Surrey County Council v Royal Borough of Windsor and Maidenhead
| Jurisdiction | England & Wales |
| Judge | Deputy Judge Robin Purchas |
| Judgment Date | 16 November 2016 |
| Neutral Citation | [2016] EWHC 2901 (Admin) |
| Docket Number | Case No: CO/2266/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2016 |
[2016] EWHC 2901 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Purchas QC
Sitting as a Deputy High Court Judge
Case No: CO/2266/2016
Ruth Stockley (instructed by Surrey County Council Legal Department) for the Claimant
Robin Green (instructed by Royal Borough of Windsor and Maidenhead Legal Department) for the Defendant
Hearing date: 27 October 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Deputy Judge Robin Purchas QC:
Introduction
The Claimant, who is the traffic authority for the county of Surrey, challenges the Royal Borough of Windsor and Maidenhead (Chobham Road, Sunningdale)(Weight Restriction) Order 2016 ('the Order') under part VI of Schedule 9 to the Road Traffic Regulation Act 1984 ('the 1984 Act'). The Order was made on 21st March 2016 by the Defendant, who is the traffic authority for its area.
The Claimant relies on four grounds of challenge:
a) That the Defendant failed to comply with its obligation to consult with the Claimant pursuant to regulation 6 of the Local Authorities' Traffic Orders (Procedure)(England and Wales) Regulations 1996 ('the 1996 Regulations');
b) That the Defendant failed to take into account any technical or other sufficient evidence for making the Order;
c) That the Defendant failed to consider the suitability of alternative routes and/or the traffic and amenity impacts on those routes as a result of the proposed Order; and
d) The Defendant failed to provide an adequate statement of reasons.
Legal framework
By section 1 of the 1984 Act, so far as relevant:
"(1) The traffic authority for a road outside Greater London may make an order under this section (referred to as a "traffic regulation order") in respect of the road where it appears to the authority making the order that it is expedient to make it
a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
b) for preventing damage to the road or to any building on or near the road or …
…
d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or…
e) for preserving or improving the amenities of the area through which the road runs…".
Section 2 of the 1984 Act provides that a traffic regulation order may contain provisions 'prohibiting or regulating the use of a road or any part of a road by vehicular traffic or by vehicular traffic of any class specified in the order' and 'prohibiting or restricting the use of heavy commercial vehicles … on such roads as may be so specified as they consider expedient for preserving or improving the amenities of their area or of some part or parts of their area.'
By section 122 of the 1984 Act, so far as relevant:
"(1) It shall be the duty of every 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) …
(2) The matters referred to in subsection (1) above as being specified in this subsection are:
…
(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; and
…
(d) any other matters appearing to the local authority to be relevant."
Section 16 of the Traffic Management Act 2004 ('the 2004 Act') provides, so far as relevant:
"(1) It is the duty of a local traffic authority … to 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."
In respect of procedure by regulation 6 of the 1996 Regulations the order making authority is required to consult the traffic or highway authority for any other road which appears to it likely to be affected 'before making an order'.
By regulation 7 before making an order the authority is required to publish a notice of the proposed order including the particulars in Schedule 1 and take other steps as it may consider appropriate for ensuring that adequate publicity about the order is given to persons likely to be affected by its provisions. Regulation 7(2) requires a copy of the notice to be sent to all of the bodies or persons required to be consulted under regulation 6. Regulation 7(3) and Schedule 2 require that the documents in Schedule 2, which include a statement of reasons for making the traffic regulation order, are deposited to be available for public inspection.
Regulation 8 provides for objections to be made within a period specified in the notice but not being less than 21 days from the date of compliance with regulation 7(1)-(3). By regulation 13 before making an order the authority is required to consider any objections made in accordance with regulation 8 and not withdrawn.
Paragraph 35 of Part VI of Schedule 9 to the 1984 Act provides:
"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 six weeks form the date on which the order is made make an application for the purpose to the High Court …"
By paragraph 36(1) the court may, 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 failure to comply with any of the relevant requirements, quash the order or any of its provisions. By paragraph 37 an order may not otherwise be questioned in any legal proceedings.
Background
Chobham Road is classified as the B383 and provides a link to the A30, connecting Sunningdale and Chobham. The northern section is within the Defendant's area and the southern section is in the Claimant's area.
The Order affects a 200 metre stretch of the road within the Defendant's area where the road crosses the railway. The road bends north and south of the bridge. There is a separate pedestrian bridge. The width of the carriageway is said to be just under 6.7 m where the road crosses the bridge.
On 12 th August 2014 planning permission was granted for a substantial mixed development, including 100,000 m2 commercial space, on a site ('the DERA site') in the Claimant's area close to the boundary with the Defendant's area. One of the two proposed construction routes to serve that development included the section of the B383 over the railway line affected by the Order.
On 26 th May 2015 the Defendant made the Royal Borough of Windsor and Maidenhead (Chobham Road, Sunningdale)(Weight Restriction) Order 2015 ('the 2015 Order') which placed a weight limit on the same section of road as the Order, generally prohibiting its use by vehicles in excess of 18t.
The Claimant and others, including Surrey police and other authorities, had objected to the making of the 2015 Order, including the effect that it would have in diverting commercial vehicles in excess of 18t onto local roads in the Claimant's area, which were said to be less suitable environmentally and otherwise.
In September 2015 a petition was presented by the local ward member, signed by over 1,000 people, requesting further weight restriction prohibiting the use of the section of road by commercial vehicles over 7.5 tonnes.
On 26 th November 2015 a report was made to the Defendant's cabinet, which recommended that consultation should be undertaken on a proposed weight limit reduction to 7.5t. The cabinet resolved that the consultation should take place and that the results should be reported back to the cabinet in February 2016.
Following an exchange of emails, on 16 th December 2015 the consultation documents were sent to the Claimant, comprising the regulation 7 notice, a plan and the statement of reasons. The covering email from the Defendant was headed with the title of the Order and said:
"By way of formal consultation please find attached the notice, plan and statement of reasons relating to the above traffic regulations order. Although the legal notice states 14 th January 2016, I will accept comments or objections in writing until 5 pm, 22 nd January 2016. As discussed, if you could please arrange for the papers to be forwarded to Surrey Police as well as to Surrey Heath and Runnymede Councils so that they have the opportunity to comment. I feel that this would ensure that they are in receipt of the notices as opposed to sending to their generic email addresses where there would opportunity for missing the information."
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