West Dulwich Service Station Ltd on Behalf of West Dulwich Action Group v The London Borough of Lambeth

Hearing date: 12 th February 2025

Approved Judgment

This judgment was handed down remotely at 10.00am on 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr Tim Smith (sitting as a Deputy High Court Judge):

Introduction

The term “low traffic neighbourhoods” refers to an initiative introduced by Government to reduce traffic in residential areas. The objective is to reduce vehicular traffic entering an area, using a suite of traffic management orders promoted by the local traffic authority. Benefits of a low traffic neighbourhood are said to be an improvement to safety for pedestrians and cyclists and an improvement to air quality through reducing vehicle emissions. But, as the Government recognises, not everyone perceives low traffic neighbourhoods to be beneficial. Some point to the impact which the traffic management restrictions have on access to local businesses by customers and service vehicles, and consequent damage to trade for those businesses. Low traffic neighbourhoods can therefore sometimes be controversial. So it has proven to be in this case.

This case involves a challenge to the traffic management orders which establish, on an experimental basis, a low traffic neighbourhood in Dulwich.

On 6 ^th August 2024 the London Borough of Lambeth (“the Council”) approved two experimental traffic orders (together “the Orders”) pursuant to the Road Traffic Regulation Act 1984 1 (“the Act”), as follows:

a) The Lambeth (Moving Traffic Restrictions) (Amendment No 3) Experimental Order 2024, LBC 2024 No. 33, and

b) The Lambeth (Free Parking Places, Loading Places and Waiting, Loading and Stopping Restrictions) (No 3) Experimental Traffic Order 2024, LBC 2024 No 34

One of the Orders restricts the ability for vehicular traffic to enter an area, the other restricts the ability to park within the area. The combined effect of the Orders is to prevent vehicular traffic from entering, passing through or waiting within the part of Dulwich bounded by Croxted Road to the east and Norwood Road to the west. The Orders are experimental traffic orders made under section 9 of the Act. The experimental period allows for the actual effects of the Orders to be judged, and it operates as – in effect – an extended period of further consultation before any decision is reached whether or not to make the Orders permanent.

The Claimant, West Dulwich Action Group, is an unincorporated association said to have been formed to represent the interests of local residents and businesses affected by a series of street improvement orders relating to West Dulwich. It is comprised of a number of separate businesses and Residents' Associations. This claim is brought by the Group acting through one of its members, West Dulwich Service Station Limited (trading as “Autocar Repairs”), as a representative claimant.

By this claim the Claimant challenges the lawfulness of the Orders and asks for an order by the court that each be quashed.

There are three separate grounds of challenge which may be summarised as follows:

a) Ground 1: that the Council's consultation on the Orders was unfair and/or that the Council had regard to immaterial considerations when deciding to make the Orders,

b) Ground 2: that the Council's decision to make the Orders failed to have regard to material considerations, and/or was irrational in that it concluded that due regard was had to statutory guidance published by the Department for Transport relating to the Orders, and/or was inadequately reasoned, and

c) Ground 3: that the Council failed to comply with its duties of consultation under regulation 6 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996/2489) and/or that it had unlawfully fettered its discretion in how it approached its decision to make the Orders

Grounds 1 and 3 both deal in broad terms with the adequacy of consultation, albeit by reference to different procedural requirements. In their skeleton arguments and their oral submissions Mr Streeten (who appeared for the Claimant) and Ms Sargent (who appeared for the Council) dealt with both of these grounds together. I have found it convenient to do the same in this judgment.

Interim relief application

Before proceeding to summarise the background facts a short procedural point arises. The claim was accompanied by an application for interim relief seeking to suspend the operation of the Orders. The Council resisted any interim relief being granted.

I asked Mr Streeten whether the interim relief application had ever been dealt with. He said that it had not. It appears that it has been overlooked by the court. Nevertheless both parties agreed that, having now got as far as a substantive hearing into the challenge, the interim relief application had been superseded. I therefore do not deal with it in this judgment.

Background Facts

Preliminary points

The Court is assisted by the parties having agreed both a Chronology of the main events and a Statement of Facts, for which I thank them. Despite these agreed documents not all of the key facts are agreed, and the agreed Statements do not contain any interpretive comments which the parties variously wish to make in differing directions. As such it is necessary at times to go beyond the agreed Statements and examine in more detail the parties' accounts of the events leading to the making of the Orders.

In addition the Claimant takes issue with some of the witness evidence filed on behalf of the Council. In broad terms the complaint is that some of it amounts to an ex post facto rationalisation of the decision, filling in some of the evidentiary void said to exist in the Council's decision-making processes. For the Council Ms Sargent denies that there is anything improper about the witness evidence and submits that the court can properly have regard to it in the determination of the claim. It is convenient for me to address those complaints as part of my consideration of the specific grounds of challenge to which they relate.

The Facts

The Council first began its engagement on a series of related traffic management proposals in West Dulwich in early 2022. Consultation took place between 25 ^th January and 25 ^th March 2022, with the stated objective of identifying a list of changes to traffic management that could be implemented in the area. The consultation included an “in-person walkabout” on 12 ^th February 2022 as well as an online event on the evening of 17 ^th February. A report was published at the end of that consultation.

There is a factual dispute as to who was actually consulted as part of this first engagement. The Council's position is that letters with details of the consultation were distributed to a number of the businesses who are members of the Claimant organisation, and that officers of the Council also dropped off leaflets at businesses on the west side of Rosendale Road. The Claimant disputes parts of this evidence. For example it presents evidence from the proprietors of three of the businesses named by the Council as recipients of the leaflet drop, all of whom deny that they received any correspondence about the proposals.

The Council's evidence is that feedback gathered through this engagement was used to inform what later became the proposals that were consulted on.

A non-statutory consultation was then undertaken by the Council on the three related proposals which together constituted a wider traffic management scheme for the area. The proposals were:

a) That a controlled parking zone be implemented by a Traffic Management Order under the 1984 Act;

b) That phases 1 and 2 of what were called the West Dulwich Street Improvements (which I refer to in this judgment as the “Street Improvements Scheme” and which the Council's officers described in delegated reports as creating a low traffic neighbourhood) be implemented as Experimental Traffic Orders under the 1984 Act. The area affected was bounded by Croxted Road to the east, Norwood Road to the west, the South Circular road (A205) to the north, and Idmiston Road/Chatsworth Way to the south; and

c) That phase 3 of a bi-directional cycleway between Brockwell Park and Gipsy Hill, with consequential highway measures, be introduced, also as a Traffic Management Order under the 1984 Act

It is common ground between the parties that the area affected by the Street Improvements Scheme includes a number of residents as well as a considerable number of businesses, fifty of them along the length of Rosendale Road and over a hundred of them on Norwood Road. Norwood Road is listed as a “boundary road” affected by the proposals.

The non-statutory consultation undertaken by the Council was advertised to take place between 11 ^th April and 7 ^th May 2023. It comprised two main elements. Firstly, comments could be made via a comments portal on the “Commonplace” website (a dedicated website from which the key documents could be accessed, key dates viewed, and key contact details for officers of the Council ascertained). Secondly, direct engagement with officers of the Council was offered at a “drop-in” event held at West Norwood Library on Saturday 22 ^nd April 2023 between 10:00–16:00.

The above...