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High Court criticises London temporary traffic order decision- how should you do it right?

One of the big consequences of lockdown and the tiers system has been a significant reduction in traffic across the UK. Many local authorities have attempted to capitalise on this by using traffic orders in various forms to expand the usable space for pedestrians and other road users. We’ve already looked at the issue several times, as the changes are often made without consultation and allegations have been made that councils might try to maintain the unconsulted upon changes after the crisis is over. Our general assessment has been that this would be difficult, but it’s still a major concern for many road users and campaigners.

Last week we saw delivery of judgment in one of the first major challenges against these sorts of orders. In this case, the proposal was a major plan, “Streetspace”, in London, implemented by way of a temporary traffic order. The effect of “Streetspace” would be to put significant restrictions on motor vehicles along the A10 in the City of London. It has limited exemptions, but notably not for taxis, a trade group for which brought the challenge.

The challenge was brought on several grounds, none of which directly addressed the issue of consultation, but were illustrative of the great risks of putting through changes without consultation. The primary argument of the claimants was that in imposing the new scheme TfL and the Mayor’s office had neglected to take account of relevant information, namely what impact would be had upon taxi drivers, who were significant users of the route.

As an additional consideration, drivers argued that TfL had not had regard to potential equalities impacts on people with protected characteristics who rely on taxis to travel. This part is a relatively interesting challenge- most often when we see equalities challenges they are brought by the affected stakeholder. Here we had a stakeholder effectively arguing that their services were of inherent value to people with protected characteristics, and that this required a public authority to take additional consideration of the social role they played in determining how to apply a policy change.

The traffic order was made under the provisions of the Road Traffic Regulation Act 1984, s. 14(1), the section that introduces ‘temporary traffic orders’. Similar to the ‘experimental traffic orders’ created during the pandemic, temporary traffic orders bear no statutory consultation requirement. Although TfL had met with representatives of the taxi sector, it was not in a consultative capacity, but rather to inform them that the order was being made.

The argument of the taxi drivers was therefore chiefly one of legitimate expectation. Although the argument primarily focussed on their legitimate expectation to use the roads in the manner to which they were accustomed, and despite the argument of the defendants that the pandemic justified the restrictions, Mrs Justice Lang raised the lack of consultation as a fatal flaw saying: “Such major changes are most appropriately made after consultation…”. She also agreed with the claimants arguments on equalities, concluding that the brief assessment that TfL had undertaken had not been sufficient, and they could not be said to have paid due regard to the requirements of the Equality Act 2010.

Further to this, in response to the irrationality challenge she went on to say:

“In my judgment, the flaws identified were symptomatic of an ill-considered response which sought to take advantage of the pandemic to push through, on an emergency basis without consultation,  “radical changes”,  “plans to transform parts of central London into one of the largest car-free zones in any capital city in the world”,  and to  “rapidly repurpose London’s streets to serve an unprecedented demand for walking and cycling in a major new strategic shift” (Mayor’s statements on 6 and 15 May 2020).  This approach was consistent with the additional guidance from the Secretary of State for Transport”

For local authorities considering using temporary traffic orders, there are clear lessons from this case. Firstly that even where there is no clear statutory obligation to consult on emergency and temporary traffic orders, there may still be a common law requirement to consult- and even if there is no strict requirement- it is best practice to do so. Secondly, those making orders should carefully consider different categories of road users. In this case, taxis were a high-volume user of the road in question, and so should have been considered as a distinct category.

Thirdly, be very careful in pushing through highly controversial changes during the pandemic. In this case, the judge was particularly critical of the order because she saw it as ‘taking advantage’ of the pandemic to make major changes. Even if your case didn’t come to court, consider how it would look for those in your jurisdiction. Optics and politics can be equally as dangerous as any potential legal challenge.

If you need any help with traffic orders and road changes, contact the Institute.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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