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HHRC Ltd v Hackney BC- is the life going out of cases against LTNs?

The story is by now as comfortable and familiar to us as a favourite armchair. A local council decides in the pandemic to implement traffic changes to create low traffic neighbourhoods, local objections are raised and like the sun rising in the morning they are taken to court. This time it was Hackney Borough Council, over their “Rebuilding a Green Hackney- Emergency Transport Plan: responding to the impacts of Covid-19 on the transport network”- a snappy title even by my usually over-loquacious standards.

The plan, a successor to several other transport plans which contemplated the implementation of ‘liveable neighbourhoods’, was prepared following the publication of the London Streetspace plan (which readers will recall was itself challenged), and created a network of LTNs across Hackney, most of which were already in the previous strategies. The schemes were fast tracked using Experimental Traffic Orders (ETOs) and these proposals brought about the challenge.

The challenge was brought on four grounds, breach of traffic management duties, failure to have due regard to the public sector equality duty, failure to properly investigate the impact of the proposals on air quality, and failure to undertake proper consultation on the Plan. Similar to the last case we saw (Sheakh v LB Lambeth) the Court found against the claimants on all grounds.

Sufficiently similar are the cases that we will eschew a detailed examination of the case, in favour of briefly discussing the more long-term prospects of LTNs and associated legal challenges. By this point, it is clear that most people implementing LTNs are well aware of their consultation duties and the principle that these changes should not be permanently retained without public involvement.

The court cases seem relatively settled too with the exception of the Streetspace case, though the appeal in that case soundly and non-too-gently brought the original outlier judgment back in line with the prevailing opinions. So does this mean an end to JR claims against LTNs? It almost certainly makes it less likely that one will succeed on similar grounds, with a nice little line of past precedent being established.

One common feature of most of the cases however does bear examination and might suggest that in slightly different circumstances there is still hope for the dogged campaigner. At present, the case have all been sourced from London, and have all been in situations where the new LTNs have a fairly firm rooting in prior plans, which were accelerated by the pandemic. Whilst not all of them have been definitively from pre-pandemic traffic management plans, many have, and this has contributed to judicial findings for local authorities.

This second point does make me wonder if judgments would be quite so favourable for local authorities if they could not demonstrate that LTNs were already being contemplated. It’s not quite true to say that these have not been discussed, as they were addressed in Sheakh, but this was still within the context of a wider plan. It’s not beyond the realms of possibility that a judge might not be quite so generously minded to defendants if there had been arguable consultation on a brand new LTN, where there was less evidence that it had properly been considered.

The other point of interest is the London angle. London is a somewhat unique beast with regards to local government, enjoying a stronger form of pseudo-devolution than most, without going as far as the true devolved authorities. Even other unitary authorities, where Mayors have been empowered do not quite represent the same order. The Streetspace plan, which emerged from the Mayor of London’s office, and has now been reinstated following the Court of Appeal’s decision in the case against it, was cited in passing in both Sheakh and HHRC Ltd on both occasions to put decisions of the respective Borough Councils into a wider context.

Why is this interesting? The London Boroughs serve essentially as unitary authorities, under the strategic umbrella of the Greater London Authority, in a parallel (albeit rather different) system to combined authorities. We can’t help but wonder that if decisions on LTNs had been made by say a local authority not under a Combined/London-style authority, with some degree of centralised planning of transport, it might not be a little more difficult to defend a challenged LTN. Where local authorities can’t place their LTNs into this broader context, might it make a judge less sympathetic?

Both of these points are of course sheer speculation, but we’re not sure we’re quite ready to call time on this little saga just yet. If nothing else, the cases demonstrate the often somewhat cyclical nature of legal cases. At the moment, we’re positively drowning in these cases, but as soon as the law is largely settled, and the arguments have to become more novel (and therefore less likely to be accepted), they are likely to fade away again, until someone comes across a new argument, or the law changes.

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