SM (a child, by his father and litigation friend, MZM) v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] EWHC 3294 (Admin) |
| Docket Number | CO/4070/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3294 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
CO/4070/2020
Mr Stephen Broach and Ms Eleanor Leydon (instructed by Rook Irwin Sweeney LLP) for the Applicants
Mr Kelvin Rutledge QC and Mr Jack Parker (instructed by London Borough of Hackney Legal Services) for the Respondent
Hearing date: 1 November 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time of hand-down is 10:00am on 7 December 2021.
Introduction
The two applicants are children with disabilities who, through their fathers as litigation friends, challenge the validity of two experimental traffic orders ( ETOs) made by the respondent ( Hackney) on 25 September 2020, eventually taking effect from 9 November 2020. The applicants complain that they are severely prejudiced by increased car journey times to and from their school.
The two ETOs have long titles, which I will shorten as indicated:
(1) the Hackney (Mount Pleasant Lane Area – Mount Pleasant Lane, Southwold Road and Springfield Gardens) (Traffic Management and Parking) (Experimental) Order 2020 ( the Springfield Gardens ETO); and
(2) the Hackney (Prescribed Routes and 20 mph Speed Limit) (School Streets – Harrington Hill Primary School) (School Streets – Pedestrian and Cycle) (Experimental) Order 2020 ( the Harrington Hill ETO).
The application is made under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984. It is not a judicial review; permission is not required but the challenge must be (and was) brought within six weeks from the date the order is made; and otherwise may not (see paragraph 37 of the same Schedule) be questioned in any legal proceedings whatever.
The grounds of challenge are, however, founded on conventional principles of public, equality and human rights law frequently aired in judicial review proceedings. In this case, the grounds are failure to discharge the public sector equality duty, failure to consult and breach of article 8 or article 14 (read with article 8) of the European Convention on Human Rights ( ECHR).
Hackney resists the application. It contends that it properly discharged its duty to have “due regard” to the matters specified in section 149 of the Equality Act 2010; that it was under no obligation to consult more widely than it did prior to making the ETOs; and that there was no interference, or alternatively a justified interference, with the applicants' article 8 rights and no violation of their rights under article 14 read with article 8.
Relevant Law
Local traffic authorities such as Hackney must, by section 16(1) of the Traffic Management Act 2004:
“manage their road network with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives–
(a) securing the expeditious movement of traffic on the authority's road network; and
(b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority.”
“Traffic” includes pedestrians (section 31 of the same Act). By section 16(2):
“(2) The action which the authority may take in performing that duty includes, in particular, any action which they consider will contribute to securing–
(a) the more efficient use of their road network; or
(b) the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic on their road network or a road network for which another authority is the traffic authority;
and may involve the exercise of any power to regulate or co-ordinate the uses made of any road (or part of a road) in the road network … .”
The powers of a traffic authority to make traffic regulation orders are found in sections 1–4 of the Road Traffic Regulation Act 1984 ( ROTRA) for roads outside Greater London. By section 6, orders “similar to” traffic regulation orders can be made for roads within Greater London. The orders in this case were made under section 6. Section 7 regulates their content, while section 8 makes it an offence to contravene one.
Section 9 allows the making of ETOs, which may not last longer than 18 months and may be continued from time to time during the period of up to 18 months from the date the order first came into force. It is an offence to contravene an ETO (section 11 of the ROTRA).
By section 122(1) of the ROTRA, a local authority must exercise its functions under the ROTRA:
“(so far as practicable having regard to the matters specified in subsection (2)…) 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 … .”
The “matters specified” in subsection (2) 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) ….
(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 …. local authority to be relevant.”
By paragraphs 34–36 of Schedule 9 to the ROTRA (in Part VI of that Schedule), a person may “question the validity of” (among other types of traffic regulation order) an ETO or part of one only on the grounds that it is not within “the relevant powers” (as defined) or that any of the “relevant requirements” (as defined) has not been complied with.
The procedures that must be followed before making a traffic regulation order are set out in the Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 ( the 1996 Regulations). By regulation 6, various bodies such as the local fire brigade and ambulance service provider must, normally, be consulted.
There is no requirement in regulation 6 or anywhere to consult the general public but where the order may affect passage along any road the authority must consult the Freight Transport Association, the Road Haulage Association and:
“[s]uch other organisations (if any) representing persons likely to be affected by any provision in the order as the order making authority thinks it appropriate to consult.”
Further, under regulations 7 and 8 a notice stating the proposals must be published in the London Gazette. Members of the public may object and their objections must be considered. In some cases a public inquiry must be held, under regulation 9. However, that objection procedure does not apply in the case of ETOs (see regulation 22(1)). Instead, the published notice must include a process for written objections to be made during the first six months of operation of the ETO (by a combination of regulation 23 and Schedule 5).
The making of ETOs is an exercise of “functions” within section 149(1) of the Equality Act 2010 ( the 2010 Act), attracting the duty to have “due regard” to the legislative goals set out in sub-paragraphs (a) to (c) of section 149(1), which are well known and need not be repeated here. The section enacts what is known in shorthand as the public sector equality duty.
Facts
The first applicant, SM, was born in 2005 and is now 16. He has a severe learning disability with a diagnosis of Attention Deficit Hyperactivity Disorder ( ADHD), with other difficulties and mental health issues. His needs are complex and his behaviour difficult. He has an Education and Health Care ( EHC) plan. He lives with his parents in Hackney with six of his siblings.
The second applicant, SDJ, was born in 2016 and is now five. He lives with his parents in Haringey. He has been diagnosed with global developmental delay. His mobility and balance are affected. He struggles with walking long distances, can be unsteady on his feet and has delayed speech development. His toilet training has also been delayed. His parents are in the process of obtaining an EHC plan for him.
Both applicants and their parents are members of the Orthodox Jewish community. Both applicants attend “S School”, as I shall call it; a fee paying special school in Hackney, access to which is affected by the two ETOs. The administrator of S School, Mrs Chani Gottesman, explains that it is the only Orthodox Jewish special school in London. It is planning to relocate in the next few years but no clear timescale for that is before the court.
Mrs Gottesman explains that in November 2020 about 49 children would arrive on private school vans and 37 children would arrive with their parents in cars or taxis. Another nine children were arriving on local authority provided transport. A total of about 86 children, therefore, were affected by the ETOs when they took effect on 9 November 2020.
Both applicants need to be driven to and from school by car because of their special needs and disabilities. The car journey times to and from S School are important to both because they become anxious, restless, difficult and challenging in various ways, the longer the journey takes. There is no...
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