R (Fingle Glen Junction Business and Community Action Group) v The Highways Agency
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 03 October 2007 |
| Neutral Citation | [2007] EWHC 2446 (Admin) |
| Docket Number | CO/2136/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 October 2007 |
[2007] EWHC 2446 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
The Queen on the Application Of
CO/2136/2007
MR J LLOYD appeared on behalf of the CLAIMANT
MR P BROWN (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Wednesday, 3rd October 2007
In this application for judicial review, the claimant challenges the defendant's decision to make a temporary traffic regulation order ("the Temporary Order") under s.14(1)(b) of the Road Traffic Regulation Act 1984 ("the Act") to close the gap in the central reservation at Fingle Glen junction on the A30 west of Exeter ("the Junction"). The relevant part the A30 is a dual carriageway road. The junction is an at grade junction which enables traffic travelling westbound on the A30 to turn right, across the eastbound carriageway onto the C50 (the old A30) towards Tedburn St Mary, which lies to the north of the A30. It also enables traffic from the C50 to cross the eastbound carriageway on the C30 to join the westbound carriageway on the A30, travelling towards Okehampton. Closure of the gap would prevent those right turning movements.
Section 14 provides, so far as material:
"(1) If the traffic authority for a road are satisfied that traffic on the road should be restricted or prohibited -
(a) because works are being or are proposed to be executed on or near the road; or
(b) because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works; or
(c) …
the authority may by order restrict or prohibit temporarily the use of that road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians, to such extent and subject to such conditions or exceptions as they may consider necessary.
…
(3) When considering the making of an order or the issue of a notice under the foregoing provisions an authority shall have regard to the existence of alternative routes suitable for the traffic which will be affected by the order or notice."
Section 15 provides, so far as material:
"(1) Subject to subsections (2), (3) and (5) below, an order under section 14 of this Act shall not continue in force -
(a) if it is in respect of a footpath, bridleway, restricted byway, cycle track or byway open to all traffic, for more than six months; and
(b) in any other case, for more than eighteen months,
from the date on which it comes into force.
…
(3) Where an order subject to the time-limit of eighteen months in subsection (1) above (in this subsection referred to as 'the temporary order') has not ceased to be in force and the Secretary of State is satisfied that -
(a) an order which the authority that made the temporary order proposed to make under any other provision of this Act has the sole effect of reproducing the provisions of the temporary order and continuing them in force; and
(b) in consequence of the procedure required to be followed in connection with the making of the proposed order that authority would be unable to make it so that it would come into operation before the temporary order ceases to be in force,
the Secretary of State may, subject to subsection (4) below, from time to time direct that the temporary order shall continue in force for a further period not exceeding six months from the date on which it would otherwise cease to be in force."
It is common ground between the parties that there is no statutory duty on the defendant to consult before making a temporary order under section 14. If the temporary order is to be followed by a permanent order under section 1 of the Act, then the proposal to make that permanent order must be publicised and those wishing to object to it will have an opportunity to submit their objections in writing. If, as as would be the position in the present case, the permanent order is proposed by the Secretary of State, she has a discretion as to whether or not to hold a public inquiry into those objections—see Regulations 6, 7 and 8 of the Secretary of State's Traffic Orders (Procedure) England and Wales Regulations 1990 ("the Regulations").
The claimant no longer suggests that the defendant was under an obligation to hold a public inquiry before deciding to make the temporary order. The primary submission made by Mr Lloyd on behalf of the claimant was that the claimant (and others) had a legitimate expectation that there would be consultation before a decision was taken to make a temporary order, and that that expectation was breached by the defendant. Mr Lloyd accepted that there was no express promise by the defendant to consult. However, he submitted that the expectation of consultation was based on the past practice of the defendant in respect of this particular junction. He referred to paragraph 68 in the judgment of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363:
" … Where a public authority has issued a promise or adopted a practice which represents how it proposed to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. … Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."
It is convenient to refer also to a passage in paragraph 69 of Laws LJ's judgment, referred to by Mr Brown on behalf of the defendant:
"Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure."
What then was the practice of the defendant in this case? The details are set out in the witness statements of Mr Gibbs, on behalf of the claimant, and Mr Roberts, the Area Performance Manager of the defendant.
In summary, the danger posed by right turning movements at the junction has been recognised for many years. In 1992 there was a public consultation in respect of a proposal to grade separate both the junction and the Woodleigh junction to its west. The Woodleigh junction was given priority and was grade separated in 2001.
Having dealt with Woodleigh, the defendant turned its attention to the junction. In 2001 there was further public consultation in respect of proposals to improve safety at the junction by doing that which the defendant now proposes, that is to say closing the central reserve gap rather than grade separation. That proposal resulted in numerous objections from local people and from the County Council, which is the higher authority responsible for the C50 road. Those objections led the defendant to work up alternative proposals for new slip roads at the Barton Head Road bridge, which crosses over the A30 to the east of the junction, in addition to the closure of the gap in the central reserve at the junction.
In 2003 there was public consultation on those proposals. In due course draft orders were published in 2005. That led to numerous objections and, unfortunately, the time taken to try to resolve those objections resulted in the statutory process lapsing because it effectively ran out of time.
So the defendant tried again and came back with a modified scheme which, again, combined closure of the gap in the central reservation with new slip roads at the Barton Head Road overbridge, which would have enabled westbound traffic on the A30 to access the C50 and traffic on the C50 wishing to go west on the A30 to cross over the A30 on the bridge and then join the westbound carriageway. The defendant arranged a public exhibition of those modified proposals on 13th October 2006 and a leaflet was produced for the purpose of informing the public about the proposals. That leaflet identified the problem:
"Movements to and from the westbound carriageway necessitate crossing the eastbound carriageway and its oncoming fast moving traffic. With eleven injury accidents, of which two were fatal, occurring in the last 15 years, the junction has a worse accident record than the national average for similar junctions."
The leaflet then set out the background of the earlier schemes and consultations. It identified "Other options previously considered", and they included:
"Closure of the existing central reserve crossing point, with westbound traffic using Alphington and Woodleigh...
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