Information Appeal: Railway Bridge Infilling Reports

This was an appeal to the First-tier Tribunal concerning a refusal by National Highways to provide information about the management and condition of Great Musgrave bridge in Cumbria, and Rudgate Road bridge in North Yorkshire. The two requests were made under the Environmental Information Regulations in relation to bridges that had been infilled with stone and concrete without the necessary authorisation in circumstances where the local authorities were considering whether that infilling should be granted retrospective planning permission. The requests concerned information held by National Highways about the bridges’ condition and repairs prior to being infilled. 

Infilling of former railway bridges was part of a wider national programme to reduce the long term cost of maintaining heritage railway assets. The work had been carried out by National Highways on the basis that it was permitted development. There were contested claims about the structural condition and safety of the structure.

Our clients, The HRE Group, had campaigned to have the broader social value of legacy railway structures understood by decision makers and the national infilling programme stopped. The group wanted National Highways to recognise that many of the structures had the potential to form part of active travel routes, heritage railway schemes and environmental corridors, and also consider their historic value. The group also wanted National Highways to make applications for planning permission where demolition or infilling was contemplated so that the public could contribute to these decisions. Instead, National Highways routinely used permitted development rights which meant that there was little or no wider consultation.

Because of widespread opposition, particularly about the way the work was being pushed through without planning applications/public consultation, the national programme was “paused” for 10 months. National Highways eventually set up a stakeholder group to review the circumstances around all proposed infill and demolition schemes, increased the publicity about their programme, and ultimately agreed that planning permission would be sought in all cases (save in cases of urgency).

In May 2022, during a Government-imposed pause in the infilling programme, but before National Highways’ new approach to managing the structures was practically implemented, our client made requests under the Environmental Information Regulations for engineering reports and drawings so it could assess the condition of the infilled bridges and therefore contribute to the retrospective application made by National Highways to retain the concrete infill.

National Highways refused to provide the requested documents.

The request for the information was refused on the grounds that the requests were manifestly unreasonable. On appeal to the First-tier Tribunal, we asserted that the requests were not unreasonable because:

• Although our client had submitted a number of previous requests relating to a number of different structures, the volume was not excessive, as National Highways had argued. Furthermore, even if our client had made lots of requests, they were made legitimately for different pieces of information. That was why the information regime was enacted in the first place.
• There was a significant amount of public interest in this information. The tribunal heard about the heritage, cultural, ecological and future transport value of the specific bridges.
• There was widespread concern amongst members of the public about the national programme of infilling and serious questions about the legitimacy of National Highways’ use of emergency permitted development rights.

National Highways argued that our client had misrepresented information to criticise National Highways and that the work caused a significant burden on and distress to the team at National Highways dealing with this work.

The Tribunal rejected many key allegations made by National Highways; it concluded that NH had overstated or exaggerated the position in relation to a number of the assertions/allegations against our client.  It accepted that our client was a legitimate campaigner and was engaged in a campaign based on a matter of considerable public interest, one which the Tribunal accepted had a serious purpose.  It pointed out that there had been a significant change in policy by National Highways (abandoning the routine use of permitted development rights and taking into account the wider social and ecological values of historic railway structures) and that this was an indication of the weighty value of the campaign before that date. Contrary to National Highways’ assertion, the Tribunal accepted that the requests had some purpose and value and that there was no sensible suggestion that the requests were difficult to respond to, or that they were inappropriately or disrespectfully worded.

However, notwithstanding the huge amount of public opposition to National Highways’ retrospective application to retain the infill at Great Musgrave, the Tribunal concluded that as our client had successfully addressed the issues which were at the heart of its campaign, this meant that the public interest was greatly decreased and limited.

The Tribunal then balanced the value of these documents against among other things, the stress and burden on National Highways caused by having to respond to the public interest in the campaign.

The Tribunal also concluded that some mistakes had been made in the course of the campaign.

Finally, the Tribunal made conclusions about the use of critical language (and hashtags) in social media and elsewhere and suggested that this might limit the right to benefit from FOI and EIR.

The Tribunal concluded that the requests were therefore manifestly unreasonable.

While it is acknowledged that some mistakes were made during the campaign, what is surprising is the very high level of expectations that the Tribunal suggests should apply to campaigning groups – these include an apparent duty to correct misrepresentations (of the group’s material) by other media outlets.  The Tribunal’s conclusions are controversial and have potential implications for campaign groups, the media generally and the accountability of public authorities.

Permission to appeal has been granted and an appeal is underway in the Upper Tribunal. Ben Mitchell of 11 King’s Bench Walk is instructed as counsel.