R (Oxfordshire Couty Council) v The Bus Land Adjudicator and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 26 April 2010 |
| Neutral Citation | [2010] EWHC 894 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4368/2009 |
| Date | 26 April 2010 |
[2010] EWHC 894 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: C The Honourable Mr Justice Beatson
Case No: CO/4368/2009
MR T. STRAKER QC and MR M. WENBAN-SMITH
(instructed by Oxfordshire County Council) for the Claimants
MR I. ROGERS (instructed by The Traffic Penalty Tribunal) for the Defendant
Hearing date: 9 March 2010 at Birmingham Civil Justice Centre
Mr Justice Beatson:
A. Introduction:
This is a case about bus lanes, bus gates, traffic signs and whether a valid traffic prohibition in the High Street of Oxford can be enforced by civil process or only by criminal proceedings. Since 1999, save for buses and exempt vehicles, motor vehicles have been prohibited from passing through a 15 metre section of the High Street to the west of its junction with Queens Lane between 7.30 am and 6.30 pm. The designated section of the street is also known as a “bus-gate”, a term not legally defined but used in practice to describe a short length of bus only street into which other specified vehicles are sometimes admitted: see [40] and [41].
At 12.48 pm on 10 July 2008 Shaun Duffy, the Interested Party, drove his Peugeot car through the designated section. He was travelling from Portsmouth to Kenilworth and was unfamiliar with the road system in Oxford. His car was photographed and, on 17 July, Oxfordshire County Council (hereafter “the Council”) served him with a fixed penalty notice for “being in a bus lane (as defined by section 144(5) of the Transport Act 2000)”. Mr Duffy appealed to a Bus Lane Adjudicator who, in a postal decision dated 16 November 2008, allowed the appeal. On 2 December 2008 the Council applied for the decision to be reviewed and revoked. On 8 April 2009 the Chief Adjudicator confirmed the decision.
In this application for judicial review, the Council challenges the Chief Bus Lane Adjudicator's decision that the designated section of the street is not a bus lane and was not so constituted by the relevant Traffic Regulation Order, Article 50B of the Oxfordshire County Council (City of Oxford) (Central Area) (Traffic Management) (Consolidation) Order 2003 as amended, hereafter the “2003 Order”. The effect of the decision is that while Article 50B lawfully prohibited non-exempt motor vehicles from the area, it can only be enforced by criminal process in the magistrates’ court and the owners of vehicles contravening it are not liable to civil enforcement by the Council. I refer to this as “the bus lane issue”.
There is also a dispute as to whether the signs put up by the Council give adequate information to road users about the status of the designated section of the street. As well as holding that it is not a bus lane, the Chief Adjudicator (see [46] and [49]) confirmed the Adjudicator's decision that there was insufficient signing to convey to drivers “the supposed bus gate” as required by Regulation 18 of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 SI 1996 No. 2489 (hereafter “LATOR 1996”). I refer to this as “the signage issue”.
Traffic congestion in the centre of Oxford has been a problem for over half a century. In 1948 the well-known town planner Dr Thomas Sharp suggested that the way to deal with it was by a road across Christchurch Meadows. This highly controversial proposal was not abandoned until the early 1960s. Sharp considered that Oxford's High Street, which would be saved by his proposal, was “the greatest and most typical work of art England possesses”. That may be an overstatement but the High Street, described by the architectural historian, Sir Nicolaus Pevsner, as “one of the world's great streets” is a street of distinction. The traffic restrictions in it and in other streets in the centre of Oxford are an important part of the Council's efforts to deal with traffic congestion and preserve the character of the city. Its character was recognised by the Chief Adjudicator in her decision in this case. She stated (Decision p. 4) that, “although obvious, it merits recording that a historic city such as Oxford, with buildings of significant architectural importance and having developed from mediaeval times, is not suited to the full panoply of traffic signs that are recommended in more modern environments”.
These proceedings were launched on 7 May 2009. The Council has no intention of pursuing Mr Duffy for the £60 penalty charge if it is successful. It has stated (grounds, paragraph 2) that its concern is “to ensure the ongoing viability of the traffic enforcement scheme it operates in central Oxford, which has been put into jeopardy by the Adjudicator's decision to rely on the reasoning [in the decision in Mr Duffy's case] in a number of subsequent cases”. The material before me includes eight such cases in the period between 9 April and 5 August 2009.
Originally the Council sought an order quashing the decision only on the ground that the Chief Adjudicator erred in concluding that the designated section of the street was not a bus lane. This was because the Council understood she had accepted that the signage used was appropriate. However, on behalf of the Chief Adjudicator Mr Rogers submitted that she only decided that the signs used are appropriate if the section of the street is not a bus lane. In the light of this submission, in addition to the quashing order the Council seeks declarations that (i) Article 50B of the 2003 Order constitutes the designated section of the road as a bus lane within section 144(5) of the Transport Act 2000, and (ii) the traffic signs used by the Council to identify the designated section of the road satisfied the requirements of Regulation 18(1)(a) of LATOR 1996.
On 11 September 2009, following an oral hearing, Blake J granted permission. He indicated that it would assist the Court if the Defendant actively defended its decision, and that he expected that, if the Defendant did so, the Claimant would not, if successful, seek to recover its costs. The Claimant has stated it will not do so. At the Claimant's suggestion Blake J also invited the Department for Transport to join the proceedings as an Interested Party. On 10 November 2009 the Treasury Solicitors wrote to the Court on behalf of the Department. The letter stated the Department did not wish to be formally joined but summarises its understanding of the law in relation to what it stated are the three key areas involved in this matter. On 26 November 2009 Deputy Master Knapman transferred the case to Birmingham.
B. The Evidence
The evidence in support of the application consists of a statement dated 7 September 2009 by Mr Smith, the Council's Assistant Head of Transport (Network Management) and one dated 11 February 2010 and served on 12 February by Mr Cramer, the Council's Principal Engineer. Mr Cramer is one of those responsible for implementing the infrastructure and administrative framework needed for the civil enforcement of bus lanes, including the signs and the Traffic Regulation Orders.
Mr Smith's statement sets out the history of the measures taken in Oxford to deal with heavy congestion in the historic town centre and the derivation of the signage used. Mr Smith also stated that the approach of the Chief Bus Lane Adjudicator in this case has subsequently been applied to a case in Bath. He observed that other city centres have adopted comparable traffic regulation schemes to the one in Oxford and that the outcome of this application for judicial review is likely to “have a significant impact on the ability of a number of councils to enforce the prohibited use of their bus lanes by way of penalty charge notices”; i.e. civil enforcement. Mr Cramer's statement refers to and exhibits the eight other Oxford cases in which the reasoning in Mr Duffy's case has been applied. But it is principally concerned with changes made to the signage in February 2008 as a result of comments by the Chief Adjudicator in October 2007 after viewing the signs as part of her consideration of a number of appeals against penalty notices and comments the Council received from motorists. Photographs of the signs before and after the changes are exhibited to the statement.
On 24 February, eleven working days after being given notice of the statement, eight working days after it was filed and nine working days before the hearing the defendant indicated she would challenge the claimant's reliance on Mr Cramer's statement. The Council had informed her that it would be serving a statement by him shortly before its skeleton argument was served.
In his skeleton argument on behalf of the Defendant Mr Rogers submitted that Mr Cramer's evidence should not be admitted because it could and should have been presented to the Adjudicator and Chief Adjudicator. He also stated: (a) it is not clear whether it was suggested that a photograph of the signs at the junction of the High Street and Longwall exhibited to Mr Cramer's statement, which was not before the Adjudicator or the Chief Adjudicator, was of signs that were there when Mr Duffy drove through Oxford; (b) the defendant has not been able to check the material in the time available; and (c) Mr Duffy, on whom the penalty was imposed, has not had the opportunity to comment on it. Mr Duffy has taken no part in these proceedings and will not be affected by their outcome. It was the Defendant who particularly wanted the signage issue...
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