Town and country planning – Low-traffic neighbourhood – Emergency transport plan – Experimental traffic order – Claimant challenging defendant’s decision to adopt emergency transport plan restricting movement of traffic in low-traffic neighbourhoods (LTNs) – Whether defendant failing to carry out public sector equality duty – Whether effects of proposals upon air quality and safety properly analysed – Whether defendant failing to undertake proper consultation – Claim dismissed
The claimant was an organisation set up to oppose low-traffic neighbourhoods (LTNs). Consistent with central government guidance, LTNs were designed to promote walking and cycling and to avoid the effects of a car-led recovery from lockdown. Each LTN was established by means of an experimental traffic order (ETO).
The claimant applied for judicial review of a decision of the defendant highway authority to adopt an emergency transport plan entitled “Rebuilding a Green Hackney – Emergency Transport Plan: responding to the impacts of COVID-19 on the transport network” (the ETP). In particular the claimant was concerned about the proposal to introduce LTNs as one of the suite of alternative traffic management measures included within its proposals.
The claimant contended that: (i) the defendant failed to discharge its network management duty under section 16 of the Traffic Management Act 2004 in approving the ETP proposals; (ii) the defendant breached its public sector equality duty (PSED) under section 149 of the Equality Act 2010 by failing to have due regard to the impact which LTNs would have upon groups with protected characteristics; (iii) the approval of the ETP failed to properly investigate or have regard to the impact on air quality of the LTN proposals; and (iv) there was a failure to undertake any proper consultation on the ETP before it was promulgated in breach of common law consultation requirements.
Held: The claim was dismissed.
(1) It was clear that section 16 of the 2004 Act provided the defendant with broad parameters within which to act consistently with its duty. That necessarily constrained the scope for concluding that the duty had been breached. The broad objectives identified were qualified by the need to act as far as reasonably practicable having regard to the authority’s other obligations and policies.
For the purposes of section 16, the term traffic included pedestrians by virtue of section 31 of the 2004 Act; there was a consensus that the term also included cycling. Thus, all transport modes of use of the road network were considered under the network management duty.
Furthermore, it was necessary to have regard to the statutory guidance issued by the Secretary of State for Transport which was issued specifically for the purpose of enabling highway authorities to deliver their network management duty during the covid pandemic. Thus, it was reasonable to conclude that the measures identified in the guidance were regarded by the secretary of state as being consistent with the discharge of the network management duty.
(2) The court was not satisfied that the adoption of the ETP was in breach of the network management duty under section 16. The guidance contemplated experimental schemes which would be monitored and the subject of ongoing consultation. The LTNs which had been, or were proposed to be, implemented were temporary and experimental in nature. The defendant had made clear in evidence its commitment to examining the effects of the schemes on both traffic movements and air quality during the experimental operation of them.
(3) As regards the PSED, the issue was whether the defendant had given due regard to that duty in the particular circumstances of the case. Amongst the circumstances relevant to that evaluation were that: (i) the ETP was addressing the impact of LTNs at a borough wide level as an overall framework, and that individual impact assessments would be undertaken in respect of individual schemes, bearing in mind the detailed local circumstances of the proposal; (ii) it was part of the context of the assessment to bear in mind that the ETP was proposing temporary and experimental LTNs which were to be the subject of further monitoring in terms of both traffic impact and air quality after their implementation and prior to any decision being taken as to their future; that assessment was an overall evaluation, based on the information available at the time.
The ETP’s equality impact assessment (EIA) itself acknowledged the need for further detailed evaluation of each specific proposal, which itself provided a safeguard in relation to evaluation of impacts upon those with protected characteristics by detailed adjustments in the context of a detailed specific design, bearing in mind the ongoing evaluation of the impact of any particular scheme upon those protected characteristics. It was possible in some circumstances for a form of iterative, or progressive, assessment of equalities impacted to properly discharge the PSED, which was sensitive to the facts of individual cases: R (on the application of Sheakh) v Lambeth London Borough Council [2021] EWHC 1745 (Admin); [2021] PLSCS 114 followed.
Bearing in mind the circumstances and the context of the EIA undertaken by the defendant in relation to the ETP, due regard was paid to the PSED. The ETP was part of a continuum and its focus upon equality impacts was sufficient and proportionate for the stage within the process which it occupied.
(4) The issue of air quality, and particularly worsening of air quality in those part of the borough already significantly affected by poor air quality, was clearly a material consideration in formulating the ETP proposals. On the evidence, it was not unlawful for the defendant to treat the issue of air quality in the way it had. The urgent need for action promoted by the guidance clearly justified the imposition of ETOs as a mechanism to address the urgent concerns it identified. The approach comprising implementation on an experimental and temporary basis followed by air quality monitoring and subsequent evaluation of air quality impacts was consistent with the covid guidance.
(5) The court was not satisfied that, judged against the backdrop of the totality of the statutory guidance under which the defendant was operating at the time, there was a common law duty to consult upon the ETP itself. The approach taken by the defendant reflected the covid guidance which had been specifically produced to deal with the conditions created by the pandemic which envisaged that in relation to the COVID-19 related traffic management initiatives consultation would accompany their experimental implementation. In all the circumstances, there was no merit in the substance of the claim.
Daniel Stedman Jones and Tom van der Klugt (instructed by Dowse & Co) appeared for the claimant; Kelvin Rutledge QC and Jack Parker (instructed by Hackney London Borough Council) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of HHRC Ltd v Hackney London Borough Council
