Sarah Jane Williams v Devon County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Kitchin,Lord Justice Briggs |
| Judgment Date | 19 April 2016 |
| Neutral Citation | [2016] EWCA Civ 419 |
| Docket Number | C1/2015/1342 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2016 |
[2016] EWCA Civ 419
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HIS HONOUR JUDGE COTTER QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Jackson
Lord Justice Kitchin
Lord Justice Briggs
C1/2015/1342
Mr Stephen Whale (instructed by Devon County Council) appeared on behalf of the Appellant
Mr Robert McCracken QC and Mr Gavin Collett (instructed by Lodders) appeared on behalf of the Respondent
This judgment is in four parts, namely:
Part one. Introduction,
Part two. The facts,
Part three. The present proceedings,
Part four. The appeal to the Court of Appeal.
This is an appeal by Devon County Council (the defendant) against a decision of the Administrative Court quashing a traffic regulation order. I shall use the abbreviation "TRO" for traffic regulation order. The main issue in this appeal is whether the judge correctly construed the word "restrict" in regulation 9 of Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.
As Mr Whale, counsel for the Devon County Council, observed in his submissions this morning, this is clearly a very short point of statutory construction and it is critical to the decision of this appeal. I am extremely grateful to counsel for coming directly to the point and isolating the issue so clearly for the assistance of this court.
In this judgment, I shall refer to the Road Traffic Regulation Act 1984 as "the 1984 act." The 1984 Act permits local authorities to make TROs in order to facilitate the movement of vehicular traffic along roads in their area. The Devon County Council therefore has statutory power to make TROs in respect of vehicles driving around Devon.
The Act also allows a local authority to make experimental traffic orders. These I shall refer to as "ETOs". An ETO lasts for a limited period so that the local authority and the local community can see how a particular new arrangement works out in practice.
Section 122 of the 1984 act provides:
" Exercise of functions by strategic highway companies or local authorities
(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway…
(2) The matters referred to in subsection (1) as being specified in this subsection are —
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the strategic highways company or the local authority to be relevant."
Paragraph 35 of schedule 9 to the 1984 act says:
"If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds —
(a) that it is not within the relevant powers, or.
(b) that any of the relevant requirements has not been complied with in relation to the order,
he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session."
I shall refer to the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 as "the 1996 regulations." So far as material, regulation 9 of the 1996 regulations provides:
"(1) The order making authority shall cause a public inquiry to be held before making an order to which paragraph (3) applies and may cause such an inquiry to be held before making any other order.
(2) A public inquiry shall be held by an inspector appointed by the order making authority and selected from a panel of persons chosen by the Secretary of State to hold such inquiries.
(3) Subject to paragraphs (4) and (5), this paragraph applies to an order if…
(b) its effect is to prohibit or restrict the passage of public service vehicles along a road and an objection has been made to the order in accordance with regulation 8 —
(i) in the case of a road outside Greater London, by the operator of a local service the route of which includes that road; or
(ii) in the case of a road in Greater London, by the operator of a London bus service the route of which includes that road or by Transport for London."
Having set out the relevant statutory provisions, I must now turn to the facts.
Part 2. The facts
Totnes is a small town in Devon on the banks of the River Dart. Like many towns in Devon, it has steep hills. Like many towns of medieval origin, it has narrow roads and consequent problems of traffic jams. In particular there has been congestion in Fore Street and High Street. They are two narrow roads which run through the centre of Totnes in an east/west direction. According to the evidence of the highways engineer of the Devon County Council, these two historic roads date back to the Elizabethan period.
The locations of Fore Street, High Street and other roads relevant to the issues in this case are set out on a plan which most helpfully is about to be prepared by counsel and supplied to this court for the purpose of annexing to the judgment. I would mention en passant, without wishing to offend anyone, that it is helpful in cases like this if user friendly plans are prepared for the assistance of the court before a hearing begins, not after it has ended.
The defendant council looked at a number of options for reducing the volume of traffic in Fore Street and High Street. The problem arose because many drivers in Devon, instead of bypassing Totnes, were simply driving into the town and using Fore Street and High Street as a shortcut in order to get through the town and out on to Plymouth Road on the western side.
One option considered by the council was to ban vehicles from turning right from the High Street into Plymouth Road. Such a ban would prevent drivers passing through Totnes and using those two central streets as a shortcut. Another option under consideration was to reverse the flow of traffic on Station Road and Lower Fore Street.
The second option would mean that people entering Totnes from Bridgetown could not simply drive westwards along Fore Street and High Street. In order to get halfway up Fore Street, they would need to turn right, then drive up Coronation Road and turn left into Station Road. That would take them down to a T junction halfway up Fore Street. I shall refer to this T junction as "the "T junction". At the T junction, drivers would then turn right into Fore Street and continue along westwards in order to reach High Street.
The defendant resolved to adopt the second option, initially on an experimental basis. The defendant made an ETO giving effect to option two, which came into force on 22 March 2013. The defendant subsequently made the new arrangements permanent by means of the Devon County Council (Fore Street and Station Road, Totnes) (Traffic Regulation) Order 2014. I shall refer to this as "the TRO". The TRO came into force on 27 August 2014.
There is a community bus service in Totnes which has existed for many years and which is known as "Bob the Bus". I shall refer to it as BTB. BTB owns three bright yellow buses, Bob 1, Bob 2 and Bob 3. Bob 1 and Bob 2 go on circuit round Totnes enabling passengers to get to and from their chosen shops or doctors' surgeries or other destinations. The great majority of the passengers on Bob 1 and Bob 2 are elderly persons and quite a few of these would have difficulty walking unaided up the steep slopes of Totnes. Bob 3, as I understand it, does not go on circuit round the town, but is available for hire by local non-profit groups.
In recent years, there have been strong feelings in Totnes about how to deal with the problem of traffic jams. No one has suggested, and I do not suggest, that the problem is a straightforward one or that any individual solution is ideal. Some residents support option two, as mentioned earlier in this judgment, and believe that the ETO and the RTO are the best way forward. Other groups are strongly opposed to option two. They object to the ETO and the RTO. In particular, shopkeepers and traders in Fore Street are opposed to option two, because it reduces the number of people visiting Fore Street and therefore damages their businesses.
BTB opposes option two. The ETO and the TRO prevent Bob 1 and Bob 2 from driving straight along Fore Street and High Street, as those buses used to do.
If Bob 1 or Bob 2 wishes to carry customers to all the shops and other destinations in Fore Street, it now needs to do the following. It starts from The Plains roundabout at the east end of Fore Street. It is not permitted to drive westwards...
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