B e f o r e :
MR JUSTICE HOLGATE
||(A REPRESENTATIVE CLAIMANT FOR "E17 STREETS4ALL")
||LONDON BOROUGH OF WALTHAM FOREST
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Mr Jonathan Wragg (instructed under the Direct Access Scheme) appeared on behalf of the Appellant
Mr Alun Alesbury and Ms Laura Phillips (instructed by The London Borough of Waltham Forest) appeared on behalf of the Respondent
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MR JUSTICE HOLGATE:
- This is an application for statutory review pursuant to paragraph 35 of schedule 9 to the Road Traffic Regulation Act 1984 ("RTRA") in relation to 20 experimental traffic orders ("ETOs") made under section 9 of that Act by the London Borough of Waltham Forest ("the Council") in respect of a group of streets in Walthamstow Village. The Council made these orders in its capacity as the traffic authority under the RTRA in respect of the roads affected. 17 of the orders were made on 19 June 2015, and the remaining three were made on 21 August 2015.
- Sarah Williams is a resident of the Village and a solicitor. In these proceedings, she represents an unincorporated association "E17 Streets4All". The association comprises a number of persons living and working in Walthamstow Village, which has been formed in order to oppose the Council's traffic regulation strategy for that area and also other parts of the borough, referred to as a "Mini-Holland Scheme". The Mini-Holland Scheme is one of three such schemes for which funding has been approved by Transport for London ("TfL") and the Greater London Authority ("GLA") in three different London boroughs. As the name suggests, the concept has been inspired by a project undertaken in the Netherlands to create low-traffic neighbourhoods which encourage more people to make journeys by cycle or on foot.
- The orders challenged in the present case involved measures such as pedestrian priority crossings, "modal filters" (through which cyclists and pedestrians may pass, but not vehicular traffic), one-way streets, shared highway and footway space, also known as "blended" or "Copenhagen" crossings, road closures, pedestrianised areas, parking places and parking restrictions.
- The Council's Mini-Holland Strategy has gone through a number of stages which may be summarised as follows:
||Publication of a Mini-Holland Strategy document bidding for funding from TfL and GLA.
||Decision by TfL and GLA to provide funding of about £32 million for the Council's scheme.
|9 September 2014
||Report to and decision by the Council's Cabinet to accept the funding offered, to approve a delivery strategy for the scheme and to delegate authority to senior officers to approve individual elements of the programme. The delivery strategy implements the project in a series of local phases between 2015 and 2017. The scheme for Walthamstow Village is one of the earlier phases in the approved strategy.
|26 September to 13 October 2014
||Trial road closures in Walthamstow Village and collection of data by the Council from those trials.
|28 November to 19 December 2014
||Publication of consultation document and questionnaire on scheme design for Walthamstow Village followed by consultation period.
|10 February 2015
||Report to and decision by the Council's cabinet to approve the final scheme design for Walthamstow Village improvements as part of the Mini-Holland Programme.
|19 June 2015
||17 ETOs made.
|21 August 2015
||3 further ETOs made.
- The orders made on 19 June 2015 came into effect on 30 October 2015. The accompanying notice stated that the Council will be considering in due course whether the provisions of the ETOs should continue indefinitely by the subsequent making of permanent traffic regulation orders under the RTRA. Consequently, the notice allowed the statutory period of 6 months (expiring on 29 December 2015) within which objections may be made to the making of such permanent orders. The three orders dated 21 August 2015 came into force on 1 September 2015, and were also accompanied by a similar notice of the Council's intention to consider making permanent orders to the same effect, and therefore allowing a period of 6 months (expiring on 28 February 2015) within which the public may object to the effects of those orders becoming permanent.
- The ETOs were accompanied by a statutory "statement of reasons", in which the Council stated that the measures they contained were "being introduced experimentally in order to assess their effectiveness with a view to making them permanent". The objection period of 6 months stipulated by the legislation enables the public to express their views and provide information to the Council on the effect of the experimental orders in practice.
The grounds of challenge
- Paragraph 35 of schedule 9 to the RTRA provides that:
"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 ..."
- Paragraph 36 provides that on any such application the court:
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
In other words, the legislation provides for statutory review of orders made under the RTRA in accordance with standard principles of judicial review.
- The re-amended claim form was supported by a substantial number of witness statements, which, for the most part, set out a range of objections dealing with the merits of the ETOs and the evidence upon which the Council had relied when deciding to make those orders. Mr Jonathan Wragg, who appeared on behalf of the Claimant, accepted that such material is generally inadmissible in proceedings of the present kind, which may not be used in order to debate the merits of the decisions taken by a public body, including ETOs. However, he argued that this material is relevant in this case solely on the basis that the Council acted irrationally by exercising its discretion against the holding of a public inquiry. However, in order to advance that argument he did not rely upon any particular passages contained within this evidence. The Council have not responded directly to this material, and no point is taken by the Claimant about their decision not to do so. In the circumstances, I will not deal with this evidence in any detail in this judgment.
- The arguments set out in the re-amended particulars of claim and the Claimant's skeleton were somewhat diffuse and tended to overlap. It was therefore necessary to identify during the hearing how the legal criticisms of the Council's actions are in fact put. In summary, the Claimant advances the following six grounds:
(1) The Council failed to consult the public properly prior to making the ETOs (a) by failing to consult the public on proposals for the Mini-Holland Scheme as a whole rather than the proposals for Walthamstow Village alone; (b) by failing to consult on the Council's main objective to increase cycling in the area; (c) by failing to consult on alternative options which had been discarded by the Council; and (d) by failing to consult on the option of not closing any roads, and therefore treating road closures as a foregone conclusion;
(2) The Council's decision not to hold a public inquiry into objections to the ETOs was irrational;
(3) The measures proposed in the ETOs are unnecessary and/or will not meet the Council's objectives;
(4) The traffic data relied upon by the Council in order to support the making of the ETOs was of such poor quality that no traffic authority could lawfully have relied upon it;
(5) The Council failed to give sufficient reasons for making the ETOs so as to comply with its duty under section 122 of the RTRA. In particular, the Council failed to address the desirability of maintaining reasonable access to premises within the Village, and the Council's Air Quality Action Plan as regards the displacement of vehicular traffic from within Walthamstow Village to two arterial routes on the western and southern sides of the Village, namely Lea Bridge Road and Hoe Street, resulting in additional congestion and poorer air quality on those roads;
(6) The Council failed to comply with the network management duty contained in section 16 of the Traffic Management Act 2004.
- In order to put matters into context, the following points should be made at this stage:
(1) Mr Wragg accepted that ground 6 raises no additional point not already covered by ground 5.
(2) No challenge has been brought by way of judicial review to the decisions of the Council's Cabinet dated 9 September 2014 and 10 February 2015. No explanation has been given for the absence of any such challenge. No such challenge could be brought under this claim under paragraph 35 of schedule 9 to the RTRA, and it is not suggested that any challenge could now be made by judicial review having regard to the lapse of time which has occurred since those decisions were taken.
(3) The Claimant does not suggest that the Council was not entitled as a matter of law to implement its Mini-Holland Strategy in phases.
(4) The Council contends that all of the points made by the Claimant and her colleagues on alternatives to road closures, and under grounds 3 to 6, can and should be made under the statutory objection procedure which is currently taking place, and, if so made, will have to be assessed before the Council makes any permanent orders to continue the effects of the ETOs for the indefinite future.
- The context for considering the grounds of challenge also includes the process followed by the Council prior to making the ETOs and the legislative framework, two matters to which I now turn.
The process followed by the Council between December 2013 and February 2015
The Bid Document for funding – December 2013
- In December 2013, the Council published its bid document for funding for the Mini-Holland Project. Page 9 of the document records that:
"Since 2012 the Council has been conducting an annual borough wide survey of cyclists and those who would like to cycle, asking what would encourage them to cycle more. This has given us valuable information on where they like to ride, and the parts of the borough where things need to improve."
- The section giving an overview of the bid began at page 11 of the document. The Council explained that the overall intention is to secure a modal shift to cycling and walking, and added:
"We have prioritised our schemes using feedback from our annual cyclists surveys and considered how the proposals support wider regeneration plans for the borough and the East London area."
- The document then went on to set out six main elements comprised in the scheme, described in order of priority. The first main element was referred to as:
"A substantial redesign of the main town centre to make it genuinely excellent for cyclists."
In fact, that first main element included not only the town centre but also three villages, namely Walthamstow Village to the east of Hoe Street and also Blackhorse Village and Markhouse Village lying to the west of Markhouse Road.
- Page 12 of the bid document stated:
"... key routes within the centre are currently dominated by road traffic creating an unwelcoming environment for cyclists and pedestrians, spoiling the look of the area and causing air quality problems. The Council has already made a policy decision to prioritise walking, cycling and public transport within the town centre in its [Local Implementation Plan] and Area Action Plan. Mini-Holland funding would enable us to accelerate the change.
A key feature of our Walthamstow Mini Holland proposals is the concept of 'Villagisation' – which includes removal of through traffic in residential areas in central Walthamstow, building on work already underway to make Walthamstow a more cycle-permeable place, and addressing rat-running."
- The reference to "villagisation" was slightly unfortunate, perhaps. According to the Oxford English Dictionary it refers to a "concentration of population in villages" and "the transfer of control of land to villagers communally." Some sources suggest that it often refers to a compulsory resettlement of people. The intention of the Council from these documents is perfectly plain, but it is perhaps to be hoped that this word will not slip into the lexicon of local authority officers. It is hardly consistent with the meaning of "Walthamstow" taken from the Anglo Saxon word "Wilcumestowe" or "place of welcome".
- Under the section headed "Opportunities, Challenges and Issues", the Council described this as one opportunity:
"We will also introduce a number of road closures, some initially on an experimental basis, to reduce the amount of through vehicular traffic in residential areas. This will improve conditions for cyclists and pedestrians and residents generally."
- Under "Programme Objectives", the Council stated at page 18 that its objectives included:
"To substantially increase cycling within the borough, to make it an attractive and mainstream mode of transport."
"To shift a significant proportion of short local car trips to the bike. Reducing the dominance of motor traffic will benefit all residents by reducing congestion, improving air quality and creating a safer, happier, more sociable town centre that is accessible to all."
- On page 20 of the bid document, under the heading "Health", the Council stated that one of its objectives is to improve air quality and to reduce the incidence, severity and deaths from respiratory disease. The document recognised that on some of the borough's main arterial roads, including Lea Bridge Road, Hoe Street and Forest Road, there are high concentrations of nitrogen dioxide which are above EU and health-based limits. The Council envisaged that its strategy would provide benefits in order to address these issues.
- The section dealing with Walthamstow and its villages begins at page 22. The Council specifically dealt with the circumstances of Walthamstow's villages, and particularly the area the subject of this challenge, in the section beginning at page 28. At page 29, the Council made it plain that its programme involved a phased approach to the implementation of its strategy. Under stage two it stated:
"Experimental closures will be installed at various locations within both the Markhouse and Walthamstow Village areas effectively plugging any potential gaps for cut through traffic. These closures will significantly reduce the amount of traffic entering and using these areas.
Again after installing these closures the traffic conditions will be monitored and any alterations can be made."
- Under the heading "Measures", the Council proposed road closures and reducing traffic levels in the following terms:
"To encourage traffic reduction and traffic evaporation throughout the mini Holland area we will introduce a series of road closures with modal filters building on lessons learnt from Europe and other London Boroughs (Hackney, Islington, Camden) preventing vehicular traffic travelling through residential areas while still maintaining access." (emphasis added)
- At page 30 of the document the Council stated:
"The mini Holland area will be subject to extensive modelling and investigation prior to the implementation of the second phase of closures to minimise the risk of creating gridlock. It should however be remembered that it is highly likely that issues will be experienced while drivers adjust to the fact that 'rat runs' they have been using are no longer available.
Experimental closures will be introduced wherever possible using temporary features ... so if modifications are required they can be made relatively easily ..."
- Under the heading "Resident led design", the Council stated:
"One of the opportunities for the community to become involved in the design and development of the mini Holland programme is to help us redesign the residential streets they live in to accommodate modal filters, cycle parking or a revised parking layout. We have outlined a consultation strategy which will encourage resident participation and ownership of improvements to their streets."
- Page 66 of the bid document described the consultation strategy. The Council stated:
"This consultation and engagement strategy has been developed to outline the work we have already done with key stakeholders and how we propose to engage the community and key stakeholders during the implementation of the mini Holland programme.
It outlines how we will engage, communicate and work with residents, businesses and specific groups such as children or minority ethnic groups. It explains the principles and processes that will be applied to stakeholder engagement, public consultation and how we will work with our delivery partners."
- The bid document described the public engagement which had already taken place. That included presentations to and discussions with ward forums, businesses (including small business forums such as the Asian Business Centre), the police (who had given their full support to the bid), schools and a social media campaign. Page 69 of the document set out how the Council proposed to consult with the public in future. It stated:
"Due to the use of experimental/temporary measures, particularly in the town centre and surrounding area our engagement will be an on-going conversation throughout the delivery programme. The early engagement stage will focus on gathering views of the community on the wider scope of proposals to encourage involvement."
- Under "Phase Two", the Council specifically stated:
"The public consultation will be developed to work in parallel with the delivery of the overall mini Holland programme. As previously discussed we will be gathering the views of the local community from an early stage and feeding this into the scoping and design development."
- In order to ensure effective consultation, the Council specifically stated that it would:
"Use experimental traffic orders that can be modified with an on-going consultation during the experimental period."
The Council also announced that would set up a dedicated website, with scheme details, information and online surveys, and make use of consultation events, with survey forms for responses and the distribution of leaflets. As is apparent from the material which has been put before the court, these measures were indeed implemented by the local authority.
- No criticism has been made as to the content or clarity of the 2013 bid document or the consultation exercise which was undertaken in connection with that document.
Report to Cabinet meeting on 9 September 2014
- There followed a report to Cabinet on 9 September 2014. Paragraph 3.8 of the report referred to the establishment of a liaison group to act as a conduit for consultation and information exchange with internal and external stakeholders. Paragraph 3.9 recorded that an additional Mini-Holland stakeholders working group had been established to enable local cycling groups and other local community representatives to have an input into the programme.
- Appendix B to the report set out the sustainability implications of the strategy including an improvement in air quality through the reduction of NOx and PMs, by reducing car usage and increasing journeys by cycle.
- Appendix D to that report to Cabinet set out the Council's delivery strategy for the implementation of the programme. The document clearly set out for each phase of the programme the periods which would be devoted to (respectively) data collection, feasibility and initial design, detailed design and consultation, and, eventually, implementation. Section 12 of the document once again addressed the issue of community involvement.
- The Cabinet agreed to accept the funding from GLA and TfL and to approve the Strategy for the Mini-Holland scheme.
Report to Cabinet meeting on 10 February 2015
- Mr Valavan is the Council's Head of Highways and Infrastructure Unit. He has provided a witness statement, dated 1 October 2015, in which he explains that he has delegated authority to make traffic management orders. In paragraph 8 of his statement, he summarises the engagement strategy, comprising some seven stages leading up to final scheme design and delivery which the Council developed and operated. A summary of that strategy was given as appendix B to a report to the Cabinet meeting on 10 February 2015. The seven stages comprise: (1) baseline information gathering; (2) trial road closures; (3) results and feedback from, in this instance, the Walthamstow Village trial; (4) development of final proposals of public consultation; (5) public consultation; (6) implementation; (7) review.
- Under stage 1, "baseline information gathering", it appears that in February 2014 the Council carried out a survey in the Walthamstow Village area to understand the main concerns of local residents and businesses. A document was delivered to 2,288 properties. Two key issues raised by the survey were traffic volumes and speeding on residential roads. Stage 2 described the trial road closures which were carried out within the Village between 26 September and 13 October 2014. In advance of that trial, some 4,500 leaflets were distributed to all homes and businesses within the trial area. On 6 September 2014 a drop-in session was held at the Asian Centre. The plans for the road closures and aims of the trial were explained by Council officers and discussed with the local people who attended. Appendix B records:
"Information gained from residents through the survey and initial traffic survey data suggested that a high proportion of vehicles using Walthamstow Village do so as a cut through between Hoe Street and Lea Bridge Road, often at high speed. We, therefore, looked to introduce a series of temporary road closures to reduce the amount of cut through traffic entering the area whilst still allowing local access." (emphasis added)
- Under stage 3, the document set out the results and feedback from the trials which had been carried out. It appears that during that period, surveys of local residents were carried out. A drop-in centre was provided on Orford Road every day during the trial, with Council officers available to answer questions. Officers knocked on some 4,000 doors to answer residents' questions and to obtain feedback in the form of a survey. An online version of the survey was also made available to members of the public. 1,856 people completed the trial survey. Some 1,242 people responded from addresses located within the trial area. The Council noted that the typical consultation response rate for a highway scheme is generally in the region of 10 per cent. The analysis showed that in this instance a much higher response rate was achieved from over 40 per cent of residents within the area.
- Under stage 4 of the process, the Council noted that, during the week commencing 27 October 2014, it held meetings with businesses from Orford Road and Grove Road on three separate occasions. 18 businesses attended. The Council noted that their concerns included loading arrangements for businesses, parking for customers and improving footfall.
- On 6 November 2014, the Council ran four simultaneous workshops with residents in Walthamstow Village. Some 219 people attended and their views were noted. The document also records that a full report of the results of the workshops was made available online on the Council's website which and set out both the concerns and the benefits experienced during the trial. The second part of the workshop asked residents to consider what they would like to see implemented as part of the scheme. The results were noted in this document. The Council also recorded that it had received and responded to over 700 direct emails concerning the scheme. Where there were specific concerns from groups of residents on particular roads, the Council met with residents groups, including Eden Road. These activities, as well as the traffic data gathered from the trial road closures allowed the Council to design a scheme for the Village and to develop a proposal based on the processes I have described.
- Under stage 5 of the process, a description was given of the consultation exercise which began in November 2014. On any view it was extensive: it included drop-in sessions at three different locations on 10 and 11 December; a meeting on 5 December at Collard Court in connection with the almshouses; a further meeting on 3 December at Pelly Court; meetings with three local schools; Council officers speaking to over 400 residents and businesses; meetings with religious institutions; a meeting on 2 September with the Dial-a-Ride service; and discussions with local emergency services and companies. The consultation also included discussions with those who wished to raise alternative options. The Council received 735 questionnaires from households within the consultation area, which were all analysed. Again, the response rate was in excess of the norm that would be expected for an exercise of this nature.
- Appendix C to the Cabinet report for 10 February 2015 analysed the results of the consultation exercise. Appendix D to that Cabinet report analysed the reasons for and benefits of the final proposal which had emerged from the consultation. It specifically dealt with the subject of road closures and traffic direction changes, addressing concerns in particular with regard to Orford Road and Eden Road. It recorded that:
"One of the key factors in the development of this scheme has been the number of rat running vehicles within the area. These proposals act to reduce that number and allow the scheme to achieve its core objectives. Orford Road is a well-known through route for people trying to bypass the surrounding main roads. We are therefore seeking to close Orford Road between Wingfield Road and Eden Road."
- In my judgment, this document contained a perfectly clear explanation as to the nature of the proposals which emerged from this process and the justification for each measure being put forward in the final scheme.
- Appendix E to the Cabinet report for 10 February 2015 addressed the most common alternative options which had been suggested by residents and businesses.
- The overall report to the Cabinet by officers pulled these various sources of information together to enable recommendations to be made to the Cabinet. Paragraph 4.1 stated that at each stage of engagement the Council had taken on board the feedback of residents and businesses, and that many of their suggestions had been included in the final design proposal. However, some alternative options proposed by members of the community had been considered but not incorporated. The report identified major examples of options which had been rejected and referred to appendix E for further explanation as to why these conclusions had been reached. It comes as no surprise to find that in paragraph 6.2 of the report, the officer stated: "This was the most extensive consultation process run by the Highways and Infrastructure Unit to date."
- The minutes of the Cabinet meeting which took place on 10 February 2015 recorded that, in addition, a number of members of the public addressed councillors, expressing a range of views about the merits of the proposal, some speaking in favour and some speaking against. The reports to Cabinet with their accompanying appendices are documents which have been in the public domain since they were published. They are readily available to persons interested in the Council's justification for, and preparation of, the Mini-Holland scheme and its individual phases.
- I also note that the minutes record that Councillor Loakes, who has taken a leading role in the promotion of the Mini-Holland scheme:
"... undertook to engage with established residents' groups in taking the policy forward, and to address in particular concerns arising out of the partial closure of certain roads, as well as involving them in achieving good design."
The Cabinet resolved to approve the final scheme design for the Walthamstow Village area-wide improvements scheme as part of the Mini-Holland Programme, subject to the undertaking which had been given. It was therefore envisaged that the Council would continue to involve local residents in addressing issues such as the closure of certain roads. This would take place in part through the implementation of experimental traffic orders, as the bid document and delivery strategy had foreshadowed.
- Section 6 of the RTRA defines the purposes for which traffic regulation orders may be made. Section 6 covers permanent orders. Section 9 authorises a traffic authority to make an "experimental scheme of traffic control" containing provisions within the ambit of section 6. It is common ground in these proceedings that the measures in the ETOs being challenged fall within the purposes for which section 9 may be used. Section 9(3) provides that an ETO may not continue in force for longer than 18 months.
- The procedure governing the making of TROs and ETOs is set out in the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, SI 1996 No.2489 ("the 1996 Regulations").
- I will first summarise the procedure applicable to a permanent order. Part II deals with the procedure before making a permanent order. It is subject to the special provisions in Part IV (see regulation 5). Regulation 6 specifies the authorities and organisations with whom consultation must take place before an order may be made. Regulation 7 provides that before making an order, the authority must publicise notices of the proposed order, and under regulation 7(3) the authority must also comply with the requirements set out in schedule 2 for the deposit of documents for public inspection. Paragraph 2(d) of schedule 2 requires a document to be deposited as follows:
"A statement setting out the reasons why the authority proposed to make the order including, in the case of an experimental order, the reasons for proceeding by way of experiment and a statement as to whether the authority intends to consider making an order having the same effect which is not an experimental order."
- Regulation 8 gives a 21-day period from the notification of the order within which persons may object to the making of an order. An objection must be made in writing and specify the grounds upon which it is made. Regulation 9(1) obliges the authority to hold a public inquiry before making an order in the circumstances defined in regulation 9(3), (4) and (5). Regulation 9(5) disapplies any obligation to hold an inquiry in the case of an ETO. Regulation 9(1) also gives the authority a discretionary power to hold an inquiry, both in relation to permanent and experimental orders. Regulations 10 and 11 set out the procedure to be followed in relation to public inquiries. By regulation 13, before an authority may make an order, it must consider all objections duly made under regulation 8 and, if an inquiry is held, the report of the inspector.
- Part III deals with the making of an order. It too is subject to Part IV (see regulation 15). Regulation 17 requires the authority to take certain steps after an order is made. In particular, regulation 17(3) requires that, 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."
The decision there referred to must relate to the decision not to accede to the objection, whether wholly or in part.
Experimental orders followed by permanent orders
- Experimental orders are dealt with under Part IV. Regulation 22 deals with experimental orders in general. Regulation 22(1) disapplies the publicity and objection procedures in regulations 7 and 8. However, regulation 22(3) maintains the requirement that the authority should place on deposit the documents specified by schedule 2, including the statement of reasons for proposing to make the order required by paragraph 2(d) of schedule 2.
- Regulation 23 deals with an order which gives permanent effect to an experimental order. Regulation 23(1) applies regulation 23 where the sole effect of an order is to reproduce and continue in force indefinitely the provisions of an experimental order under section 9. For such a permanent order, regulation 23(2) disapplies the consultation, publicity and objection requirements in regulations 6, 7 and 8, but only where the requirements of regulation 23(3) are complied with. Regulation 23(3) includes requirements that, firstly, the authority places on deposit for public inspection a statement of the authority's reasons for making the experimental order; and secondly, the notice of making the experimental order must include the statements set out in schedule 5. Thus, the notice must state that the authority will be considering in due course whether the experimental order should continue in force indefinitely, and also provide a period of 6 months from the date when the experimental order comes into force for the making of written objections to the making of an order continuing the measures in the experimental order indefinitely. The ETOs in the present case contained those schedule 5 statements.
- The upshot is that, where regulation 23 applies, a 6-month period is substituted for the normal statutory period of 21 days for the making of objections, so that the public is able to make representations which are informed by practical experience of the effect of (or omissions from) the experimental order. In such a case, regulation 23(4) provides that any objection duly made within the 6-month period is deemed to have been made under regulation 8 as an objection to the permanent order. Thus, where regulation 23(3) applies, regulations 9, 10, 11, 13 and 17 also apply. In other words, the authority has a discretion to hold an inquiry under regulation 9(1). It would also be obliged to hold an inquiry if the conditions in regulation 9(3) are satisfied, but it would appear that the exclusion in regulation 9(5)(a) of orders simply on the grounds that they are experimental orders would not be applicable.
- Under regulation 13, therefore, the authority would be obliged to consider objections made to the permanent order and the report on any inquiry held. The obligation in regulation 17(3) to give reasons for not acceding to an objection would also have to be satisfied.
Ground 1: Consultation
- The first issue is whether there was an obligation to consult in relation to the making of the ETOs. The Claimant accepts that there was no obligation to do so in the 1996 Regulations, but it is submitted that the duty in section 16 of the Traffic Management Act 2004 applied to the decision to make the ETOs, section 18(2) required the Council to have regard to national guidance published under section 18(1) when performing that duty, and paragraph 64 and 134 of the relevant statutory guidance, "Network Management Duty Guidance", advises authorities to seek the views of (a) residents, local businesses and road users when deciding which policies on network management to adopt, and (b) the public, frontagers, representatives of road users and neighbouring authorities when developing strategies and processes for improving the operation of the road network.
- The Council responds that paragraphs 64 and 134 of the statutory guidance do not apply to the making of ETOs; at most they would apply to the processes leading up to the resolutions of the Cabinet dated 9 September 2014 and 10 February 2015, when policies and strategies were being developed. I agree. I also accept that a very considerable degree of public consultation took place before each of those two decisions, and that if any legal complaint was to be made in respect of these processes then an application for judicial review ought to have been made within the time limit in CPR 54.5. That was not done.
- Mr Wragg accepted that in any event there was no legal requirement for the Council to repeat the public consultation process which it had carried out in the latter part of 2014 when making the ETOs in 2015, unless the consultation in 2014 had been legally deficient. Thus, a further flaw in ground 1 is that it is really a thinly disguised attempt to criticise the consultation process carried out in 2014 leading up to the Cabinet's decision on 10 February 2015. Indeed, to some extent that is confirmed by the many witness statements produced in support of the claim which do indeed criticise that very consultation process. Such a challenge falls outside the scope of paragraph 35 of schedule 9 to the RTRA. Even if an attempt had been made to bring proceedings under CPR part 54, it is difficult to see how such a long delay could be justified. No explanation has been put forward for the delay.
- As a fallback argument, it was faintly suggested by the Claimant that the Council had in fact embarked upon a process of consultation in relation to its decisions to make the ETOs. Despite an invitation to do so, Mr Wragg did not identify any evidence to support that assertion. It is clear from the material that I have summarised that a process of consultation on the proposals for Walthamstow Village was carried out, leading to the decision of the Cabinet on 10 February 2015. Thereafter, it was a matter for a senior officer of the Council, acting under delegated authority, to make the ETOs, and no further process of consultation was in fact undertaken in relation to that step.
- Although it is unnecessary for the court to go further into ground 1, I will nevertheless briefly address the specific criticisms which have been made of the consultation which did take place.
- There is no suggestion that the Council acted unlawfully by deciding to implement its Mini-Holland Scheme in phases. As I have already set out, the strategy of reducing rat-running traffic through each of the three villages, and improving facilities for cyclists and pedestrians so as to encourage a shift to these modes from vehicular traffic, was explained in clear terms in the bid document as long ago as December 2013, and was then the subject of consultation and was endorsed by the Council's Cabinet in September 2014. The more detailed proposals for Walthamstow Village which were the subject of public consultation from September to December 2014 were put forward in the context of the broader strategy which had already been consulted upon and approved by the Council. There was no obligation upon the Council to work up detailed proposals for all of the phases of the project and to consult upon all such details at one and the same time.
- The obligation to consult is governed by the requirements of procedural fairness, which are highly fact-sensitive (see R (Moseley) v London Borough of Haringey  1 WLR 3947). It has not been shown that the consultation exercise carried out in 2014 unfairly prevented or impeded members of the public from making any substantial point that they wished to raise concerning the relationship between the proposals for Walthamstow Village and other parts of the Mini-Holland Scheme. Indeed, objections of that nature could be advanced, if thought appropriate, under the objection process currently taking place.
- I also reject the criticism that the Council's consultation document in November 2014 was misleading because it focussed on the closure of roads to vehicular traffic and failed to refer to promotion of routes for cycling as one of the Council's main objectives. Mr Wragg tried to submit that the December 2013 bid document had treated the promotion of cycling as the Council's main objective, whereas it is plain from the passages to which I have already referred that the removal of rat-running traffic from Village streets was considered to be just as important. The publication of the November 2014 consultation document was itself preceded by substantial public involvement. That consultation document referred to the creation of a cycling trail, road closures which would enable cyclists but not vehicles to pass, reducing the speed of vehicular traffic, and creating a safer environment for pedestrians and cyclists, including, specifically, the introduction of Copenhagen crossings. The document also referred to the Council's Mini-Holland website. The document cannot be criticised as having been misleading.
- The Claimant has not identified any point that she or others were unable to put forward because of the way in which the consultation document was expressed. The witness statements made it plain that their main concerns centred upon road closures and their effects and The Consultation document was perfectly clear about the proposals for road closures.
- It was then submitted that the questionnaire which accompanied the consultation document was unfair because it had failed to give the public an opportunity to state that there should be no road closures. On any fair reading of the form, taken as a whole, including the opportunity to express comments outside the specific questions posed, this complaint is untenable. It is clear, for example, from appendix E to the Cabinet report for 10 February 2015 that the public took the opportunity to put forward a number of alternative options for consideration by the Council.
- Then, relying upon paragraphs 27 and 28 of Moseley, it was submitted that, as a matter of fairness, the Council was obliged to consult upon alternative options it had discarded. However, Lord Wilson JSC merely stated that "sometimes" fairness will require consultation to take place upon "arguable yet discarded alternative options" before going on to give a brief summary of certain authorities. Mr Wragg did not cite any such authority nor undertake any analysis of the present statutory and/or factual context to justify imposing such an obligation in the present case.
- There was also a suggestion in the papers that the consultation exercise carried out by the Council in this case was a sham, and that the Council had made up its mind in advance and was therefore unreceptive to alternatives put forward by the public. The contemporaneous documentation belies that suggestion; it shows that the Council did adopt some suggestions from the public, modified its proposals and then explained with some care why it did not think it appropriate to accept others.
- For all these reasons, I reject ground 1 of this challenge.
Ground 2: Public inquiry
- It is common ground that the Council was not obliged under the legislation to hold a public inquiry but had a discretion to do so. At first it was asserted that the exercise of that discretion had not been considered at all. But in paragraphs 25 to 26 of his first witness statement, Mr Valavan said:
"25. The power to hold a public enquiry in this case was discretionary. I decided that it would not be appropriate to hold a public enquiry in this instance because I considered that it would be disproportionate and unnecessary to do so. The orders are experimental and by their nature are subject to amendment or change following feedback. Indeed there is a right for members of the public to provide feedback during the life of an order. Further the orders are part of a wider scheme that was the subject of significant public consultation and engagement prior to the making of the orders and which continues to date. If objections are received those objections will be considered and if it is appropriate changes to the order will be made.
26. I decided that this process was sufficient to explore the feasibility of the scheme proposal and a proportionate mechanism to resolve any issues identified by residents and key stakeholders. I decided that a public enquiry would not add materially to effectiveness of that process."
- So then the submission shifted to argue that this was mere ex post facto reasoning to which little weight should be attached, because no contemporaneous written statement of reasons had been issued by the Council explaining why an inquiry was not being held. But Mr Wragg did not seek to explain why any such duty to give reasons arose, as he had asserted. This line of argument was not pursued further and, in my judgment, was untenable.
- In AA & Sons v Slough Borough Council  EWHC 1127 (Admin), Green J held at paragraph 60:
"The Court does have the power to find that a failure to exercise a power to appoint an inspector is unreasonable and unlawful; but it would necessitate unusual and possibly exceptional factual circumstances to justify such a ruling..."
- I agree. It has to be borne in mind that the issue for the Council in this instance was whether a public inquiry should be held into a set of orders which were simply experimental and temporary in effect, designed to enable the measures to be appraised in practice, and which would give rise in any event to an objection procedure, if permanaent orders should follows which would involve a further decision as to whether a public inquiry is justified in order to deal with those objections.
- I also agree with paragraph 26 of the judgment of Green J in AA, where he said:
"Before turning to consider the individual grounds of challenge I should set out some observations about the test to be applied in this case. Mr Comyn categorised it as a traditional 'Wednesbury' challenge. However, this nowadays does not readily capture the essential task confronting any judge. It is now to be treated as trite that the margin of appreciation which a decision maker has is heavily fact and context dependent: see for a summary of some of the leading case law on this per Lord Mance JSC in Kennedy v The Charity Commission  UKSC 20 (26 March 2014) paragraphs -. In the present case the following considerations apply. First, as with planning cases, it is important not to read officers reports with an overly strict eye and it is necessary to consider them in the round setting aside drafting infelicities and errors unless they are material and likely to lead to unfairness. Secondly, in a case such as the present a wide margin of discretion must be accorded to the decision makers who are possessed of local, specialist, knowledge that the court does not have and which the court should hence be loathe to second-guess. Thirdly, this wide margin will extend to such (non exhaustive) matters as the modus operandi of the consultation exercise, the weighing of the pros and cons of the proposed scheme, and the extent to which they consider it necessary to investigate particular issues in greater or lesser depth and detail."
- In my judgment, it is quite impossible in this case to say that the exercise of discretion here was irrational. Eventually, Mr Wragg submitted that the explanation in paragraphs 25 to 27 of Mr Valavan's first witness statement as to why it was decided not to hold an inquiry did not go far enough in three respects:
(i) The issues here are said to be complex (see Carnwath J, as he then was, in UK Waste Management v West Lancashire DC  RTR 201, 211);
(ii) Information before the Council was inadequate;
(iii) An inquiry would have assisted consideration of the "reasonable access" factor in section 122 of the RTRA.
- The suggestion that these points amount to errors of law on the part of the Council is misconceived. Plainly, the Council considered that it had sufficient information to enable it to make experimental orders. No real attempt was made to show that that judgment was irrational, which is the relevant test for the court to apply (see for example R (Barr) v North Somerset Council  EWHC 1735 (Admin) at paragraphs 39 to 40). The mere fact that the Council's proposals have given rise to controversy does not mean that the issue should be taken to be complex, so that the judgment not to hold an inquiry should be treated as irrational.
- The various witness statements relied upon by the Claimant from local residents and local businesses express differences of opinion on the merits and the demerits of the scheme, but they do not demonstrate anything which begins to approach complexity in this type of subject matter.
- In any event, the submission fails to grapple with the fundamental point that the orders are experimental in nature and will themselves enable more information to be gathered by putting the measures into effect for a temporary period. The Council's exercise of discretion in this case cannot be faulted as a matter of law, and ground 2 must be rejected.
- It is submitted that the measures contained in the ETOs are unnecessary and/or will not meet the Council's objectives. Paragraphs 50 to 53 of the Claimant's skeleton demonstrate that the Claimant is simply seeking to argue in the High Court matters which go to the technical merits of the orders and not that the orders are vitiated by legal invalidity or breach of a relevant legal requirement.
- If I may say so, the absurd nature of the points made is illustrated, for example, by paragraph 53 of the Claimant's skeleton. It is said that it is irrational to close residential streets to vehicular traffic in order to improve safety, when the capacity of these roads is not a significant issue according to the Council, relying on a letter from the Metropolitan Police. That letter did not in fact raise the point being made by the Claimant; it raised other concerns, but even then acknowledged that the Council was entitled to disagree with the author. In any event, the Council's documentation clearly explained why vehicle speed should be reduced to improve safety, and why rat-running should be discouraged to improve the environment of the village and to produce safer conditions for pedestrians and cyclists. It is impossible to say that the Council's approach is flawed in logic, or that as a matter of law their views are irrational.
- Mr Wragg accepted that the complaint under ground 3 with regard to air quality issues should be dealt with under ground 5.
- Paragraph 37 of the Claimant's second witness statement criticises the technical data relied upon in appendix B to the report to the Cabinet on 10 February 2015 as being "very selective and patchy". She relies upon a more detailed analysis carried out by Dr Brown, a local resident and expert in applied statistics and mathematics. This complaint is to do with gaps in data, such as gaps in the recording of passing vehicles by traffic-counting equipment. The Council's highway engineer has said that these gaps in data have been filled by interpolation and by drawing upon information from other schemes.
- Differences of opinion on matters of this kind between Dr Brown, who, with respect, is not a highway engineer, and the Council are not proper matters to be raised in a public law challenge. The Claimant would have to establish that the Council has acted irrationally, and the hurdle to be surmounted in this area is "particularly daunting", not least because of the margin of appreciation to be afforded to the decision maker (see Sullivan J, as he then was, in R (Newsmith Stainless Ltd) v Secretary of State  EWHC 74 (Admin) at paragraphs 6 to 8; Cranston J in R (Bishop's Stortford Civic Federation) v East Hertfordshire District Council  PTSR 1035 at paragraph 40; Green J in AA & Sons Ltd (supra) at paragraph 26.) I reject ground 4 of the challenge.
Ground 5: Section 122 of the Road Traffic Regulation Act 1984
- Section 122(1) provides:
"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..."
- By subsection (2), the matters referred to in subsection (1) include:
"(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected ...;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(d) any other matters appearing to ... the local authority ... to be relevant."
- As to subparagraph (bb), it emerged that the Claimant does not rely upon the National Air Quality Strategy as such, but rather upon one part only of the Council's Air Quality Action Plan which has been prepared under the Environment Act 1995 because, in October 2001, the whole of the Borough of Waltham Forest was designated as an Air Quality Management Area.
- The first complaint is that section 122 was not mentioned in the report to Cabinet on 10 February 2015. Once again, this is a complaint which relates to a decision which has not been challenged. Putting that point to one side, I respectfully agree with Jeremy Baker J in paragraphs 44 and 45 of Trail Riders Fellowship v Devon County Council  EWHC 2104 (Admin), where he held, firstly, that a decision maker with specialist expertise can be taken to be aware of its statutory powers and duties; and, secondly, it is sufficient that the relevant duty is satisfied as a matter of substance, whether expressly or by implication.
- In summary, Mr Wragg submitted:
(i) It was necessary for the authority to address "the desirability of securing and maintaining reasonable access to premises" within Walthamstow Village, and in order to do so (per Carnwath J in UK Waste Management  RTR 209) they had to ask themselves what "reasonable access" entailed. The Council failed to do that;
(ii) The Council failed to address the displacement of traffic from streets in the Village to Lea Bridge Road and Hoe Street, thereby causing more congestion and increasing pollution on those roads, in breach of policy WPM9 of the Council's Air Quality Action Plan;
(iii) The Council failed to address that same increase in traffic on those two roads in terms of its duty under section 16 of the Traffic Management Act 2014, namely to manage their road network so far as may be reasonably practicable having regard to other obligations, policies and objectives, "securing the expeditious movement of traffic on the authority's road network...";
(iv) The Council failed to have regard to its Local Implementation Plan prepared under section 145 of the Greater London Authority Act 1999;
(v) The Council failed to address these matters in the statement of reasons which it was required to deposit under paragraph 2(d) of schedule 2 to the 1996 Regulations.
- Mr Wragg accepted that the effect of the passages in the Local Implementation Plan upon which he relied did not result in point (iv) adding anything of substance to the other submissions, and so I will not prolong this judgment by dealing specifically with that document.
- I begin with point (v). Mr Wragg sought to base this upon an observation of Sir Christopher Bellamy QC (sitting as a deputy High Court judge) in R (LPC Group Plc) v Leicester City Council  EWHC 2485 (Admin) at paragraph 61. In fact, the judge stated that the question of whether the Council took into account relevant considerations should be "ascertained primarily", not exclusively, from the document deposited under paragraph 2(d) of schedule 2 to the 1996 Regulations, without explaining why, either in that case or more generally, that should be the primary source. It is to be noted that the Claimant in that case did not make any objection to the order (see paragraph 18), and so the Council had never become under an obligation under regulation 17(3) to give reasons for its decision on objections made to the order (at least so far as the Claimant in that case was concerned).
- By contrast, the Trail Riders case did involve an objection which engaged the duty to give reasons for the Council's decision under regulation 17(3) (see paragraph 34). Jeremy Baker J expressed the view that the court would take into account the history of the matter when considering whether the authority had made an error of law in relation to section 122, which history included (but was not limited to) the statement under paragraph 2(d) of schedule 2 to the 1996 Regulations (see paragraphs 41 and 49 of his judgment). I respectfully agree with that approach. The mere fact that in this case the objection process triggered by the making of the ETOs has not yet been concluded could not provide a sound justification for taking a more restrictive approach than that which was adopted in the Trail Riders case.
- It was in the context of a decision under regulation 17(3) that Jeremy Baker J referred (at paragraph 40) to the requirements of the duty to give reasons for a decision which resolves issues raised by an objector on the merits of an order (referring to South Buckinghamshire District Council v Porter (No 2)  1 WLR 1953 at paragraph 33).
- Although the matter has not been argued, I would doubt whether the legal requirements of a duty to give reasons when deciding an appeal, or when deciding whether to accede to an objection under regulation 17(3), are relevant to the duty which arises at the earlier stage under schedule 2 to set out reasons why the authority proposes to make an ETO.
- Mr Wragg referred to the passage at paragraph 19 of the judgment given in Sarah Jane Williams v Devon County Council  EWHC 568 (Admin), which applied the well-known statement by Lord Brown in South Buckinghamshire District Council on the scope of the requirement of the duty to give reasons to a challenge to the adequacy of a statement issued under paragraph 2(d) of schedule 2 to the 1996 Regulations. However, the reasoning in that case does not appear to have recognised that the Trail Riders decision upon which the judge's view was based had been concerned instead with reasons given under regulation 17(3). In so far as the Sarah Jane Williams decision suggested that the principles in South Buckinghamshire District Council apply to a statement under paragraph 2(d) of schedule 2 to the RTRA, I would not be inclined to follow it.
- A statement under paragraph 2(d) of schedule 2 forms part of a package of notices and documents required to be placed on deposit so as to publicise the intention to make an order under the RTRA, the measures proposed and the reasons for taking those measures. The object is to enable the public to understand the nature of the proposals so that they may consider whether they wish to object to the order and, if so, on what grounds. The 1996 Regulations do not suggest that the statement under paragraph 2(d) of schedule 2 is required to give detailed reasons or to address every relevant consideration which has been taken into account.
- At paragraphs 51 to 54 of AA & Sons (supra), Green J followed the approach taken by Maurice Kay J in Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council (19 April 2000) in endorsing the adequacy of reasons which were very much briefer than those given in the present case. At paragraph 54 of his judgment, Green J stated:
"... there was no requirement to go further than provide a concise summary statement of the reasons for the adoption of the permanent TROs."
- In AA & Sons, Green J posed the question at paragraph 41 whether the authority in that case had addressed the relevant issues under section 122, having regard to the entire process of consultation, reporting to Cabinet and decision making. Indeed, read properly, it is plain that that was also the approach taken by the court in the Sarah Jane Williams case.
- In my judgment, the statement of reasons under schedule 2 paragraph 2(d) in this case was legally adequate. But in any event, even in a case where the authority fails to provide an adequate statement of reasons under that provision, a Claimant would need to establish that he or she had suffered "substantial prejudice" by virtue of the breach of that "relevant requirement" (see paragraphs 34(2), 35 and 36(1)(b) of schedule 9 to RTRA). The Claimant and the group to which she belongs have not persuaded me that, although the statement of reasons plainly summarised the requirements of section 122, the absence of text in that document to explain how that provision had been applied in this case resulted in substantial prejudice.
- The main concerns expressed in this claim, and also in the supporting witness statements, have related to the road closures brought about by the ETOs and their related effects on access to premises, congestion and air pollution outside the Village. It is plain that the parties involved were fully able to make their objections and concerns on these matters known to the Council, whether by meetings or by written communications.
- The remaining issue for the court is whether, in discharging its duty under s.122 of the RTRA, the Council failed to address the particular issues identified by the Claimants under grounds 5 and 6. This aspect has been addressed by Mr Valavan in his first witness statement at paragraphs 41 to 43. He explains that he was responsible for giving effect to the requirements of section 122, and he summarises the matters which were taken into account under each of the relevant headings. In addition, he produces a document dated 12 June 2015, which gave a contemporaneous summary of the way in which section 122 was considered by the local authority to be satisfied in this case. Under the heading "The desirability of securing and maintaining reasonable access to premises", the document relied, amongst other things, upon the equality analysis for the scheme and recognised that, although the proposals would bring about positive improvements, some potential or adverse impact had been identified, and to some extent measures devised to help mitigate those impacts. So far as the effect on amenities of the locality were concerned, the document assessed the position as being that there would be a positive impact on sustainability and an encouragement to shift transport mode from car use to cycle and walking, which in turn would contribute to improving, amongst other things, air quality.
- The report to Cabinet on 10 February 2015 drew upon appendix C, which summarised the results of the public consultation exercise. The summary set out in very plain terms the degree of support or opposition to the various measures proposed in the Council's detailed scheme for Walthamstow Village, including objections about ability to gain access to the village and the resultant increase in congestion on the main roads. In addition, appendix D to the Cabinet report specifically addressed concerns raised by local businesses regarding arrangements for loading and access to their premises, including access by customers. Appendix E to the Cabinet report addressed the alternatives which had been considered by the local authority. In relation to Lea Bridge Road and Hoe Street, it was made clear that these roads do in fact have additional capacity to accept further vehicular traffic. Reference was also made to arrangements proposed for improving parts of the highway system. The document said that, by contrast, the issue for the local authority concerns the amount of traffic flowing through residential roads.
- The equality statement at appendix F to the Cabinet report goes into some detail on access arrangements for certain groups. It dealt with the position of elderly people, as regards local almshouses, care homes and Dial-a-Ride. It recorded that:
"During the engagement process concerns were raised around potential adverse impacts on access for the elderly as a result of the road closures. Within the proposals all areas are still accessible by car, except a section of Orford Road between 10 am and 10 pm although different routes may need to be taken to access them. This may require a longer distance to travel when doing so by car however all road closures will be permeable and allow for pedestrians, cyclists and mobility scooters to go through."
"In discussion with Dial-a-Ride, we have agreed that they can continue to have access to Orford Road during the restricted times to drop off and pick up in order to mitigate against limiting access for customers."
- Those passages are but an example of the careful consideration which, in my judgment, the Council gave to access issues in accordance with section 122. The Council was fully aware of the objections raised by local residents and businesses in this respect and it addressed those concerns. There are genuinely held differences of opinion on this topic but those are not matters which this court can be invited to determine in an application for statutory review.
- The last matter under ground 5 concerned air quality. Mr Valavan dealt with this subject in paragraph 44 of his first witness statement. He said:
"During the making of the traffic orders and during the scheme design as a whole significant consideration was given to air quality. Vehicular traffic is a main cause of air pollution in Waltham Forest as stated in our Air Quality Action Plan. Many of the actions listed in this plan focus on the restraints, reduction of traffic movement and the encouragement of other modes of transport. This scheme undertakes this function by creating a safer and better involvement for those walking and cycling. These elements complement the other elements of Mini Holland to increase the modal share of cycling and reduce further the reliance and modal share on less environmentally sustainable travel choices."
- The Air Quality Action Plan needs to be read as a whole and not selectively. In addition to the single policy relating to Lea Bridge Road and Hoe Street relied upon by the Claimant, Mr Alesbury, for the Council, drew the court's attention to section 5 of the plan, which sets out the actions which the Council will undertake. These actions include traffic management. Specifically the Council refers to the steps which it has taken to promote traffic management schemes in residential areas to prevent or discourage through traffic from using those streets and which it continues to promote. He also drew attention specifically to actions 15, 20 and 21 of that document. He makes the submission, which I accept, that it is obviously implicit in the plan that the actions which the Council will take, for example to reduce traffic that uses residential streets unnecessarily, so as to improve air quality in those locations will involve displacement of that traffic onto principal routes, notwithstanding that those routes themselves suffer from air quality issues. In this case it is plain that the rat-running which the Council seeks to reduce or prevent relates to vehicles which make use of Lea Bridge Road and Hoe Street in any event (see paragraph 35 above), and that a displacement of vehicles from residential streets in Walthamstow Village would force these vehicles to use some additional sections of those two routes.
- It is plain from the Council's bid document in 2013, to which I have already referred, that the local authority was fully aware of the air quality issues on these principal routes, and that it took those matters into account when devising its mini-Holland strategy, which included the reduction of vehicular traffic through the three villages by introducing road closures.
- In my judgment, the Council did have regard to its Air Quality Plan and its objectives of seeking to reduce vehicular traffic and pollution on residential streets, combined with other measures to promote modal shift, i.e. a reduction in usage of vehicles in favour of walking and cycling. The upshot is that there is no merit whatsoever in any of the points taken under grounds 5 and 6, which I also reject.
- For all these reasons, this claim is dismissed.
- MR WRAGG: Thank you, my Lord. Thank you for the detailed judgment. An application for permission to appeal will be made in respect of ground 5 only.
- MR JUSTICE HOLGATE: Can you just give me a moment, please? Thank you. (Pause). Permission to appeal but on ground 5 only.
- MR WRAGG: My Lord, yes. I wonder whether you Lordship wishes to deal with issue of costs first, or whether I should make my submissions?
- MR JUSTICE HOLGATE: I do not mind. This is a discrete issue.
- MR WRAGG: My Lord, thank you. The ground is essentially that the Defendant did not comply with the section 122 balancing exercise. My Lord, we rely on the decision of His Honour Judge Cotter QC in Williams v Devon, which is set out at page 228 of the authorities. At paragraph 124 of that judgment, His Honour Judge Cotter stated that:
"In my Judgment the jurisprudence in relation to section 122 highlights the need for an authority to specifically set out its analysis of section 122 considerations in reaching any decision upon any complicated question."
- My Lord, we do say that this was a complicated question, and we also say that the analysis was not set out sufficiently. In Wilson, Judge Behrens stated that --
- MR JUSTICE HOLGATE: Just give me a moment. This is in relation to the air quality issue?
- MR WRAGG: My Lord, this is the section 122 exercise, in respect of whether or not the Council gave adequate consideration to access to the premises and also air quality.
- MR JUSTICE HOLGATE: Thank you.
- MR WRAGG: And also in respect of the Local Implementation Plan.
- MR JUSTICE HOLGATE: Yes, but during argument you conceded that the Local Implementation Plan did not add anything, so let us not go behind that. So air quality and access.
- MR WRAGG: And the network management duty.
- MR JUSTICE HOLGATE: Well, again, you conceded that that did not raise anything additional that was not embraced by the first two points.
- MR WRAGG: I said that it did not raise anything in addition to ground 5. Ground 6 did not raise anything in addition, but it was under paragraph (d), any other matters.
- My Lord, in Wilson, Judge Behrens stated that the degree of balancing is not enough. That is quoted in Wilson at paragraph 113.
- MR JUSTICE HOLGATE: This is not actually an authority you have cited. You just rely upon the citation of that passage in Williams, is that right?
- MR WRAGG: My Lord, yes.
- MR JUSTICE HOLGATE: So 113. Yes, well that was the conclusion he reached on the facts of that case.
- MR WRAGG: My Lord, yes, but in this case the Claimant submits that there was a degree of balancing, and on the facts of this case we say that that was not enough either. I will not tire the court with referring back to Lord Brown in the South Bucks case, but the reasons must be intelligible and they must be adequate.
- My Lord, what we say is that, although there was a degree of balancing, essentially what the Defendant did was just cite a list of factors set out in section 122A. What the Defendant did not go on to do is to demonstrate how the different factors related to each other and how different aspects of the scheme were supposed to promote one aspect and how different considerations had been taken into account balanced against one another. There was not a real balancing exercise, rather just a stating of the various factors.
- Finally, my Lord, in respect of this point, the Claimant accepts that it would be permissible to look at contemporaneous evidence, and that would have included the statements of reasons or any contemporaneous report. But we do not accept, my Lord, that the court should have had regard to the witness statements of Mr Valavan. That is set out by Sir Christopher Bellamy QC in the Leicester case referred to by my Lord. That is set out in paragraphs 73 and 75.
- MR JUSTICE HOLGATE: Where are you taking me to, please, now?
- MR WRAGG: My Lord, this is the judgment of Sir Christopher Bellamy QC in R v Leicester.
- MR JUSTICE HOLGATE: Yes. It was not actually an authority you cited, was it? I had to go and find it myself.
- MR WRAGG: No, and I apologise my Lord.
- MR JUSTICE HOLGATE: And it is not actually a point you made during argument by reference to these paragraphs.
- MR WRAGG: No.
- MR JUSTICE HOLGATE: Well, let us look at it now, then. Paragraphs 73 and 75.
- MR WRAGG: My Lord yes.
"It is true that in her two witness statements Miss Russon indicates various matters which, she says, she took into account: see notably, paragraphs 25 to 35 of the statement of 25 July 2002 and paragraphs 10 and 11 of the statement of 21 August 2002. However, it is well recognised that in the normal course of events the reasons for a decision must come from the decision itself: see R v Westminster City Council, Ex parte Ermakov  2 All ER 302. Although, depending on the circumstances, there may be a degree of latitude where evidence is proffered to elucidate, correct or add to the reasons appearing from the contemporary record, the court on judicial review is normally cautious about doing so."
In that case, the court went on to state at paragraph 75:
"Miss Russon in her second witness statement of 21 August 2002 asserts at paragraph 10 that the provision of adequate parking facilities and the desirability of maintaining access to premises were, in fact, taken into account. As a matter of law, however, in my judgment, having regard to the Ermakov principle, this court should base itself on the contemporary material that was before the decision maker rather than on the later witness statements of Miss Russon, not least because neither the court nor the Claimant has any objective means of verifying what considerations were taken into account by the decision maker at the time, other than the contemporary documents."
- My Lord, I do agree that the Defendant should not be obliged to (Inaudible) section 122 reasoning in the notice of reasons.
- MR JUSTICE HOLGATE I note that you say that now. That is not a point that you conceded during argument, which is why I had to spend some time addressing that in my judgment, because you were relying upon another part of Sir Christopher Bellamy's judgment in order to suggest that all of the s.122 reasoning should be in the "paragraph 2(d) of schedule 2 statement". So now you are shifting your position on behalf of the Claimant, as I understand it, so as to say it does not have to be all in that document, but it must in contemporaneous documents. Is that right?
- MR WRAGG: My Lord, I have done what my Lordship has done, I have gone back to the earlier judgment --
- MR JUSTICE HOLGATE: Could you answer my question, please?
- MR WRAGG: Having considered the judgment, I agree, with the greatest respect, with the judge in that case that the reasoning need not be set out in the section (Inaudible). My Lord, I do agree. That is having reviewed the authority.
- MR JUSTICE HOLGATE: But so that I understand your position accurately, you say it should be either in that document or in contemporaneous documents?
- MR WRAGG: My Lord, yes.
- MR JUSTICE HOLGATE: Rather than referring to a subsequent witness statement. Is that the point you are making, please?
- MR WRAGG: My Lord, the point I am making is it should be in contemporaneous documentation. What was really needed in a case of this sort, where the issues were so complex --
- MR JUSTICE HOLGATE: Forgive me, can we not cut through this? This submission started with your objecting to the reliance upon the witness statements.
- MR WRAGG: My Lord, yes.
- MR JUSTICE HOLGATE: So I think I have accurately summarised your submission.
- MR WRAGG: My Lord, my submission is there should have been a report, but Mr Valavan should have --
- MR JUSTICE HOLGATE: Sorry, I am afraid I am going to have to interrupt. Are you maintaining the point that, in the light of these authorities, no regard should have been had to the witness statements in so far as they went beyond the contemporaneous documents? Because that is the submission which I think we have all noted you started off with. Are you pursuing that, or are you abandoning it?
- MR WRAGG: My Lord, I am pursuing the (Inaudible).
- MR JUSTICE HOLGATE: Right. So I did summarise your position accurately.
- MR WRAGG: My Lord, yes. Based on paragraph 75, the court should not have had regard to the witness statements of Mr Valavan in respect of his section 122 reasoning.
- MR JUSTICE HOLGATE: I think it would be fair to say, bearing in mind the position of the Defendant listening to this, that I do not think you have actually identified which parts of the witness statement I should disregard, have you?
- MR WRAGG: My Lord, it is the witness statements which deal with the section 122 balancing.
- MR JUSTICE HOLGATE: Do you understand my question?
- MR WRAGG: My Lord, I do. I have not identified the parts of the witness statements I have --
- MR JUSTICE HOLGATE: Because this is a new point. I have got it. Is there anything else you want to advance as a possible ground of appeal?
- MR WRAGG: My Lord, no.
- MR JUSTICE HOLGATE: Okay.
- I am going to refuse permission to appeal. The application is confined to ground 5, but the way in which the application is made shows the unfortunate tendency in this case for the Claimant's argument to shift. It is now, for example, being suggested for the first time that the court should not have had regard to witness statements relying upon two passages in the judgment of Sir Christopher Bellamy in R (LPC Group Plc) v Leicester City Council, passages which were not, in fact, cited by the Claimant during the course of the hearing. I should also add that, if there is any force in the submission, the passages which would be the subject of this complaint have not even been identified.
- The witness statements which were relied upon by the Council of Mr Valavan served to summarise and cross-refer to contemporaneous documentation. As I understand the Claimant's current position, it is now accepted that the legality of the Council's approach to section 122 can properly be assessed by the court by reference to contemporaneous documentation and not merely, as they maintained in argument, the statement under paragraph 2(d) of schedule 2 to the 1996 Regulations. That represents a second shift in the Claimant's position.
- I see no realistic prospect of success in relation to either of those two matters. Nor do I see any realistic prospect of success in relation to the earlier submissions made in support of this application for permission to appeal, namely the applicability of the South Buckinghamshire District Council case, for the reasons I have set out in the judgment. It is suggested lastly that, as regards air quality and access issues, that this was, to use the language of Mr Wragg on behalf of the Claimant, a "complicated case". In my judgment, there was nothing particularly complicated, or indeed complicated at all, about these issues. Therefore, the Council is not to be criticised in the way suggested. I see no realistic prospect of success in relation to that matter either.
- I would just simply add this: that if the Claimant is minded to pursue an application for permission to appeal to the Court of Appeal, then it would be most advisable for the Claimant to clearly think through and formulate the points clearly which are indeed sought to be pursued.
- MR WRAGG: My Lord, thank you.
- MR ALESBURY: My Lord, I am obliged. My Lord, it will not surprise you that, on behalf of the Council, I seek to make an application for an award of costs against the Claimant here. Your Lordship is, I think, aware that a protective costs order was made, which the Council instructing me decided not to appeal against in relation to these proceedings before your Lordship, limiting a claim of costs to £10,000 plus VAT.
- The position, my Lord, is as your Lordship as it happens already noted when we were here the day before yesterday: that the Defendant's costs schedule is considerably in excess of that.
- MR JUSTICE HOLGATE: So what you are asking for is?
- MR ALESBURY: So what I am asking for is the order for costs according to the protective costs order of £10,000 plus VAT.
- MR JUSTICE HOLGATE: Is that opposed?
- MR WRAGG: My Lord, no. It is usually 14 days, but I would ask for 28 days in this case.
- MR JUSTICE HOLGATE: Do you object to that?
- MR ALESBURY: We do not object to that. Might I just say, my Lord, in court that it should not be assumed that this authority will adopt a similar approach of not resisting firmly a similar application were this matter to be pursued any further in the light of your Lordship's judgment. I think that is just, as it were, for me to say rather than for your Lordship to pronounce on.
- MR JUSTICE HOLGATE: The order of the court, then, is the claim is dismissed; there be an order that the Claimant pay the Defendant's costs, assessed in the sum of £10,000 plus VAT, which I think makes £12,000.
- MR ALESBURY: I think it does, my Lord.
- MR JUSTICE HOLGATE: That is to be paid in 28 days.
- MR ALESBURY: I am obliged.