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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> United Trade Action Group Ltd & Anor, R (On the Application Of) v Transport for London & Anor [2021] EWHC 72 (Admin) (20 January 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/72.html Cite as: [2021] EWHC 72 (Admin) |
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Neutral Citation Number: [2021] EWHC 72 (Admin)
Case No: CO/2854/2020 & CO/2995/2020
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 20 January 2021
Before :
MRS JUSTICE LANG DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
CO/2854/2020
|
THE QUEEN
on the application of
(1) UNITED TRADE ACTION GROUP LIMITED (2) LICENSED TAXI DRIVERS ASSOCIATION LIMITED |
Claimants |
|
- and - |
|
|
(1) TRANSPORT FOR LONDON (2) MAYOR OF LONDON |
Defendants |
CO/2995/2020
|
THE QUEEN
on the application of
(1) UNITED TRADE ACTION GROUP LIMITED (2) LICENSED TAXI DRIVERS ASSOCIATION LIMITED |
Claimants |
|
- and - |
|
|
TRANSPORT FOR LONDON |
Defendant |
David Matthias QC and Charles Streeten (instructed by Chiltern Law) for the Claimants
Ben Jaffey QC and Celia Rooney (instructed by the Public and Regulatory Law Team, Transport for London) for the Defendants
Hearing dates: 25 & 26 November 2020
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Mrs Justice Lang:
3. The Second Defendant (“the Mayor”) is the directly elected Mayor of London, and exercises powers and duties under the Greater London Authority Act 1999 (“GLAA 1999”). The First Defendant (“TfL”) is a statutory body established by the GLAA 1999, which has responsibility for transport in Greater London.
Grounds for judicial review
10. The Claimants’ grounds may be summarised as follows
i) Ground 1: In making and promulgating the Plan and Guidance and the A10 Order, the Mayor and TfL failed to distinguish taxis from “general traffic”. In doing so, they failed to have regard to relevant considerations, namely:
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.
c) in respect of the A10 Order only, the network management duty under section 16 Traffic Management Act 2004 (“TMA 2004”);
d) in respect of the A10 Order only, the extent to which the objective of facilitating space for pedestrians could still be achieved by permitting taxis (but not other forms of motorised traffic), to drive through the bus gates on Bishopsgate.
ii) Ground 2: In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010 (“the 2010 Act”).
iii) Ground 3: The Plan, the Guidance and the A10 Order were a disproportionate interference, by “control of use”, with the property rights of taxi owners and drivers in breach of Article 1 of Protocol 1 to the European Convention on Human Rights (“A1P1”).
iv) Ground 4: The Plan and Guidance and the A10 Order breach the Claimants’ legitimate expectation to pass and repass on London’s roads, and to use lanes reserved for buses.
v) Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order is irrational.
11. The Defendants’ response to the Claimants’ grounds may be summarised as follows.
Facts
19. On 18 March 2020, schools were closed to the majority of pupils.
i) Underground travel was 34% of normal demand;
ii) Bus journeys were 57% of normal demand;
iii) Traffic (all types) on main strategic routes throughout Greater London was 91% of normal demand. Breaking that figure down by area:
a) Traffic counts in central London were 79% of normal demand;
b) Traffic counts in inner London were 92% of normal demand;
c) Traffic counts in outer London were 94% of normal demand.
iv) Rail passengers recorded entering and exiting different station types were as follows:
a) Airport: 16% of normal demand.
b) City: 22% of normal demand.
c) Inner suburb: 40% of normal demand.
d) Outer suburb: 45% of normal demand.
e) Shopping: 36% of normal demand.
f) Terminus: 28% of normal demand.
g) Tourist: 25% of normal demand.
The Streetspace Plan and Guidance
“Mayor’s bold new Streetspace plan will overhaul London’s streets
06 May 2020
The Mayor of London, Sadiq Khan, and TfL have today unveiled their ‘London Streetspace’ programme which will rapidly transform London’s streets to accommodate a possible ten-fold increase in cycling and five-fold increase in walking when lockdown restrictions are eased.
With London’s public transport capacity potentially running at a fifth of pre-crisis levels, millions of journeys a day will need to be made by other means. If people switch only a fraction of these journeys to cars, London risks grinding to a halt, air quality will worsen, and road danger will increase.
To prevent this happening, TfL will rapidly repurpose London’s streets to serve this unprecedented demand for walking and cycling in a major new strategic shift.
……
TfL, working with London’s boroughs will make changes - unparalleled in a city London’s size - to focus on three key areas:
The rapid construction of a strategic cycling network, using temporary materials, including new routes aimed at reducing crowding on Underground and train lines, and on busy bus corridors.
A complete transformation of local town centres to enable local journeys to be safely walked and cycled where possible. Wider footways on high streets will facilitate a local economic recovery, with people having space to queue for shops as well as enough space for others to safely walk past while socially distancing.
Reducing traffic on residential streets, creating low-traffic neighbourhoods right across London to enable more people to walk and cycle as part of their daily routine, as has happened during lockdown.
…..
The temporary schemes will be reviewed by TfL - and could become permanent.”
The statement made no mention of taxis.
“When the country gets back to work, we need them to carry on cycling and to be joined by millions more. With public transport reduced, the roads in our largest cities, in particular, may not be able to cope without it.
We also know that in the new world, pedestrians will need more space. Indications are that there is a significant link between COVID-19 recovery and fitness. Active travel can help us become more resilient.
That is why towns and cities in the UK and around the world are making or proposing radical changes to their roads to accommodate active travel.
We recognise this moment for what it is: a once in a generation opportunity to deliver a lasting transformation in how we make short journeys in our towns and cities….
….”
“The Mayor of London, Sadiq Khan, and Transport for London (TfL) have today announced plans to transform parts of central London into one of the largest car-free zones in any capital city in the world. This is necessary to enable safe social distancing on public transport in London as lockdown restrictions are eased, and will help support increased walking and cycling and improve the city’s air quality.
…..
The plans will create more space for social distancing when walking and cycling, ensuring that the people who have no choice but to return to work in central London can do so as safely as possible.
Some streets will be converted to walking and cycling only, with others restricted to all traffic apart from buses, as part of the Mayor’s latest bold Streetspace measures. Streets between London Bridge and Shoreditch, Euston and Waterloo and Old Street and Holborn may be limited to buses, pedestrians and cyclists to help boost safe and sustainable travel as our city starts to gradually emerge from national Covid-19 restrictions. Access for emergency services and disabled people will be maintained, but deliveries on some streets may need to be made outside of congestion charging hours.”
Waterloo Bridge and London Bridge may be restricted to people walking, cycling and buses only, with pavements widened to enable people to safely travel between busy railway stations and their workplaces. TfL is looking into providing Zero Emission Capable taxis with access to both these bridges, and other areas where traffic is restricted.
…..
As a temporary measure and to support the transformation of London’s streets, it is proposed that the Congestion Charge will increase to £15 next month and the hours of operation extended as part of a package of temporary changes. These changes will be monitored and form part of a wider review of the Congestion Charge as agreed with the Government as part of the TfL funding deal. Proposals include increasing the Congestion Charge to £15 and extending its hours of operation to 7am to 10pm, seven days a week, from 22 June. This would encourage Londoners not to make unnecessary car journeys, and is expected to reduce journeys within the Congestion Charge zone by a third. This would significantly reduce air pollution in central London compared to pre-Covid levels and help tackle the climate emergency.”
There was no mention of taxis in the statement.
39. The Guidance described the Plan in the following terms:
“The Mayor’s Streetspace plan will transform London’s streets, by:
Providing temporary cycle routes to extend the strategic cycle network, with London’s main roads repurposed for temporary cycle lanes and wider footways so that people can safely socially distance.
Providing additional space for people walking and cycling in town centres and at transport hubs, including widening of footways on local high streets to enable people to queue safely for shops which will help facilitate local economic recovery.
Accelerating delivery of low traffic neighbourhoods and school streets by working with boroughs to reduce through traffic on residential streets, to further enable more people to walk and cycle safely as part of their daily routine.”
40. The Guidance described the “background” to the Plan as follows:
“As lockdown lifts, demand for travel will increase. This is likely to be phased and incremental and will pose a series of challenges:
· TfL will need to run public transport at much lower levels of capacity than pre-COVID-19 in order to continue to provide space for social distancing
· Travel by car is likely to become more attractive (initially when congestion levels are low, but this may continue if people are anxious about using public transport)
· A car-based recovery has significant risks to:
o safety (and meeting our Vision Zero aim);
o public health (COVID-19 related, physical activity, poor air quality, etc.);
o the environment (due to increased carbon emissions); and
o contradicting the Mayor’s Transport Strategy.
We therefore need to urgently reconsider use of street space to provide safe and appealing spaces to walk and cycle as an alternative to car use in the context of reduced capacity on the public transport network. Suppressing motorised traffic while allowing essential journeys to take place is key to ensuring we manage our road and public transport network to maximise our ability to keep people moving safely.”
41. The Guidance identified the following benefits to the Plan:
“Realising London’s COVID-19 recovery ambitions will have a range of benefits for London and Londoners:
· Restored confidence in public transport, by providing sufficient space for social distancing, prioritising use for the groups who need to travel (e.g. key workers who cannot work from home) and those who are unable to travel by alternative modes (e.g. those with reduced mobility)
· Economic regeneration of local high streets and town centres, by supporting Londoners to shop locally …
· Improved health and wellbeing, by enabling all Londoners to achieve the 20 minutes of walking or cycling each day recommended for good health and wellbeing (which will reduce risks of diabetes and heart disease, both of which are risk factors for severe COVID-19 disease) as well as by reducing exposure to air pollution (which is also thought to be associated with increased deaths from COVID-19)
· Opportunity for Londoners to experience the benefits of reduced car use ….
Locking in this behaviour change and associated benefits in the short-term ‘restart’ phase will set us up in the right way for he more significant strategic policies that may be needed in the longer term ‘recovery’ phase, in response to a range of future scenarios.”
46. There was no mention of taxis in the Guidance.
Schemes associated with the Plan and Guidance
i) 86 km of Transport for London Road Network bus lanes changed to “at all times” operation. Those bus lanes (save for a small number of exceptions) permit taxis.
ii) 89 km of new cycle routes (of which 66 km are on borough roads).
iii) 2 traffic schemes in central London (the A10 Order and London Bridge). The London Bridge scheme permits taxis at all times.
iv) 88 Low Traffic Neighbourhoods.
v) 322 School Streets.
vi) 181 social distancing schemes.
The A10 Order
“As picked up in work done in outcome planning and definition the thinking is that taxis would need to be covered by the restricted access.”
63. Mr Monck said, at paragraph 91 of his first witness statement:
“In respect of the Bishopsgate corridor, I considered with my colleagues whether or not taxis could be excluded from the restrictions, so as to permit them to use the bus lanes on the corridor (these discussions are partially recorded in the TfL Design Log: [SM1/13] [40/1396]). However, as the contemporaneous documents show, extensive modelling was conducted in respect of the Bishopgate corridor for the previous work in December 2019. The modelling indicated that over 40% of traffic on the Bishopsgate corridor was made up of taxis: [SM1/9] [40/1353]. The design team were aware of this work and noted the potential impact of such high numbers of vehicles negatively affecting the outcomes of the project: [SM1/13] [40/1396]. In those circumstances, my view and that of my colleagues was that it was not possible to achieve the aims of the Streetspace Guidance, and the A10 Order specifically, while continuing to allow taxis to use the bus lanes on the Bishopsgate corridor. The contrary views of the taxi trade and TfL’s response to those concerns are set out in the decision documents.”
64. The A10 Bishopsgate proposal was considered by TfL’s Road Space Performance Group at two meetings, on 3 June [1] and 11 June 2020, along with many other proposals.
“Create bus/walk/cycle only corridor in line with Mayoral direction to create wider car-free zone in Central London.”
Taxis were referenced only in the context of making access arrangements. The proposal was approved.
66. At the meeting on 11 June 2020, the results of the assessment undertaken by Mr Monck and his colleagues were given in a power point presentation titled “Central London The Challenge of balancing social distancing measures with essential traffic and TPH [2] services”. The assessment was limited to taxi routes to and from the taxi ranks at four main stations: Waterloo, Kings Cross/St Pancras, London Bridge and Liverpool Street.
“The Streetspace programme presents a challenge in achieving a balance between providing more space for people walking and cycling, and access to essential traffic
…..
Some traffic is essential in central London: freight, servicing, emergency services, construction
Taxi, private hire and private cars enable mobility for those unable to use active modes [3] or PT [4]
TfL is now looking at the emerging Streetspace proposals in order to ensure we retain a viable network for essential traffic, and that access to premises is enabled at certain times of day.
The focus of this deck will be [to] consider impacts on taxi and private hire services.”
69. The “TPH Context” was described as follows:
“- There is a need to restrict traffic in central London in order to achieve social distancing and cycling objectives.
- Taxis make up a very high proportion of the flow on some routes (including Bishopsgate)
- Traffic modelling suggests that if taxis aren’t restricted, they may take up any road space created by restricting other traffic
- Current feedback from the Trade includes a preference for full access for all TPH and potential options for fixed fares to mitigate impact to passengers
- We are proposing to engage with the taxi trade in order to explore ways of ensuing that there is sufficient access for the trade whilst achieving the objectives of a sustainable recovery.”
70. Under the heading “ZEC [5] taxis”, it was noted that there were around 4,000 ZEC taxis out of a fleet of 22,000 but taxi emission targets were being missed. TfL had introduced payments of “up to £10K” to delicense older diesel taxis and reduced taxi age limits to 12 years by 2022. It suggested that managing taxi access to road within the new car free zones by restricting access to ZEC taxis could incentivise take up of ZECs and improve air quality. But this suggestion was not adopted.
“Taxis leaving the rank on Liverpool St will only be able to turn right and the left turn exception to taxis that exists now will no longer apply. … Northbound access to Liverpool St will remain unchanged, however taxis travelling southbound will not be able to travel beyond Liverpool St on Bishopsgate as a result of the bus gate - these taxis will have to U-turn if they are dropping passengers off at this location.”
“Design/Decision Assumption. Black cabs not exempted from bus gate restrictions.
Reason. The Design Brief stated that the goal of this scheme is to limit traffic on Bishopsgate/Gracechurch Street ….creating a bus, walk and cycles only corridor. This forms part of the Mayor’s measures in Central London to create one of the largest car-free areas of any major city in the world. Information from City Planning suggested that taxis currently comprise just under 45% of the traffic flow on Bishopsgate. Modelling from City Planning forecast that corridor closures to all motorised traffic except buses and taxis would significantly increase corridor (black) taxi numbers as they take advantage of newly released capacity. To ensure lower traffic volumes taxis were therefore not exempted from bus gate restrictions.
Action. Proceed as designed and monitor.
Risk (Programme, Cost etc.). Opposition from the taxi trade may lead to legal challenges and delays”
77. On 8 July 2020, the LTDA sent a letter to TfL setting out its concerns with the A10 Order.
79. The report attached the letter of 8 July 2020 from the LTDA and commented upon it as follows:
“There is no statutory consultation required for the making of Section 14 (1) Orders in the same way that a permanent traffic order is and it is proposed that this order is made urgently on a temporary basis for purposes connected to the coronavirus, but we have taken into account the concerns raised by the LTDA, as well as the London Cab Drivers Club set out below.
TfL recognise that there are some potential negative impacts around the increased time and distance, and therefore associated cost, for some journeys, but consider that there is a clear public health imperative to reduce motor traffic to be able to reallocate road space to encourage walking and cycling and to protect limited public transport capacity in the wider Central London area as described above. This has been made clear in the engagement with both the LTDA and wider taxi trade representatives that TfL has undertaken.
TfL recognises that the taxi trade plays a role in providing access for some people with mobility issues. The design of the scheme carefully balances the need to reduce overall levels of motor traffic on the corridor to allow for the reallocation of space for the purposes set out in this report. However, through the use of bus gates and banned turns the proposal allows access by the taxi and private hire trades and the freight industry to the maximum number of properties on and adjacent to Bishopsgate and Gracechurch Street, in addition to providing access across and around the restricted area. Access to and from Liverpool Street station is maintained in the proposal. The hours of operation of the bus gates are selected both to provide benefits at key times of day and for driver comprehension in aligning with the hours of operation on adjacent City of London-managed streets. Buses are mass transit vehicles and they are the predominant road transport choice for commuters hence why they are being granted access. With overall levels of general traffic on the corridor low, and access maintained to the majority of the corridor for all vehicles who require access, it is expected that reassignment onto alternative routes will be minimal and this will be monitored.
A monitoring strategy that will help assess the overall impacts, both the extent to which the objectives of the temporary scheme are being achieved and its wider impacts, forms part of the project. A number of variables will be monitored to understand both the qualitative and quantitative impacts of the scheme. This will, to some extent, need to use certain indicators as a proxy for interpreting the impacts on taxi passengers and drivers. Feedback from the public, businesses in the City and wider stakeholders, including the taxi and freight industry, will also be sought.
….
It is considered that the project already takes into account the concerns raised by both the LTDA and the LCDC. This is reflected in the design of the proposals, and the equalities considerations pursuant to TfL’s obligations under the Equality Act 2010 as set out in the appended EqIA.”
80. The report then went on to summarise the findings of the EqIA, as follows:
“This acknowledges that there will be some impact on members of the public with certain protected characteristics arising from changes to bus stop locations, certain bus route stopping locations and localised access changes. Retaining as much access to premises along the corridor, both for freight and servicing and for taxi and private hire, has been a key principle from the outset of the design process. The locations of the bus gates have been considered to maintain as much accessibility as possible. Overall, it is felt that the positive impacts in terms of new pedestrian space and improvements to conditions for cyclists and bus users as a response to the public health imperatives warrant continuing with the scheme as designed.”
Statutory framework
Management of London’s transport
“141. General Transport duty
(1) The Mayor shall develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London.
(2) The power of the Authority under this Part shall be exercised for the purpose of securing the provision of the transport facilities and services mentioned in subsection (1) above.
(3) The transport facilities and services mentioned in subsection (1) above include facilities and services for pedestrians and are -
(a) those required to meet the needs of persons living or working in, or visiting, Greater London, and
(b) those required for the transportation of freight.”
89. The Mayor produced a Transport Strategy in 2018, which is referred to in more detail below.
91. TfL is required by section 154(3) GLAA 1999 to exercise its functions:
i) in accordance with such guidance or directions as may be issued to it by the Mayor;
ii) for the purpose of facilitating the GLA’s duty to secure the provision of transport facilities; and
iii) for the purpose of securing or implementing the Mayor’s Transport Strategy.
Traffic management
“16 The network management duty
(1) It is the duty of a local traffic authority … (“the network management 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.
(2) The action which the authority may take in performing that duty includes, in particular, any action which they consider will contribute to securing -
(a) the more efficient use of their road network; or
(b) the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic on their road network or a road network for which another authority is the traffic authority;
and may involve the exercise of any power to regulate or co-ordinate the uses made of any road (or part of a road) in the road network (whether or not the power was conferred on them in their capacity as a traffic authority).
(3) In this Part “network management duty”, in relation to a [network management] authority, means their duty under this section.”
96. A temporary TMO may be made pursuant to section 14 RTRA 1984 which provides as follows.
“14 Temporary prohibition or restriction on roads
(1) If the traffic authority for a road is satisfied that traffic on the road should be restricted or prohibited -
(a) because works are being or are proposed to be executed on or near the road; or
(b) because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works; or
(c) for the purpose of enabling the duty imposed by section 89(1)(a) or (2) of the Environmental Protection Act 1990 (litter and cleaning) to be discharged,
the authority may by order restrict or prohibit temporarily the use of that road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians, to such extent and subject to such conditions or exceptions as may consider necessary.
(2) The traffic authority for a road may at any time by notice restrict or prohibit temporarily the use of the road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians, where it appears to them that it is—
(a) necessary or expedient for the reason mentioned in paragraph (a) or the purpose mentioned in paragraph (c) of subsection (1) above; or
(b) necessary for the reason mentioned in paragraph (b) of that subsection,
that the restriction or prohibition should come into force without delay.
…..
(4) The provision that may be made by an order or notice under the foregoing provisions is -
(a) any such provision as is mentioned in section 2(1), (2) or (3) or 4(1) of this Act, or
(b) any provision restricting the speed of vehicles;
but no such order or notice shall be made or issued with respect of any road which would have the effect of preventing at any time access for pedestrians to any premises situated on or adjacent to the road or any other premises accessible for pedestrians from, and only from, the road.
…”
“(1) It shall be the duty of every strategic highways company and 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 strategic highways company or the local authority to be relevant.”
Ground 1
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments;
c) in respect of the A10 Order only, the network management duty under section 16 TMA 2004;
d) in respect of the A10 Order only, the extent to which the objective of facilitating space for pedestrians could still be achieved by permitting taxis (but not other forms of motorised traffic), to drive through the bus gates on Bishopsgate.
Legal principles
102. It is a well-established principle of public law that “a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider”: per Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, at 229.
103. In Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Lord Keith said, at 764G-H:
“It is for the courts … to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the court will not interfere unless he has acted unreasonably in the Wednesbury sense”
“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision . . . [However] there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers . . . would not be in accordance with the intention of the Act.”
105. It cannot be assumed that a failure to refer to a relevant consideration in a decision document means that it has not been taken into account, since the duty to give reasons does not require every relevant consideration to be mentioned, no matter how insignificant. (See Village Action Group v Secretary of State for Communities and Local Government [2015] EWHC 2729 (Admin), per Lang J. at [14] - [21], citing Bolton MDC v Secretary of State for the Environment (1996) 71 P & CR 309, per Lord Lloyd at 313-314 and Secretary of State for the Environment, Transport and the Regions v MJT Securities Ltd [1998] 75 P & CR 188, per Evans J at [198]).
106. A decision-maker’s own policy will generally amount to a relevant consideration, if and insofar as it is engaged. A policy should generally be followed, and a departure from a policy ought to be justified: R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, at [36].
“…. the modern approach to a departmental policy document, whether published or not, ought to be as follows:
(a)The legal principle of consistency in the exercise of public law powers (see Kruse v Johnson [1898] 2 KB 91 and de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed., paras 13-036 to 13-045) creates a presumption that in the ordinary way the Secretary of State, through his officials, will follow his own policy. This presumption corresponds with the practical purpose of such an internal policy, which is precisely to secure consistency of approach … If there is to be a departure from the policy, there must be good reason for it (British Oxygen Ltd v Minister of Technology [1971] AC 610). The impact of the departure in a case otherwise within this particular policy is almost certainly such as to demand that reasons be given (R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531.
(b)In this situation the meaning of policy cannot be a matter for the Secretary of State to decide subject only to the broad limits of rationality. Where, as is nowadays almost always the case, it is couched in ordinary English, it is not open to the Secretary of State to give it other than its plain and ordinary meaning. In the case of an unpublished policy, to do otherwise would be to invite inconsistency of application where the principal purpose is to produce consistency….
…..”
The Plan and Guidance
Legal status of taxis
112. The 1869 Act (and the London Cab Order 1934 [6] made under it (“the 1934 Order”)) remains the principal hackney carriage legislation in London.
i) Taxis are subject to “compellability”, that is to say where a taxi at a rank or having been hailed accepts a passenger, it must take the passenger anywhere that they wish to go within a prescribed distance or up to a prescribed journey time (see section 35 of the London Hackney Carriage Act 1831 and section 7 of the London Hackney Carriage Act 1853).
ii) Taxis must comply with the strict Conditions of Fitness (made pursuant to paragraphs 7 and 14 of the 1934 Order) which contain a number of standards, prescribing for instance, a turning circle of 8.535 metres, a partition separating passenger from driver, an overall length of no more than 5 metres, and a flat floor in the passenger compartment for which there are minimum height limits. For this reason, there are only a small number of particularly expensive vehicle models capable of being licensed as taxis.
iii) All taxis must be wheelchair accessible, as well as providing sight patches and induction loops to assist passengers with disabilities (see conditions 3.2, 15, and 16 of the Conditions of Fitness).
iv) Taxis must be fitted with an approved taximeter (see paragraph 35 of the 1934 Order) and are required to only charge set fares (see section 1 of the London Cab and Stage Carriage Act 1907 and paragraph 40ff of the 1934 Order).
v) Prospective taxi drivers must pass “The Knowledge” which has been a requirement since 1865. The Knowledge requires lengthy study and considerable personal investment. It is based upon knowing and being able to navigate by road the shortest route between two points. There are two types: the All London Knowledge entitles drivers to ply for hire anywhere in the Greater London Authority area, whereas the Suburban Knowledge only permits drivers to ply for hire in one of the nine sectors in the suburbs of the Greater London Authority area. The All London Knowledge involves learning approximately 25,000 streets and 30,000 landmarks and places of interest within a six-mile radius of Charing Cross plus an overview of suburban areas. Suburban drivers need to learn a similar level of detail for whichever suburban area they wish to be licensed for. On average, it takes an All London driver approximately four years to complete the Knowledge and a Suburban driver approximately two years.
vi) Taxi drivers must hold a taxi driver’s licence, valid for only 3 years. The fee is currently £300. It is granted subject to compliance with the provisions of the 1869 Act, the London Cab and Carriage Act 1907 and any orders made thereunder. An Enhanced DBS Check, at a cost of £52, is required. Taxi drivers also have to obtain an annual vehicle licence at a cost of £110.
Taxi policies
118. In Eventech Ltd v The Parking Adjudicator & Ors [2012] EWHC 1903 (Admin), which concerned a challenge by private hire vehicles to the policies operated by TfL and the London Boroughs which permitted taxis to travel along bus lanes, but not private hire vehicles. Burton J. set out the terms of TfL’s Bus Lane Policy at paragraph 13:
“13. TfL’s Bus lane Policy has been in place since before its own creation in 2000, and the TfL Public Carriage Office Taxi and Bus Lanes Policy (2007) records that the policy is to “allow for taxis in all bus lanes unless their inclusion would cause significant delay to buses or would materially worsen the safety of road users including pedestrians, and taking account of the effects on safety of excluding taxis from the bus lane”. This latter aspect relates to the fact that taxis (black cabs) can be hailed by pedestrians from the pavement - according to the 2009 survey …, 52% of taxi journeys result from passengers hailing them in the street.”
“25. Under the Bus Lane Policy, TfL ordinarily "allows taxis in all bus lanes unless their inclusion would cause significant delay to buses or would materially worsen the safety of road users including pedestrians, and taking account of the effects on safety of excluding taxis from the bus lane”. The Bus Lane Policy applies both for the purposes of driving in a bus lane and entering bus lanes to pick up and set down passengers.”
120. In Eventech, Burton J. dismissed the claim, and his decision was subsequently upheld by the Court of Appeal and the Court of Justice of the European Union. He accepted TfL’s justification for the policy, namely:
“60. …
i) There is to my mind a clear distinction between the need of black cabs (and their passengers and the public) for them to be in the bus lanes, by way of visibility and availability of, and access to, black cabs for those hailing a cruising taxi. I do not reach this conclusion simply or mainly by reference to the disabled - though there are many people who are disabled, but are not in wheelchairs, and, even on the identification of disabled with wheelchair users and accepting Mr Griffin’s premise set out in paragraph 51(iii) above, there would still be 21% of wheelchair users who may not pre-book. I am certainly not persuaded that the problem for the disabled of hailing a taxi which is not in a lane adjacent to the pavement is “vanishingly small”. In any event, from the point of view of the public generally, I consider it makes entire good sense for black cabs to be travelling in bus lanes. Minicabs just do not have the need to use the bus lane, and black cabs do.”
“1. Taxi access to bus lanes reflects the recognition in the Mayor’s transport strategy that taxis are “a vital part of London’s integrated transport network, fulfilling demands that cannot be met by the bus, train or tube”.
2. The Mayor has stated that TfL’s general policy should be to allow taxis in all bus lanes except where specific safety or bus operational issues made this impractical.
3. This policy applies for the purposes of taxis driving in bus lanes as through-routes and entering bus lanes to pick up and set down. ‘Pick up’ and ‘set down' mean that there is an intended passenger waiting at the kerbside or that an existing passenger wishes to be set down.”
“The continued use of bus lanes - a right which we have previously defended successfully in court - to support quick and convenient journeys by black cab, as well as enabling access to additional bus lanes that taxis have previously not been allowed to enter. This includes:
a. Allowing taxis to access an additional 20 bus lanes on the TfL Road Network for the first time by the end of 2016. See appendix 1
b. Writing to the London boroughs asking them to consider access for taxis to over 40 further bus lanes located on roads they control.”
124. In his Mayoral Manifesto in 2016 the Mayor had made promises in the following terms:
“As the world’s greatest city it is absolutely right that we have, and continue to have, the best and most qualified cabbies in the world. London’s black taxi drivers are highly trained and properly checked to a high safety standard, driving wheelchair accessible vehicles, with the incredible geographical recall and sense of direction that only those with The Knowledge have. With people like this at the wheel, it’s understandable that the London black cab is an icon known around the world and a source of pride for Londoners.
I will:
• Ensure that the markets for licensed taxi drivers and for private hire drivers are fair - with special privileges built in, as they always have been, for those who become a licensed London taxi driver.
• Ensure that driver safety standards are rigorously enforced across the black cab and private hire industries.
• Retain the exclusive right of licensed black taxi drivers to use bus lanes and ply for hire.”
“No, the exclusive right of licensed black taxi drivers to use bus lanes and ply for hire is not under threat. To date, TfL has given taxi drivers access to 15 additional bus lanes on its road network and will be writing to London boroughs to consider access to over 40 more on roads they control. In my Taxi and Private Hire Action Plan, published in September 2016, I committed to a number of initiatives to ensure a fair market place for our taxi and private hire trades, with special privileges built in, as they always have been, for those who become licensed London taxi drivers. This includes ensuring that taxi drivers are able to continue using bus lanes.”
126. The Mayor’s extant “Transport Strategy 2018” stated in Policy 20:
“The Mayor, through TfL and the boroughs, and working with stakeholders, will seek to ensure London has a safe, secure, accessible, world-class taxi and private hire service with opportunity for all providers to flourish.”
127. The supporting text on taxis stated:
“London’s taxis provide a reliable and trusted service to Londoners, tourists and business people from home and abroad, offering customers safety and convenience, aided by drivers’ extensive knowledge of the capital’s streets. Taxis are particularly important in central London, occupying 17 per cent of the road space on an average weekday, with a further 10 per cent occupied by Private Hire Vehicles (PHVs).
…
Taxis can expand travel horizons for those requiring safe, accessible travel options. High-quality accessible taxi ranks across the capital are vital to this. New safety, equality and regulatory knowledge assessments for PHV drivers will be introduced by TfL by 2018. As Night Tube expands, new and improved taxi ranks at stations will provide safe and accessible options for onward journeys.
Taxis also have a key role to play in tackling London’s air quality challenge. From 2018, taxi electric charging points will be provided to support the roll-out of zero emission capable taxis as outlined in the Ultra Low Emission proposals in Chapter three.
It is essential that the iconic London taxi brand is maintained and enhanced as its environment continues to change. This means continuing to monitor service standards, facilitating customer feedback, further improving the customer experience using technology (such as including taxi options in TfL’s Journey Planner), and exploring new ways to reduce the barriers to becoming a black cab driver without compromising the quality of service offered.”
129. As recently as 26 March 2020, at Mayor’s Question Time, the Mayor said:
“Under my mayoralty, taxis have been an important part of London’s transport offer. I made this clear both in my Transport Strategy and in my Taxi and Private Hire Action Plan published shortly after I was elected. I have taken a number of steps to help the taxi industry thrive. TfL has introduced mandatory card and contactless payment. I have ensured taxis can continue to access bus lanes, enabling taxi access to a further 18 lanes at key locations on its road network. TfL has also written to the boroughs requesting taxi access to bus lanes on the roads they control. I have increased the number of taxi ranks. TfL is promoting the benefits of being a London taxi driver by raising the profile of The Knowledge and TfL has opened up a further 20 bus lanes to taxis on the TfL Road Network (TLRN), meaning that taxis can now access 95% of bus lanes on the TLRN, and 93% of all bus lanes across London.”
Taxis and the disabled
133. The restrictions in the A10 Order have created difficulties and delays for taxi drivers in taking passengers to and from Liverpool Street Station: see the witness statement of Philip Hannah; second witness statement of Karen Proctor. TfL suggested during the hearing that taxi drivers carrying disabled passengers could use the disabled access to station platform 10 which is reached via Primrose Street. However, access to and from Primrose Street has been made immensely slow and difficult from the south, because of road restrictions and the bus gates [7].
136. The repeated submission by TfL in this case that disabled people can use public transport, especially buses, instead of taxis is contradicted by its own evidence in the recent case of R (Independent Workers Union of Great Britain v Mayor of London and Transport for London [2020] EWCA Civ 1046, where Christina Calderato, TfL’s Head of Transport Strategy and Planning, said:
“The difficulties faced by wheelchair users in moving around London using public transport
225 Many disabled people and those with a long-term health conditions face a number of barriers to travelling. While many issues are the same for disabled and non-disabled Londoners, some barriers relate specifically to the physical infrastructure of public transport, as well as less tangible issues such as reduced confidence in travelling independently.
226 TfL has undertaken and commissioned a large body of research to identify the barriers faced by London’s communities in accessing transport. In September 2015, the existing evidence was consolidated and summarised in a published report entitled Travel in London: Understanding Our Diverse Communities…. I draw upon the conclusions of this research in the following section of my statement.
227 In respect of the London Underground, the accessibility difficulties can be seen in the Tube map….This map highlights all stations where it is possible to travel from the platform to the street step free or to change between lines step-free. Stations where this is not possible are show in light grey on the map …..
228 Wheelchair users (approximately 2% of Londoners, circa 133,000 people) experience particular accessibility difficulties, despite TfL’s efforts and investment to make more stations accessible. Fifty eight per cent of wheelchair users say that it is impossible to use the Tube without help, and a further 21% say that it is difficult but not impossible …..
229 The bus network is more physically accessible, but TfL’s research indicates that 58% of Londoners who report that their travel is limited because they are disabled consider it either impossible to use the bus without help (23%) or difficult but not impossible to use the bus (35%). Wheelchair users experience greater difficulties, despite all buses being equipped with low flooring and wheelchair ramps. Fifty-seven per cent of wheelchair users surveyed say that it is impossible to use the bus without help, and a further 25% say that it is difficult but not impossible …..
230 These accessibility issues are longstanding and, accordingly, when the Congestion Charge Scheme was originally conceived, an exemption was proposed for taxis but not PHVs. The taxi rationale was as follows (February 2002 Report 5.2.48 and 7.12.13 …):
“TfL considers that licensed taxis make an important contribution to London’s public transport system, enabling a wide variety of users (including the disabled) to make short trips efficiently and providing a vital alternative to private car use. …
Taxis are a vital part of London’s integrated transport network. They form a unique link between other forms of transport, fulfilling needs that cannot be met by the bus, train or tube. They have a significant role in the proposed scheme by providing an important means of moving around central London. … Taxis also have an important role in providing door to door transport for disabled people, especially through the Taxicard scheme. London taxis are the only form of social transport that is 100% wheelchair accessible.””
Conclusions
a) the distinct status of taxis as a form of public transport, reflected both in law and policy; and
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.
142. The Recovery Strategy relied on the following evidence in support:
“Traffic levels on the TLRN have been down typically 40-45% on weekdays, 60% at weekends, however traffic across London has started to increase. Comparing 13 April to 20 April, central, inner and outer London traffic increased by 16%, 18% and 12% respectively”.
No supporting data was provided so it was not possible to check how the percentages were calculated. As 13 April 2020 was Easter Bank Holiday Monday, one would expect traffic levels to have been lower than usual. As both dates were within the lockdown period, they could not provide much insight into traffic levels after lockdown. The other evidence relied upon was “increasing traffic also being seen in other areas inc. Greater Manchester and Merseyside”; “China had seen congestion return to 90% of the previous level already” and “recent survey data suggests that people will be less likely to want to use public transport (48% nationally) and that 56% of UK driving licence holders who don’t own a vehicle now considering one”. The data relied upon in support of these assertions was not referenced. In my view, the evidence presented here was superficial and inadequate.
“We therefore need to urgently reconsider use of street space to provide safe and appealing spaces to walk and cycle as an alternative to car use in the context of reduced capacity on the public transport network. Suppressing motorised traffic while allowing essential journeys to take place is key to ensuring we manage our road and public transport network to maximise our ability to keep people moving safely.”
“Bus routes have a key function in enabling local access so must be protected as part of temporary LTN proposals with a general presumption to bus routes and stop locations remaining as they are. Consideration should be given to bus gates to protect bus networks whilst removing general traffic.” (emphasis added)
In effect, the Guidance treated taxis as part of the “general traffic” which was to be “suppressed”.
The A10 Order
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments;
c) the network management duty under section 16 TMA 2004;
d) the extent to which the objective of facilitating space for pedestrians could still be achieved by permitting taxis (but not other forms of motorised traffic), to drive through the bus gates on Bishopsgate.
Statutory powers and duties
160. The statutory “Network Management Duty Guidance” explains the scope of the duty, as follows:
“Section 31 of the Act specifically states that the term “traffic” includes pedestrians. So the duty requires the LTA to consider the movement of all road users: pedestrians and cyclists, as well as motorised vehicles - whether engaged in the transport of people or goods.
11. The road network means the network of roads for which the authority is the traffic authority under the Road Traffic Regulation Act 1984 (c.27).
12. The overall aim of the “expeditious movement of traffic” implies a network that 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 it does not take precedence. So, for example, securing the expeditious movement of vehicles should not be at the expense of an authority’s road safety objectives. But, the statutory duty reflects the importance placed on making best use of existing road space for the benefit of all road users.”
165. The duty set out in section 122 RTRA 1984 has been considered in a number of authorities which were reviewed by Sir Ross Cranston, sitting as a Judge of the High Court, in Trail Riders Fellowship v Hampshire CC [2018] EWHC 3390 (Admin) and summarised at [37]. The Court of Appeal [2019] EWCA Civ 1275 at [39] approved the Judge’s summary, except for the last part of [37](iv). Omitting that part, the summary approved by the Court of Appeal is as follows:
“It seems to me that on the current state of the authorities, the position with section 122 is as follows:
(i) The duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians;
(ii) The duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2), such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act;
(iii) The issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered;
(iv) In the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself.”
Conclusions
168. The steps leading up to the making of the A10 Order are set out at paragraphs 52 to 82 above.
i) TfL did consider the option of allowing only taxis and buses along the Bishopsgate corridor, and therefore Ground 1(d) is not made out.
ii) The assessments, modelling and deliberations by TfL were sufficient to discharge the network management duty, and therefore Ground 1(c) is not made out.
iii) Although I have found the EqIA to be inadequate, I accept that it did have regard to the impacts of the scheme on the disabled and elderly travelling to the area by car, typically a taxi, and was considered before the final decisions to proceed were taken on 1 and 15 July 2020. The role which the taxi trade played in providing access for people with mobility difficulties was expressly stated to have been taken into account in the “request for decision” report leading to the approval on 15 July 2020. Although I have found that the public sector equality duty was not properly performed, I accept that there is sufficient evidence of consideration of this issue by TfL to rebut the allegation that it was not taken into account. Therefore, Ground 1(b) is not made out.
Ground 2
174. Section 149 of the 2010 Act provides:
“149. Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to -
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) The relevant protected characteristics are-
age;
disability;
…..
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include in particular, steps to take account of disabled persons’ abilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
…”
175. The relevant principles were summarised in Bracking v Secretary of State [2013] EWCA Civ 1345, [2014] Eq LR 60, per McCombe LJ, at [26]:
“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26 - 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 - 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) “[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77–78]
“[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
[78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”
(ii) At paragraphs [89–90]
“[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):
‘….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.’
[90] I respectfully agree….””
176. This passage in Bracking was approved by Lord Neuberger in Hotack v Southwark LBC [2015] UKSC 30, [2016] AC 811, at [73], who added, at [75]:
“75. As was made clear in a passage quoted in Bracking, the duty “must be exercised in substance, with rigour, and with an open mind” (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been rigorous consideration of the duty”. Provided that there has been “a proper and conscientious focus on the statutory criteria”, he said that “the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision”.”
177. Even where express reference is made to the duty that is not, of itself, sufficient to demonstrate compliance. In particular, a failure to discharge the duty of inquiry led to a breach of the duty in R (Ward) v London Borough of Hillingdon [2019] EWCA Civ 692, per Underhill LJ at [71] - [74]. See also R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin), in which I held that the Council did not gather sufficient information to enable it to discharge the public sector equality duty (at [122], [123], [140]).
The Plan and Guidance
181. The Guidance referred to the public sector equality duty, in the terms set out below:
“Equalities, accessibility, security and inclusion
COVID-19 has disproportionately affected vulnerable populations, including those living in more deprived areas. Londoners living in more deprived areas are already more likely to be impacted by exposure to higher levels of air pollution and road danger. Low-income Londoners are also more likely to work in frontline key-worker roles, which mean they cannot work from home and are less likely to be car-owners, so will be most affected by the reduced capacity on public transport.
The Streetspace Plan, which provides safe space for walking and cycling and enables social distancing on public transport for those who need to use it most, is therefore an essential part of protecting vulnerable Londoners. Providing additional space for walking and cycling will help support those who are less mobile and those who may be new to cycling.
Walking is one of the easiest forms of physical activity that is suitable for Londoners of all ages and abilities. Our plans - which provide space for people to exercise in areas where there is less access to public or private outdoor space such as parks and gardens - are an important part of supporting the health and wellbeing of the most vulnerable.
It is however important that any interventions to support walking and cycling are designed holistically to ensure that all Londoners can move around in safety. When making any changes to street layouts, boroughs are asked to use existing guidance to ensure that these changes don’t detract from current accessibility levels and enhance them wherever possible.
Section 149 of the Equality Act 2010 (the Public Sector Equality Duty) provides that, in the exercise of their functions, public authorities must have due regard to the need to:
• Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;
• Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Part 3 of the Equality Act 2010 gives disabled people a right of access to goods, facilities, services and premises and makes it unlawful for service providers to treat disabled people less favourably than non-disabled people for a reason related to their disability.
…..
Officers should ensure that all impacts on protected characteristics will be considered at every stage of the programme. This will involve anticipating the consequences on these groups and making sure that, as far as possible, any negative consequences are eliminated or minimised and opportunities for promoting equality are maximised. The creation of an inclusive environment is one of the key design considerations of projects and it is expected that the overall effect on equality target groups will be positive.”
“This section shares existing information TfL holds that could aid the effective delivery of measures required for the LSP.”
183. Paragraph 86 of the Defendants’ “Detailed Grounds of Resistance” stated:
“86. The Streetspace Guidance therefore brought the public sector equality duty to the attention to [sic] relevant decision makers in the London boroughs who, working with TfL and the Mayor, would implement the guidance. No separate EqIA was required for the guidance, as opposed to decisions implementing it. The stage at which a useful EqIA can be carried out is once there is a specific proposal capable of analysis.”
The A10 Order
187. The A10 Order was preceded by an EqIA, published on 9 July 2020.
i) Red: This impact will have a significant effect on the identified group of people. This may create a barrier that prevents someone from completing their journey. This could result in discrimination due to the disproportionate impact on the identified group.
ii) Orange: This impact is likely to have a negative effect on the identified group although it is unlikely to prevent access to or completion of the journey. It is likely to result in a greater inconvenience when measured against someone who does not have the same protected characteristic. This may result in discrimination.
iii) Blue: It is not possible to eliminate all negative impacts but TfL has assessed the risk of the negative impact and determined that the change needs to be made and/or the mitigations reduce the risk to an acceptable level.
iv) Green: No negative impacts or mitigations will ensure that people are not put at greater inconvenience to others who do not have the same protected characteristics.
Conclusion
Ground 3
Legal principles
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“77. The court reiterates that, according to its case law, article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules: (see, inter alia, James v United Kingdom (1986) 8 EHRR 123, para. 37): the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the contracting states are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).”
201. In Bank Mellat v HM Treasury [2013] UKSC 39, Lord Sumption reviewed the authorities on proportionality, at [20], and set out the test to be applied:
“Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”
Possession
“(2) An operator’s licence is a possession for the purposes of Art. 1 of the First Protocol….
(3) In Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309, para 49, it was said by the European Court of Human Rights that a licence such as this (in that case a restaurant liquor licence) can be revoked lawfully in pursuit of a legitimate aim, but the action must be proportionate….”
“No hackney carriage shall ply for hire within the limits of this Act unless under the charge of a driver having a licence under this section from Transport for London.”
Licences granted under section 8 are for three years’ duration.
204. The term “Limits of Act” is defined in section 2 of the 1869 Act:
“2. Limits of Act
The limits of this Act shall be the metropolitan police district, and the city of London”
The definition of the metropolitan police district has changed from time to time. Since 2000, it has been coterminous with Greater London, excluding the City of London and the Temple.
Control of use
207. Mr Matthias QC relied in particular upon the case of Paponette v AG of Trinidad and Tobago [2010] UKPC 32, [2012] 1 AC 12, where the applicants, a state-regulated taxi company, were required by the government to re-locate their taxi rank to a site controlled by a competitor company, but were assured that they would not be under the control or management of the competitor and management would be handed over to them within months. In breach of their legitimate expectation, the competitor imposed fees on them - $1 per exit - which other operators were not required to pay. A majority of the Board held that the interference with the applicants’ business infringed their right not to be deprived of the enjoyment of their property under the Constitution, as the government had not justified the interference as being in the public interest. Lord Dyson said:
“23. …. The infringement must, however, reach a certain level of significance. The regulation cases such as Traktörer should be applied with some care. In many of the cases relied on by the Court of Appeal, the principle that was being applied was not that a regulatory restriction could not of itself involve the taking of property. Rather it was that, as Lord Hoffmann put it in Grape Bay Ltd v Attorney General (1999) 57 WIR 62, at p72:
“It is well settled that restrictions on the use of property imposed in the public interest by general regulatory laws do not constitute a deprivation of that property for which compensation should be paid.”
24. Indeed, in Traktörer the ECtHR said at para 55 that the withdrawal of the licence to serve alcohol “constituted a measure of control of the use of property, which falls to be considered under the second paragraph of article 1 of the Protocol”. The court then considered the lawfulness and purpose of the interference. It concluded that the withdrawal of the licence was done in the public interest in furtherance of the social policy of controlling the sale of alcohol.
25. It was not necessary for the appellants in the present case to show that the effect of what the PTSC did pursuant to the 1997 Regulations was to deprive them of their businesses altogether. There is no warrant for interpreting section 4(a) of the Constitution in this way, any more than article 1 of Protocol No 1 of the European Convention on Human Rights is to be so construed. The interference with their businesses was substantial. They had previously managed and controlled their own affairs. Now they were subjected to the control and management of their competitor, who, pursuant to the authority conferred by the 1997 Regulations, charged them a fee for every exit journey and decided whether they were “fit and proper” persons to be granted a permit to use the City Gate facility at all. Prima facie, therefore, there was an infringement of the members' section 4(a) rights. In these circumstances, it was for the government to justify the interference as being in the public interest. If they failed to do so, the breach was established.”
“29. However, our understanding and expectation that we will be able to travel and ply for hire throughout London’s road network including along carriageways and around turns otherwise reserved for buses, is being frustrated by the Streetspace Plan in a way that will inevitably work to the very considerable detriment of the Licensed Taxi trade. Our road journeys will become longer and more tortuous as we are forced to seek out ways around the road closures, which will in turn make our journeys slower and significantly more expensive for all our passengers, and that will inevitably deter many people from using black cabs in future.
30. If TfL and the Mayor wish to maintain a Licensed Taxi service in London, they must take into account the economic viability of the service, and must recognise that the service will become non-viable if taxi drivers are unable to access infrastructure, and are prevented from taking the most efficient route between two points, and from avoiding congestion by being able to travel along carriageways and take turns otherwise reserved for buses and from which other motorised vehicles are excluded.”
210. See also the first statement of Lee Da Costa, at paragraphs 10 and 11.
In accordance with law
214. Restrictions imposed pursuant to a TMO will be in accordance with law.
The “general interest” and proportionality
Conclusion
Ground 4
Legal principles
219. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Fraser held, at 401B:
“Legitimate…expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the Claimant can reasonably expect to continue.”
220. In order to found a claim of legitimate expectation, the promise or practice relied upon should be “clear, unambiguous and devoid of relevant qualification” (R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, per Bingham LJ at 1569G; United Policyholders Group v AG of Trinidad and Tobago [2016] 1 WLR 3383, per Lord Neuberger, at [37]).
221. A legitimate expectation may be enjoyed by an individual or a class. A substantive legitimate expectation will ordinarily only arise where any representation constitutes a “specific undertaking directed at a particular individual or group, by which the relevant policy’s continuance is assured”: R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, per Laws LJ at [43].
222. Detrimental reliance on a promise or practice is not necessary. It is a relevant consideration to take into account when deciding whether the adoption of a policy in conflict with the promise would be an abuse of power (see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61, [2009] 1 AC 453, per Lord Hoffman at [60]).
223. Substantive legitimate expectation is the third of the three categories of legitimate expectation analysed by the Court of Appeal in R v North and East Devon HA [2001] QB 213, per Lord Woolf, at [57]:
“(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirement of fairness against any overriding interest relied upon for the change of policy.”
224. In Paponette v AG of Trinidad and Tobago [2010] UKPC 32, [2012] 1 AC 1, Lord Dyson applied the test in Coughlan and went on to say:
“36. The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation.
37. The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.
38. If the authority does not place material before the court to justify its frustration of the expectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68: “The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.” It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove that the failure or refusal was not justified.
…
42. It follows that, unless an authority provides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlikely to be able to establish any overriding public interest to defeat the applicant’s legitimate expectation. Without evidence, the court is unlikely to be willing to draw an inference in favour of the authority. This is no mere technical point. The breach of a representation or promise on which an applicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands that it needs to be justified. Often, it is only the authority that knows why it has gone back on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justify its act by reference to some overriding public interest, it must provide the material on which it relies. In particular, it must give details of the public interest so that the court can decide how to strike the balance of fairness between the interest of the applicant and the overriding interest relied on by the authority. As Schiemann LJ put it in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, at para 59, where an authority decides not to give effect to a legitimate expectation, it must “articulate its reasons so that their propriety may be tested by the court”.
…
45. There is a further point. In Bibi, Schiemann LJ said that an authority is under a duty to consider a legitimate expectation in its decision making process. He said:
“49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations.
. . .
51. The law requires that any legitimate expectation be properly taken into account in the decision making process. It has not been in the present case and therefore the authority has acted unlawfully.”
46. The Board agrees. Where an authority is considering whether to act inconsistently with a representation or promise which it has made and which has given rise to a legitimate expectation, good administration as well as elementary fairness demands that it takes into account the fact that the proposed act will amount to a breach of the promise. Put in public law terms, the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account.
225. In Re Finucane’s Application for Judicial Review [2019] UKSC 7, [2019] HRLR 7, Lord Kerr reviewed the authorities cited by TfL on the circumstances, such as representations concerning macro-political issues of policy, in which a legitimate expectation may not be enforced, at [57] - [60]:
“57. Shortly after the decision in Coughlan, the Court of Appeal had occasion to again consider the reach of substantive legitimate expectation in R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115. At p 1130 Laws LJ said:
“As it seems to me the first and third categories explained in the Coughlan case [2000] 2 WLR 622 are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review.”
58. The key factor in Coughlan was, Laws LJ said, the limited number of individuals affected by the promise in question. Significantly, so far as concerns the present appeal, he also said at p 1131:
“The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”
59. Laws LJ considered the evolving case law in this field in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, albeit on an expressly obiter basis - see para 67. In explaining the basis for substantive legitimate expectations, he made these observations at para 68:
“It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement - to describe what may count as good reason to depart from it - as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.”
Laws LJ also returned in para 69 to the theme of decisions not to fulfil an undertaking for policy reasons falling within the “macro-political” field. I will consider his remarks on this subject in the next section of this judgment.
60. The subject of substantive legitimate expectation arose again in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755. At para 35, Laws LJ said:
“… the notion of a promise or practice of present and future substantive policy risks proving too much. The doctrine of substantive legitimate expectation plainly cannot apply to every case where a public authority operates a policy over an appreciable period. That would expand the doctrine far beyond its proper limits. The establishment of any policy, new or substitute, by a public body is in principle subject to Wednesbury review. But a claim that a substitute policy has been established in breach of a substantive legitimate expectation engages a much more rigorous standard. It will be adjudged, as I have foreshadowed, by the court’s own view of what fairness requires. This is a principal outcome of this court’s decision in Ex p Coughlan (see in particular paras 74, 78, 81 and 82). It demonstrates the importance of finding the reach of substantive legitimate expectation.” (Emphasis added)”
“74. Stephens J found that the considerations outlined in the Secretary of State’s statement to Parliament on 11 November 2010 (set out in para 42(iii) above) “were overriding interests which, as far as the decision maker was concerned, justified the frustration of the expectation.” - para 166. He held that the decision to resile from the undertaking “was clearly concerned with macro-political issues of policy.” - para 167.
75. The reference to “macro-political issues” derived from the judgment of Laws LJ in Nadarajah. At para 69 of the judgment in that case, Laws LJ said:
“… where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. … On the other hand where the government decision-maker is concerned to raise wide-ranging or ‘macro-political’ issues of policy, the expectation’s enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual’s fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact.”
76. Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.”
The representations relied upon
i) “(a) The Streetspace Plan’s failure to distinguish hackney carriages from “general traffic” and effectively to reverse the longstanding policy of presuming that hackney carriages will be permitted to use carriageways otherwise reserved for buses is a breach of the hackney carriage trade’s legitimate expectation.”
ii) “(b) There has long existed a clear and unequivocal policy presumption that hackney carriages will be able to use London’s arterial routes, including bus lanes, to transport members of the public. That this presumption exists has been stated expressly both in policy and by the Mayor in response to questions. It also exists by virtue of very long established practice.”
228. In the Claimants’ skeleton argument, the representations were revised to read as follows:
“89. In the present case the Claimants have a legitimate expectation of:
(a) Being permitted to pass and repass on London’s roads in accordance inter alia with the routes contained in the Knowledge of London. This is an expectation which arises as a result of the established practice of permitting hackney carriages to do so, and from requiring drivers to invest considerable time and money in learn routes involving passage along those routes, and to pay a fee for their licence.
(b) Having access to all bus lanes, for the purposes of driving in them as through-routes, as well as entering them to pick up and set down, except where specific safety or bus operational issues make this impractical. This arises as a result of the express policy contained in the Mayor’s extant 2007 Taxis and Bus Lane policy.
(c) Being regarded as public transport forming “a vital part of London’s integrated transport network, fulfilling demands that cannot be met by the bus, train or tube”. This arises both as a result of the express policy contained in the Mayor’s 2007 Taxis and Bus Lane policy, and as a result of the longstanding and distinct legal status of hackney carriages ….”
231. The wording of the current Bus Lane Policy [8] is to “allow for taxis in all bus lanes unless their inclusion would cause significant delay to buses or would materially worsen the safety of road users including pedestrians, and taking account of the effects on safety of excluding taxis from the bus lane”.
232. The policy should be read with the Policy Guidance [9] which states:
“1. Taxi access to bus lanes reflects the recognition in the Mayor’s transport strategy that taxis are “a vital part of London’s integrated transport network, fulfilling demands that cannot be met by the bus, train or tube”.
2. The Mayor has stated that TfL’s general policy should be to allow taxis in all bus lanes except where specific safety or bus operational issues made this impractical.
3. This policy applies for the purposes of taxis driving in bus lanes as through-routes and entering bus lanes to pick up and set down. ‘Pick up’ and ‘set down' mean that there is an intended passenger waiting at the kerbside or that an existing passenger wishes to be set down.”
i) In 2016, in the “Taxi and Private Hire Action Plan”;
ii) In 2016, in the Mayoral Manifesto;
iii) On 5 June 2017, at Mayor’s Question Time; and
iv) On 25 March 2020, at Mayor’s Question Time.
Detriment
“26. Whilst we recognise that proportionate changes need to be made to the road network to support social distancing, it is not accepted that Licensed Taxis need to be or should be excluded from key roads. …. The exclusion of Licensed Taxis who provide door-to-door services ….will result in a greatly diminished service for the elderly and the disabled…”
“28. ….Licensed Taxi drivers have decided to become taxi drivers and to remain as taxi drivers, undertaking and submitting to the extensive regulatory requirements … - the very considerable investment of personal time and effort needed to pass the Knowledge of London and the very considerable expense of vehicles capable of being licensed as hackney carriages …. in reliance upon the clear and unequivocal longstanding policy presumption and understanding that Licensed Taxis will be able to travel freely and ply for hire throughout London’s road network, including along carriageways and around turns otherwise reserved for buses.
29. However, our understanding and expectation that we will be able to travel and ply for hire throughout London’s road network including along carriageways and around turns otherwise reserved for buses, is being frustrated by the Streetspace Plan in a way that will inevitably work to the very considerable detriment of the Licensed Taxi trade. Our road journeys will become longer and more tortuous as we are forced to seek out ways around the road closures, which will in turn make our journeys slower and significantly more expensive for all our passengers, and that will inevitably deter many people from using black cabs in future.
30. If TfL and the Mayor wish to maintain a Licensed Taxi service in London, they must take into account the economic viability of the service, and must recognise that the service will become non-viable if taxi drivers are unable to access infrastructure, and are prevented from taking the most efficient route between two points, and from avoiding congestion by being able to travel along carriageways and take turns otherwise reserved for buses and from which other motorised vehicles are excluded.”
Breach of legitimate expectation
Should the legitimate expectation be upheld?
251. In my view, the Defendant’s submission was severely undermined by the fact that, unlike many of the authorities relied upon, this is not a case where the decision-maker has amended or revoked the policy upon which the legitimate expectation is founded. The Bus Lane Policy and Policy Guidance are still operative, and the Mayor and TfL have not suggested that they intend to revoke them. Where a public body has a clear policy, then those who are affected by it are entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn: SAVE v Secretary of State HCLG [2018] EWCA Civ 2137 per Coulson LJ at [39].
“TfL considers that licensed taxis make an important contribution to London’s public transport system, enabling a wide variety of users (including the disabled) to make short trips efficiently and providing a vital alternative to private car use. …
Taxis are a vital part of London’s integrated transport network. They form a unique link between other forms of transport, fulfilling needs that cannot be met by the bus, train or tube. They have a significant role in the proposed scheme by providing an important means of moving around central London. … Taxis also have an important role in providing door to door transport for disabled people, especially through the Taxicard scheme. London taxis are the only form of social transport that is 100% wheelchair accessible.”
Conclusion
259. For these reasons, Ground 4 succeeds.
Ground 5
261. Mr Matthias QC submitted that the test to be applied was essentially one of proportionality. The distinction between the rationality test (as it has evolved), and the proportionality test, was considered in Pham v Secretary of State for the Home Department [2015] UKSC 19, per Lord Sumption at [104] - [109] and Lord Reed, at [113] - [119]. Subsequently, in Keyu v Secretary of State for Defence [2016] UKSC 69, [2016] AC 1355, the Supreme Court declined to rule that the rationality test had been superseded by the proportionality test, declaring that such a major change to the law would have to be considered by a panel of nine Supreme Court Justices.
264. I have also found that, in making the Plan, the Guidance and the A10 Order,
i) The Mayor and TfL failed to discharge the public sector equality duty (Ground 2).
ii) A1P1 was engaged, as the licences held by taxi owners and drivers, and the economic benefits derived from them, were possessions, but an interference with the peaceful enjoyment of property by control of use has not been established (Ground 3).
iii) The Mayor and TfL breached the legitimate expectation held by taxi drivers, as a class, based upon the Bus Lane Policy, and long-established practice, that taxis would be allowed to drive in all TLRN bus lanes, and enter bus lanes to pick up or drop off passengers, except where to do so would cause significant delay to buses or materially worsen the safety of road users. The Mayor and TfL have not shown that there was an overriding public interest which justified the frustration of the taxi drivers’ legitimate expectation (Ground 4).
“We recognise this moment for what it is: a once in a generation opportunity to deliver a lasting transformation in how we make short journeys in our towns and cities…”
268. The Guidance advised that, pursuant to the Plan:
“We need to urgently reconsider use of street space to provide safe and appealing spaces to walk and cycle as an alternative to car use in the context of reduced capacity on the public transport network. Suppressing motorised traffic while allowing essential journeys to take place is key to ensuring we manage our road and public transport network to maximise our ability to keep people moving safely.”
Conclusions
a) the distinct status of taxis as a form of public transport, reflected both in law and policy;
b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.
However, Ground 1 did not succeed in respect of the A10 Order.
282. Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order was irrational.
Appendix 1
The Proctor schedule
London Streetspace Plan (LSP)
The following indicates the Bus Lane, Bus Gate restrictions including banned turns and those implemented under TFL guidance for local boroughs who have implemented Low Traffic Neighbourhoods (LTN):
Scheme
Impact
TfL commentary
Claimants’ Final Comments
Islington
· 4 bus gates within 7 separate LTN schemes that prohibit through access to taxis.
· Numerous streets across LTN schemes no longer permit through access. NB: the 812-bus route has been suspended since 31/3/2020 for 2 bus gates in 2 separate schemes which prohibit taxis.
· There are a number of Streetspace camera enforced closures in Islington, mainly using “no motor vehicles” signs or by bollard closures.
· There are two Islington LTNs which contain a bus gate that prohibit taxis: one in the St Peter’s LTN and another in the Amwell Street LTN.
· TfL funded two LTN’s via the LSP; others are Islington’s own initiatives.
· This does not include the bus gate in Clerkenwell Green scheme at Corporation Row.
· This does not include the bus gate in Canonbury East scheme for which ETO states as follows:
(b) prohibit the passage of all vehicles, except pedal cycles and buses, at the following locations:
(i) Dove Road, at a point 6 metres south-east of the south-eastern kerb-line of Henshall Street (measured on the south-west side of Dove Road);
(ii) Downham Road, at a point 26.5 metres west of the western kerb-line of Southgate Road (measured on the south side of Downham Road);
(c) prohibit all vehicles, except pedal cycles and buses:
(i) proceeding in a generally north-easterly direction in Henshall Street, from turning right into Dove Road;
(ii) proceeding in a generally south-westerly direction in Henshall Street, from turning left into Dove Road;
In addition, the 812 bus which is the reason for the 2 bus gates in the Amwell Street and Clerkenwell Green LTN schemes was suspended in March 2020 as unable to socially distance passengers.
Hackney
· 6 bus gates within 8 separate LTN schemes that prohibit through access to taxis.
· Significant number of restricted turns.
· 4 further schemes with bus gates planned and await further information
· There are a number of closures associated with LTNs. Extending LTNs was a Hackney policy prior to LSP.
· Access is restricted for all vehicular traffic except buses and cyclists. Most of the closures do not require bus access and hence all motor vehicles are excluded.
· Restricted turns apply to all vehicles.
· Some previously restricted turns from the TLRN to borough roads have been lifted as part of borough requests.
· ETO wording - Bus Gate on Pritchard’s Road over the Cat & Mutton bridge from the junction of Andrews Road to the junction with Wharf Place for a total length of 43m. Access through the bus gate will be allowed for local buses, emergency services and Hackney’s and Tower Hamlets’ refuse vehicles at all times.
· ETO wording - Taxi exclusion from Lee Street/Stean Street states “Access will be permitted for emergency and authorised vehicles; ambulance, fire engine and police vehicles (used for emergency services purpose) and Hackney Council refuse vehicles and local buses (where appropriate). 3. The London Borough of Hackney will in due course be considering whether the provisions of the ETO should be continued in force indefinitely. Accordingly, these changes are being introduced for a trial period before consideration is given to whether the provisions of the ETO should be made permanent.”
· West Hoxton, London Fields and Hackney Downs all have bus gates in LTN’s where TMO prohibits taxis.
· A series of banned turns into Richmond Road, Queensbridge Road and the A10 have been removed after the Council wrote to Transport for London to request the changes. NB: bus gate in Richmond Road remains and a bus uses it.
· Signed off 4 October - Stoke Newington Church Street, Broadway Market and in Hackney Central we are also undertaking further work aimed at delivering additional point closures and the implementation of bus gates. NB: Amhurst Road in Hackney Central not yet operational
Lambeth
· 5 bus gates within 8 separate LTN schemes that prohibit through access.
· The Cut - no through access on key eastbound route from Waterloo Station.
· There are 5 LTNs within the LSP programme for Lambeth. 3 of the schemes have bus gates prohibiting access to all traffic except buses, cyclists and special permit holders (on Atlantic Road only).
· 5 bus gates in total will be camera enforced.
· Lambeth is currently in discussion with the taxi trade; there are currently no taxi exemptions.
· There is no bus gate on The Cut. The scheme on the Cut involves a point closure preventing through access. This builds on experience of some months of prior closure for emergency utility works
· Our information from the borough indicates 7 LTN as 1 due to go live.
· The issue with The Cut is this is a key route to and from Waterloo Station when travelling to and from the East, primarily the City when the Waterloo and City line fails.
Southwark
· 4 bus gates within 2 separate LTN schemes.
· Bermondsey Street - closed to through traffic.
· Numerous streets across LTN schemes no longer permit through access and restricted turns.
· There are bus gates in Dulwich Village and on Tierney Road. All bus gates have exemptions for Hackney Carriages (Black Cabs).
· A point closure has been installed in Bermondsey Street between White's Ground and Leathermarket Street, except for cyclists. This is not a bus gate as all motor traffic is blocked.
· There are a number of LTN closures across the borough. These apply for all vehicular traffic, including taxis.
· Dulwich Village - bus gates on Burbage Road, Turney Road and Townley Road (3)
· Walworth - bus gate on Penrose St (1)
· Yes, taxi access permitted as we highlighted.
· Issue with Bermondsey Street is extensive diversion required to get to Guys, London Bridge etc
Westminster
· Temporary timed closures in Covent Garden and Soho to permit outside hospitality but marshal arrangements to permit taxi access for disabled passengers and/or residents.
· Social distancing measures - Oxford Street/Regent Street and some temp closure of rank space
· Covent Garden and Soho restrictions are not funded by LSP, but are Westminster’s own initiatives.
· Oxford Street and Regent Street measures are not funded by LSP. Neither set of measures precludes taxi access.
· Part of Westminster Hospitality reopening but gave due consideration to taxi access.
Camden
· Temporary timed closures in Covent Garden and Soho to permit outside hospitality but marshal arrangements to permit taxi access for disabled passengers and/or residents upon request.
· Extensive implementation of LTN’s and new cycle lanes which do not consider curb side access for loading and unloading wheelchairs.
· No current bus gates.
· Await plans on Camden High Street which may prohibit taxis but permit buses and cycles.
· No part of Soho is in Camden.
· Camden carried out EQIAs explicitly factoring taxi drop off into consideration, including impacts on older taxi users and those with disabilities.
· It is correct that there are no current bus gates in Camden.
· Camden High Street is a TLRN road. TfL has no plans to remove taxi access from the TLRN bus lane on Camden High St.
· Soho is an error and Covent Garden is split between Camden and Westminster.
· The claimants do not share the same view on the EQIA’s it has seen and how difficult it has been in practice to gain access to the Camden part of Covent Garden; Seven Dials to drop off passengers and residents.
· Agreed on bus gates.
· Original press release issued by Camden indicated bus/cycle only and the reference to no plans to remove taxi access is welcomed.
Hammersmith & Fulham
· LTN scheme implemented using ANPR and permits taxi access through bus gates.
· Harwood Terrace LTN permits taxi access.
· Agreed.
Hounslow
· 3 LTN’s with 2 bus gates
· Taxis are permitted if making an access movement (i.e. to a property in the area).
· Taxis are permitted access through the bus gates on Acton Lane and Turnham Green Terrace. Other roads in proximity to the Hospital and EV chargers access to premises now permitted.
Wandsworth
· 7 LTN’s with 2 bus gates alongside CS7 Upgrade on A24 (latter is LSP TFL scheme)
· Six LTNs were implemented. All have since been withdrawn by the Borough.
· Our information from the Borough indicated 7.
City of London
· City Streets plan - extensive changes within the Square Mile which operate in conjunction with the A10 Bishopsgate scheme as the roads running off the A10 are under COL jurisdiction and further limit east/west routing options.
· Many roads now prohibit taxis but permit buses and cycles although some permitted access is given to drop off and pick up passengers in limited areas.
· Moorgate southbound permits buses and now prohibits taxis.
· Leadenhall Street permits some taxi access once you can navigate around the A10 bus gates, but taxis can now not use this road as a through route.
· Newgate Street proposed to revert to bus and cycle only once gas works complete and will prohibit taxis from a key route into/out of the Square Mile.
· The City’s plans for their streets were developed before TfL started their A10 Bishopsgate scheme. TfL considered the City’s closures when developing its own A10 scheme.
· The City does permit access for certain purposes in certain areas (e.g. servicing properties in the street).
· Moorgate - south of London Wall - in a southbound direction is buses and cycles only (no taxis). This part of Moorgate is open to taxis northbound.
· There is a City of London bus gate on Leadenhall Street. The A10 scheme was cognisant of this and was designed to allow access to properties (for taxis, PHVs and everything else) to the west of the bus gate via Threadneedle and Cornhill.
· Newgate St - This proposal is referenced in the TfL paper on strategic movement in central London for taxis. TfL understand this is no longer a live proposal.
· Phase 1 was, and Phase 2 went to Transport Committee late June and referenced TFL A10 plans.
· Access is permitted in certain streets for picking up and dropping off disabled passengers, blue badge holders and residents.
· Prior to City Streets measures taxis were permitted to use Moorgate - south of London Wall.
· The access is to enable entry to St Mary’s Axe which is 1 way from Leadenhall Street in line with need to access road for picking up and dropping off disabled passengers. Previously taxis had through access to Aldgate.
· Reference to no plans to remove taxi access is welcomed. This was raised at phase 1 of COL implementation as a key route to Barts Hospital.
Croydon
· 2 bus gates in 1 LTN within Crystal Palace
· TfL’s understanding is that there is one bus gate.
· Croydon are currently considering the future of the scheme, including public engagement and if there should be an exemption for black cabs.
· Our information from the Borough shows 2 roads.
Tower Hamlets
· Wapping High Street bus gate
· Roman Road bus gate (decision made but not implemented yet)
· Wapping High Street and Roman Road bus gates predate LSP and were not funded as part of this programme.
· Wapping High Street bus gate was implemented on the 13th November 2019 on an 18-month experimental basis.
· The Roman Road bus gate was first announced to the public in March 2019 via a public engagement exercise. In July 2020, Tower Hamlets carried out a public consultation with more than 2,100 respondents and 67% support of the bus gate at the junction of Roman Road / St. Stephen’s Road. A decision to go ahead has been taken (subject to call-in process), but the bus gate has not been implemented yet.
· Wapping Bus gate was tweaked as part of Covid measures to exempt blue badge holders. 6-month review period in ETO delayed due to Covid.
· Tower Hamlets have referenced Streetspace replacing and fast-tracking previous Healthy Streets scheme.
· Transport Committee reports indicate taxi access was not considered but blue badge permit holders will be exempt.
· The consultation response had categories within the response to bus gate access, taxis were part of the category that could be given exemptions.
· Await implementation date.
LSP - TFL roads
· Euston Road - part of eastbound bus lane now prohibited to taxis and extensive banned turns.
· Hampstead Road - part of southbound bus lane now prohibited.
· Tottenham Court Road - part of northbound bus lane and left turn now prohibited to taxis.
· Grosvenor Road/Millbank/Claverton Street - restricted left turn onto Chelsea Bridge and Vauxhall Bridge when bridge works completed (bus permitted) and Claverton Street (bus permitted and taxi to be prohibited)
· CS7 Upgrade on A24 - significant banned turns.
· A21 Lewisham/Catford - bus gates permit taxis.
· Greenwich/Woolwich - no bus gates but taxis now prohibited from previous bus/taxi only turns.
· London Bridge corridor - bus/taxi/motorcycle and cyclists permitted through timed bus gates.
· Old Street Roundabout - bus gate proposed which prohibits taxis.
· Euston Road - Exclusion is from a very short stretch of bus lane only (Melton Street past Euston Bus Station entrance) to avoid taxis crossing with cyclists on a very heavily used area of bus lane addressing serious safety concerns. Some banned turns have also been introduced applying to all vehicles
· Hampstead Road - taxis were not previously permitted in this bus lane so no change has been made. [Note: Counsel for TfL subsequently notified the Court that this comment was incorrect, and Ms Proctor’s evidence was now accepted as accurate.]
· Tottenham Court Road is not a TLRN road, but a borough road. The project here predates LSP by some years and is being completed by Camden using third party funds. It was subject to a full consultation in June 2014.
· Grosvenor Road/Millbank - the left turn ban except cyclists onto Chelsea Bridge was introduced as part of the LSP-funded CS8 Upgrade before being amended by the Vauxhall Bridge works to allow the left-turn for motorists (diversion route) under temporary signal control. The only banned movement (which is permitted for buses and cyclists only) is the left turn into Claverton Street from Grosvenor Road.
· The small part of eastbound bus lane access referred to is the eastbound route from Euston station taxi rank. There is no other exit from Euston Station onto Euston Road; the same as Liverpool Street station there is one entry/exit point from the taxi rank. Taxis previously had access to the bus lane,
· 16/7/2020 - TFL TMO advertised in the Camden Journal (relevant points):
(3) change the operational times from Monday to Friday 4pm to 7pm to at any time and remove Taxis and Solo Motor Cycles from the types of vehicles permitted to use the northbound bus lane on the A400 Hampstead Road between its junctions with Varndell Street and the northern arm of Mornington Crescent;
(4) change the operational times from Monday to Friday 7am to 10am to at any time and remove Taxis and Solo Motor Cycles from the types of vehicles permitted to use the southbound bus lane on the A400 Hampstead Road between its junctions with the southern arm of Harrington Square and Cardington Street.
· Agreed on Tottenham Court Road, however TMO for Covid emergency advertised in June included additional restrictions to taxis as described.
· TFL ranks team email circulated 20/11/2020 has indicated post completion of Vauxhall Bridge works “the temporary traffic signals at Chelsea Bridge/Grosvenor Road will be removed and the banned left turn will be reinstated on Tuesday 1 December 2020.”
· Taxis and buses previously permitted to turn left into Claverton Street which is traffic light controlled. Left turns permitted into St Georges Square by all motor vehicles not traffic light controlled. This also crosses the same cycle lane.
· Agreed the London Bridge corridor which leads to A10 permits buses/taxis/motorcycle and cyclists.
· Old Street roundabout original plans were long standing - however this scheme has been tweaked post Streetspace implementation to include a bus gate which prohibits taxis as indicated in TFL TMO sent via email to Mr Massett, the Chair of the Ranks Committee on 23/9/2020.
[1] The document at 5/1397 mistakenly shows the date as 3 May instead of 3 June 2020
[2] “TPH” means taxi and private hire services.
[3] “Active modes” means walking and cycling.
[4] “PT” means public transport.
[5] “ZEC” means zero-emission capable.
[6] SI 1934/1346
[7] See the Claimants’ Reply dated 27 November 2020.
[8] Public Carriage Office Taxi and Bus Lanes Policy (2007).
[9] Public Carriage Office Taxis and Bus Lanes: Policy Guidance (2007)