Town and country planning – Low-traffic neighbourhood – Experimental traffic order – Claimant challenging defendant’s decision to make orders restricting movement of traffic in low-traffic neighbourhoods (LTNs) and experimental traffic orders (ETOs) – Whether defendant failing to carry out public sector equality duty – Whether defendant having regard to section 122(1) and (2) of Road Traffic Regulation Act 1984 – Whether defendant undertaking adequate consultation – Claims dismissed
The defendant local authority made certain orders restricting the movement of traffic within parts of the borough of Lambeth known as “low-traffic neighbourhoods” (LTNs), with the added impetus of the coronavirus pandemic leading to reduced use and availability of public transport and consequent encouragement from central government to promote walking and cycling rather than using private motorised vehicles. The broad purpose was to promote walking and cycling and to discourage, limit or prohibit use of motor vehicles within LTNs.
The claimant lived near the boundary of one of the LTNs. She was disabled and heavily reliant on car transport owing to restricted mobility. The claimant applied for judicial review of certain LTNs in her area and brought a separate claim under CPR Part 8, challenging the making of three experimental traffic orders (ETOs) and a further LTN under schedule 9 to the Road Traffic Regulation Act 1984. By agreement, the claims were joined.
The main focus of the claimant’s case was that she and others similarly dependant on travel by car had suffered disproportionately from the introduction of LTNs within Lambeth, because the displacement of traffic from within the LTNs to outside roads led to a build-up of traffic and increased journey times, with added stress and loss of quality of life.
The claimant said that the orders should be quashed because the defendant had overlooked those matters in the course of developing its thinking and discussing it locally, and the decisions to make orders creating the relevant LTNs were unlawful.
Held: The claims were dismissed.
(1) Under section 149 of the Equality Act 2010, the defendant had a duty to have due regard to the need to fulfil the ambitions set out in section 149(1)(a), (b) and (c) of eliminating unlawful discrimination, advancing equality of opportunity and fostering good relations between relevant groups. What amounted to “due regard” was fact sensitive. If the equality objectives were properly considered and put in the balance, it was for the decision-maker to decide how much weight they should carry. Assessment was the tool used to create the evidence base to show performance of the duty. There was no necessary breach of the duty where no formal assessment had been done: R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin), R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, R (Law Centres Federation) v Lord Chancellor [2018] EWHC 1588 (Admin) and R (Hollow) v Surrey County Council [2019] EWHC 618 considered.
On the evidence, in the present case, there had been enough consideration of equality objectives to qualify as due regard to those objectives. That included, legitimately, consideration of the point that the same equality objectives would be looked at further, in much more detail and with a sharpened focus, at later stages in the statutory process. That did not mean that performance of the duty was put off to another day, when it was too late to perform it. In the present context, the duty was performed with acknowledgment of the expectation that there would be detailed future equality impact assessments before any decision about permanence.
(2) There was nothing in section 149 of the 2010 Act which prevented, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a “rolling” basis. A decision to do that was not, as a matter of law, contrary to the prerequisites of performance identified in Bracking.
A rolling assessment was not precluded as a matter of law. The more evolutionary the function being exercised, the more readily a rolling assessment approach might be justified. However, for a “one off” function, it was hard to see how it could be justified.
An equality impact assessment on a rolling basis might or might not be acceptable where the function being exercised was to initiate an experiment, as in the case of a decision to make an ETO, depending in each case whether such regard (if any) that was had to the equality objectives in section 149(1) of the 2010 Act was sufficient to pass the test of having due regard to those objectives.
Here, it was acceptable because of unusual factual features: the urgency expressed in the statutory guidance, the near stasis of public transport and the need to restrain vehicle traffic in residential areas to allow walking and cycling to flourish. Those factors (all caused by the prevalence of the coronavirus) propelled the defendant to curtail its research and truncate the timescale, using ETOs. Had those factors been absent, the defendant’s approach to equality assessment might well not have passed the due regard test.
(3) The claimant’s argument that the defendant did not have regard to the matters set out in section 122(1) and (2) of the Road Traffic Regulation Act 1984 was rejected. While it was possible that an LTN could be introduced without the section 122 factors being properly weighed against each other, that did not happen in this case.
There was ample evidence of the balancing exercise being performed, and it was difficult to have a discussion of the advantages of LTNs at all unless in the course of the discussion their virtues were measured against the interests of motor vehicle users. There was plenty of evidence of the balance being struck, and the unusual circumstances in which the LTNs came into being made that unsurprising.
(4) The claimant’s free-standing complaint that the degree and type of consultation undertaken was not adequate, and that in consequence the ETOs were unlawful and should be quashed, was without merit. The claimant could not fashion from a supposed legitimate expectation an obligation to consult going above and beyond the limited obligations imposed under the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996.
(5) Nor was it acceptable to complain of an irrational choice of organisations with which to consult. There was nothing irrational about consulting a cycling organisation about measures to encourage cycling.
Tim Buley QC (instructed by Scott-Moncrieff & Associates LLP) appeared for the claimant; Tim Mould QC (instructed by Lambeth Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Sheakh) v Lambeth London Borough Council