Venuscare Ltd v Cumbria County Council
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] EWHC 3268 (Admin) |
| Date | 29 November 2019 |
| Docket Number | Case No: CO/2936/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3268 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MANCHESTER)
PLANNING COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
HIS HONOUR JUDGE Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/2936/2019
Richard Oughton (instructed by Bendles Solicitors, Carlisle) for the Claimant
Ruth Stockley (instructed by Legal & Democratic Services, Cumbria County Council) for the Defendant
Hearing date: 15 November 2019
Judgment circulated in draft: 21 November 2019
Approved Judgment
I direct that pursuant to CPR PD 39A paragraph 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.
His Honour Judge Stephen Davies
By this statutory challenge issued on 26 July 2019 the claimant, Venuscare Limited, seeks to quash a traffic regulation order [“ TRO”] made by the defendant, Cumbria County Council, as traffic authority for the city of Carlisle, in respect of an unadopted highway known as Barton's Place. The TRO was made on 20 June 2019 and came into effect on 1 July 2019. It restricts access at the top of Barton's Place, leading down from Warwick Road, to pedestrian traffic only, save for some limited vehicular access exceptions, and makes the bottom of Barton's Place one way only for all vehicular traffic down to Mary Street.
I have also read and considered the evidence filed for and against the application, which comprised of two witness statements from the claimant's solicitor, Mr Johnson, one from a director of the claimant, Mr Moualem, and two from Mr Lewis a highways officer with the defendant.
I have been assisted by helpful and skilfully presented written and oral submissions from Mr Oughton for the claimant and Ms Stockley for the defendant, to both of whom I am grateful.
In summary, my decision is that the claim fails and must be dismissed.
I set out my reasons below.
The relevant statutory framework
The statutory power to make a TRO comes from s.1 of the Road Traffic Regulation Act 1984 [“ the 1984 Act”] which provides, as material, as follows:
“(1) The traffic authority … may make an order under this section (referred to in this Act 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) …
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), 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) …
(f) for preserving or improving the amenities of the area through which the road runs, or
(g) …”
Under s.2 of the 1984 Act a TRO may “make any provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic, or by vehicular traffic of any class specified in the order (a) either generally or subject to such exceptions as may be specified in the order or determined in a manner provided for by it …”
The exercise by traffic authorities of the power to make a TRO is governed by s.122 of the 1984 Act, which provides as material that:
“(1) It shall be the duty of [the traffic authority] … 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) and the provision of suitable and adequate parking facilities on and off the highway ….
(2) The matters referred to in subsection (1) above as being specified in this subsection are—
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected … 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 traffic authority] to be relevant.”
The claimant is entitled to question the validity of a TRO by making an application to the High Court within 6 weeks of the date on which the TRO was made, on the grounds that: (a) it is not within the relevant powers, or (b) any of the relevant requirements has not been complied with in relation to the order”: paragraph 35 of Schedule 9 to the 1984 Act.
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, the court may quash the order or any provision of the order: paragraph 36 of Schedule 9.
The relevant legal principles
There was no dispute as to the relevant principles in relation to s.122 which, happily for me, have recently been considered and authoritatively stated by the Court of Appeal in Trail Riders Fellowship v Hampshire CC [2019] EWCA Civ 1275, in which Longmore L.J. gave the principal judgment. He considered and, subject to one qualification, approved the summary of the law stated by Sir Ross Cranston at first instance, which he recorded at [26]:
(i) “the duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians;
(ii) the duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2), such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act;
(iii) the issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered; and
(iv) in the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself, or an inference to this effect may be drawn since the decision has been taken by a specialist committee or officer who can be taken to have knowledge of the relevant statutory powers.”
His one qualification was that he did not accept that an inference of compliance with s.122 could be drawn from the fact that the decision had been taken by a specialist committee or officer who could be taken to have knowledge of the relevant statutory powers. He said at [38] that there needed to be “actual evidence that the balancing process required by section 122 has been, in substance, conducted”.
In the Trail Riders case, as in this case, reports had been placed before the decision maker to assist in making the decision. At [36] Longmore L.J. held that the question as to whether or not the right balancing exercise had been conducted should be considered by reference to the overall factual picture, including the reports which had been provided, as opposed to being limited to the statement of reasons given by the traffic authority. At [35] he held that “if the report submitted to and considered by [the decision maker] does in fact conduct the balancing exercise required by the statute that is sufficient”. At [37] he suggested that conducting the balancing exercise was “not a particularly difficult or complicated exercise for the traffic authority to conduct”. He noted that “it is indeed difficult to imagine that a county's Director of Economy Transport and Environment will not be acutely aware of the county's obligations (so far as practicable) to secure the expeditious, convenient and safe movement of vehicular traffic”. Finally, he summarised the approach which should be adopted by traffic authorities in considering whether to make a TRO at [40] as follows:
“(1) the decision-maker should have in mind the duty (as set out in section 122(1) of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable;
(2) the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and
(3) the decision-maker should then balance the various considerations and come to the appropriate decision.”
When considering the criticisms made by the claimant of the reports which were provided to the decision maker it is necessary to do so by reference to the well-established approach which the court will take to such reports which, in the context of planning decisions, have been summarised on a number of occasions. I refer to and gratefully adopt the recent summary given by Lindblom L.J. in Mansell v Tonbridge & Malling BC [2017] EWCA Civ 1314 at [42]:
“42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex...
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