Better Streets for Kensington and Chelsea v The Royal Borough of Kensington and Chelsea
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 14 March 2023 |
| Neutral Citation | [2023] EWHC 536 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2097/2021 |
The King On the application of
[2023] EWHC 536 (Admin)
Mr Justice Lane
Case No: CO/2097/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms J Wigley KC, Ms A Walker (instructed by Leigh Day) for the Claimants
Mr C. Streeten (instructed by Head of Legal Services) for the Defendant
Hearing dates: 8 December 2022, 13 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A. CYCLE LANES ON KENSINGTON HIGH STREET
The claimants challenge the defendant's decision taken at a Council meeting on 17 March 2021 not to re-instate temporary cycle lanes on Kensington High Street. The cycle lanes had been removed by the defendant pursuant to a decision of 2 December 2020. They had been installed seven weeks earlier, pursuant to the defendant's Active Travel Plan, which the defendant approved on 27 July 2020. Funding was originally envisaged to come from the Government's Emergency Active Travel Fund, which was intended to assist local authorities in promoting walking and cycling, and avoiding overcrowding on public transport, during the initial stages of the Covid-19 pandemic in 2020. As well as establishing the Fund, the government issued guidance entitled “Traffic Management Act 2004: Network Management in Response to Covid-19”. In the event, the cycle lanes were funded by the defendant.
On 19 June 2020, the defendant had indicated that it was exploring a new “temporary” cycling and walking route on Kensington High Street. On 16 July 2020, the defendant's Lead Member for Planning and Transport (Councillor Thalassites) indicated that he was minded to approve the defendant's Active Travel Plan.
The Active Travel Plan included some 16 projects. These were a mix of temporary schemes and schemes that the defendant had been planning to introduce, in any event, for which it now had an accelerated delivery programme in order to respond to the easing of lockdown in the summer of 2020.
An officer's report on the Active Travel Plan said that there was “simply not time” to consult extensively, prior to the Plan's introduction. Partly for this reason, the report said it was important to stress that the majority of the proposals were designed to be introduced quickly “but also on a temporary basis”. If it should “later be considered appropriate to make any temporary schemes permanent, after the current public health crisis has passed, the [defendant] would consult local people before doing so”.
One of the projects included in Table 1, as set out in the officer's report on the Active Travel Plan, was a light segregation cycle lane on Kensington High Street, for which the timescale given was “August 2024 up to 18 months”.
On 14 September 2020, the defendant wrote to local residents and businesses to advise them of its intention to install the cycle lanes. The proposals were also published on the defendant's website.
During September 2020, the cycle lanes were installed on Kensington High Street and were in place by 14 October 2020.
In October 2020, a petition calling for the end of the cycle lanes was launched on Change.org. The petition attracted over three thousand signatures. Objections were also made by local businesses and the emergency services.
On 12 November 2020, the defendant reviewed the impact of the cycle lanes, with reference to the available data. The defendant had a meeting with local businesses and residents' groups, at which the impact of the cycle lanes was discussed. The claimants were not invited to that meeting. Nor did they know about it until later.
On 17 November 2020, Councillor Thalassites indicated that he intended to end the temporary cycle lanes scheme on Kensington High Street. The claimants say that this intention was not communicated to them, despite the fact that they had a meeting with Councillor Thalassites on 18 November 2020.
On 26 November 2020, Councillor Thalassites sent a letter to residents and businesses headed “Removal of Temporary Bicycle Lanes on Kensington High Street”. The letter said that Councillor Thalassites had asked the defendant's officers to begin removing the temporary bicycle lanes on Kensington High Street from 2 December 2020.
In a Key Decision (“the December Key Decision”) dated 2 December 2020, the defendant decided to remove the cycle lanes on Kensington High Street. The day after the December Key Decision, the claimants sent the defendant a pre-action protocol letter, threatening judicial review of the December Key Decision.
On 3 December 2020, the Mayor of London, Mr Sadiq Khan, gave an interview on LBC Radio. The Mayor criticised the defendant's decision to remove the cycle lanes. An article was published in the Evening Standard headed “Sadiq Khan set to seize control of High Street Kensington to reinstate cycle lanes being axed by council”. An article in the Daily Mail was titled “Council insists it will not bring back bollards on Kensington's hated cycle lane despite Mayor Sadiq Khan's threat to take control of the traffic restriction – as Extinction Rebellion threaten SECOND protest to save it”.
On 23 December 2020, the claimants sent a second pre-action protocol letter to the defendant. In its response of 8 January 2021, the defendant indicated to the claimants that it intended to reconsider the December Key Decision. As a result, the defendant told the claimants that a claim for judicial review would be premature. The defendant, however, stated that it “does not accept that it is under a duty to consult in reaching a fresh decision and will not be carrying out such consultation”.
On 8 January 2021, the defendant announced on its website that “Following representations from groups and partners in the borough, the Council will be revisiting the decision to remove temporary cycle lanes on Kensington High Street”. The decision was to be taken by the defendant's Leadership Team (absent the Lead Member for Planning and Transport), who were to reach a “balanced decision based on a new report with the latest evidence”.
In the defendant's online announcement, the words “View more information” provided a hyperlink to a web page setting out further details in relation to the cycling scheme. The web page included the text of the defendant's response of 8 January 2021 to the claimants. It also contained a section headed “Frequently Asked Questions”. One of those questions was “Is this a consultation?”. The answer given was “the Council is not under a duty to consult in reaching a fresh decision and will not be carrying out a formal consultation. However, we have received representations from groups and individuals and the Leadership Team will take all relevant material considerations into account”.
The defendant's decision to reconsider the question of the cycle lanes on Kensington High Street received publicity. This included an article in the Evening Standard dated 9 January 2021: “Council pledges to ‘look again’ at controversial cycle lane decision”; an article of the same date in The Independent: “Council to ‘revisit’ removal of cycle lane on High Street Kensington”; and an article in Cycling Weekly: “London council will revisit decision to pull down £320,000 cycle lane after just seven weeks”.
On 9 March 2021, the defendant published on its website a Key Decision Report of its officers for the Leadership Team. I shall call this report the “OR”.
Although the defendant had stated that it did not consider itself to be under a duty to consult, and was not carrying out a formal consultation on the reinstatement of the cycle lanes, the defendant had received 3,134 emails and other correspondence regarding temporary cycle lanes on Kensington High Street.
The defendant says that these emails were “all individually examined and coded for analysis”. Key themes arising from them were identified and reported in the OR. These included representations from the claimants who, between 21 January and 17 March 2021, wrote some sixteen letters to the defendant, in support of the cycle lanes.
Detailed submissions were also received from Transport for London. A letter from Transport for London dated 5 February 2021, was attached at Appendix E to the OR. This noted that Kensington High Street had been identified by Transport for London as a “top priority” corridor in both the Temporary Strategic Cycling Analysis and the long-term Strategic Cycling Analysis. In a three year period to January 2019, fifteen people had been killed or seriously injured on Kensington High Street whilst walking or cycling. There had been a total of 48 casualties overall involving cyclists. One third of all casualties that occur on Kensington High Street were said to be cyclists. Transport for London accordingly argued that there was “an exceptionally strong case for safer cycling facilities on Kensington High Street”.
The OR set out four options for the defendant's Leadership Team to consider. These were:-
“Option 1. Install temporary cycle lanes in full
This would allow the Council to carry out further monitoring of cycle lanes, but would still not be conclusive while traffic patterns continued to be atypical as a result of the current and any future lockdown restrictions required due to the pandemic. Conditions for cycling would be similar to those during the time that the temporary scheme was in place.
Option 2. Install parts of temporary cycle lanes
This would involve providing...
To continue reading
Request your trial