Town and country planning – Traffic management order – Proportionality – Defendant local authority making traffic management orders to stop potential terrorist attack – Claimant resident challenging orders – Whether orders severely restricting access to claimant’s property contrary to human right to respect for private and family life under article 8 of European Convention on Human Rights – Claim allowed
The defendant local authority, which was the traffic authority for the relevant area, within the meaning of the Road Traffic Regulation Act 1984, made two traffic management orders (TMOs) under sections 6 and 22C of the 1984 Act to mitigate the increased threat of vehicle-based terrorism in Kensington Gore (West) (KGW) which was in the immediate vicinity of the Royal Albert Hall (RAH).
The claimant’s family home was at No 26, the only residential property in KGW. The orders introduced parking restrictions and restricted access to KGW, prohibiting vehicles from entering the area between noon and midnight every day, by means of gates at either end which could only be unlocked by RAH security staff to allow access for loading, disabled visitors etc. Furthermore, the permitted hours for parking and waiting had been curtailed to between midnight and 8.30 am even during times when the gates were open.
The claimant brought a statutory challenge to the TMOs under paragraph 35 of schedule 9 to the 1984 Act arguing that they severely restricted access to his property. He argued, amongst other things, that the defendant failed to have regard to the interference with the claimant’s rights under article 8 (right to respect for private and family life) of the European Convention on Human Rights and/or reached a decision resulting in a disproportionate interference with those rights.
Held: The claim was allowed.
(1) By section 6 of the Human Rights Act 1998, it was unlawful for a public authority to act in a way which was incompatible with a Convention right. For interferences in qualified rights to be justified, in addition to being prescribed by law, they also had to be in pursuance of one of the legitimate aims laid down in the article, and necessary in a democratic society. For an interference to be “necessary in a democratic society” it had to fulfil a pressing social need, and be proportionate to the legitimate aim relied upon.
The question depended on an exacting analysis of the factual case, advanced in defence of the measure, in order to determine whether: (i) its objective was sufficiently important to justify the limitation of a fundamental right; (ii) it was rationally connected to the objective; (iii) a less intrusive measure could have been used; and (iv) having regard to those matters and to the severity of the consequences, a fair balance had been struck between the rights of the individual and the interests of the community. Those four requirements were logically separate, but in practice they inevitably overlapped because the same facts were likely to be relevant to more than one of them: Bank Mellat v HM Treasury [2013] UKSC 39; [2014] AC 700 applied.
(2) No 26 was the only residential property situated on KGW and normal access to it had been significantly restricted by the TMOs The front door faced on to KGW and it was the sole entrance and exit point for the property. There was no back entrance as the property backed directly on to the building behind it. Thus, the claimant and his family and their visitors, as well as the staff, all used the front door on to KGW, and KGW was their only means of access to No 26. KGW was also the only place from where delivery vans and workmen carrying out services at the property could access the property and park their vehicle.
The order authorised the police to prevent pedestrians from entering KGW when it was considered necessary for the purposes of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism. If that power were exercised, the claimant and his family would be prevented from accessing their home. There was no general dispensation for the claimant’s household. Limited access was given, in exceptional circumstances, by the RAH security staff.
The new restrictions on access to No 26 were clearly an interference with the article 8 rights of the claimant and his family to respect for their private and family life and home. Therefore, the defendant erred in concluding that the part-time road closure did not impinge on the claimant’s privacy or family life as he was able to access his property on foot. That was an unduly narrow interpretation of the scope of the article 8 rights.
(3) The key issues as regards proportionality were whether a less intrusive measure could have been used; and whether, having regard to those matters and to the severity of the consequences, a fair balance had been struck between the rights of the individual and the interests of the community: Bank Mellat applied.
Importantly, the orders concerned access restrictions which had not previously been the subject matter of any order, and could not properly be described as retrospective. Wholly new and untested restrictions were likely to require closer examination.
The evidence demonstrated that it was apparently considered safe by the defendant, for the RAH to allow large numbers of vehicles and people into the restricted area provided that they were identified and had a legitimate purpose for being there. The defendant could and should have considered taking a similar approach to the claimant and members of his household. They could be vetted, their names put on a security staff list, and individuals and their vehicles could be given approved passes. Moreover, as No 26 was the only residence in KGW, and the only property whose sole access was from KGW, the defendant would not be burdened with multiple similar requests from other properties.
Crucially, the defendant should have considered whether the claimant and his household should be able to come and go as they wished, in a vehicle, for the purposes of their daily lives, just as RAH visitors and contractors were allowed to come and go for the purposes of their businesses. There was no justification for treating contractors more favourably than residents. The current requirement to give a working day’s notice of a request for vehicle entry was particularly onerous.
Taking all the factors into account, the defendant’s decision-making was flawed, and the current scheme operated in a manner which was disproportionate.
Tim Buley QC and Charles Streeten (instructed by Grosvenor Law) appeared for the claimant; Ruth Stockley (instructed by Bi Borough Shared Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Tchenguiz v Westminster City Council
