Another LTN court case- but wait! This time it’s the other way round…
Back in September, we wrote an article asking whether life was going out of cases against low traffic neighbourhoods. The themes, we said, were becoming stale and the cases becoming repetitive. Naturally, we left ourselves a get-out clause in case we were wrong, suggesting that we might see cases from outside London which might be different given the local Government structures. After a few months of confident silence on this front, last week we were relieved to see a new one which was not only from outside London, but also from a completely different angle. This one wasn’t a challenge to the imposition of an order- but to its revocation.
The case was Keyhole Bridge User Safety Group v Bournemouth, Christchurch and Poole Council, the challenge to a decision by the Council to revoke an experimental traffic order (ETO) which prohibited vehicle access (other than bicycles) to Whitecliff Road where it ran under Keyhole Bridge into Poole Park. The order was made on August 4 2020, accompanied by a Statement of Reasons and Notice of Making, which laid out the statutory objection period of six months. Accompanying this was an ‘Information Document’ which gave some information about the order and included the following paragraph:
“As this is an ETRO, we want to hear your views on the changes and their impact throughout the process…..You can give your views using the online form …
The consultation will start on 7 August 2020 and the online form will be open for the duration of the trial. The council will undertake a review six months after the works implementation date. Comments received by 21 February 2021 will be considered as part of the six month review.”
In October 2020 the Council administration changed, and on 15th October the Council announced, then retracted a statement that it intended to revoke the order. After the retraction of this statement there was little movement until 15th January where after a review of the responses to the still ongoing consultation, the new transport portfolio holder published a Proposed Decision to revoke the order. The Council invited ‘interested parties’ to comment, giving a five-day window, but interestingly not putting it on the Council’s consultation webpage.
A decision was made to revoke the order on 27th January 2021. The Portfolio Holder Decision Record published alongside this order noted that the statutory objection period received 128 responses in support of the order, and 35 opposing, and the ‘informal consultation’ received 270 responses in favour and 164 against. The decision was subsequently called in, but passed successfully through the Overview and Scrutiny Board.
On 30th January (within the original contemplated consultation period), two members of the public responded to the consultation procedure to support the continued closure of the road, but were informed by the Council that the order had already been revoked. They made a complaint, and the Council responded saying that the original plan for a six-month consultation period ending in February 2021 had been the intention of the previous administration, and as they were not bound by the decision of their predecessor, the new administration had taken a decision to remove the measure earlier.
The Claimants argued four grounds. Firstly, that the Council had acted contrary to the requirements of the road traffic regulations by cutting short the statutory six-month objection period. Secondly, that they had a legitimate expectation that the closure of the road would operate for 6 months and then be reviewed. Thirdly that when they were deciding to revoke the order the Council failed to take into account the material considerations of any consultation responses that might have been lodged in the remaining promised consultation period. Fourthly that the Council acted irrationally when deciding whether to revoke the order by relying on unevidenced assumptions about the detrimental effect on air quality.
On the first ground Mrs Justice Lang found that the Council had essentially undertaken two parallel procedures: a statutory objections procedure and a non-statutory consultation procedure. The statutory procedure, she noted, by law should have been confined to only inviting objections, as opposed to objections and representations in support- in this the Council had erred. The Council however were not required to leave the experimental order in place for six months by law (though they would have been had it been a permanent order in the same terms as an ETO). Although the Council had erred in law, the judge felt that the Claimants had not been deprived of the opportunity to make representations, and no prejudice had been suffered. Hence, she found for the Council.
Considering the legitimate expectation point on the non-statutory consultation, the judge found that the Information Document had created a legitimate expectation of proper consultation. Although the order had operated for more than the six-month promised period, the consultation period had been curtailed, and there had been only limited opportunity for further comment, further restricted by the lack of publication. The judge also found that the Council’s stated reasons for the change (that the administration had changed, and significant responses had been received and raised no new points) were not sufficient to permit resilement from fulfilling the legitimate expectation. Accordingly, she found for the claimants.
On the ‘material considerations’ ground, the Court found for the claimants- the issues raised by the two members of the public should have been considered. As they were substantively similar to other points that had been made in the consultation however, Mrs Justice Lang deemed that it was highly likely the eventual outcome would not have been different, and therefore substantive relief should be refused. On the final irrationality ground, she found for the Council, agreeing with their argument that the essence of this argument was a disagreement with the merits of the decision, rather than a challenge to the process.
With a partial success in the claim, the question was then raised as to appropriate relief. The Claimants wanted a quashing of the order and a full re-run of the trial and consultation. The judge however agreed with the Council that this was disproportionate, and suggested instead a further non-statutory consultation on the changes in the order, considering also the previous responses to the various consultations to best reflect the effects of the promise of the Information Document.
This case is interesting on several levels. From the legal perspective it is a warning to new Council administrations that a mere change of Council control does not alone constitute sufficient justification to go back on a previously established legitimate expectation. Nor, quite rightly, did an assertion by the council that they had received a ‘significant’ number of responses that raised no new points. Consultation should always be allowed to run its promised course- valid and relevant points may be raised right up until the end of the consultation (or even beyond), and it is not for arbitrary decision making to stop this.
There is also a warning here about statutory requirements and carrying out additional non-statutory processes in parallel on the same subject. Here, and from the judgment it’s not entirely clear whether it was the intention of the Council or whether they intended it to be one process and only realised later that they were inadvertently doing two, the Council were running a (slightly legally flawed) statutory objection procedure on the effects of the order and a non-statutory consultation on the same. These twin programmes seemed to lead to some confusion over scope and status. The non-statutory procedure was founded on a promise of ‘6 months’, a requirement that did not feature in the statutory one, and would go on to complicate the removal of the scheme.
In light of this, we might deem this case as one where the ‘KISS’ principle should have been applied (Google if necessary…). There is however one point where we might go so far as to slightly disagree with the learned judge, and that is on the relevance of the subject matter of the additional comments made after the order was revoked. On the grounds that the points made in these comments had already been raised in the consultation she refused relief as the outcome would likely not have been different. Although she was entitled to do so, it does raise a slightly off feeling in us as a point of principle- surely the responses should have been taken into account anyway?
The final point is perhaps the relief granted in this case- the rerunning of a new consultation, to take account of any new responses as well as the responses to previous consultations. This is a relatively unusual order to be given- usually when a rerun of a consultation is ordered it takes the form of a complete rerun. In light of the Government’s proposals to introduce suspended quashing orders to judicial review, we wonder if we might see more of this sort of hybrid solution being used.