R Georgiou v London Borough of Enfield
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 10 August 2016 |
| Neutral Citation | [2016] EWHC 2586 (Admin) |
| Docket Number | CO/2611/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 August 2016 |
[2016] EWHC 2586 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/2611/2016
Mr Timothy Comyn (instructed by direct access) appeared on behalf of the Claimant
Mr Clive Sheldon QC (instructed by London Borough of Enfield Legal Department) appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review following its refusal on paper by Gilbart J on 8 July 2016. The decision under challenge is the decision of 10 February 2016 taken by the cabinet of the London Borough of Enfield relating to proposals for cycle provision on the A105. The claimants are representatives of an unincorporated association known as Save our Green Lanes.
The background is that Transport for London ran a competition for outer boroughs to bid for substantial funding under what was called a "Mini-Holland" scheme to transform local cycling facilities and to encourage people to cycle. "Mini-Holland" it was called on the basis that the Netherlands — rather than Holland — has a well established reputation for the quality of its cycling provision.
Cycle Enfield, which is the brand name by which cycling provision under the aegis of the London Borough of Enfield is known following the successful bid, has developed the proposals. The council itself put in a bid in 2013. The bid report is a substantial document explaining the advantages which would accrue to Enfield were the bid successful.
Following the success of the bid, Cycle Enfield undertook a considerable amount of work developing the detail of the scheme as it might appear on the highway network, in particular for these purposes on the A105, which is the part of Enfield to which the challenged decision relates. Although the papers before me do not include them, I am told and accept that the proposals by the time the matter went out to consultation were worked up in very considerable detail and not just in the slightly fuzzy way thought fashionable for making bids. So somebody in the consultation process who wanted to see exactly what was then proposed would be able to look at clear drawings and see what junctions, bus stops and so on were affected, and in what way, by increasing the provision for cycling, with its necessary impact on other road users down main roads and the A105 in Enfield.
By the time the proposal had got to that stage, Enfield thought it necessary to take the question of whether they should proceed with the A105 proposal out to public consultation. This is a non-statutory consultation process. It is one which the local authority has itself decided it should undertake. The consultation process was got under way with a letter of July 2015 to residents. Some 14,000 were sent to those living along or adjacent to the A105.
Mr Comyn for the claimants referred to this letter, as it forms the basis of his challenge to the lawfulness of the whole process. It said that the programme would improve many of the borough's high streets and town centres, making them:
i. "… great places to live, work and travel around. Our proposals aim to improve safety and encourage more people to walk and cycle. As we increase the number of people who make local journeys this way, we will relieve congestion, improve air quality and help support the local economy."
Mr Comyn put great emphasis on those last three desiderata. A key aim of the programme would be the redesign of the "road space along the A105, from Palmers Green to Enfield Town." It then referred in brief terms to "Benefits of Cycle Enfield" as follows:
i. "We believe that the proposals for the A105 will generate the following benefits:
— Improved and safer roads for everyone, however they choose to travel
— Improved facilities will encourage more people to walk and cycle
— Improved public realm will encourage people to spend more time and money in town centres along the route and new public spaces will create more opportunities for local businesses and community events.
— Creation of a calmer traffic corridor through this part of the community will enhance the area as a place to live."
More could be found out through public exhibitions, including on three occasions at a public house. The consultation process would last for 12 weeks. More details were set out on the enclosed leaflet. After the consultation a public report would be produced, the design proposals would be reviewed, and after taking account of consultees' views the council would decide how to move forward by the end of the year. More information was available at a website address which they gave.
It is important in my judgment to note how extensive the consultation actually was. It began with a public engagement event attended by 320 people, a business event in July 2015 for local business managers attended by 47 people, particularly focusing on nuts and bolts issues such as how and when goods could be delivered and were delivered, and where customers parked. There was specific consultation with residents' associations, disability groups, cycling groups, emergency services, transport user groups, and bus operators. Copies were also provided on request (although no doubt there were some failings, as ever, in that respect) and in accessible formats, large print, Braille and audio.
Sixty thousand booklets were delivered to a wider area. There were exhibitions not merely in The Fox public house but the Civic Centre, local libraries, community festivals and online. The exhibition boards were taken to a number of places where elderly residents lived who might be affected by various changes; indeed notices were secured to lamp posts. Despite all of that, the consultation listed but 1,646 responses which by no large majority, but 51 per cent, were in favour broadly of the scheme and the rest included those who were opposed or uncertain about it in one way or another.
Responding to the scheme were the claimants, and they made a number of cogent points which they appear not to have been the only ones making. Save our Green Lanes, whilst in favour in general of encouraging cycling, opposed the particular choice of Green Lanes for the partially segregated additional cycling facilities because, amongst other matters, local businesses would suffer through the loss of parking facilities nearby and loading and unloading restrictions; there would be increased congestion through rat-running; worsened air quality and longer journey times; there would be the loss of on-street parking; there would be problems for those boarding buses who would have to alight straight into the cycle lane; difficulties of a wide variety were listed including that the council had presented a consultation on the scheme without any economic impact, air quality or equalities assessment and without any traffic modelling. Those last points were not disputed.
Shortly after the close of the consultation process, and so not available for consultation, the council commissioned and subsequently obtained reports dealing with economic impact, air quality and traffic modelling. The air quality assessment — which for these purposes can be adequately taken from the report to the cabinet which reached the decision now challenged — was, in Mr Comyn's language, wholly undermining of the assertions in the consultation letter that the council believed air quality would be improved. He made the same point in respect of the traffic modelling and economic impact reports. He effectively said that the assertions in the letter that "we will relieve congestion, improve air quality and help support the local economy" were in effect falsified by the subsequent reports. Mr Sheldon QC for the London Borough of Enfield said that they produced a more "nuanced" picture.
So far as air quality was concerned, the air quality objective for annual average nitrogen dioxide along the A105, with an assumed reduction of 2.5 per cent in traffic, would produce a reduction of nitrogen dioxide at roadside locations, but it went on to say that the scheme would result in some increases in queue length and delay time leading to increases in concentrations at junctions — a not altogether surprising conclusion. The report continued:
i. "… however, the area of these increases will be much smaller than the area of air quality improvements resulting from reduced traffic flows. As a result, the majority of residents along this road will experience an improvement in air quality and corresponding health benefits."
As Mr Comyn points out, that is not the same thing as saying everyone will benefit.
On congestion and journey times there was in fact an estimated increase in peak journey times from north to south and south to north of between, depending on time of day, 1.8 to 2.5 minutes in a journey of about 10 to 15 minutes, or between 24 and 47 seconds per mile. Again, this was said by Mr Comyn to be quite different from what had been put forward in the letter.
Finally, the economic impact report said that in the construction phase, between better case and worst case and depending on location there would be a negligible impact or in the worst case minor negative impacts, and in the operational phase in the best case minor positive, base case negligible effect and in the worst case negligible or minor negative. But that was before various identifiable works of mitigation in the operational and construction phases were undertaken.
The...
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