Last year we reported on a High Court judgment against Transport for London on part of the Streetspace programme, which would have made extra space for cyclists and pedestrians along Bishopsgate in the City of London. The original case, brought by organisations representing tax drivers claimed that the plan and guidance for the changes were irrationally founded, didn’t have due regard to the public sector equality duty and should be struck down. In the High Court, finding for the claimants, Mrs Justice Lang was highly critical of the process that had led to the plan, concluding that:

“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””

Although the case was not strictly a pure consultation case, it was sufficiently connected to consultation-heavy issues that we thought it warranted coverage. The case went to appeal and last week we finally got the judgment, which returned a total victory for TfL.

The Court of Appeal’s judgment is relatively critical of Lang J’s conclusions, directly addressing many of them. On the irrationality challenge, Lord Justice Bean and his fellow judges rejected the arguments that Mrs Justice Lang had accepted, highlighting that the first instance judge did not seem to have had any regard to the context of the plans, or any of the supporting evidence which provided a proper basis for the proposals.

The segment of the original judgment we quoted above was also directly addressed. The Appeal court noted that “neither the claim form, nor the respondents’ skeleton argument had alleged that the Mayor and TfL were seeking to take advantage of the pandemic to push through measures, on an emergency basis and without consultation, which could then be made permanent”, and described the judge’s characterisation above as “seem[ing] to come very close to a finding of bad faith”. As this bad faith had not been asserted by the claimants in the case, the approach that Mrs Justice Lang adopted was described as “fall[ing] short of due process”.

The original judge also found for the claimants on the equalities claims. On the claim that we highlighted in our original article that TfL had failed to have regard to the needs of disabled people who were significant users of taxi services, the Court of Appeal highlighted some pieces of what they described as “relevant detailed evidence” that Lang J had not taken into account, which, combined with some other pieces of evidence that seemed to have been misapplied or misinterpreted, rendered her conclusions unsound.

One of the other equalities issues, that we did not actually spotlight in our original piece was about the colour coding of the equalities assessment. The gist of the argument was that errors in this colour coding gave a misleading understatement of the impacts. In the original case, Mrs Justice Lang described the EIA as underwhelming and deficient, and reading as if the result was a “foregone conclusion”. Her judgment in this was described by the Court of Appeal as “somewhat harsh”. Although, it was conceded, the EIA was not perfect, Lord Justice Bean and his colleagues concluded that it was adequate and addressed the potential impacts reasonably well, particularly given the context of the changes in the pandemic.

Although the new judgment does not tell us anything particularly new about the implementation of LTNs, it does remind us that it is a very contentious area and must be handled with a great deal of care. Once again, it was another case where the context of the pandemic played heavily into the result of the case- far more in the appeal than in the original case where the judge was criticised for not taking sufficient account of this. The judgment is also an interesting read for those who want to see how judges can get it wrong at first instance.