QBD, ADMINISTRATIVE COURT
CO/9615/2012
Neutral Citation Number: [2013] EWHC 2104 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday, 26 June 2013
B e f o r e:
MR JUSTICE JEREMY BAKER
Between:
TRAIL RIDERS FELLOWSHIP
Claimant
v
DEVON COUNTY COUNCIL
Defendant
Mr T Fletcher (instructed by Brian Chase Coles Solicitors) appeared on behalf of the Claimant
Mr S Whale (instructed by Legal Department of Devon County Council) appeared on behalf of the Defendant
J U D G M E N T
(As approved)
1. MR JUSTICE JEREMY BAKER: On 8 August 2012, Devon County Council (“the defendant”) as the local highway authority made a traffic regulation order (“the order”) pursuant to its powers under section 1(1) of the Road Traffic Regulation Act 1984 (“the 1984 Act”) in the following terms:
“1. This order comes into force 29th August 2012 and may be cited as ‘Devon County Council (Road Past Bouchland Farm, Burrington) (Prohibition of Motor Vehicles) Order 2012’
2. Subject to article 3 no person shall except upon the direction or with the permission of a police constable in uniform cause or permit a motor vehicle to proceed in the length of road specified in the schedule
3. Nothing in article 2 makes it unlawful for a motor vehicle to proceed in the length of road specified in the schedule if the vehicle is being used
(a) in an emergency for fire, police or ambulance purposes
(b) in connection with the carrying out on that length of road of
(i) the maintenance, improvement or reconstruction of the road
(ii)the laying, erection, alteration or repair in, or in land adjacent to the road of a sewer, main, pipe or apparatus for the supply of water, gas or electricity, or telecommunications apparatus as defined in the Telecommunications Act 1984
(c) in the service of a local authority or a water authority in pursuance of statutory powers or duties.
SCHEDULE
Prohibition of Motor Vehicles
Length of road in the Parish of Burrington in the District of North Devon
R7124 road past Bouchland Farm from its junction with the A377 south west for a distance of 370 metres.”
2. Trail Riders Fellowship (“the claimant”) is a private company limited by guarantee. It is a national organisation, the objects of which are “to preserve the full status of vehicular green lanes and the rights of motorcyclists and others to use them as a legitimate part of the access network of the countryside …”. The claimant has commenced a claim against the defendant challenging the validity of the order pursuant to paragraph 35 of Schedule 9 to the 1984 Act.
3. The evidence which has been made available to the court, on behalf of the claimant, includes the witness statement of Stewart Bosworth, who is the rights of way officer for the Devon group of the claimant. On behalf of the defendant there are witness statements from Richard Edgell, who is one of the defendant’s councillors, and Ian Roberts, who is employed in the legal section of the defendant. The remaining evidence is in documentary form.
Statutory framework
4. The relevant traffic authority in this case for the purposes of the Road Traffic Regulation Act 1984 is the defendant (section 121A(3)). Section 1 of the 1984 Act empowers traffic authorities to make traffic regulation orders within that area:
“(1)The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a ‘traffic regulation order’) in respect of the road where it appears to the authority making the order that it is expedient to make it–
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
(b) for preventing damage to the road or to any building on or near the road, or
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or
(d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or
(e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or
(f) for preserving or improving the amenities of the area through which the road runs [or]
(g) for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality).”
5. Section 2 of the 1984 Act sets out what a traffic regulation order may provide:
“(1) A traffic regulation order may make any provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic, or by vehicular traffic of any class specified in the order —
(a) either generally or subject to such exceptions as may be specified in the order or determined in a manner provided for by it, and
(b) subject to such exceptions as may be so specified or determined, either at all times or at times, on days or during periods so specified.
(2) The provision that may be made by a traffic regulation order includes any provision–
(a) requiring vehicular traffic, or vehicular traffic of any class specified in the order, to proceed in a specified direction or prohibiting its so proceeding;
(b) specifying the part of the carriageway to be used by such traffic proceeding in a specified direction;
(c) prohibiting or restricting the waiting of vehicles or the loading and unloading of vehicles;
(d) prohibiting the use of roads by through traffic; or
(e) prohibiting or restricting overtaking.
(3) The provision that may be made by a traffic regulation order also includes provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by, or by any specified class of, pedestrians–
(a) either generally or subject to exceptions specified in the order, and
(b) either at all times or at times, on days or during periods so specified.
(4) A local traffic authority may include in a traffic regulation order any such provision–
(a) specifying through routes for heavy commercial vehicles, or
(b) prohibiting or restricting the use of heavy commercial vehicles (except in such cases, if any, as may be specified in the order) in such zones or on such roads as may be so specified, as they consider expedient for preserving or improving the amenities of their area or of some part or parts of their area.
(5) Nothing in subsection (4) above shall be construed as limiting the scope of any power or duty to control vehicles conferred or imposed on any local authority or the Secretary of State otherwise than by virtue of that subsection.”
6. Section 122 of the 1984 Act sets out duties which are imposed upon local authorities when exercising their functions under the Act:
“(1)It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway or, in Scotland the road.
(2)The matters referred to in subsection (1) above as being specified in this subsection are–
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb)the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
c) The importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to … the local authority … to be relevant.
(3)The duty imposed by subsection (1) above is subject to the provisions of Part II of the Road Traffic Act 1991.”
7. Paragraph 35 of Schedule 9 to the 1984 Act sets out provisions for the challenging of, inter alia, traffic regulation orders:
“If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds–
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order,
he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session.”
8. The Local Authorities Traffic Orders (Procedure)(England and Wales) Regulations 1996/2489 (“the 1996 Regulations”) sets out the procedures that are required to be fulfilled when making a traffic regulation order. Regulation 17 provides for the giving of notice for the making of such an order:
“(1) As soon as practicable after an order has been made, the order making authority shall include among the deposited documents a copy of the order as actually made.
(2) The order making authority shall, within 14 days of the making of the order–
(a) publish in a newspaper circulating in the area in which any road or place to which the order relates is situated, a notice (in these Regulations called a “notice of making”)–
(i) stating that the order has been made; and
(ii)containing the particulars specified in Parts I and III of Schedule 1; and
(b) in the case of an order under section 6 or an order made by a London authority under section 9 of the 1984 Act, publish a similar notice in the London Gazette.
(3) Within 14 days of making an order, the order making authority shall notify the making of the order in writing to any person who has objected to the order under regulation 8 and has not withdrawn the objection and, where the objection has not been wholly acceded to, shall include in that notification the reasons for the decision.
(4) The order making authority shall take such other steps of the kinds referred to in regulation 7(1)(c) as it considers appropriate for the purpose of ensuring that adequate publicity is given to the making of the order.”
9. Under section 1(2) of the Highways Act 1980 (“the 1980 Act”) the defendant is the relevant Highway Authority for the purposes of that Act. Section 130 of that Act provides:
“(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.
(3) Without prejudice to subsections (1) and (2) above, it is the duty of a council who are a highway authority to prevent, as far as possible, the stopping up or obstruction of–
(a) the highways for which they are the highway authority, and
(b) any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.
…”
10. The defendant is also the relevant local traffic authority for the purposes of the Traffic Management Act 2004 (“the 2004 Act”). By section 16 of that Act:
“(1)It is the duty of a local traffic authority to manage their road network with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives–
(a) securing the expeditious movement of traffic on the authority’s road network; and
(b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority.
…”
11. Guidance has been provided by the Department for Transport in relation to Local Traffic Authorities Network Management Duty under the 2004 Act, paragraph 12 of which states:
“The overall aim of the ‘expeditious movement of traffic’ implies a network which is working efficiently without unnecessary delay to those travelling on it. But the duty is also qualified in terms of practicability and other responsibilities of the authority. This means that the duty is placed alongside all the other things that an authority has to consider, and does not take precedence. So, for example, securing the expeditious movement of vehicles should not be at the expense of the authority’s road safety objectives. But the statutory duty reflects the importance placed on making the best use of the existing road space for the benefit of all road users.”
Factual chronology
12. The R7124 road, (“the road”), is situated in the parish of Burrington in Devon. At its south–western end it has a junction with a road running north out of Burrington and at its north–eastern end has a junction with the A377 Trunk Road running between Exeter and Barnstable, the latter road being subject to a 60mph speed restriction. There are two residential properties situated along the road, the most northerly of which is Bouchland Farm.
13. On 28 January 1994, the minutes of the defendant’s Public Rights of Way and Grants Subcommittee record that:
“The half of the road from the A377 to Bouchland has clearly not been used for many years and is virtually impassable even on foot because of undergrowth. At one time it probably served Bouchland Farm but it is no longer used by them except for access to fields. The other half is used solely as access to Bouchland Farm.”
It also recorded that:
“From a practical point of view, it would be most undesirable for it to be made available for vehicles and horses because of the potentially dangerous junction with the A377. Nevertheless, it could have some value for pedestrians as it provides an alternative to walking along the nearby narrow, albeit lightly trafficked road.”
14. On 25 March 1994, the same Subcommittee received a report from the County Engineer and Planning Officer that:
“The exit onto the A377 was considered to be very poor with little visibility and consequently hazardous for horses and vehicles. The river and railway prevent the continuation of the route on the other side of the A377.”
However, the surface of the road was noted to be grass and the only use it received was by the landowner. In those circumstances the Committee decided that in view of the current condition of the road it would be inappropriate to seek its downgrading or stopping up, such that it remained a highway maintainable at the public expense.
15. On 11 February 2010, as a result of a complaint made as to the condition of the road, one of the defendant’s Highways Engineers made a site visit to the road and reported to the defendant that:
“The safety concerns expressed in 1994 are only likely to have increased in the intervening period. Given the TVR request to have access opened up for use I have serious concerns about road users using this junction which has not been obviously available for some time.
The County Solicitors has suggested that a safety audit be carried out prior to any enforcement action. This would be with a view to go for a TRO to prohibit vehicles if it was felt to be unsafe. The assessment was felt to be beyond the remit of a self–assessment.”
16. A safety assessment was carried out by a member of the defendant’s Road Safety and Travel Awareness Team. Although this was not a formal road safety audit, the conclusions of the assessment were provided to the defendant’s Highway Engineer, North Area in a memorandum dated 29 June 2010. It included the following observations:
“The A377 at the termination point is subject to the National Speed Limit and in the absence of speed data I would estimate average vehicle speeds to be in the region of 45 to 50mph.
The A377 at this point is also subject to a double white line system due to forward visibility issues for drivers created by the horizontal alignment of the road.
There is no verge to the roadway. The roadway edge both sides is defined by bank and vegetation.
At the termination of the R7124, there is no safe area off road for users to wait, whether with a vehicle, horse or as a pedestrian where a clear view of the road in both directions can be maintained.”
The visibility from the roadway edge of the termination point northwest toward Barnstable is restricted due to a left–hand bend.
The visibility toward Exeter is greater.
…
If the R7124 was made available from Bouchland Farm along its current route to its current termination at the A377 then any pedestrian, equestrian and motorised users accessing from or to the A377 will be extremely vulnerable to collision with traffic using the A377.
As most of these users are considered ‘Vulnerable Road Users’, then severity of casualties is likely to be high.”
17. Thereafter it is apparent from correspondence between the defendant and the owners of Bouchland Farm that whilst the defendant was considering the making of a traffic regulation order on the grounds of avoiding danger to road users, given the lack of history of accidents at the road’s junction with the A377, it was unlikely that it would be considered to be of sufficient priority to gain funding by the defendant. In these circumstances the owner agreed to provide that funding, such that the defendant decided to proceed to give notice of its proposal to make such an order.
18. On 3 August 2011, the defendant gave notice of its proposal to make a traffic regulation order (“TRO”) in order to prohibit motor vehicles on the road:
“… past Bouchland Farm from the A377 southwest for a 370 metres. The alternative route will be via: A377, the road known as Road from Braggamarsh Wood to Lower Braggamarsh and the road known as Road from Forches Cross to Abbotsmarsh Wood.”
The statement of reasons provided in the notice was as follows:
“The order is being proposed to promote road safety on the A377 by prohibiting motor vehicles from using the R7124 from Bouchland Farm to its junction with the A377. Reasons for making the order were identified following a safety audit of the A377 junction and the safety concerns raised over the poor alignment and visibility at this junction. This section of the road does not provide access to any adjacent property and alternative routes are available for motor vehicles.”
19. It is understood that by 24 August 2011 in excess of 80 objections had been made to the proposed TRO, some of which had been submitted by members of the defendant, but none of which had been submitted from individuals residing in the parish of Burrington. Indeed the parish council had written in support of the making of the order on the grounds of avoiding danger to road users.
20. On 9 October 2011, members of the claimant carried out clearance work on the road at its junction with the A377, the results of which are evident in comparative before and after photographs. It is contended, on behalf of the claimant, that the result of this work was to provide better sightlines than one of the alternative routes envisaged in the defendant’s notice of proposal, namely the road from Braggamarsh Wood to Lower Braggamarsh.
21. However, in an email, dated 11 November 2011, a member of the defendant’s Neighbourhood Highway Team wrote to Mr Bosworth of the claimant expressing his view that the road’s junction with the A377 remained substandard, and that the decision whether to make the order would be considered on safety grounds by the defendant’s North Devon Highways and Traffic Orders Committee (“HATOC”) after taking into account all of the evidence, including the objections it had received.
22. On 25 October 2011, the head of the defendant’s Highways and Traffic Management provided a written submission to HATOC. It recommended that on balance no further action should be taken at this stage in respect of the making of a TRO. In making this recommendation it noted, inter alia, that there was no further funding available for the implementation of any TRO, and that although there was a history of accidents on the A377 in the vicinity of the junction with the road, there had been no reported accidents at the junction itself. At its meeting HATOC resolved to consider the matter further after a site meeting had taken place.
23. That site meeting took place on 9 November 2011 and subsequently visibility distances were measured in accordance with the Design Manual for Road and Bridge Works and were found to be 22 metres to the north and 14.5 metres to the south, as contrasted with the distance required by the Standard TD 41/95 Vehicular Access to all Purpose Trunk Roads being 215 metres for a 60mph road.
24. On 20 March 2012, a further written submission was made to HATOC by the head of the defendant’s Highways and Traffic Management, which again recommended that on balance no further action should be taken at this stage in respect of the making of a TRO.
25. On 20 March 2012, HATOC met to consider the matter further and resolved that the order should be approved. The minutes of their meeting recording that the resolution had been made “… in the interests of public safety, in view of the substandard visibility distances at the junction of the road with the A377”.
26. On 25 June 2012, the defendant wrote to those who had objected to the making of the order, including Mr Bosworth, notifying them of HATOC’s decision and enclosing a copy of the minutes of their meeting, and references to previous documentation.
27. On 8 August 2012, the order was made and sealed and the defendant again wrote to those who had objected to the making of the order, including Mr Bosworth, notifying them of the making of the order and its implementation on 29 August 2012, once again enclosing a copy of the minutes of the meeting of the earlier meeting and other related documentation.
28. On 23 August 2012, solicitors acting on behalf of the claimant wrote a “letter before claim” to the defendant in which it stated that its reasons for challenging the making of the order included:
“… (but not limited to):
1. The Council’s failure to consider adequately, or at all, the matters set out in s 122 of the RTRA and its consequent non–compliance with s 122;
2. Irrationality in making the TRO purportedly in the interests of public safety in the relevant circumstances; and
3. Various procedural matters pertaining to both the RTRA and the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996/2489) …”
This was responded to by the defendant on 31 August 2012 in which, inter alia, the lack of particularity in the previous letter was noted.
29. On 10 September 2012, the defendant commenced a claim seeking to challenge the making of the order pursuant to paragraph 35 of Schedule 9 to the 1984 Act.
30. In addition to the events set out in this chronology, it is apparent that throughout the period since the defendant gave notice of its intention to make a TRO in August 2011, Mr Bosworth has been in frequent correspondence with the defendant objecting to the proposed order and requesting that the defendant consider, inter alia, the requirements of section 1 and section 122 of the 1984 Act and their duties under section 130 of the 1980 Act and section 16 of the 2004 Act. Moreover, members of the defendant were present at each of the public meetings of HATOC. Indeed Mr Bosworth was present at the meeting on 20 March 2012.
Grounds of challenge
31. Under grounds 1 and 2 the claimant argues that the defendant failed to direct itself that it could only make a TRO if it considered that it was expedient to do so for one of the statutory purposes in section 1 of the 1984 Act, and accordingly failed to satisfy itself that it was expedient to do so. Further, that the defendant did not make the order for one of those statutory purposes. Under grounds 3 and 4 it is argued that the defendant failed to consider properly, or at all, the matters set out in section 122 of the Act and, in particular, failed to consider its duties under section 122(2) of that Act.
32. Under ground 5 it is argued that the defendant failed to consider its duties under section 130 of the 1980 Act. Under ground 6 it is argued that the defendant failed to consider its duties under section 16 of the 2004 Act.
33. Under ground 7 it is argued that the decision to make the order was irrational in that there was no sufficient evidence either of danger to the public or that the order would protect members of the public.
34. Under ground 8 it is argued that, contrary to Regulation 17(3) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996, the defendant has failed to serve, on the objectors to the making of the order, reasons as to why those objections have not been met.
Grounds of defence
35. The defendant responds to these grounds by pointing out that grounds 1 and 2 were not matters contained in the letter before claim. In any event, that it was self–evident from the reasons provided by the defendant for the making of the order that the defendant made the order because it considered it was expedient for the purposes of section 1(1)(a) of the 1984 Act, and that it was justified in doing so.
36. In relation to grounds 3 and 4, the defendant responds that it was implicit that the provisions of section 122 were considered, in that the reasons provided in the notice of its proposal to make a TRO mentioned not only the issue of safety, but also the proposal did not affect access to premises and provided for alternative routes.
37. The defendant points out that in relation to both grounds 5 and 6, these were not mentioned in the letter before claim. In any event, it contends that the duty under section 130 of the 1980 Act only comes into effect when there is a public right of way, which had been threatened by obstruction or the like, and this is not such a case. In relation to ground 6, this duty is a qualified one and it is clear from the Department of Transport’s guidance that it has to be balanced against considerations such as road safety.
38. The defendant responds to ground 7 by contending that there is no evidence that it took into account irrelevant factors and the factors it did take into account were sufficiently evidenced, including the safety of road users, such that it could be satisfied that there was a significant lack of safety for road users. In particular, it points to evidence such as the visibility distances, the record of accidents, the site visit by HATOC to the scene, and the support of the parish council.
39. As to ground 8, the defendant provided its reasons within the requisite time provided by the 1996 regulations and were sufficient.
Discussion
40. There was a duty upon the defendant in this case to provide adequate reasons for its decision to make the order. However, as has long been recognised, the extent of the particularity of the reasons which are required of a decision–making body will depend on a number of factors, not least the degree of complexity of the issues involved. As Lord Brown said in South Bucks District Council and Another v Porter [2004] UKHL 33:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision–maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.”
41. In the present case it is of relevance that the claimant was involved in the process which gave rise to the defendant’s decision from a relatively early stage. The claimant advocated its objections both in writing and orally, bringing to the notice of the defendant those matters of law and fact which were relevant to its decision–making process. Thus the reasons which were ultimately provided by the defendant for its decision fall to be considered within this context and against that background, including the defendant’s notice of its proposal to make the TRO. The claimant itself is clearly not a body unfamiliar either with the issues raised in this case or with the principles raised in other such cases in general. Nor indeed is the defendant unfamiliar with either the issues raised in this case or the principles raised in similar cases. Moreover, the issues which fell to be considered in this case, whilst exciting controversy, were not in themselves matters of particular complexity.
42. It is clear that the central issue with which the defendant was concerned in this case was that of the safety of road users, both on the road itself and those using the A377. This is self–evident from the documentation from 1994 and more recently that of 2010 onwards. It was the principal reason provided by the defendant in its notice of proposal to make the order in 2011, and is reflected in the reasons which it gave for its decision to make the order in 2012. Throughout this period the defendant was concerned with the safety of road users at the junction of these two roads, arising out of the inadequate visibility which it provided. Moreover, the reason for the order being considered was to seek to avoid the danger that it perceived would be likely to result from its use.
43. It is equally evident that pursuant to section 1(1)(a) of the 1984 Act, the defendant was empowered to make a TRO:
“… where it appears to the authority making the order that it is expedient to make it–
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising…”
If “expedient” requires an explanatory synonym in this context, “appropriate” may be one of them. Certainly the fourth edition of Sauvain’s Highway Law considers that the word may mean “… advantageous, advisable on practical grounds, suitable or appropriate”.
44. In the context of this case the fact that the defendant made no express reference to section 1 of the 1984 Act is not, in my judgment, one that gives rise to the claim that the defendant failed either to direct itself under those provisions, or indeed made the order for some reason out with those provisions. The Subcommittee which made the decision was, as its name makes clear, a specialist one dedicated to the consideration of TROs. Furthermore, the reason which it provided for its decision was clearly one within the ambit of section 1(1)(a) of the 1984 Act. The issue of expediency being implicit from the decision itself, namely the closure of that section of the road leading from Bouchland Farm to its junction with the A377 as a result of it being ” … in the interests of public safety, in view of the substandard visibility distances at the junction of the road with the A377″. This being a matter which had found its genesis, so far as formally expressed reasons are concerned, in the defendant’s notice of its proposal to make the order.
45. Once again the fact that the defendant made no express reference to section 122 of the 1984 Act is not, in my judgment, one that gives rise to the claim that the defendant failed to consider section 122 of the 1984 Act and/or failed to discharge its statutory duty. As I have already indicated, the Subcommittee who was dealing with this case was a specialist one, which, in my judgment, can be taken to have knowledge of the relevant statutory powers and duties of the defendant, a matter which is not disputed on behalf of the claimant.
46. Furthermore, the duty which is owed under section 122(1) of the 1984 Act is one which is expressed as being:
“…(so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic…”
47. This provision has been considered previously by Carnwath J in UK Waste Management v West Lancashire District Council [1996] RTR 201, where he was considering whether the limitation in section 122(1) was intended to qualify the duty imposed by that subsection, or was intended to qualify the duty to have regard to those matters in section 122(2). He favoured the latter interpretation. This was accepted by Judge Behrens, sitting as a judge of the High Court, in Wilson and Another v Yorkshire Dales National Park Authority [2009] EWHC 1425 (Admin), paragraph 70:
“In my view the duty to secure the expeditious, convenient and safe movement of vehicular traffic is that prescribed by s 122(1). However that duty takes effect so far as is reasonably practicable in the light of the matters to be taken into account under s 122(2) …”
48. I would respectfully adopt this interpretation as to the nature of the statutory duty; it is not an absolute one, but is one that is to be applied so far as reasonably practicable having regard to the matters in section 122(2). Moreover, it is important, in the context of this case, that the duty is one which includes consideration of the “… safe movement of vehicular and other traffic”, this being a primary consideration of the defendant in this case.
49. As I have already said, I consider that the court is entitled to take into account the history of this matter when considering the defendant’s position. In this regard I consider that the court is entitled to look at the reasons provided by the defendants in its notice of proposal to make the order. Indeed this was held to be the essential document by Sir Christopher Bellamy QC, sitting as a Deputy Judge of the High Court in R (on the application of LPC Group Plc) v Leicestershire City Council [2002] EWHC 2485 (Admin):
“Whether the defendant took into account the relevant statutory considerations must, it seems to me, be ascertained primarily from the document ‘Supporting Information’. That document constitutes the statutory statement setting out the reasons why the authority proposed to make the order, and is required to be deposited and made publicly available pursuant to Schedule 2 of the 1996 Regulations: see, in particular, paragraph 2(d) of Schedule 2. This statement of reasons must be prepared and deposited before the stage of objections is reached.”
50. In my judgment the fact that the defendant had regard to and discharged its statutory duty under section 122(1), and took into account matters referred to in section 122(2), is apparent from the original reasons provided by the defendant for its proposal to make the order, namely that:
“This order is being proposed to promote road safety on the A377 … Reasons for making the order were identified following a safety audit of the A377 junction and the safety concerns raised over the poor alignment and visibility at its junction. This section of road does not provide access to any adjacent property and alternative routes are available for motor vehicles.”
51. The defendant does have statutory duties under both section 130(1) of 1980 Act and section 16 of the 2004 Act. Indeed it was no doubt pursuant to the former of these statutory duties that the defendant wrote the letter of 11 March 2010 requiring the recipient to remove the obstruction which he had placed on the road. The defendant was therefore clearly well aware of its duty in the context of this case, as in my judgment it can be taken to have knowledge of the latter duty.
52. In relation to the former of these statutory duties, although in a situation such as the one which pertained in relation to the road in 2011, this statutory duty is one of critical importance for a highway authority. In the context of a traffic authority considering the making of a TRO, I have considerable doubts to its engagement and even if engaged its significance over and above the matters which the defendant is already obliged to take into account under sections 1, 2 and 122 of the 1984 Act. Likewise with the latter of these two statutory duties. In the context of this case it does not appear to add anything beyond that which the defendant was already obliged to consider under the 1984 Act. Indeed, as the guidance provided by the Department of Transport makes clear, this statutory duty is a qualified one which has to take into account practicability and the authority’s other responsibilities. As the guidance expressly notes:
“… securing the expeditious movement of vehicles should not be at the expense of the authority’s road safety objectives.”
In these circumstances I do not consider that any challenge to the lawfulness of the order arises out of the omission to refer to these duties in their reasons.
53. When considering the question of irrationality, the principles set out in Associated Provincial Picture House Limited v Wednesbury Corporation [1948] 1 KB 223 will pertain. I have already concluded that there is no evidence of any misdirection of law in this case.
54. In relation to the issue of the evidential matters, which it did and should have taken into account, clearly the defendant relying on section 1(1)(a) of the 1984 Act had to consider, inter alia, the evidence relating to the safety of the junction of the road with the A377. There was a considerable body of evidence in this regard. This included not only the somewhat historical evidence dating back to 1994, but of more significance to the decision to the defendant’s proposal to make such an order was the results of the site visit on 11 February 2010, and the subsequent safety assessment. These matters were clearly ones which the defendant was entitled to take into account when deciding to make the order, in addition to the further evidence which had been obtained by that time, including the results of the site meeting on 9 November 2011 and the subsequent measuring of the visibility distances, which, it should be noted, was undertaken at a time after the members of the claimant had carried out clearance works on the road. Although a formal safety audit does not appear to have been carried out, this was not a statutory requirement and, in my judgment, there was, in any event, sufficient evidence upon which the defendant was entitled to conclude that it was expedient to make a TRO in accordance with its powers under section 1(1)(a) of the 1984 Act. In doing so for the reasons which I have previously given, I am satisfied that the defendant did fulfil its duty under section 122(1) of the 1984 Act, after having regard to the matters specified in section 122(2). In this regard, although, as I have mentioned, no formal safety audit had been carried out, the defendant was entitled to conclude that there were alternative routes which could be used in order to gain access from the road leading north from Burrington onto the A377.
55. It is correct that there was no history of road traffic accidents at the junction of the road with the A377. However, the photographic evidence suggests that in the past this is likely to have been an infrequently used road and the defendant did have evidence of accidents in the vicinity. Moreover, the A377 was a road subject to the national speed limit, such that the defendant was clearly entitled to take into account the inadequate sightlines at this junction as giving rise to the risk of accidents in the future (see Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council, unreported 14 December 2000).
56. It is correct also that the safety assessment that was carried out in 2010 mentioned the potential danger of the use of this road not only to motor vehicles, but also to horse riders and pedestrians. However, the fact that the defendant could on this basis have considered a more extensive TRO, rather than one limited to motor vehicles, is not a matter of which any justifiable complaint can be made by the claimant where the terms of the order that was made in this case was otherwise justifiable on the grounds of the avoidance of danger to motorised traffic.
57. The Committee was of course obliged to take into account the various written objections which the defendant received during the course of the consultation exercise, and articulated orally at its meetings. Moreover, it was obliged to take into account the views expressed by the Head of Highways and Traffic Management in his two reports. The latter being in moderate terms and which expressed the view that on balance he recommended that no further action is taken. However, the Committee was not bound to accept that view or indeed accede to the objections. It is implicit from the reasons given in this case that the Committee considered that the objective of avoiding danger to persons using motorised traffic was of such importance that it overcame the objections which had been made against the making of the order. In my judgment, based on the evidence which was before the Committee, it was entitled to reach that view, such that this is not a decision which is open to being impugned on the ground of irrationality, there being no evidence that it took into account extraneous matters in reaching its decision.
58. A complaint is made that the defendant failed to comply with Regulation 17(3) of the 1966 Regulations by failing to provide the defendant with reasons for its decision within 14 days of the making of the order. I have already considered the sufficiency of those reasons and I am not persuaded that the reasons given by the Committee in their minutes were inadequate in the context of this case. It is apparent that not only was the defendant provided with these after the Committee had made its decision to make the order on 25 June 2012, but were again provided with these within the requisite period of time after the making of the order by the defendant on 8 August 2012, such that there was, in my judgment, compliance by the defendant with this aspect of the statutory regulations.
59. In these circumstances, and having found no sufficient substance in any of the grounds of challenge in this case, the claim against the defendant is dismissed.
