, crowding, performance benefits, and benefits from less congestion on roads, weighed against value for money. Other factors were also taken into account, such as affordability, deliverability, consistency with the objectives of the franchise and with the objectives of 'stakeholders'. LF concluded that analysis of passenger demand for the West Anglia area stations showed that for Meridian Water and for Northumberland Park the existing service, supplemented by STAR when that came on stream, would serve current and future demands. As a result, a detailed assessment of options for increasing the service was not necessary.
30. Benedict Franklin also explains in his witness statement how the consultation responses of larger 'stakeholders' were analysed and taken into account. Each response was read and put into a spreadsheet. Train service recommendations were flagged in a notes column and 'mapped to corresponding options in the Optioneering Long List'. He recalls the Council's response. The relevant spreadsheet shows the Council's aspiration to have 4tph on outer London services. He recalls that the Council also asked for 4tph at Angel Road once the new line was built. They did not suggest that they were proposing to pay for extra stops by the East Anglia Franchise, or include a business case or value for money analysis of that proposal. At that stage, LF thought that the service on the new line would be operated by LOROL. Later on in the process, that changed, and it became clear that the service would be operated by the successful EAF bidder. LF analysed current and future passenger demand at all the WAML stations. This showed that the planned TSR service frequency, supplemented by STAR, would be enough. LF and the Department considered that the Council's aspiration of 4tph all day could cause an adverse impact on other services, and a general 'performance risk' for the whole line.

What does 4tph mean in the Council's documents?

31. Two potentially significant points are made by the Defendant in its evidence about what would be conveyed to an informed reader by the phrases '2tph' and '4tph'. The first emerges, for example, from the second witness statement of Ben Stafford. He says that he, and the Defendant's officials, interpreted references to 2tph or to 4tph in the light of the way that all train timetables normally work. They did not understand those phrases to convey, nor did they think that they would be understood to convey that, two, or as the case might be, four trains an hour would run 24 hours a day, 7 days a week. Rather, what they meant and understood was that four trains an hour would run at certain times of day. This proves too much. The Claimant is not arguing for a 24/7 service, but for 4tph during the day. In the light of the way that question 3 of the Defendant's consultation document was framed, it ought to have been clear to the Defendant that when the Council referred to a 4tph service, it did not mean a 24/7 service, but rather (at least), an improvement both to peak, and to weekday off-peak services in each direction.
32. The second point which emerges from the Defendant's evidence (see, for example, paragraph 4 of the witness statement of Benedict Franklin) is that when the phrase '4tph' is used in respect of a service, that does not necessarily mean that each of those four trains will stop at every station on the line. That may be so, but it is absolutely clear from its response to the consultation that that is not what the Council meant. The Council's consultation response was all about the service to intermediate suburban stations, and the numbers of stops at those stations, particularly Angel Road/Meridian Water.

When publication of the ITT was expected

33. I asked Mr Sheldon when it had been anticipated that the ITT would be published. He told me, on instructions, that it had originally been anticipated that the ITT would be published during August 2015, but that, in August 2015, the Defendant made clear that the ITT would not be published until September 2015.

The drafting of the TSR

34. Rowan Smith explains that the TSR was produced over a period of months from April 2015 by the Defendant, using LF. Drafts of the TSR were prepared by LF and reviewed by the Defendant between June and September 2015. The first draft was seen by Karen Letten, the Defendant' project director for the EAF, towards the end of June 2015. LF sought to protect as a minimum the existing level of calls at Angel Road station. LF knew that TfL and local stakeholders wanted 4tph throughout the day.
35. The Council argues, and I agree, that internal emails sent in July 2015, and disclosed by the Defendant, show that, consistently with the TSR which was at that stage being drafted by LF and the Defendant, and consistently with the TSR which was published on 17 September 2015, some of the Defendant's officials understood that the TSR would not require 4tph to stop at Angel Road throughout the day. Karen Letten explains in her witness statement that after it became clear that the Angel Road service would be part of the EAF, and not run by LOROL, Mr David Bradshaw, of LF, who was aware that 'stakeholders' wanted 4tph at Angel Road, reviewed whether this was advisable, and concluded that it was not.

Ben Stafford's email of 29 July 2015 to Ms Margaret Kalaugher

36. On 29 July 2015, however, Ben Stafford of the Defendant sent an email to Ms Margaret Kalaugher, a principal transport policy officer of the GLA. She was also the secretary of the STAR steering group. The subject line was 'Star Payment and franchise spec etc'. Ben Stafford had not been copied in to the emails I refer to in the previous paragraph. He mentioned a discussion he and Ms Kalaugher had had 'the other day' about the services to Angel Road and the nature of the next East Anglia Franchise. He said, 'I have some good news. As I suspected, the franchise approach is quite open for bidders to propose improvements to services and come up with new ideas etc. However 4tph for Angel Road has been specified as a minimum requirement once the necessary infrastructure works have been completed. As I understand it, the ITT will specify 2tph until the STAR scheme has been completed and 4tph once it has'.

The email Jonathan Roberts sent on 5 August 2015 to Ben Stafford

37. On 5 August 2015, Jonathan Roberts, the Council's consultant, emailed Ben Stafford. The subject line was 'Walk on frequency at Meridian Water station'. He said, 'Dear Ben, I'm sure the time is approaching for the [EAF] ITT to be published. I wonder if you can confirm what the expected position is with the ask about Meridian Water having a basic 2tph/4tph STAR specification as was set out below. Enfield will be keen to be positive to prospective development interests once the ITT is public'. In his witness statement, Mr George, for the Claimant, says about this email, 'Exercising an abundance of caution and conscious of the imminent publication of the ITT, [the Council] asked Mr Roberts to seek a second confirmation regarding the 4tph STAR service from Mr Stafford.'

The emails attached to the 5 August email

38. 'Below' refers to an email from Jonathan Roberts to Ben Stafford dated 12 June 2015. In that email, Jonathan Roberts drew Ben Stafford's attention to an action note from a STAR steering group meeting, 'an item about achieving four trains an hour as a 'walk-on' service' at the new Meridian Water station. Clearly this was a matter for several parties, not least the Defendant, as it was overseeing the specification and bidding for the EAF. Jonathan Roberts copied an email he had sent on that subject to Paul Harwood of Network Rail on 5 June and a note which he had made on 'some practical timetabling considerations'. Mr Sheldon told me, on instructions, that that note is at page 1074 of the bundle. There were other relevant papers, including the Council's response to the consultation, which Jonathan Roberts also attached. He said that that had 'extensive reference to service levels and train frequencies along the Lea Valley'. The Council agreed with the Mayor, he said, that a new schedule would be needed for the Stratford - Hertfordshire service, and that should be included as part of the next [EAF] agreement. The Council, he said, would be pleased to meet and discuss the topic, 'ahead of the publication of the new EAF ITT this summer'.
39. The 5 June email from Jonathan Roberts to Paul Harwood of Network Rail referred to a discussion between them of 'the topic of achieving four trains per hour at the Angel Road/Meridian Water station'. He attached a technical note he had prepared for the Council, which I think is the document at page 1057 in the bundle. That, he said, contained 'several thoughts' on how this could be done. The overall desirability of a walk-on service was not in doubt. The STAR service should guarantee '2tph south from Meridian Water'. It was the stopping pattern on the Stratford - Hertfordshire trains which was critical. A 2tph service will cumulatively achieve 4tph on the Meridian Water – Tottenham Hale - Stratford sector, and 2tph also towards Hertfordshire…'
40. He said 'We face the ITT for the new [EAF] being launched in August this year'. The support of the bidders for the ITT 'for 4tph [would] be important, as well as the DfT as franchise sponsor' and other stakeholders. He said that putting aside the options for achieving 2tph, the timetable for achieving that was important. It was desirable for the train service to increase even using the existing Angel Road station. A timetable change could affect other operators, and 12 months or so might be needed for their agreement. Various parties would need willingly to agree to a 2tph Stratford Hertfordshire service for changes to be made by December 2016. On the service options, Paul Harwood would know 'that pathing and engineering time is built into the Lea Valley route's timings. Within that constraint, JRC has sought to look at practical timing options by period of day and week, and direction of travel'.
41. The email said that 'the potential of 2tph at Angel Road/Meridian Water is on the cusp of achievement, as it does already exist northbound in the evening peak, and it is the peak periods which are the tightest periods for practical line occupation. Ideally the application of similar margins southbound would achieve the desired 2tph also in the morning peak, and in the contra-peak directions. Desirably a concerted effort is made to install a 2tph service, without loss of other station stops on existing services, by being willing to adopt similar timing margins. However the Lea Valley line is not one of the simpler routes to timetable, so we very much look to Network Rail to give the topic its best shot!'
42. The technical note set out the various options, and in it JRC had also 'tried to offer some lateral thinking'. The Council would be happy to answer any questions. In the meantime, he said, '…it's desirable that there is an initial reference to the 4tph objective at Meridian Water in the ITT specification, and we would welcome Network Rail's in-principle support and input to that.' The matter was somewhat urgent because of the potential closing date for input into the ITT drafting.

The technical note/report by Jonathan Roberts

43. Jonathan Roberts' report is headed 'Achieving 4[tph] at Angel Road/Meridian Water'. He described his brief from the Council on 20 January 2015 as 'To advise on which hours and on which days [the Council is] likely to achieve 4[tph] and 2[tph]. Secondly, what is the rationale behind this and what we can do now to push for a 4[tph] service at all times'. The note recognises that historically, Angel Road 'has been one of the least used stations in London', and that there are significant track and timetabling constraints which affect the aspiration to have 2tph on WAML to Angel Road (internal pages 9 and 10).
44. One such factor is that main timetable 'revolves' round the Stansted Express. Other timetabling constraints, such as the Rules of the Plan, are 'basic mechanics which timetable planners have to conform to in order to produce an operable service'. There is, as a result, 'little leeway between permitted slots on a heavily occupied line such as the Lea Valley. This tends to lead to 'robbing Peter to pay Paul' if changes are made to train stopping patterns, without causing wider changes to train slot requirements.' He also recognised, as a result, that 'to achieve some bigger changes, it may be necessary to get agreement to vary some of the planning rules, which is a much bigger discussion to be had, and requires plenty of time ahead of any timetable change'. Network Rail was already planning its December 2016 timetable rules, so it was not too soon to plan for December 2017 or May 2018.
45. The report considered three broad strategies: short-term options to get more stops at Angel Road in the existing service pattern; larger scale changes to that; and 'making the case for a 4tph shuttle'. The first main option relied on lobbying for a change in the timetable, which was due to be revised in December 2016. This was 'far from guaranteed – there are plenty of other capacity pressures and desires to seek faster trains (which make it harder to run local services on a two-track railway) along the West Anglia routes)' [emphasis in the original].
46. The second main option was to press for the first, but also actively to propose changes to stopping patterns. One option, because service reductions are unpopular, would be for the Council to propose removing a stop from existing trains in the borough and giving it to Angel Road 'if matters are that important at Angel Road/Meridian Water'. The domino effect of seeking a minor change in stopping patterns was 'explicit' in the example given in the report. This option might succeed. There would need to be significant early capacity planning and discussions with TfL, the rolling stock companies and the Defendant. An alternative was a limited timetable change to increase the accessibility of Angel Road by making a non-Stratford service call hourly in the morning peak 'to top up the service to 4tph'. That train would already have to have a 'reasonable pathing margin'. This would have a domino effect on the earlier Cambridge limited stop train, but that might work because of the margin between it and the Stansted Express train. This would give 4tph southbound in the morning peak. But there then would be a 25-minute interval at Angel Road, so the earlier option might be preferred. There was a follow-on option which arose when there were no through trains (much of the day now).
47. The evening with flow peak was already catered for, albeit with a 45-minute gap in the north-bound build up, which would need to be addressed. The morning northbound contra-flow peak relied on station stop substitution (see above). There was no useful margin to insert extra northbound stops during part of the morning peak because of two additional Cambridge trains. The other hourly train did stop at Angel Road. In the afternoon peak southbound there were difficulties fitting in a further stop at Angel Road. Frequencies were a little less pressured in weekday off-peak periods, but an hourly freight path had to be protected 'which is a complicated matter as the basic unit of passenger frequency is half-hourly…' So one freight path could cause two regular passenger slots to be lost, every hour. Nonetheless, the report concluded that two hourly stops in each direction could be achieved. On Saturdays, the position should be similar. The report asserts that the service on Sundays should be improved, but it is not explained how.
48. The conclusion of the report, 'in summary' was that the short-term options did 'offer capability to achieve a 4tph service at Angel Road'. It was easiest to offer in the weekday off-peak and on Saturdays, by using different timings for the existing Stratford trains. It was 'harder' to secure a full 4tph service at weekday peak times, 'Unless much of the timetable is recast, the main option is to secure a substitution of station stops'.
49. There were three options for larger scale changes to existing service patterns. These were to get new high acceleration trains, to review the Rules of the Plan for WAML and to re-time the basic hourly sequence of trains.
50. The next part of the report considered how to make the case for TfL to be involved, and for a potential 4tph shuttle (independently of WAML). The author of the report 'expect[ed] that moving Stratford - Tottenham to 4tph – which is essentially an orbital travel flow' – will unlock very large demand changes on that section of railway, which are not capable of simple forecasting at present [emphasis supplied]. Developers needed to be 'stimulated by the best possible service, even if this appears a lot for the first few years of housing growth.' [emphasis supplied]. The Council's developers had 'made it clear that they will only commit to the highest housing volume if there is a transport commitment to deliver a 'walk-on' service. To that extent, the 4tph service is a 'must-have', not a discretionary option.'
51. 110 trains per week currently stop at Angel Road (report, page 8, final sub-paragraph of the first bullet point). The report proposed that, instead, 1100 trains a week should stop at Angel Road (Annex 1, page 20, second paragraph). As I have already said, that is an increase by a factor of 10.

The email Ben Stafford sent Jonathan Roberts on 5 August 2015

52. Also on 5 August 2015, Ben Stafford replied to Jonathan Roberts's email. He said, 'Hopefully I am right in thinking that Meridian Water is the new name for Angel Road station? If so I can confirm that we are expecting the ITT to require bidders to operate the STAR (Stratford to Angel Road) service of 2tph up to delivery of additional infrastructure and 4tph following completion of the infrastructure.' This email was described in an email dated 1 October 2015 from John Baker of the Council to Peter George as 'Email, albeit informal from the DfT providing comfort on 4tph'.

The Council's reliance on the emails of 29 July and 5 August 2015

53. Before the emails were sent, the Council had already bought, or promised to buy, much, if not all, of the land which it has assembled for the development. In paragraph 16 of his first witness statement, Mr George says that the Council has spent £70m on buying land, on planning applications and on professional fees. He does not give any account or breakdown of when those costs were incurred, although in paragraph 10 of his second witness statement he says that £70m had been spent since December 2014. Paragraph 18 of the first witness statement includes a table of the procurement stages for the regeneration. Several stages were done between 29 May 2015 and 14 July 2015. The due date for the invitation to participate in dialogue and submit outline solutions ('OS') was 31 July 2015, and a briefing and discussions were due to take place in August. The deadline for submitting OS was 18 September 2015.
54. In paragraph 29 of his first witness statement, Mr George says that the Council acted in reliance 'upon the understanding that the Defendant was committed to ensuring a 4tph STAR service, following the Defendant's proposed actions at set out in the 29 May 2014 Steering Group minutes'. He says, without giving further details of amounts and dates of spending, that 'The regeneration and associated investment made by [the Council] was predicated on such an understanding'. He refers to earlier material in the witness statement in support of the assertion that the Council has spent money 'since May 2014 including…site acquisition, engaging architects, and planning professionals and initiating the procurement for the Regeneration itself, as well as a separate procurement for a remediation contractor'. It is not clear, on the Council's evidence, whether its spending began in December, or May, 2014, or when different items were paid for.
55. In paragraph 42 of his first witness statement, Mr George says that since 29 July 2015, 'in the expectation that the ITT would include a 4tph STAR service as a minimum requirement' the Council has continued with its plans, and spent a lot on professional fees, mostly those of planning consultants. He gives no dates or details.
56. He gives further details in paragraphs 43 and 44 of his second witness statement. These show that the Council bought one site in April 2015, exchanged contracts on another in June 2015 (completion was not due until December 2015), issued an invitation to bidders on 31 July 2015, briefed them on 7 August 2015, had meetings with them between 10 and 21 August, and evaluated the bids between 18 and 26 August 2015. The Council decided not to abandon ship after 17 September 2015 because 'there is too much at stake to put everything on hold…. There is also a risk that, were it to do so, [the Council] would suffer around £3m in abortive fees to the …bidders because [they] have now spent circa £1m each in preparing their bids'. The bidders would not have incurred 'a large proportion of those fees' if the procurement had been stopped before 31 July 2015.
57. In paragraph 5-7 of his second witness statement Mr George says that the Council began discussions with possible bidders in May 2015. The Council is currently having discussions with three potential bidders. The Council's position with developers has 'always' been that Angel Road/Meridian Water would have 4tph all day. 'This has been a key factor for the bidders'. Developers see such a service as 'critically important'. The Council has 'reassured bidders that it had every expectation that Angel Road/Meridian Water would receive a 4tph service from 2018'. He gives no dates for the period over which this has 'always' been the Council's position.
58. The two statements are surprisingly short of the sort of detail of the dates and amounts of spending which would be necessary to show that the Council had relied to its detriment on any particular representation. Some steps to further the development were taken between 5 August and 17 September 2015 (mostly further engagement with developers), but no specific cost is attributed to any of them. Had the cost been significant, I would have expected Mr George to say so, what it was, and when it was incurred. The Council did not make any irrevocable commitments during that period. It gave its in principle agreement to make the achievement of the 4tph service a condition precedent to the master agreement for the development on 12/13 November 2015, after it knew the decision on the ITT.

The TSR as published

59. Mr Smith explains that the general TSR documents contain time bands of 3 hours in the rush hours, and of 6 hours off-peak during the day. The specification for the STAR scheme in part 3 of the TSR refers to the minimum number of calls per day and specifies the maximum intervals between calls. It is not immediately obvious how to translate that framework, he says, into 'tph'. The effect of the TSR for Angel Road station is that, before the new track is built, the service requirement is about 2tph for the evening peak during the week (16.00 to 19.00), and that after the new track is built, two more tph on average calling at all stations between Stratford and Angel Road must be provided. The STAR specification provides, in part 3 of the TSR, that after the new track is built, a minimum of 35 more services on weekdays and 33 on Saturdays and Sundays must be provided for those stations. Bidders have some latitude about how to timetable those services. The overall effect of this is that after the new track is built, the minimum service for Angel Road will be about 3tph in the morning peak, 2tph in the daytime off-peak and 4tph in the evening peak. As he puts it, Angel Road 'will receive as a minimum a service reaching a frequency of 4tph during some hours, and – depending on how bidders respond – a service which may exceed the minimum service requirement…'.
60. Mr Smith also explains that as far as he knows, the Defendant did not agree to change, and did not consider changing, the current timetable, which is reflected in the specification for the WAML in relation to calls at Angel Road. The line is congested, and if any more stops had been specified at Angel Road, that would have had adverse effects on other 'stakeholders', each of which is competing to gain priority for the services wanted by its own constituency. As he points out, the report of Jonathan Roberts, the Council's consultant, which I have already summarised, highlights those constraints. Mr Smith quotes extracts from that report which show this. Mr Smith says that the only way in which the Defendant could specify 4tph throughout the day for Angel Road without negative consequences such as increased journey times for passengers travelling longer distances would be by requiring a reduction in the number of calls at other stations on the WAML. That would harm the users of those services. In his witness statement, Jonathan Roberts disputes Mr Smith's conclusions about timetabling risks, potential detriment to other users, and economic benefits, citing his own analysis and the apparent views of Network Rail. I am not in a position to, and, in any event, should not, attempt to resolve this dispute. These are the types of operational and technical judgments which Parliament, in enacting the statutory scheme, has entrusted to the Defendant.

The Defendant's briefing document and consultation response

61. The Defendant published a briefing document at the same time as the ITT. As Karen Letten explains in her witness statement, this was intended to give a 'plain English' description of the complexities of the ITT. She accepts, I think, that it fails in that aim in paragraph 6.9 in relation to the service for Angel Road. The message it conveys it that 2tph will call there from the start of the EAF and 4tph once the new line is built. This is an inaccurate statement of the provisions of the TSR.
62. This document was introduced by a foreword from the Defendant. He said that the competition for the EAF had set out 'clear objectives that recognise the vital role the railway will play in securing the economic growth we are seeing in this vibrant region'. The briefing document recorded that in considering the consultation responses and developing the ITT, the Defendant had acted 'in accordance with the obligations under the Equality Act 2010 and taken into account the [2012 Act]'.
63. In section 3, headed 'Our vision for the franchise', it also said that bidders were being asked how they would deliver certain objectives for the EAF, including helping 'the economy of East Anglia thrive by offering better rail services to and from, and across, the region that reflect the specific requirements of the different markets served, while working within affordability constraints' and supporting 'local communities to help deliver local transport integration, local regeneration and investment in and around stations'. Paragraph 3.5 recorded that 'as a result of the specification, we expect to see a variety of positive outcomes, as well as innovative ideas and initiatives from Bidders'. Those included 'Significant economic benefits from the region – supporting business, tourism, and job growth and contributing to the prosperity of East Anglia through better connections and faster journeys'.
64. The Defendant's response to question 17 noted that 254 respondents had answered this question. There was clear support for improved cycle access, focus on family travel, carbon inefficiencies on old rolling stock [sic] and controlled emissions toilets on all trains. The Defendant said that this question had produced a range of useful ideas which would be passed on to bidders.

The Defendant's reconsideration

65. On 3 December 2015, after these proceedings were started, the Defendant wrote to the Claimant. The letter set out the Defendant's reconsideration of the TSR for Angel Road. The letter said that Angel Road was one of the least used stations on the WAML. It summarised why the Defendant had not thought it necessary to analyse a full business case for increasing the service for Angel Road.
66. The letter said that the Defendant had since instructed its technical advisers (LF) to do such an analysis, with the same method which had been used for analysing other proposals for increases in services. The analysis was attached to the letter. It is 25 pages long. LF also did an analysis using Network Rail's latest demand growth figures for Angel Road, as a comparator. Those figures directly took account of the figures for homes (5000) and jobs (3000) forecast for Meridian Water. To test the analysis, it was repeated with those figures trebled. Even then there was no positive business case for the increased train service. The Defendant had taken into account the Claimant's representations and the aspirations of 'key stakeholders' and 'key government objectives'. The Defendant must act fairly between stakeholders, and take into account what is 'deliverable' and value for money'. It was therefore important for the Defendant to use 'a consistent and tested' method for deciding where the limited improvements which were possible should be focused. Having considered these factors, the Defendant had decided that the service level in the published TSR was still appropriate.
67. The Defendant has not produced a witness statement about this reconsideration.

The legal framework

68. There is little dispute about the main elements of the relevant legal framework.

The Railways Act 1993

69. Section 23 of the Railways Act 1993 ('the 1993 Act') requires the Defendant to designate such services for the carriage of passengers by rail as he considers ought to be provided under franchise agreements. Section 26(2) requires the Defendant to prepare an ITT and to issue it to such persons as he thinks fit. By virtue of section 29(5) (and subject to any requirements imposed by or under the 1993 Act), a franchise agreement may contain such conditions as the Defendant thinks fit. The discretion conferred by section 29(5) is, in terms, a broad discretion. Parliament has conferred it on the Defendant in a complex, technical, quasi-commercial field.

The 2012 Act

70. Section 1(1) of the 2012 Act imposes the duties described in section 1(3), (6) and (7) when a relevant authority proposes to procure or to make arrangements for procuring the provision of services by, among other things, making a public services contract, 'before starting the process of procurement'. 'Public services contract' is defined in section 1(16). In short it is either a contract to which the Public Contracts Regulations 2015 ('the 2015 regulations') apply, or to which the Public Contracts Regulations 2006 ('the 2006 regulations') would have applied. 'The process of procurement' is to be treated as starting when, among other things, the authority sends a notice to the Publications Office of the EU (see section 1(2)). So the duty imposed by section 1(3) applied to the Defendant before it published the notice. It did not apply at each subsequent stage of the procurement.
71. Section 1(3) requires the authority to consider (a) how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and (b) how, in conducting the procurement, it might act with a view to securing that improvement. That area is an area by reference to which the authority exercises its functions (section 1(4) and (5)). The authority must only consider under section 1(3)(b) matters which are relevant to what is proposed to be procured, and, in doing so, must consider the extent to which it is proportionate in the circumstances to take those matters into account. Section 1(7) requires the authority to consider whether to consult about the issues which it must consider under section 1(3).

Legitimate expectation

72. Both sides relied on the familiar cases in which the courts have elaborated the doctrine of legitimate expectation. A public authority may create a legitimate expectation (substantive or procedural) if it makes an unambiguous and unqualified promise on which it is reasonable for the promisee to rely (R v Inland Revenue Commissioners ex p MFK Underwriting Agents Limited [1990] 1 WLR 1545, and R v Devon County Council ex p Baker [1995] 1 All ER 73, 88-89). The starting point is '…what in the circumstances the member of the public could legitimately expect' (R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at paragraph 56).
73. Where a public authority has created a legitimate expectation, and wants to change its mind, that expectation can have one of three main consequences: (1) the authority may be bound to take the promise into account if it is minded to resile from it and give it the weight it thinks fit; (2) it may be bound to give an opportunity to the promisee to make representations before it changes its mind; or (3) if it has promised a substantive benefit, the court 'in an appropriate case' will decide whether a change of tack is so unfair as to amount to an abuse of power (Coughlan, paragraph 57).
74. In paragraph 59 of its judgment in Coughlan the Court of Appeal acknowledged that it is not easy to decide how to classify a promise. Most cases of an enforceable promise of a substantive benefit will be cases 'where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract'.
75. In R v Secretary of State for Education and Employment ex p Begbie [2001] 1 WLR 1115 at page 1130 G-H, Laws LJ said that some 'changes of tack…though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save on a bare Wednesbury basis…'. He said that the Coughlan case took place on a far smaller stage; few individuals were affected by the promise. The facts may be 'discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, on whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order…' In such a case to hold that there is a legitimate expectation which can only be defeated if there is an overriding interest 'offers no offence to the claims of democratic power'. At page 1131C-D he said that 'The more the decision lies in…the macro-political field, the less intrusive will be the court's supervision'. Indeed, in that field, it was less likely that a true abuse of power would be found.
76. In Coughlan, the authority had promised the residents in a home that they would have a 'home for life' if they moved there from there to another home. The promise was made more than once, and in precise terms. It was made to a small group of disabled people. It was unqualified. It was repeated for reassurance. It was made to induce the promisees to move from one home to another. It was relied on. 'A decision not to honour it would be equivalent to a breach of contract in private law' (judgment, paragraph 86). The Court of Appeal held that the decision to move the applicant from the home against her will and in breach of the health authority's promise was 'in the circumstances unfair'. The health authority 'failed to weigh the competing interests correctly'. The Court also said that it could not prejudge what would happen if, instead of merely offering to fund the applicant's care, the authority had offered her accommodation which was reasonably equivalent to the existing home, and had made a properly considered decision to close the home in the light of that offer (ibid, paragraph 89).
77. Begbie is a slightly later decision of the Court of Appeal. The claimant, who was at primary school, was offered a place in a secondary school under the assisted places scheme. The party which was then in opposition had said it would abolish the scheme, but that the places of children who already had places under the scheme would still be funded. When they were elected, legislation was passed abolishing the scheme. Children who had assisted places in primary schools would only be funded until they left primary school, subject to the exercise of a discretion by the Secretary of State. The main point on which the claim failed was that to enforce any expectation would have required the Secretary of State to act contrary to the terms of primary legislation. Pre-election statements had no legal effect, and were made by a political party, not by a public authority.
78. At page 1124 B-C, Peter Gibson LJ said it would be wrong to understate the importance of reliance in this area of the law. 'It is very much the exception rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation'. Both Laws LJ and Sedley LJ said that on the facts, detrimental reliance was both necessary and absent. Peter Gibson LJ referred, at page 1125 G-H, to a requirement that for an expectation to be legitimate, it must be made 'on behalf of' the public authority.
79. At page 1127B-D he said, 'Where a court is satisfied that a mistake was made by the minister or other person making the statement, it should be slow to fix the authority permanently with the consequences of that mistake. That is not to say that a promise made by mistake will never have legal consequences. It may be that a mistaken statement will, even if subsequently sought to be corrected, give rise to a legitimate expectation, whether in the person to whom the statement is made or in others who learn of it, for example where there has been detrimental reliance on the statement before it is corrected. The court must be alive to the possibility of such unfairness to the individual by the public authority in its conduct as to amount to an abuse of power….' Sedley LJ agreed with Peter Gibson LJ on this point. Laws LJ said that there had been no abuse of power, but rather that 'The Government's policy was misrepresented through incompetence' (at page1131E). It is clear, nonetheless, that he would have held that the promise was enforceable if the Claimant had relied on it to her detriment.

Discussion

The meetings of the STAR steering group

80. There is some suggestion in Mr George's evidence for the Council that the limited participation of Ben Stafford in the proceedings of the STAR steering group generated a legitimate expectation from as early as May 2014 that 2/4tph for Angel Road/Meridian Water would be specified in the ITT. This is not the way the Council's case was argued; rather, it was contended that those proceedings were the context against which later representations are to be read.
81. I would, in any event, have rejected any argument based on the proceedings of the steering group. The proceedings of the steering group are not a clear representation or representations by the Defendant that such 2tph TSR for Angel Road would be specified in the ITT; nor would it have been reasonable for the Council to rely on the proceedings to that effect. Moreover, that the Council did not understand from the STAR steering group meetings that a 4tph service was a done deal is absolutely clear from the text relating to Objective G in the Council's consultation response, which I have already quoted.

The meaning of the 29 July email from Ben Stafford to Ms Kalaugher

82. This email was a clear statement of Ben Stafford's 'understanding' that 4tph for Angel Road has been specified as a minimum requirement once the necessary infrastructure works had been completed; that the ITT would specify 2tph until the STAR scheme was completed and 4tph once it was finished. I reject the Defendant's submission that this did not mean 4tph stopping at Angel Road/Meridian Water during the day. Even if, contrary to my view, it only meant 4tph during peak hours, it must have meant 4tph during peak hours in both directions. That would have been a significant improvement on the current services. There is no way in which, in its context, this email can be reasonably read as conveying what the Defendant would now like it to have conveyed, that is, 'up to 4tph'.

The effect of the 29 July 2015 email

83. I reject, however, the Claimant's submission that the Defendant is to be fixed, by some process of ineluctable inference, with the knowledge that this email would be transmitted to the Council, still less, that the Council might or would rely on it. I have no doubt that on appropriate facts, a public body might be treated as having made a representation to someone by making it to a third party, if the public body knows that the third party will communicate it to that person. I do not consider that this is such a case. There is no evidence to show that Ben Stafford was communicating with Ms Kalaugher in her capacity as secretary of the STAR steering group, rather than in her capacity as transport policy officer for the GLA, or that he knew she would send his email to the Council. There is no evidence from Mr George for the Council that Ms Kallaugher sent this email to the Council, or, if so, when; he simply refers to it in his witness statement. Ben Stafford's evidence is that the GLA were asking questions in June and July, and he sent this email to her after a discussion about the level of service. He communicated to her what he had understood from Mr Morris of the Defendant.
84. Nor do I consider that this email could generate a legitimate expectation in the Council that such a service would be specified in the ITT. The Council could not legitimately expect this for four reasons.

i) The representation was not made to the Council.

ii) For that reason, it would not be reasonable for the Council to rely on it. I infer that the Council did not do so, because of the evidence of Mr George that 'Exercising an abundance of caution and conscious of the imminent publication of the ITT, [the Council] asked Mr Roberts to seek a second confirmation regarding the 4tph STAR service from Mr Stafford.'

iii) The Council could not legitimately expect that, in advance of the publication of the ITT, and during the period in which the Defendant was considering the consultation responses, it would be given a reliable private insight into the ITT specification. The Council, which is itself a public body, would well know that it would be unfair and unlawful for such a private communication to be made before the outcome of the consultation was published.

iv) The Council had no reason to consider that Ben Stafford had any special knowledge of the specification process. I have seen nothing to show that the Defendant held him out as having any power to utter a binding promise about the contents of the ITT.

The meaning of the 5 August email from Ben Stafford to Jonathan Roberts

85. The context for Ben Stafford's email is important. Five points matter in particular.

i) Jonathan Roberts asked him a tentative question 'I wonder if you could confirm…'

ii) Ben Stafford was asked to confirm 'the expected position'.

iii) The service requirement Jonathan Roberts was asking about was 'a basic 2tph/4tph STAR…as set out below'. The attached communications and the documents to which they referred showed, among other things, that 2/4tph was 'a big ask'.

iv) The Council was said to be keen to be positive to developers not before, but after, the ITT was published.

v) Jonathan Roberts and Ben Stafford both knew that the ITT had not yet been published and was not due to be published until later that month.

86. Despite those contextual factors, Ben Stafford's email clearly says that he confirms that 'we are expecting the ITT to require bidders to' to deliver 4tph once the new infrastructure has been provided. This is a clear statement that that is what 'we are expecting', and I have already explained that in context, this means 4tph throughout the day, rather than 'up to 4tph' or '4tph 24/7'.

The effect of the 5 August email

87. I do not consider that this email generated a legitimate expectation that the ITT would specify 2/4tph for Angel Road/Meridian Water. A number of linked factors lead me to this conclusion. Most importantly, I do not consider that (if it did so) it was reasonable for the Council to rely on this email, for four main reasons.

i) The contextual factors listed in paragraph 85, above.

ii) Jonathan Roberts knew Ben Stafford through the STAR steering group. He does not contradict Ben Stafford's evidence that he (Ben Stafford) contributed little to those meetings. Jonathan Roberts had no reason to think that Ben Stafford had any special expertise, still less authority, in connection with the ITT. Any such confidence should have been shaken by the fact that Ben Stafford's email of 5 August 2015 suggests that he was not even sure that Angel Road and Meridian Water were the same station.

iii) The Council itself (see the email of 1 October 2015 from Mr George to Mr Baker) described this as 'Email (albeit informal) sent from the DfT providing some comfort on 4tph'.

iv) Jonathan Roberts knew, and through him, the Council must have known, that 2/4tph for Angel Road/Meridian Water was a huge challenge for the Defendant. It was inherently unlikely that it would be specified in the ITT, and it was unreasonable for the Council to rely on an 'informal' email promising this great prize, elicited in the way that was from the person from whom it was elicited.

The third and fourth reasons why the 29 July email did not generate a legitimate expectation apply to this email, also.

Detrimental reliance

88. In case I am wrong, and either of the emails did generate a legitimate expectation, I should consider whether the Council has relied on either to its detriment. It is clear to me that either Ben Stafford misunderstood what he had been told by his colleagues about the TSR for Angel Road, or they failed to communicate the position clearly to him. When he told Jonathan Roberts about what he understood was expected in the ITT, what he told Jonathan Roberts was, objectively, inaccurate. When Miss Carrs Frisk was making her submissions I asked whether she accepted that Ben Stafford had 'got it wrong'. She agreed that he had. I should be slow to fix the Defendant with the consequences of such a mistake, and would not do so unless satisfied that the Council had relied on Ben Stafford's email to its detriment.
89. The main difficulty for the Council is that its evidence on this aspect of the case is just not clear enough. I am not satisfied, on that evidence, that the Council took any step, in reliance on either email, that it would not have taken had it not known about the emails. Long before either email, the Council had decided to press ahead with spending large sums on buying land and other expenses associated with the development. At that stage, and right down to its consultation response, it hoped that the WAML train service to Angel Road would be improved, but it knew that that was not certain. It was taking a calculated risk. I do not accept, on the evidence, that had Ben Stafford, in either email, accurately transmitted the TSR for Angel Road, the Council would, at that stage, have aborted the development. A key date is 31 July 2015, when the Council issued its invitation to bidders. There is no evidence that on that date, it knew about Ben Stafford's email to Ms Kallaugher.

If the Defendant had created a legitimate expectation, were there overriding reasons of public interest to justify departing from it?

90. I do not need to decide this question, so indicate my views briefly. I would have decided that the Defendant would have been entitled to depart from any legitimate expectation it had created. This is not a case where, in the words of Laws LJ, the actors were on a small stage. There is a much larger public interest at issue, which is the interest of all the other users of the WAML, all of whom want the best service for their station which is achievable within the physical constraints imposed by line capacity, and the money which is available. On the authorities, this is a question for the court, but I am ill-equipped to balance those competing interests. I would therefore defer to the view of the Defendant on this question, which, in essence, is that its method of modelling the transport economics of different options for the ITT is the best and fairest way of assessing different options for the TSR.
91. I acknowledge that this is an artificial assessment, and the analytical difficulty posed by the fact that, because the officials of the Defendant who drew up the ITT did not know about Ben Stafford's emails, they could not have taken any 'legitimate expectation' into account when they went ahead and published the ITT. If it had been necessary to do so, I would have held that, on these particular facts, given the overriding public interest to which I have referred, the Defendant would not have acted unlawfully in not taking the Claimant's expectations into account.

Did the Defendant act with conspicuous unfairness in not including 2/4tph for Angel Road station in the TSR?

92. I can deal with this issue shortly. I do not consider that the Defendant acted unfairly, still less with conspicuous unfairness, in correcting Ben Stafford's 5 August email. The various factors I have considered in deciding whether it was reasonable for the Council to rely on either email point clearly to the conclusion that the Defendant did not act unfairly in correcting the emails.

Relevant considerations

93. The Claimant made three main submissions under this head.

i) The economic benefit of the Meridian Water development was a consideration which any rational decision maker was obliged to take into account. The Defendant failed to take it into account.

ii) The Defendant was obliged by the 2012 Act, or by its own conduct, to consider how the train services provided for in the ITT might improve the economic, social and environmental well-being of its area. It failed to do so, by not taking into account the economic benefits of the Meridian Water development.

iii) It was technically possible to provide 2tph at Angel Road and the Defendant erred in taking into account that it was not technically possible to do so.

The economic value of the Council's development

94. I do not consider that the first and second submissions are different in substance. Both submissions are a route to the same goal. The question is whether, and if so, to what extent, the Defendant must specifically take into account, in drawing up the TSR, the economic value of a future development, which it knows that one entity in its area wants to promote, initially to developers, and later to the public, and which is served by a station on the network.
95. I have already said that the statutory discretion is a wide one, and noted that it is to be exercised in a highly technical and complex field. I do not consider that, as matter of statutory construction, it is possible to spell out an obligation of the kind for which the Claimant contends. It is for the Defendant, subject to Wednesbury, to decide how it will specify the TSR. I am not persuaded that the general method which the Defendant has decided to use for doing that is irrational, or that its preference for analysing the transport economics of different options for the TSR is unlawful.

The 2012 Act

96. I will say a little about the 2012 Act, nonetheless, since both sides made submissions about it; but not much. The main issue is whether the contract for the EAF is a 'public services contract' as defined in section 1(16) of the 2012 Act. In short, the contract in this case is not one to which the 2015 regulations could apply because of a transitional provision (regulation 117 of the 2015 regulations). Had the 2015 regulations potentially applied ratione temporis, this contract would have been outside their scope, as it is a concession contract and the 2015 regulations do not apply to concession contracts.
97. The question then is whether the 2006 regulations would have applied to the contract. That is not entirely straightforward. As Mr Bates's submissions made clear, there is an apparent mismatch between the apparent reach of the 2006 regulations and Directive 2004/18/EEC ('the Directive'), which they implemented, and with which they have to be read consistently. The Directive clearly does not apply at all to service concessions. But the 2006 regulations are drafted in a way which at least leaves room for argument on this point. I do not need to decide this point, as I explain below. Had I needed to decide the question, I would have been persuaded by the Defendant's submissions that the 2006 regulations would not have applied to this contract.
98. The Council argued that section 1(3) of the 2012 Act applied to the consultation process about the ITT and to the design of the ITT. I reject that submission. It is clear that the duty only applies before the procurement starts (as that is defined in section 1(2)). Nonetheless, as he accepts, the Defendant has publicly promised to take account of the 2012 Act. This means that even if, as a matter of law, section 1 of the 2012 Act did not apply at all, or does not apply to the stages of the procurement I am concerned with, the Defendant has nonetheless promised to comply, by analogy, with the obligations imposed by section 1(3) at those stages.
99. In my judgment the Defendant did comply with section 1(3) by analogy. The duty is a duty to consider how what it is proposed to procure might improve the economic etc well-being of the area, and how, in conducting the process of procurement, the Defendant might act with a view to securing that improvement. These are general target duties expressed at a very high level of abstraction. There are multiples of different ways in which different relevant authorities might consider these matters. I am not persuaded that the way in which the Defendant approached the specification of the TSR breached this analogical duty. In particular, I cannot spell out of this analogical duty and obligation to take into account the economic value of one entity's plans for one development in the relevant area.

The technical feasibility of providing 2/4tph at Angel Road station

100. Although this features in the Council's skeleton argument as a head of challenge (paragraph 5(e)), the Council acknowledges (ibid, paragraph 86) that the Defendant has now accepted that it would be technically possible for such a service to be provided. I therefore say no more about this point.

Should the Defendant have given the Council a chance to make further representations?

101. I have held that Ben Stafford's emails did not generate a legitimate expectation of any kind. I should consider, for completeness, whether, despite that, the Defendant should, when it realised that the Council thought the emails meant what they said, and that the Defendant was not intending to provide in the TSR the service which the emails described, have given the Claimant an opportunity to make further representations. I do not consider that it should have. The reason the Council was in this position was because, beginning with the June 2015 email from Jonathan Roberts to Ben Stafford, the Council had tried to influence the Defendant and/or to get an inside track, in parallel with the public consultation process. The Defendant was not obliged to give the Council a further opportunity to do this, and in my judgment, could not do so without compromising the overall fairness of that public process. Fairness here did not require the Defendant to do more than to take into account the Council's consultation response, which the Defendant was entitled to treat as the Council's best case.

The impact of the Defendant's reconsideration

102. I have held that the Defendant's decision was lawful. In case that is wrong, I deal briefly with the impact of section 31 of the 1981 Act. Mr Sheldon accepted in his oral submissions that section 31 of the 1981 Act was only relevant to the challenge based on relevant considerations. It did not affect the entitlement to be granted permission to apply for judicial review on the other grounds, if those were arguable, or to relief, if the decision was unlawful on those grounds.
103. In resisting the Defendant's reliance on section 31 to defeat that one argument, the Claimant relied on some remarks of Blake J in R (Logan) v Havering London Borough Council [2105] EWHC 3193 (Admin) at paragraphs 55-57. Blake J held that the Defendant's council tax reduction scheme had been adopted by a faulty procedure, because there was not enough evidence that the decision makers (the full council as opposed to an executive decision maker) had had due regard to the statutory needs stated in section 149 of the Equality Act 2010. The evidence did not show that the relevant officers' report had been circulated to all of the council's members. The Defendant had asked councillors what material they had when they made the decision. Not all had replied, but the group leaders had said on their behalf that having re-read the report, they concluded that it would have made no difference to their decision (judgment, paragraph 51).
104. Blake J decided not to make a declaration, largely on grounds of delay. He considered, nonetheless, what material a court should normally consider when applying the tests in section 31(2A) and (3C) of the 1981 Act. His view was that in a section 149 case, this 'should normally be based on material in existence at the time of the decision and not on post-decision speculation by an individual decision maker'. Any other approach would risk undermining the rule of law and the effectiveness of judicial review as a remedy. He did not consider that Parliament could have intended, by enacting these amendments, a draconian modification of constitutional principles. 'It may well be that the new provision was only intended to apply to somewhat trivial procedural failings that could be said to be incapable of making a material difference to the decision made' (judgment, paragraph 55).
105. On the facts, he also acknowledged that there was material at the time of the decision which might have shown that due regard to the statutory needs would not have made a difference to the decision (judgment, paragraph 57).
106. The amendments to section 31 of the 1981 Act are not prescriptive about the material which the court may take into account in considering whether 'it appears' to it to be 'highly likely that the outcome for the applicant would not have been substantially different'. Nonetheless, the threshold stated in the amendments is relatively high. For that reason, and for the reasons alluded to by Blake J in Logan, it seems to me that a court should normally expect a witness statement or other document with a statement of truth to support a defendant's reliance on these amendments. There is no such material here. For that reason alone, I do not consider that the test in section 31(3C) or (2A) is met in this case. That means that I do not consider that the either the fact, or the outcome, of the Defendant's reconsideration means that I am bound to refuse permission to apply for judicial review on the argument about relevant considerations.

Permission to apply for judicial review

107. I consider that all the grounds are arguable, and I grant permission to apply for judicial review. The Defendant's contradictory and confusing messages about the TSR for Angel Road station did not generate a legitimate expectation, as I have held, but they merited investigation and full explanation, as they cast arguable doubt both on the decision embodied in that part of the TSR, and on the process by which it was reached.

Conclusions on the application for judicial review

108. For the reasons I have given, I do not consider that

i) the Defendant has generated any legitimate expectation (substantive or procedural) that the published TSR would provide 2/4tph for Angel Road station;

ii) the Defendant has acted with conspicuous unfairness in not providing for 2/4tph for Angel Road station in the published TSR;

iii) that the Defendant took into account irrelevant, or failed to take into account relevant, considerations, or otherwise acted irrationally in making the decision embodied in the relevant part of the TSR; or

iv) acted unfairly in not allowing the Council to make further representations.

109. I therefore dismiss this application for judicial review.