HHRC Ltd v Hackney Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 03 September 2021 |
| Neutral Citation | [2021] EWHC 2440 (Admin) |
| Year | 2021 |
| Docket Number | Case No: CO/4854/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2440 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Dove
Case No: CO/4854/2020
Daniel Stedman Jones and Tom van der Klugt (instructed by Dowse & Co) for the Claimant
Kelvin Rutledge QC and Jack Parker (instructed by London Borough of Hackney) for the Defendant
Hearing dates: 30 th June 2021 & 1 st July 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction.
The claimant brings this application for judicial review in relation to the decision of the defendant's Cabinet on 29 th September 2020 to adopt an emergency transport plan entitled “Rebuilding a Green Hackney – Emergency Transport Plan: responding to the impacts of COVID-19 on the transport network” (“the ETP”). In particular the claimant is concerned about the proposals within the ETP to introduce Low Traffic Neighbourhoods (“LTNs”) as one of the suite of alternative traffic management measures included within the ETP's proposals.
The claimant brings this claim on four grounds. Ground 1 advanced by the claimant is the contention that the defendant failed to discharge its duty under section 16 of the Traffic Management Act 2004 in approving the ETP proposals. Section 16 of the 2004 Act, which is dealt with in greater detail below, creates the network management duty, and it is contended that the defendant failed to properly examine the impact of the ETP proposals upon the movement of traffic not simply on neighbourhood road networks, but also on the busier and more strategic highways surrounding the areas affected by the proposed LTNs. Ground 3, which is allied to these considerations, is the contention that the approval of the ETP failed to properly investigate or have regard to the impact on air quality of the LTN proposals.
Ground 2 of the claimant's application is the submission that the defendant breached its public sector equality duty (“PSED”) under section 149 of the Equality Act 2010 by failing to have due regard in approving the ETP to the impact which its LTN proposals would have upon groups with protected characteristics. Finally, under Ground 4, the claimant submits that there was a failure to undertake any proper consultation on the ETP before it was promulgated in breach of the consultation requirements of the common law.
The claimant was represented by Mr Daniel Steadman Jones assisted by Mr Tom van der Klugt; the defendant was represented by Mr Kelvin Rutledge QC assisted by Mr Jack Parker. I would wish to record my thanks to all counsel in the case and their supporting legal teams for the helpful and focused written and oral submissions which were provided to the court, along with the obviously careful preparation of the papers which they had undertaken for the purpose of the hearing.
The facts.
The defendant is the highway authority for the vast majority of the roads within its administrative area. There are certain strategic, or distributor, roads which are separately the responsibility of Transport for London (“TfL”). In 2015 the defendant published a replacement Hackney Transport Strategy covering the period 2015–2025. It comprised an overarching strategy document together with six complementary plans in relation to particular themes. One of these themes was the “Liveable Neighbourhoods Plan”. The Liveable Neighbourhoods Plan incorporated, as policy LN15, a proposal to reduce the impact of through motor traffic on residential streets by implementing what were termed filtered streets, or streets with filtered permeability, which allowed for through access for pedestrians and cyclists, whilst preventing vehicular traffic through the imposition of street features which precluded use by cars and goods vehicles. It was noted that where there was strong resident support, the defendant would consider fast-tracking the implementation of trialled filtered streets and road closures on a temporary basis.
Both the transport strategy, the Liveable Neighbourhoods Plan and other thematic documents were the subject of an Equality Impact Assessment (“EqIA”) which concluded that the strategy, in prioritising walking, cycling and public transport, in addition to improvements to road safety, the public realm and reducing pollution, would give rise to equalities impacts which would be generally positive. A more accessible borough for all groups using a choice of transport modes was intended to result from the proposals. In particular, in relation to permeability measures, the assessment matrix noted a positive impact in relation to each of the protected characteristics identified in the 2010 Act and observed:
“These schemes will particularly benefit pedestrians and cyclists. The associated environmental social and safety benefits of schemes will benefit all groups.”
In 2015 the defendant also published the Hackney Air Quality Action Plan 2015–2019 (“the HAQAP”) which noted that in localised areas nitrogen dioxide was found at levels almost twice those of the annual mean air quality objective adopted by the plan. The defendant had previously designated an Air Quality Management Area (“AQMA”) within its administrative area (see below). In particular, pollution levels were noted to be at their highest in the most densely built up areas of the borough, particularly along the borough's busiest main roads. Away from the main roads air quality objectives were being met. The HAQAP noted that there were barriers to the uptake of cycling and walking, and it further noted that working with TfL there would be a need to improve traffic flows at key junctions in the borough in order to reduce air pollution.
Pursuant to the Mayor of London's Transport Strategy of April 2017, in March 2019 the defendant approved its Third Local Implementation Plan (2019–2022) (“the LIP”). Within the LIP, and cross referenced to policy LN15, Objective 20 was to “improve the efficiency of our streets with the continued reduction of motorised vehicles”. This was to be achieved by the restriction of the levels of external vehicular traffic entering and exiting the borough using it as a rat-run. In order to take practical steps to achieve this, the LIP specifically referenced filtered streets preventing vehicular through traffic in residential areas. The LIP again reiterated the problem of poor air quality caused by vehicular traffic on the TfL parts of the road network in the borough, and reiterated that the borough was a designated AQMA (the designation having occurred in 2006).
The LIP noted that in highly polluted areas children could suffer permanent lung damage and that there was evidence of the local population suffering from breathing related diseases such as asthma and COPD. An EqIA was produced in relation to the LIP. This assessment noted no negative impacts on any people with protected characteristics, and in relation to Objective 20 noted:
“A reduction in through traffic will result in less congestion and better air quality for all residents. BAME groups tend to live nearer busy arterial roads – therefore a reduction in traffic should benefit this group in particular.”
In November 2004 the Department for Transport (“DfT”) published Guidance on the Network Management Duty (“the 2004 Guidance”). Full details of the relevant parts of the 2004 Guidance are set out below in the section of this judgment dealing with the relevant law. In the early part of 2020 the UK became beset with the COVID-19 pandemic, leading to the imposition of a national lockdown on 23 rd March 2020. In response to this national emergency the Secretary of State for Transport published statutory guidance entitled “Traffic Management Act 2004: network management in response to COVID-19”. (“the COVID-19 Guidance”) In his forward the Secretary of State observed as follows:
“The coronavirus (COVID-19) crisis has had a terrible impact on the lives and health of many UK citizens, as well as severe economic consequences. But it has also resulted in cleaner air and quieter streets, transforming the environment in many of our towns and cities.
And millions of people have discovered, or rediscovered, cycling and walking. In some places, there's been a 70% rise in the number of people on bikes – for exercise, or for safe, socially distanced travel.
When the country gets back to work, we need them to carry on cycling, and to be joined by millions more. With public transport capacity reduced, the roads in our largest cities, in particular, may not be able to cope without it.
We also know that in the new world, pedestrians will need more space. Indications are that there is a significant link between COVID-19 recovery and fitness. Active travel can help us become more resilient.
…
We recognise this moment for what it is: a once in a generation opportunity to deliver a lasting transformative change in how we make short journeys in our towns and cities. According to the National Travel Survey, in 2017–2018 over 40% of urban journeys were under 2 miles – perfectly suited to walking and cycling.
…
The government therefore expects local authorities to make significant changes to their road layouts to give more space to cyclists and pedestrians. such changes will help embed altered behaviours and demonstrate the positive effects of active travel.”
In addition to introducing various elements of emergency legislation in respect of traffic orders, the guidance provided as follows:
“Reallocating road space: measures.
Local authorities in areas with high levels of public transport use should take measures to reallocate road space to people...
To continue reading
Request your trial
-
SM (a child, by his father and litigation friend, MZM) v London Borough of Hackney
...brought by a company representing concerned residents; see the judgment of Dove J in R (HHRC Ltd.) v. Hackney Borough Council [2021] EWHC 2440 (Admin). 54 Among the measures mentioned in the emergency transport plan was the “London Streetspace Programme tranche 1”, nearly complete, compris......