Robert Tchenguiz v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 07 March 2022 |
| Neutral Citation | [2022] EWHC 469 (Admin) |
| Docket Number | Case No: CO/3505/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/3505/2021
Tim Buley QC and Charles Streeten (instructed by Grosvenor Law) for the Claimant
Ruth Stockley (instructed by Bi Borough Shared Legal Services) for the Defendant
Hearing dates: 16, 17 & 18 February 2022
Approved Judgment
This is a statutory challenge by the Claimant, made under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (“the 1984 Act”), to two traffic management orders (“TMOs”) made by the Defendant under sections 6 and 22C of the 1984 Act. The TMOs were made on 6 September 2021, and came into force on 13 September 2021.
The TMOs significantly restrict access to the Claimant's family home, at 26, Kensington Gore (West) (“KGW”), hereinafter “No. 26”, which is in the immediate vicinity of the Royal Albert Hall (“RAH”).
The Defendant is the traffic authority for the relevant area, within the meaning of the 1984 Act.
Grounds of challenge
The Claimant submitted that the Defendant acted unlawfully in making the TMOs in the following respects:
i) The Defendant failed to have regard to the public sector equality duty (“PSED”) under section 149 of the Equality Act 2010. Contrary to the Defendant's own policy, the restrictions were imposed without any equalities impact assessment.
ii) The Defendant failed to have regard to the interference with the Claimant's rights under Article 8 and Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights (“ECHR”) and/or reached a decision resulting in a disproportionate interference with those rights.
iii) The Defendant improperly exercised powers under section 22C of the 1984 Act for purposes other than avoiding or reducing dangers connected with terrorism, namely, facilitating a parking area for the RAH, and avoiding the restrictions on preventing vehicular access to premises in section 3 of the 1984 Act.
The TMOs
The City of Westminster (A Zone) (Amendment No. 23) Order 2021 (“TMO1”) was made by the Defendant on 6 September 2021 under sections 6, 45, 46, 49 and 124 of the 1984 Act. It was not made under the counter-terrorism powers in section 22C of the 1984 Act.
The order has the following primary effects:
i) It removes the six pay-by-phone parking bays from KGW;
ii) It shortens the motorcycle parking bay outside No. 26 KGW by 6 metres and relocates it to Kensington Gore South West;
iii) It relocates the two “Blue Badge” disabled persons' parking bays on KGW to Kensington Gore South West;
iv) It replaces the “Blue Badge” disabled parking bay and six pay-by-phone parking bays on the south side of the north-west to south-east arm of Kensington Gore with double yellow line “at any time” waiting and loading restrictions;
v) It introduces double yellow line “at any time” waiting and loading restrictions on the west side of KGW, except for a length outside No. 26 and the Royal College of Art where single yellow line waiting restrictions are to operate between 8.30 a.m. and midnight on Mondays to Saturdays and between 11.30 a.m. and midnight on Sundays, and loading restrictions are to operate between 11.30 a.m. and midnight throughout the week;
vi) It introduces “at any time” loading restrictions at the junctions of Kensington Gore (the eastern and western arms) with Kensington Gore (the northern arm).
The City of Westminster (Prescribed Routes) (No. 12) Traffic Order 2021 (“the ATTRO”) was made under sections 6 and 22C of the 1984 Act and is accordingly an Anti-Terrorism Traffic Regulation Order (“ATTRO”).
The ATTRO repeats the parking and waiting/loading restrictions in TMO1. It also has the following primary effects:
i) It prohibits vehicles from entering KGW, adjacent to the RAH, between noon and midnight every day, by means of gates at either end which can only be unlocked by RAH security staff;
ii) It prohibits vehicles and pedestrians from entering KGW and the forecourt on the southeast corner of RAH at such times as considered necessary by and at the discretion of the police as set out in the Explanatory Note;
iii) It prohibits heavy goods vehicles and buses from entering Bremner Road, part of Jay Mews, and part of Kensington Gore.
The restrictions in paragraph 8(i) and (ii) above do not apply “to any person authorised by the Commissioner of the Metropolis or to any person acting on her behalf” by virtue of Article 8 of the Order.
Factual background
In 2017, the UK experienced a rise in terrorist attacks involving vehicles being used as a weapon against the public e.g. at Westminster Bridge and London Bridge. To protect against such attacks, temporary Hostile Vehicle Mitigation measures (“HVMs”) were introduced at a number of locations which were perceived as potential targets.
In 2017, the RAH and the Defendant installed temporary HVMs, in the form of removeable bollards and barriers, at the front of the RAH, and along its eastern side. The flow of vehicles was not obstructed.
The Westminster Ceremonial Streetscape Project is a protective security scheme to install permanent HVM measures at appropriate locations within Westminster. It is led by the Metropolitan Police Service (“MPS”) with contributions from the Defendant, Transport for London, and various government bodies. It convened monthly throughout 2017 with the objective of installing permanent security solutions to mitigate the increased threat of vehicle-based terrorism. On one occasion, Inspector Boutcher, who is a Counter Terrorism Security Coordinator at the MPS, had a discussion with the Defendant's then Director of Highways, Mr Kevin Goad, about venues in the Westminster Council area which could benefit from HVM measures. The RAH was identified as a priority venue for consideration for additional HVMs on the basis that it is an iconic building which regularly holds large public events. Due to its assessed status, it is afforded specialist counter terrorism security asset and resource. Mr Goad invited Inspector Boutcher to advise the RAH and its architectural design team, which she did until the scheme reached operational readiness.
At that time, as part of a 20-year plan, the RAH was seeking to undertake substantial improvements to enhance the experience for visitors and artists within and around the building, and to improve security and safety. Those proposals, known as the “Royal Albert Hall Protective Security and Public Realm Improvement Scheme”, include internal and external improvements to the building, together with extensive enhancements to surrounding private land and the public highway.
The RAH conducted two rounds of public engagement, as part of this project, between May — July 2019, and January — February 2020. On 4 June 2019 a member of staff at the RAH met the Claimant, and made a note of the discussion. I accept the account given in the Claimant's first witness statement, at paragraphs 16 and 17 as follows:
“16. … The concepts put forward to me at that meeting were starkly different to what has now been designed and implemented under the TMO. The idea that was discussed between Ms Halliday and myself at that meeting was the idea of a pedestrianised area at the southern half of the Royal Albert Hall with the western side of Kensington Gore remaining accessible by vehicles. I had proposed that the road be turned into a cul-de-sac with a turning circle by my house. I was accepting of the prospect of reducing the traffic outside my front door, but that was because I was assured that full time vehicular access to my house would remain in place through gates or bollards, that there would be the same number of car parking spaces available and that my concerns about accessing my house and security would be addressed. This is not what has transpired in the TMO.
17. At that meeting I understand that Ms Halliday noted that I said, “I can walk”. That comment was made in respect of walking from the nearest parking place on what I imagined to be a cul-de-sac or turning circle, rather than a statement that I did not require kerbside access for deliveries, pick up and drop off. I did not say that I and others who visit my home could always walk from streets away to access my home, Certainly, it was not an endorsement of the proposals within the traffic orders that have been made.”
On 15 January 2020, a further meeting took place between the Claimant and representatives from RAH. It was indicated that the Council intended to make an experimental traffic order under section 9 of the 1984 Act. The proposal of gates limiting access to KGW was raised. The Claimant said he was content in principle with the proposal of a pedestrianised area, but on the basis that he wanted to maintain a parking space outside his house. He was told that the RAH was open to discussion about the location of a “no access sign”, and the position of any gates.
I accept the Claimant's evidence that he never agreed to proposals which would prevent vehicular access to No. 26. In so far as the RAH notes suggested otherwise, I consider that they were inaccurate.
In January 2020, the RAH produced a document entitled “Public Realm Design Update”. It set out the proposals for public realm improvements as part of the RAH's vision for the future. It also included a risk assessment of attacks by hostile vehicles, before and after the temporary HVMs. Various options were considered. The “Current Proposed Scheme” advised that a phased approach to the delivery of HVM measures was necessary. The proposals for KGW stated:
“Two temporary security gates will be installed to allow the managed closure of the road, preventing public vehicle access during agreed times (12 pm – 12...
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