R Keyhole Bridge User Safety Group v Bournemouth, Christchurch and Poole Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 18 November 2021 |
| Neutral Citation | [2021] EWHC 3082 (Admin) |
| Docket Number | Case No: CO/1937/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3082 (Admin)
Mrs Justice Lang DBE
Case No: CO/1937/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Piers Riley-Smith (instructed by Richard Buxton Solicitors) for the Claimant
Kate Olley (instructed by BCP Legal Services) for the Defendant
Hearing date: 6 October 2021
Approved Judgment
The Claimant challenges the decision made by the Defendant (“the Council”) on 1 March 2021, to revoke the Bournemouth, Christchurch and Poole (Whitecliff Road) (No Vehicles Except Cyclists and Waiting Restrictions) Experimental Order (No.2) 2020 (“the Order”). The Order prohibited vehicle access (other than bicycles) on Whitecliff Road at the point where it runs under a narrow bridge, known as Keyhole Bridge, into Poole Park. It was an experimental traffic order (“ETO”) made pursuant to section 9 of the Road Traffic Regulation Act 1984 (“RTRA 1984”).
The Claimant is an unincorporated association whose members are local residents living in Bournemouth, Christchurch and Poole.
Permission to apply for judicial review was granted on 14 July 2021 by Neil Cameron QC, sitting as a Deputy High Court Judge.
Grounds of challenge
The Claimant's grounds of challenge may be summarised as follows:
i) The Council acted in breach of Schedule 5 to the Local Authorities' Traffic Orders (Procedure)(England and Wales) Regulations 1996 (“the 1996 Regulations”), by curtailing the statutory 6 month period for representations (both objections and statements in support).
ii) The Council promised that the experimental closure of the road would operate for 6 months and then be reviewed, that the public would be consulted on the closure, and responses received by 21 February 2021 would be taken into account in the review. This gave rise to a procedural legitimate expectation. Councillor Greene decided to revoke the Order on 27 January 2021, and the Overview and Scrutiny Board upheld the decision on 1 March 2021. The Council failed to honour its promises and curtailed the consultation period for no justifiable reason, which was so unfair that it amounted to an abuse of power.
iii) When deciding whether or not to revoke the Order, the Council failed to take into account material considerations, namely, consultation responses which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed.
iv) The Council acted irrationally when deciding whether or not to revoke the Order, by relying on unevidenced assumptions about the detrimental effect of the ETO on air quality.
In response, the Council submitted:
i) The objections procedure in Schedule 5 to the 1996 Regulations was not a general consultation about the merits of the Order; its purpose and scope was to give the public an opportunity to object to the Council continuing the provisions of the experimental order indefinitely in a permanent order. It did not prevent the Council from exercising its discretion to revoke the Order at any time prior to the 6 month period for lodging objections.
ii) The Council did not make any clear and unambiguous representations, as contended by the Claimant, which were capable of giving rise to a procedural or a substantive legitimate expectation. In any event, the decision to revoke the Order did not take effect until 1 March 2021, when it was confirmed by the Overview and Scrutiny Board. Until 1 March 2021, members of the public could and did continue to make representations, which were taken into account, and thus met the expectation that the consultation period would continue until 21 February 2021. Alternatively, the Council lawfully resiled from any legitimate expectation.
iii) In law, the duty on the Council was to have regard to the material issues before making its decision. The Claimant was not able to point to any issues which were not already before the Council in numerous other representations when it made its decision. The representation from Mr and Mrs Philips did not raise any new issues. Responses which were never made, such as from Dr Mew, could not amount to a material consideration as they did not exist.
iv) The Claimant's case on irrationality was a disagreement with the merits of the decision, rather than a demonstration that it was perverse.
v) Section 31(2A) of the Senior Courts Act 1981 applied, as it was highly likely that the outcome would not be substantially different if the conduct complained of had not occurred.
Facts
On 4 August 2020, the Council exercised its powers under section 9 RTRA 1984 to make the Order. It was accompanied by a Statement of Reasons and a Notice of Making. The Statement of Reasons stated that the Order was made in discharge of the Council's duty under section 122 of the RTRA 1984 “to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)” and, in accordance with the provisions of section 1(1) of the RTRA 1984, it appeared to the Council that it was expedient to make the Order.
The Statement of Reasons and the Notice of Making included the following statement:
“The Council will be considering in due course whether the provisions of the Order should be continued in force indefinitely. Within a period of six months from the coming into force of the Order – 14 August 2020, or if the Order is subsequently varied by other Orders (under Section 9 of the Road Traffic Regulation Act 1984 or modified pursuant to sub-section (2) of Section 10 of the Act), from the coming into operation of those variations or modifications (whichever are the latest), any person may object to the making of an Order for the purposes of such indefinite continuation. Any such objection must be in writing … and must give the grounds on which it is made and must be emailed …or sent to: Director, Growth & Infrastructure, Room 159, Civic Centre, Poole BH15 2RU. Please note that all representations received will be available for public inspection. Objectors will be informed of the outcome.”
The Council also issued an “Information Document” which described the effect of the Order and stated in the introduction:
“As this is an ETRO, we want to hear your views on the changes and their impact throughout the process…..You can give your views using the online form …
The consultation will start on 7 August 2020 and the online form will be open for the duration of the trial. The council will undertake a review six months after the works implementation date. Comments received by 21 February 2021 will be considered as part of the six month review.”
Later on the document stated:
“ Have your say
Your views are important to us and we want to hear from those who live in, work in or visit the area. You can give your views on the changes and how they affect you using the online form at …. You can give feedback in this way throughout the trial period. Comments received by 21 February 2021 will be considered as part of the council's six month review.
If you wish to formally object to or support the proposed Order, please send your comments by 21 February 2021 to ….. Please ….specify the grounds for your support or objection in your response. Any representations received may be made public. Emails of objection and support will be considered by the Council before deciding whether or not to make the experimental measures permanent.
What happens next?
The Council intend to review the changes in early 2021. A full report on the findings and outcomes of the ETRO will be presented to the Council's Cabinet, who will make a decision on whether the changes should be made permanent, retained (with minor alterations) or removed. The experimental order can also be maintained for further review, up to a maximum period of 18 months.”
The Order came into force on 14 August 2020. It did not specify its duration but under section 9(3) of the RTRA 1984, it could not continue in force for longer than 18 months.
The works to close the route to vehicles (installation of large plant containers) were carried out in the week commencing 17 August 2020.
In October 2020, there was a change in the administration of the Council. A new Leader and Cabinet were appointed, and Councillor Michael Greene, an experienced Member, was appointed to be Portfolio Holder for Transport and Sustainability.
On 15 October 2020, the Council announced that it intended to revoke the Order but that statement was later retracted. In his witness statement, Councillor Greene related that he undertook a review of 8 ETOs which had recently been made in the area. He obtained information and views from lead officers and local ward members, and considered the consultation responses. Among other matters, he explored the impact of the ETOs on neighbouring roads and areas, so as to consider possible adverse impacts from the displacement of traffic out of the ETO areas.
The responses to the non-statutory “informal” consultation were recorded in the “Portfolio Holder Decision Record” as 270 responses (60%) in favour of the measure and 164 responses (37%) opposed to the measure, received from 19 August 2020 to 11 January 2021. The responses to the statutory “formal” consultation were recorded in the same document as 128 responses in support, and 35 responses objecting, received from 7 August 2020 to 6 January 2021.
On 15 January 2021, Councillor Greene published a “Proposed Decision” to revoke the Order. Interested Parties were invited to comment on the proposal, over a period of 5 days, until 22 January 2021. It was not on the Council's consultation webpage as, according to the Council, it was not a formal consultation. The Council explained at the time...
To continue reading
Request your trial
-
Sophia Bouchti v London Borough of Enfield
...in that regard on the analysis at [43] – [46] of R (Keyhole Bridge User Safety Group) v Bournemouth, Christchurch and Poole Council [2021] EWHC 3082 (Admin)which led Lang J to conclude that by inviting representations which went beyond objections and which potentially included neutral or p......