Town and country planning – Low-traffic neighbourhood (LTN) – Experimental traffic order (ETO) – Appellant challenging respondent’s decision to make orders restricting movement of traffic in LTNs and ETOs – High Court dismissing claims – Appellant appealing – Whether respondent discharging public sector equality duty under section 149 of Equality Act 2010 – Appeal dismissed
The respondent local authority made certain orders restricting the movement of traffic within parts of the London Borough of Lambeth known as “low-traffic neighbourhoods” (LTNs). The broad purpose was to promote walking and cycling and to discourage, limit or prohibit the use of motor vehicles within LTNs.
The appellant lived near the boundary of one of the LTNs. She was disabled and heavily reliant on car transport owing to restricted mobility. The appellant applied for judicial review of certain LTNs in her area and brought a separate claim under Civil Procedure Rules 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 appellant argued that she and others similarly dependent 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 appellant said that the orders should be quashed because the respondent 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. The High Court dismissed the claims: [2021] EWHC 1745 (Admin); [2021] PLSCS 114.
The appellant appealed. The sole issue was whether the court was wrong to hold that, when the respondent made the ETOs, it lawfully discharged its duty under section 149 of the Equality Act 2010, properly considering the equality implications of the decisions it took at that stage.
Held: The appeal was dismissed.
(1) Section 149 did not require a substantive result and did not prescribe a particular procedure. Like other public law duties, it implied a duty of reasonable enquiry. It also required a decision-maker to understand the obvious equality impacts of a decision before adopting a policy. Furthermore, courts should not engage in an unduly legalistic investigation of the way in which a local authority had assessed the impact of a decision on the equality needs.
The relevant duty was upon the minister or other decision-maker personally. What mattered was what he or she took into account and what he or she knew. Thus, the minister or decision-maker could not be taken to know what his or her officials knew or what might have been in the minds of officials in proffering their advice. A minister had to assess the risk and extent of any adverse impact and the ways in which such risk might be eliminated before the adoption of a proposed policy and not merely as a rearguard action, following a completed decision. The duty was non-delegable. General regard to issues of equality was not the same as having specific regard, by way of conscious approach to the specific criteria. If the relevant material was not available, there would be a duty to acquire it which would frequently mean some further consultation with appropriate groups: R (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60 applied.
(2) The basic issue in every case was whether a public authority had had “due regard” to the needs identified in section 149. The decision-maker had to be clear precisely what the equality implications were. But ultimately it was for them to decide what weight they should be given in the light of all relevant factors. The decision-maker was concerned with the obvious impacts on equality, and not with the detail of every conceivable impact.
The court had to avoid the error of considering the ETOs solely from the appellant’s point of view, though it recognised the consequences that she and others had experienced. When the respondent made the orders it had to consider a wide range of factors, including their effects on people with protected characteristics. It had to decide how that multitude of factors should be balanced, which was, inevitably, a matter of evaluative judgment. The respondent was entitled to think that in the circumstances it had to act quickly, and before it could gather all the information relevant to a future decision to retain the LTNs permanently, to change them or to abandon them altogether. With more time, it could have got hold of more information about those impacts, both beneficial and harmful, as it later did.
(3) On the evidence, the regard that demonstrably was had to the questions in section 149 was sufficient to constitute “due regard”. One of the purposes of the ETOs was to enable a better assessment to be made of the potential effects of the LTNs on people with protected characteristics. Inherent in the experiment was the question whether the effects of the proposed traffic management measures in increasing congestion on roads outside the LTNs, and the consequences for journey times, would be disproportionately or unacceptably harmful for people with protected characteristics, including those with disabilities. Until the measures had been tested by the ETOs, uncertainty would remain. Monitoring, consultation and assessment would show what the real effects of the measures would be, overall.
Although some of the equality impacts of LTNs could have been predicted, there were cogent reasons for the respondent to use the experiment to gather data about the impacts of the scheme, good and bad, and to use that information in deciding how to balance those impacts. The displacement and rerouting of traffic might well have unintended consequences for some residents of the borough, which could not all be predicted with confidence. Such effects would emerge during the trial run. The provisional view appeared to be that any harmful consequences would not be disproportionate to the benefits, nor unacceptable. But only after the data had been collected and assessed, and the responses to consultation considered, could the council properly weigh the advantages and disadvantages, including those for people with protected characteristics.
In all the circumstances, the respondent had lawfully discharged the section 149 duty when it made the ETOs for the three LTNs challenged in these proceedings.
Tim Buley QC (instructed by Scott-Moncrieff & Associates LLP) appeared for the appellant; Timothy Mould QC (instructed by Lambeth Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Sheakh) v Lambeth London Borough Council
