Town and country planning – Low traffic neighbourhood – Consultation – Defendant local authority approving experimental traffic orders preventing vehicular traffic from entering, passing through, or waiting within significant area – Claimant challenging lawfulness of orders – Whether defendant’s consultation was unfair and/or had regard to immaterial considerations – Whether defendant properly exercising discretion to admit ex post facto witness evidence – Claim allowed
The defendant local authority approved two experimental traffic orders pursuant to section 9 of the Road Traffic Regulation Act 1984 restricting the ability for vehicular traffic to enter an area and to park within that area. The combined effect of the orders was to prevent vehicular traffic from entering, passing through or waiting within the part of Dulwich bounded by Croxted Road to the east and Norwood Road to the west. The experimental period operated as, in effect, an extended period of further consultation before any decision was reached whether or not to make the orders permanent.
The claimant was an unincorporated association formed to represent the interests of local residents and businesses affected by a series of street improvement orders. It comprised a number of separate businesses and residents’ associations. The group challenged the lawfulness of the orders and asked for each order to be quashed. The claim was a statutory challenge brought under the Traffic Management Order 1984. The claimant argued, amongst other things, that the defendant’s consultation on the orders was unfair and/or that it had regard to immaterial considerations when deciding to make the orders.
In addition, the claimant claimed that some of the witness evidence filed on behalf of the defendant amounted to an ex post facto rationalisation of the decision, filling in some of the evidentiary void said to exist in the defendant’s decision-making processes.
Held: The claim was allowed.
(1) The court was cautious in exercising its discretion to admit evidence that had come into existence after the decision under review was made, as a means of elucidating, correcting or adding to the contemporaneous reasons for it. The witness evidence was not in existence at the time the impugned decision was taken, and could not have influenced how the decision was taken. The court had to avoid being influenced by evidence that had emerged after the event, possibly when proceedings had been foreshadowed or issued. Nevertheless, there was no absolute bar to the introduction of post-decision witness evidence: R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, Kenyon v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302; [2020] PLSCS 39 and R (United Trade Action Group) v Transport for London [2022] RTR 2 considered.
In the present case, by and large, the parts of the witness evidence prayed in aid as part of the defendant’s submissions were confined to points of elucidation rather than impermissible commentary or gloss attempted to be placed on the underlying facts. The court had no difficulty in accepting the validity of that evidence as merely elucidation and confirmation.
(2) Evidence directly in conflict with the contemporaneous record of the decision-making would not generally be admitted. But in the absence of such contradiction, there was no reason in principle to prevent ex post facto evidence being admitted if its function would be elucidation not fundamental alteration, confirmation not contradiction. It was proper to allow further explanation in an appropriate case, if the decision-maker’s reasoning lacked the clarity or detail which was desirable: R (Hereford Waste Watchers Ltd) v Herefordshire Council [2005] Env LR 29 and R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; [2013] PLSCS 254 considered.
When the admissibility of evidence was in dispute in a claim for judicial review, the court’s approach should be realistic, and not overly exacting. It would rarely be necessary for a judge to carry out a minute review of every paragraph and sentence of a witness statement, paring the statement down to an admissible minimum and formally excluding the rest, or admitting evidence for some grounds of the claim and ruling it out for others. The court should not be drawn too readily into an exercise of that kind.
(3) The court had to be wary of the fact that it was approaching its appraisal of the consultation exercise as a whole with the benefit of hindsight, and that the overall task was to appraise whether what was done was legally sufficient. With the benefit of hindsight, it might well be possible to identify how a consultation process might have been improved; but, even if it was less than ideal, it would become unlawful only if what had occurred made it unfair as a matter of law. That was a substantial hurdle.
Some of the elements of consultation here could undoubtedly have been improved upon. But the question always was whether something had gone so clearly and radically wrong as to render the consultation process unlawful. That was about the overall impression left by the consultation when viewed as a whole as to whether it was so seriously deficient as to clear the high hurdle applicable to it. Here, the answer was clearly not.
(4) The substantive complaint was about whether and how the defendant considered the product of its engagement when reaching a decision on the orders. That involved a conventional public law assessment of Wednesbury rationality applied to the particular circumstances and the evidence. If an affected person sent written representations to an authorised person with a reasoned case, on ordinary public law principles, the authorised person would have to consider those representations when exercising their discretion.
There was an apparent flaw in the defendant’s approach to its decision-making, namely that the integrity of the consultation on the street improvement scheme at the stage of experimental traffic orders was less important because it would be followed by a longer period of statutory consultation after they came into effect. That was not an answer to complaints about the adequacy of the consultation undertaken before the experimental orders were made. Consultation was both mandated and supplemented by non-statutory engagement undertaken by the defendant.
On the evidence, despite assurances to the contrary, a 53-page presentation put forward by the claimant outlining its concerns, did not form part of the defendant’s considerations when it should have done. Its content was highly relevant to the issues and thus it was a material consideration. The failure to have regard to it was a serious failing, rendering the decision to make the orders unlawful.
Charles Streeten (instructed by Broadfield Law UK LLP) appeared for the claimant; Heather Sargent (instructed by Lambeth London Borough Council) appeared for the defendant.
Eileen O’Grady, barrister
