This week we saw judgment being handed down in the case of Tomkins v City of London Corporation [2020] EWHC 3357 (Admin), a challenge to the validity of an Experimental Traffic Order (ETO) on Beech Street in the City of London. This traffic order was used to close Beech Street to through-traffic (other than zero-emission vehicles) but also had a peripheral impact of closing off primary vehicle access to some parts of the Barbican estate. This case may be of particular interest due to the powers given to highways authorities during the coronavirus pandemic to make temporary changes. Although this case is not related to these pandemic powers, many of the points it makes might end up being transferable.

The three grounds of interest to consultors were the first, second and sixth in the case. The first dealt with duties to consult emerging from fairness considerations, the second, whether the regulations required the City to consult the tenant’s association, and the sixth revolved around the adequacy of statements of reasons.

The fairness argument (ground 1) was founded on two separate elements, firstly that there was a fairness duty to consult because closure of the road would remove a benefit, and secondly that there had been representations made in documentation which constituted a promise to consult.

On the removal of the benefit, the Court considered whether access to the estate via Beech Road actually constituted a benefit. In doing so, Mrs Justice Lang considered Lord Justice Brown’s approach in R v Devon County Council ex p. Baker [1995] and the earlier (and constitutionally important) Council of Civil Service Unions v Minister for the Civil Service [1984]. In this case, she decided, the ‘benefit’ of accessing his home via Beech Street did not constitute a ‘benefit’ sufficient to invite a legitimate expectation argument. Instead she said, Mr Tomkins enjoyed a “conditional right to use the public highway, subject to any traffic restrictions put in place from time to time by the highways authority”. The ETO under challenge was only temporary and he would have the opportunity to comment on it being made permanent, and therefore procedural fairness did not require him to be consulted.

In considering the secondary claim here, three documents were cited by the claimant as creating a legitimate expectation. The first was a letter apologising for a failure to keep residents informed, and committing to informing them in future, the second was a press release, and the third was a proposal in the City’s 2019 Transport Strategy. Lang J considered all three. The first, she said, did not promise consultation, but rather a general commitment to more information. The second and third, she determined were not clear or precise enough to generate a legal requirement of consultation on the making of this ETO.

The second ground brought by the claimant, that the regulations used to make the order required the tenant’s association to be consulted was also dismissed by the judge. It revolved around the old favourite phrase “such other organisations… as the order making authority thinks it appropriate to consult,” appended to two other named statutory consultees. The claimant argued that as the entrance to the Lauderdale Tower was on Beech Street, it was irrational not to include the tower’s tenant’s association as a consultee. Lang J disagreed. In light of evidence from the City as to why it had not consulted tenant’s associations (largely on the basis of sheer numbers of associations and it’s belief that residents of the tower would not be significantly more adversely affected than anyone else), she held that it was not irrational not to consult the association. The “such other organisations…” formulation made this a matter of judgment for the Council, and their reasoning was sound- this might be contrasted with the Article 39 appeal, where it was held irrational for the Secretary of State for Education not to consult the Children’s Commissioner and Children’s rights bodies because the Secretary of State had no good reason not to do so [para 83].

The sixth ground is one that too many consultors will be irrelevant, and related to the adequacy of the statement of reasons. Most consultations are not required by law to have a separate, explicit, statement of reasons, but in some specific circumstances, some are. The ETO regulations provide that a statement of reasons should be given, but do not insist on it being before any consultation. That being said, for those that are obligated to provide a statement of reasons before consultation, the discussion here of adequacy is worth noting.

Here, the Council had provided a statement of reasons. It was incredibly short, running to fewer than 100 words, and was alleged by the claimants to be inadequate. Lang J came down on the side of the claimants. Highlighting the assessment of the Court in Trail Riders Fellowship v Peak District National Park Authority [2012], she said that a statement of reasons had to be sufficiently detailed not to require those it was directed at (whether consultees or not) to seek out additional documents. It had to adequately explain the substance of the reasons for the project or order in question. The more dramatic or extreme the measure (and Lang considered this one fairly extreme), the more likely it would be to require more effusive explanation. Although most consultations do not require this standard to be applied, it is an important statement of principle for those that do.

This case provided an interesting exploration of several elements of interest to consultors. Although (like many cases this year) it has not advanced the law particularly in one direction or another, it has provided some welcome clarity on important issues and provided us with more authority on how traffic orders should be implemented. In light of the recent debate about the imposition of temporary traffic changes during the coronavirus pandemic, it’s likely not to be the last time we see them before the courts. Although this case was dealing with pre-pandemic ETOs, it may well appear in future cases on more Coronavirus specific orders.