We’ve written a lot about the implementation of low-traffic neighbourhoods during the Covid-19 pandemic. In short at the beginning of the pandemic and the first lockdown, in order to give more space to people to exercise, the Government eased regulations for the alteration of traffic arrangements to close routes to traffic and make them pedestrian and cycle only. Changes were to be temporary, and there has been much concern that changes might be made permanent without any consultation.

The possibility has drawn much attention from politicians, many of whom have objected to LTNs in their constituencies, and from local communities. We’ve already seen a few come up in court, most prominently the Streetspace case in London (which we understand we have not yet seen the end of yet) which looked at equalities issues and taxi drivers. This week, we saw another being challenged.

This time, the challenge was against the London Borough of Lambeth, which has introduced several new low traffic neighbourhoods since the start of the pandemic. The plans were an accelerated version of preliminary plans made in the Council’s “Transport Strategy and Implementation Plan” to introduce five separate low traffic neighbourhoods across the borough. Although all LTNs featured in the TSIP, the advent of the Covid pandemic and the new guidance issued by the Secretary of State (the second set of which stated “measures should be taken as swiftly as possible, but not at the expense of consulting local communities”), allowed them to accelerate these plans.

The claimant brought the case on four grounds, two of which should be of particular interest to consultors. The first was a twofold challenge to the adequacy of the consultation. Although they accepted a lack of a specific statutory obligation to generally consult but suggested that a requirement in the regulations to consult “such other organisations (if any) representing persons likely to be affected by any provision in the order as the order making authority thinks it appropriate to consult” had not been properly discharged. The main organisation that had been consulted by the Council was the cycling organisation “Wheels for Wellbeing”, and the claimant, a disabled resident, suggested that they should also have consulted groups representing disabled people in Lambeth, particularly highlighting dasl (the Disability Advice Service Lambeth). Mr Justice Kerr disagreed. It was not irrational for the defendant to have consulted a cycling group, and representative groups of disabled citizens could have contributed via the objections process.

The second part of the consultation challenge relied on a claim of legitimate expectation, founded on the Secretary of State’s guidance reminding councils of the need to consult communities. Once again, the judge rejected this argument, agreeing with the council that although the guidance had changed, the SoS could not have wanted to rewrite the statutory regime to impose a more onerous consultation requirement. There were insufficient grounds to establish a legitimate expectation, and therefore this part of the claim was rejected.

The other challenge of interest was made under the public sector equality duty. The claimant alleged that the original equality impact assessment on the TSIP had not covered LTNs, secondly that there had been no specific equality impact assessments on some of the new LTNs, and finally that the responsible officer had not been involved in the preparation of equality assessments and therefore could not have had due regard. As the Council had not consulted with disabled people reliant on motorised transport, they had not had appropriate regard. Lawyers for the Council argued that as the LTNs were experimental in their nature, there was no duty to consult beforehand due to the objection period. In addition, the process of equality assessment was, they said, an ongoing one to be informed by the results of and objections to the experimental changes. In this case, due to the urgency of the changes and the nature of the statutory guidance, Mr Justice Kerr determined that the ‘rolling basis’ of equality assessment undertaken by the Council was lawful, and therefore they had had due regard.

There are several things for consultors to consider in this judgment, particularly when dealing with LTNs. The first is that statutory consultation obligations may vary immensely depending on the subject matter. The consultation obligations for LTNs are very limited, and this judgment would seem to imply that in some respects they can be superseded by the right to object established in the same legislation. In this case, the decision to consult a cycling organisation was deemed to be rational, with the decision not to consult disabled representatives being ‘not irrational’. There may remain a question here as to where the line should be drawn, and we wouldn’t be surprised to see this returning as an issue. Certainly more detail would be nice.

The second is a reminder of the status of guidance. Although the guidance had changed in this circumstance, it was not (and never would be) sufficient to override or substantively change statutory consultation requirements. It’s also a reminder that statutory guidance can be changed quickly, and you should always ensure you are working with the most recent version. Although not an issue in this case, the amendment to the guidance made a significant change to its interpretation. For consultors working with a lot of different guidance, this can be tricky, but it is a necessary consideration, and should be diligently kept on top of.

On the PSED ground, the judge was very keen to stress that his determination that a ‘rolling review’ equality impact assessment process was lawful was very specific to the circumstances of this case. It should certainly not be taken as a precedent, and in most circumstance may not successfully meet the requirements of the ‘due regard’ bar. To strike a cautious note here- it is generally not advisable to do such things, and we would certainly recommend not taking such risks in your own equality assessments.