Sophia Bouchti v London Borough of Enfield
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 09 November 2022 |
| Neutral Citation | [2022] EWHC 2809 (Admin) |
| Docket Number | Case No: CO/1301/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2809 (Admin)
Mr Justice Eyre
Case No: CO/1301/2022
IN THE HIGH COURT OF JUSTICE
KINGS'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Fraser-Urquhart KC and Charles Forrest (instructed by Harrison Grant Ring) for the Claimant
Clive Sheldon KC and Zac Sammour (instructed by London Borough of Enfield Legal Services) for the Defendant
Hearing date: 25 th October 2022
Approved Judgment
Introduction .
The Defendant (“the Council”) is the traffic authority for the borough of Enfield for the purposes of the Road Traffic Regulation Act 1984 (“the RTRA”). On 2 nd March 2022 the Council made a series of related Permanent Traffic Orders under section 6 of the RTRA. The effect of these was to create a “Quieter Neighbourhood” or “Low Traffic Neighbourhood” in respect of Fox Lane, Enfield and the surrounding roads by restricting the flow of traffic through those roads as I will describe below. The relevant orders made permanent the arrangements which had been put in place by a series of Experimental Traffic Orders which had (subject to some modification) been in force since September 2020.
The Claimant lives a little outside the area subject to the orders but has been adversely affected by them. She challenges the orders by way of statutory review pursuant to paragraph 35 of schedule 9 to the RTRA.
The Claimant advances seven grounds of challenge to the orders. In summary she says that there were procedural failings flowing from the Council's failure to comply with the requirements laid down in the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the Regulations”); deficiencies in the consultation which the Claimant says the Council conducted; and a failure by the Council to have regard to its duties under sections 45 and 122 of the RTRA and/or a failure as required by the latter of those provisions to conduct a proper balancing exercise to assess the effect of the proposed orders on “the expeditious, convenient and safe movement of vehicular and other traffic”. In addition it is said that the involvement of two of the Council's members and two of its officers in the Better Streets for Enfield campaign group meant that the decision was approached with a closed mind or that there was a real risk or appearance that such had been the case. Finally, there is said to have been irrationality in the decision linked with a breach of the Council's Tameside duty to obtain the necessary information to make the decision properly.
The Council accepts there were some errors in the process although it does not accept all of those asserted by the Claimant. However, it denies that such failings as there were caused substantial prejudice to the Claimant. The Council denies the other contentions saying that it was not required to disclose further information to the Claimant for the purposes of consultation; that it had proper regard to the relevant statutory duties and carried out an appropriate balancing exercise; that the decision to make the experimental orders permanent was approached with an open mind; and that there is no basis for the assertion of irrationality.
The Factual Background in Outline .
The area covered by the orders under challenge (“the QN area”) is crossed by a number of unclassified roads and bounded by A roads. Fox Lane runs through the QN area from Green Lanes in the east to The Bourne on the north-west side of the area. A number of other roads run off Fox Lane and Meadway in a herring-bone pattern. The Council was concerned to address the use of those roads and of Fox Lane and Meadway by drivers cutting across between the A roads surrounding the QN area.
The effect of the orders has been to prohibit through traffic from the QN area. That result has been achieved by the placing of signs; by camera-enforced filter points; and by the installation of bollards and similar barriers. Traffic has been re-routed away from the inside of the QN area on to and along the surrounding A roads and the roads beyond.
The Claimant lives about 0.7 miles from the QN area. She operates a dog walking business and has a number of clients in or around the QN area. This means that she has to drive into and through the area to collect and return her clients' dogs and to take those dogs to local parks for exercise. The restrictions imposed by the orders mean that her journeys are longer than they would otherwise be and that she gets stuck in queues of traffic when driving on the roads on to which the vehicles which formerly crossed the QN area have been displaced. As a consequence the Claimant has had to stop working for a number of her clients because it takes too long for her to collect and return their dogs.
The Claimant is a member of the management committee of One Community which is a group of local residents and businesses formed in October 2020 to oppose the imposition of the restrictions.
On 26 th August 2020 the Council made a series of Experimental Traffic Orders which gave effect to the restrictions and these came into force on 7 th September 2020. That was at a time when many of the measures to address the COVID-19 pandemic remained in force and as a consequence the Council made, as it was required to do, alternative arrangements for inspection of the orders, statement of reasons, and plans. The orders said that those documents could be viewed online on a specified section of the Council's website and that copies could be obtained by emailing or writing to the Council. However, through an oversight on the part of the Defendant the relevant statement of reasons were not present on the website until 26 th October 2020. In his witness statement David Taylor, the Council's Head of Traffic and Transportation, reports the statement of the officer responsible for monitoring emails to the relevant address to the effect that if a request for the documents in writing had been made in that period then the statement of reasons would have been sent by post or email. It is, however, to be noted that on 18 th November 2020 (and so at a time by when the documents had been uploaded to the website) a member of the One Community group sent an email requesting a copy of the statement of reasons by return of email. The response which was only received on 30 th November 2020 was to refer that person back to the Defendant's website.
On 12 th October 2020 the Council began a non-statutory period of consultation which lasted to 11 th July 2021 and which was conducted primarily through the provision of a survey form.
On 18 th November 2020 and taking effect on 19 th November 2020 the Council modified one of the Experimental Traffic Orders. The effect of that was to add a further access point at the junction of Conway Road with Fox Lane for ambulance and other emergency service and refuse collection vehicles. The modification took effect on the ground by the removal of bollards and their replacement by signs. This was shown on a map attached to the modification. The text of the notice of modification referred to the location being at “the north-eastern boundary of no. 11 Fox Lane”. That was an error because the relevant property is in fact 111 Fox Lane.
On 30 th June 2021 and taking effect on 12 th July 2021 the Council made a further order superseding that modified on 18 th November 2020. The statement of reasons accompanying this explained that the reference to 11 Fox Lane had been an error and altered the description of the relevant location to the junction of Conway Road and Fox Lane. The map attached to this order was in materially the same terms as that attached to the November 2020 notice of modification. The Claimant says that the June 2021 order was a modification or variation of the earlier order and triggered a fresh six-month period for making objections. The Defendant says that it was not a modification or variation but merely a correction of the description of the location identified in the earlier order.
From June 2021 to early November 2021 the Council's publicly stated position was that the order of 30 th June 2021 did not reopen the six-month period save to the extent that objections could be made against the June 2021 order itself in the period to 12 th January 2022. However, in November 2021 the Council changed its stance and accepted that objections could be made to the making permanent of all of the Experimental Traffic Orders in the period up to midnight on 11 th January 2022.
On 26 th January 2022 the Council published the report of Richard Eason, its Healthy Streets Programme Director (“the Officer's Report”) recommending the making permanent of all the Experimental Traffic Orders. The report was accompanied by four annexes and nine appendices. The annexes were a plan of the proposed measures; the response from the London Ambulance Service; diffusion data; and a table setting out a summary of the objections which had been made and of the Council's response to them. The appendices included an Equalities Impact Assessment and an analysis of the consultation exercise together with more detailed documents dealing with matters such as air quality, noise, crime, and traffic data seeking to show the impact of the measures during the period the Experimental Traffic Orders had been in force. Of those annexes and appendices only the first annex (the plan) and the last appendix (the Equalities Impact Assessment) had been made public in advance of the publication of the Officer's Report. It follows that there had been no opportunity for the public to comment on the other annexes and appendices or for such comments to be taken into account in compilation of the Officer's Report.
On 7 th February 2022 the Leader of the Council...
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