The King (on the application of Oliver Hawes) v London Borough of Tower Hamlets

Hearing date: 22.11.24

Draft judgment: 6.12.24

Approved Judgment

This Judgment was handed down remotely at 10am on 17 th December 2024 by circulation to the parties or their representatives by email and by release to the National Archives.

Introduction

This case is about the lawfulness of a decision by the Mayor of Tower Hamlets (MTH) to remove a neighbourhood traffic scheme (the Scheme) after a public consultation. There are questions about the legal relationship between two elected Mayors: MTH and the Mayor of London (MOL). Full versions of the public domain documents to which I will refer can readily be found online by anyone who wants to see fuller detail. To assist them and the parties I will include signposting paragraph number references. The Claimant is a local resident of Bethnal Green. He is part of the “Save Our Safer Streets” group of local residents formed in July 2022. He has the sufficient interest which the law requires, to bring this claim and hold MTH to account under the law.

Statutory Schemes

Three statutory schemes are prominent in this case. (1) The Traffic Management Act 2004. (2) The Road Traffic Regulation Act 1984 together with the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996. (3) The Greater London Authority Act 1999 (GLAA99). As a London local authority and a local traffic authority, the Defendant's functions are regulated and circumscribed by all three of these Acts. The relationship between the Defendant and MOL is governed by GLAA99. MOL gives directions to TFL (the Interested Party), a statutory body set up under GLAA99.

Statutory Duties

The following statutory duties are prominent in this case. (1) The Defendant has a network management duty: to manage its road network with a view to achieving the expeditious movement of traffic (including pedestrians), so far as may be reasonably practicable having regard to its other obligations, policies and objectives (2004 Act s.16). (2) The Defendant has a network arrangements duty: to make such arrangements as it considers appropriate for planning and carrying out action in performing the network management duty (2004 Act s.17). (3) The Defendant has traffic order duties: when making traffic orders for facilitating the passage of traffic (including pedestrians) – including experimental orders and revocation orders – to comply with applicable consultation requirements (1984 Act ss.6 and 9; 1996 Regulations regs.6–8, 13 and 22). (4) The Defendant has a LIP Implementation Duty: where MOL has approved the Defendant's local implementation plan (LIP) of proposals for implementation of MOL's transport strategy (MTS), including a timetable for implementing the different proposals, the Defendant “shall implement the proposals contained in [the LIP] in accordance with the timetable included” (GLAA99 s.151(1)(a)). The MTS was issued by MOL in March 2018. The Defendant's LIP was approved by MOL on 8.4.19. (5) The Defendant has statutory “have regard” duties. (5a) In exercising its network management and network arrangements duties, it “shall have regard to” statutory guidance issued by the Department for Transport (DfT) (2004 Act s.18(2)). Relevant DfT statutory guidance was entitled Traffic Management Act 2004: Network Management to Support Active Travel (1.4.22). (5b) In exercising any function, the Defendant “is to have regard” to the MTS (GLAA99 s.144(1)). (5c) In exercising any function, the Defendant “is to have regard” to MOL statutory guidance “about the implementation of” the MTS (GLAA99 s.144(3)). Relevant MOL statutory guidance was: Guidance for Borough Officers on Developing the Third Local Implementation Plan (March 2018); Local Implementation Plan Finance and Reporting Guidance (April 2019); and Guidance on Developing LIP Three-Year Delivery Plans for 2022/23–2024/25 (October 2021). (6) The Defendant, as a “best value authority”, has a best value duty: a general duty to make arrangements, after mandatory consultation, to secure continuous improvement in the way its functions are exercised having regard to a combination of economy, efficiency and effectiveness ( Local Government Act 1999 (LGA99) s.3(1)(2)).

Common Law Duties

The following common law duties are prominent in this case. (1) The duty to give legally adequate reasons (see South Bucks DC v Porter [2004] UKHL 33 [2004] 1 WLR 1953 at §36). (2) The duty to conduct a fair and legally adequate consultation (see R (Moseley) v Haringey LBC [2014] UKSC 56 [2014] 1 WLR 3947 at §§23 and 25). (3) The duty to depart from statutory guidance only for an identifiable good reason (see R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 at §21). (4) The duty to reach a decision which is reasonable (a) as to its outcome, being within the range of reasonable responses; and (b) as to its reasoning process, being free from demonstrable flaw such as material reliance on a legal irrelevancy (or material disregard of a legal relevancy) or absence of evidence to support an important step or serious logical or methodological error (see R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98).

The Impugned Decision

MTH's impugned Decision was made on 20.9.23. There are Minutes of the Cabinet meeting, a Record of Decisions and a public statement by MTH. In local authority governance terms it was a “key decision” (affecting two wards), which MTH was legally empowered to take by s.9E(2)(a) of the Local Government Act 2000. In his decision-making MTH was considering making appropriate arrangements for the 2004 Act network arrangements duty, which triggered the duty to have regard to the April 2022 DfT statutory guidance. The undertaking of prior public consultation was emphasised in the DfT statutory guidance. A first phase of consultation had taken place on 9.7.22, with consultation papers and a survey questionnaire. A second phase of consultation had taken place on 19.1.23 with a second survey questionnaire incorporating a Travel Survey. A 28-page officers' report (OR) together with 8 Appendices was published on 12.9.23. Removing the Scheme was Option 1 in the January 2023 consultation. Retaining it was Option 2. The OR also described and discussed an Option 3.

Judicial Review

Judicial review is a supervisory, and not a substitutionary, jurisdiction. That means the Court's function is not to decide the merits of removing – or retaining – the Scheme. The merits of evaluative judgments and policy choices are entrusted to front-line public authorities, in respect of which there is always a latitude for judgment and appreciation. Judicial review is restricted to deciding questions of law. That includes delineating and applying a set of objective standards. It includes understanding and applying relevant statutory and common law duties. In that way, judicial review holds public authorities to account under the law. In relation to the MTS, the contents of MOL statutory guidance, the approval of the Defendant's LIP and the exercise of MOL's statutory enforcement powers, the primary decision-maker is MOL. In relation to the contents of the DfT statutory guidance, the primary decision-maker is the Secretary of State for Transport. In relation to the impugned decision, the primary decision-maker is MTH. The parties have made focused submissions on points of law, with supporting evidence and legal materials. The oral submissions were made by Mr Wolfe KC, Ms Kilroy KC, Mr Parker and Ms Sheikh KC. I am grateful to all Counsel, solicitors and team members who have contributed. It is the questions of law, which they have addressed, which I am tasked with deciding. Nothing else.

The Issues

The agreed Issues, which I have to decide, come to this. (1) Whether MTH gave legally inadequate reasons for the Decision. (2) Whether the consultation process was so unfair as to be unlawful. (3) Whether MTH unlawfully failed to take into account the results of the Travel Survey. (4) Whether MTH failed lawfully to apply DfT statutory guidance on the monitoring and removal of low traffic neighbourhoods. (5) Whether the Decision was unreasonable. (6) Whether the Decision was taken in breach of the LIP Implementation Duty and/or MTH unlawfully failed to have regard to the LIP. (7) Whether the Decision was taken in breach of the best value duty.

Reasons and Reasonableness

Issues (1) (legally inadequate reasons) and (5) (unreasonableness) were addressed together in the oral arguments. Mr Wolfe KC and Mr Parker's skeleton argument had identified the link, in submitting that their points about legally inadequate reasons also indicated unreasonable decision-making or a failure to take legal relevancies into account. Ms Sheikh KC and Ms Noble's skeleton argument also saw the link, in submitting that in reality and on analysis the legally inadequate reasons ground of review shone a bright light on substantive complaints governed by the threshold of unreasonableness. In my judgment, the parties were right, in the nature of the circumstances of the present case, to see this link and adopt this approach. Looking at the two words, we would expect some relationship between what is lawful as a “reasoned” decision and a “reasonable” one. The common law duty of reasonableness...