R (Wainwright) v Richmond upon Thames London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Mr Justice Wall,Lord Justice Henry |
| Judgment Date | 20 December 2001 |
| Neutral Citation | [2001] EWCA Civ 2062 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/0961 |
| Date | 20 December 2001 |
[2001] EWCA Civ 2062
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
Mr Justice Silber
Lord Justice Henry
Lord Justice Clarke and
Mr Justice Wall
Case No: C/2001/0961
Mr James Maurici (instructed by Rowe & Maw for the claimant)
Miss Nathalie Lieven (instructed by R J M Mellow Head of Legal Services
London Borough of Richmond upon Thames for the defendants)
Introduction
This is an appeal from an order of Silber J dated 11 th April 2001 quashing a decision ("the decision") of the Transport Sub-Committee ("the committee") of Richmond London Borough Council ("the council") dated 28 th June 2000 approving proposals for a toucan crossing and associated works outside no 81 St Margaret's Road, Richmond. The judge refused permission to appeal but permission was subsequently granted by Dyson LJ.
The Claim
The claimant and respondent is Mrs Hilary Wainwright who lives in flat 2, 83 St Margaret's Road. She challenged the decision by way of judicial review on her own behalf. In doing so she did not (and does not) represent other residents in the vicinity. The ground upon which she challenged the decision was that there had been inadequate notification and general consultation before it was made. The judge so held and, in the exercise of his discretion, quashed the decision.
Grounds of Appeal
The council advances three grounds of appeal as follows:
i) that the respondent had herself been fully consulted and in the circumstances of this case there were no grounds to allow her application given that there was no error of law in respect of her own claim;
ii) that the standard of the consultation required which was applied by the judge was unreasonably high given the absence of any statutory duty to consult; and
iii) that this was a case where the court should have exercised its discretion not to quash the decision.
The respondent takes issue with each of those grounds and advances a further argument by way of respondent's notice which raises a fourth question as follows:
whether the decision to quash should be upheld on the additional basis that the conduct of the council in relation to the hearing which the committee afforded to the respondent and others before the meeting itself was a breach of natural justice and prevented there being fair and effective consultation.
The Statutory Framework
The council's powers are, so far as relevant, set out in the Road Traffic Regulations Act 1984 ("the 1984 Act"). Section 6 allows a relevant traffic authority, here the council, to make an order for controlling or regulating the vehicular and other traffic, including pedestrians. Section 23 provides, so far as relevant:
"(1) A local traffic authority may establish crossings for pedestrians on roads on which they are the traffic authority, and may alter or remove any such crossings….
(2) before establishing, altering, or removing a crossing a local traffic authority —
…
(b) shall give public notice of that proposal; …"
It is common ground that the only way in which the decision could be challenged was by way of judicial review. The respondent obtained leave to move for judicial review from Ouseley J.
The Council's Duty
It is common ground that the only relevant statutory duty imposed upon the council was the duty to give public notice of the proposal in accordance with section 23(2)(b) of the 1984 Act. I accept Mr Maurici's submission that that duty must encompass a duty to consider representations received in response to such a notice, since the purpose of notifying the public of the proposal can only have been to give members of the public an opportunity to make representations and there would be no point in such representations being made if they were not to be considered by the council.
It is in any event common ground that a duty to consult interested members of the public may arise where the parties to be consulted have a legitimate expectation of consultation which results either from a promise or from an established practice of consultation: see eg R v Camden LBC ex p Cran (1996) 94 LGR 8, per McCullough J at 38.
The council correctly accepted before the judge and accepts before us that it owes such a duty. As it is put in Miss Lieven's skeleton argument on this appeal, the council at all times accepted that it had made representations that it would consult on proposals such as this and, specifically, that it would consult in respect of this particular proposal. That concession was, to my mind, correctly made. The judge pointed to documentary acceptance on behalf of the council that it had a duty to consult with affected local residents and added at paragraph 19:
"More specifically, the conduct of the defendants in relation to the proposed crossing (such as by putting notices on lampposts in St Margaret's Road) illustrates that their understanding of their duties to consult "affected local residents" would extend not only to those who live there but to those who use this part of St Margaret's Road. This acceptance of the need to consult and therefore to notify local residents is fortified by the fact that it appears to be common ground that Mr Head of the defendants was initially enthusiastic about having a pre-decision meeting between residents and council officers to discuss the proposals prior to the Sub-Committee meeting on 27 June 2000. It seems clear that there was a duty to notify and consult affected local residents, who either lived in or used St Margaret's Road but especially those who lived in the immediate vicinity of the proposed road changes. Nevertheless those who would be most affected by the toucan crossing were those, who lived almost outside it in the odd-numbered houses between 81 and 91 St Margaret's Road and their position requires special attention."
There remains an issue between the parties as to the extent of the consultation that discharge of the duty to notify and consult required. The underlying principles are not in dispute. They were identified by Mr Stephen Sedley QC in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 and were adopted by Hodgson J in his judgment in that case at p 189. They are:
"First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
Those principles were elaborated in this way by McCullough J in ex p Cran at p 38 as follows:
"What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated.
The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision."
So far as they go, those passages in my judgment correctly state the relevant principles.
They do not, however, provide a complete answer to the question which arises for decision in this case. Thus, they do not address the question what is the necessary extent of the notification or consultation required in order to discharge the duty. As McCullough J pointed out, all will depend upon the circumstances. For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing. Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out. The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion. In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it.
The Decision
A toucan crossing is a signal-controlled crossing for pedestrians and cyclists, which has wider crossing lanes than the familiar pelican crossing does. Apart from having pedestrian red and green signals, toucan crossings also have a green cycle signal. The proposals which led to the committee's decision quashed by the judge were contained in a report of the council's head of Highway and Transport ("the report") which recommended that the committee "approve the proposals as advertised under section 6 and section 23" of the 1984 Act as detailed in paragraphs 3.6 to 3.10 of the report and as shown on a drawing appended to the report.
The scheme was summarised at paragraph 3.6 of the report as follows:
"The proposal is to introduce a Toucan crossing outside No. 81 St Margaret's Road providing a cycle crossing facility on this section of the London Cycle Network. This crossing facility will...
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