Sarah Williams (A Representative Claimant for "e17 Streets4all") v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,MR JUSTICE HOLGATE |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWHC 3907 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2015 |
| Docket Number | CO/3600/2015 |
[2015] EWHC 3907 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/3600/2015
Mr Jonathan Wragg (instructed under the Direct Access Scheme) appeared on behalf of the Appellant
Mr Alun Alesbury and Ms Laura Phillips (instructed by The London Borough of Waltham Forest) appeared on behalf of the Respondent
Introduction
This is an application for statutory review pursuant to paragraph 35 of schedule 9 to the Road Traffic Regulation Act 1984 ("RTRA") in relation to 20 experimental traffic orders ("ETOs") made under section 9 of that Act by the London Borough of Waltham Forest ("the Council") in respect of a group of streets in Walthamstow Village. The Council made these orders in its capacity as the traffic authority under the RTRA in respect of the roads affected. 17 of the orders were made on 19 June 2015, and the remaining three were made on 21 August 2015.
Sarah Williams is a resident of the Village and a solicitor. In these proceedings, she represents an unincorporated association "E17 Streets4All". The association comprises a number of persons living and working in Walthamstow Village, which has been formed in order to oppose the Council's traffic regulation strategy for that area and also other parts of the borough, referred to as a "Mini-Holland Scheme". The Mini-Holland Scheme is one of three such schemes for which funding has been approved by Transport for London ("TfL") and the Greater London Authority ("GLA") in three different London boroughs. As the name suggests, the concept has been inspired by a project undertaken in the Netherlands to create low-traffic neighbourhoods which encourage more people to make journeys by cycle or on foot.
The orders challenged in the present case involved measures such as pedestrian priority crossings, "modal filters" (through which cyclists and pedestrians may pass, but not vehicular traffic), one-way streets, shared highway and footway space, also known as "blended" or "Copenhagen" crossings, road closures, pedestrianised areas, parking places and parking restrictions.
The Council's Mini-Holland Strategy has gone through a number of stages which may be summarised as follows:
| December 2013 | Publication of a Mini-Holland Strategy document bidding for funding from TfL and GLA. |
| March 2014 | Decision by TfL and GLA to provide funding of about £32 million for the Council's scheme. |
| 9 September 2014 | Report to and decision by the Council's Cabinet to accept the funding offered, to approve a delivery strategy for the scheme and to delegate authority to senior officers to approve individual elements of the programme. The delivery strategy implements the project in a series of local phases between 2015 and 2017. The scheme for Walthamstow Village is one of the earlier phases in the approved strategy. |
| 26 September to 13 October 2014 | Trial road closures in Walthamstow Village and collection of data by the Council from those trials. |
| 28 November to 19 December 2014 | Publication of consultation document and questionnaire on scheme design for Walthamstow Village followed by consultation period. |
| 10 February 2015 | Report to and decision by the Council's cabinet to approve the final scheme design for Walthamstow Village improvements as part of the Mini-Holland Programme. |
| 19 June 2015 | 17 ETOs made. |
| 21 August 2015 | 3 further ETOs made. |
The orders made on 19 June 2015 came into effect on 30 October 2015. The accompanying notice stated that the Council will be considering in due course whether the provisions of the ETOs should continue indefinitely by the subsequent making of permanent traffic regulation orders under the RTRA. Consequently, the notice allowed the statutory period of 6 months (expiring on 29 December 2015) within which objections may be made to the making of such permanent orders. The three orders dated 21 August 2015 came into force on 1 September 2015, and were also accompanied by a similar notice of the Council's intention to consider making permanent orders to the same effect, and therefore allowing a period of 6 months (expiring on 28 February 2015) within which the public may object to the effects of those orders becoming permanent.
The ETOs were accompanied by a statutory "statement of reasons", in which the Council stated that the measures they contained were "being introduced experimentally in order to assess their effectiveness with a view to making them permanent". The objection period of 6 months stipulated by the legislation enables the public to express their views and provide information to the Council on the effect of the experimental orders in practice.
The grounds of challenge
Paragraph 35 of schedule 9 to the RTRA provides that:
"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 …"
Paragraph 36 provides that on any such application the court:
"(a)…
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
In other words, the legislation provides for statutory review of orders made under the RTRA in accordance with standard principles of judicial review.
The re-amended claim form was supported by a substantial number of witness statements, which, for the most part, set out a range of objections dealing with the merits of the ETOs and the evidence upon which the Council had relied when deciding to make those orders. Mr Jonathan Wragg, who appeared on behalf of the Claimant, accepted that such material is generally inadmissible in proceedings of the present kind, which may not be used in order to debate the merits of the decisions taken by a public body, including ETOs. However, he argued that this material is relevant in this case solely on the basis that the Council acted irrationally by exercising its discretion against the holding of a public inquiry. However, in order to advance that argument he did not rely upon any particular passages contained within this evidence. The Council have not responded directly to this material, and no point is taken by the Claimant about their decision not to do so. In the circumstances, I will not deal with this evidence in any detail in this judgment.
The arguments set out in the re-amended particulars of claim and the Claimant's skeleton were somewhat diffuse and tended to overlap. It was therefore necessary to identify during the hearing how the legal criticisms of the Council's actions are in fact put. In summary, the Claimant advances the following six grounds:
(1) The Council failed to consult the public properly prior to making the ETOs (a) by failing to consult the public on proposals for the Mini-Holland Scheme as a whole rather than the proposals for Walthamstow Village alone; (b) by failing to consult on the Council's main objective to increase cycling in the area; (c) by failing to consult on alternative options which had been discarded by the Council; and (d) by failing to consult on the option of not closing any roads, and therefore treating road closures as a foregone conclusion;
(2) The Council's decision not to hold a public inquiry into objections to the ETOs was irrational;
(3) The measures proposed in the ETOs are unnecessary and/or will not meet the Council's objectives;
(4) The traffic data relied upon by the Council in order to support the making of the ETOs was of such poor quality that no traffic authority could lawfully have relied upon it;
(5) The Council failed to give sufficient reasons for making the ETOs so as to comply with its duty under section 122 of the RTRA. In particular, the Council failed to address the desirability of maintaining reasonable access to premises within the Village, and the Council's Air Quality Action Plan as regards the displacement of vehicular traffic from within Walthamstow Village to two arterial routes on the western and southern sides of the Village, namely Lea Bridge Road and Hoe Street, resulting in additional congestion and poorer air quality on those roads;
(6) The Council failed to comply with the network management duty contained in section 16 of the Traffic Management Act 2004.
In order to put matters into context, the following points should be made at this stage:
(1) Mr Wragg accepted that ground 6 raises no additional point not already covered by ground 5.
(2) No challenge has been brought by way of judicial review to the decisions of the Council's Cabinet dated 9 September 2014 and 10 February 2015. No explanation has been given for the absence of any such challenge. No such challenge could be brought under this claim under paragraph 35 of schedule 9 to the RTRA, and it is not suggested that any challenge could now be made by judicial review having regard to the lapse of time which has occurred since those decisions were taken.
(3) The Claimant does not suggest that the Council was not...
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