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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> SM (A Child) & Anor v London Borough of Hackney  EWHC 3294 (Admin) (07 December 2021)
Cite as:  EWHC 3294 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) SM (a child, by his father and litigation friend, MZM)
(2) SDJ (a child, by his father and litigation friend, SDS)
- and –
|LONDON BOROUGH OF HACKNEY
Mr Kelvin Rutledge QC and Mr Jack Parker (instructed by London Borough of Hackney Legal Services) for the Respondent
Hearing date: 1 November 2021
Crown Copyright ©
Mr Justice Kerr :
(1) the Hackney (Mount Pleasant Lane Area – Mount Pleasant Lane, Southwold Road and Springfield Gardens) (Traffic Management and Parking) (Experimental) Order 2020 (the Springfield Gardens ETO); and
(2) the Hackney (Prescribed Routes and 20 mph Speed Limit) (School Streets – Harrington Hill Primary School) (School Streets – Pedestrian and Cycle) (Experimental) Order 2020 (the Harrington Hill ETO).
"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 … ."
"(so far as practicable having regard to the matters specified in subsection (2)… ) 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 … ."
(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;
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the …. local authority to be relevant."
"[s]uch other organisations (if any) representing persons likely to be affected by any provision in the order as the order making authority thinks it appropriate to consult."
"Hackney will look to develop and trial School Streets proposals where roads, upon which schools are situated, are closed during certain times of the day."
"Filtered Streets - Reducing motor traffic on residential streets. Hackney Council will continue to work with local residents and key stakeholders to identify, trial and rollout additional filtered streets schemes across the borough in order to reduce rat-running and through motor traffic."
"moved towards a practice of formal public consultation prior to the implementation of School Streets schemes by way of ETOs because in general the Council expected that the schemes would eventually be made permanent, even though no decision to do so had been made."
"Measures should be taken as swiftly as possible, and in any event within weeks, given the urgent need to change travel habits before the restart takes full effect."
"Interventions could include simple modal filters with temporary materials or bollards, with cost effectiveness and flexibility in mind. Where schools are present, School Streets should form an integral part of temporary LTNs."
"School Streets generally restrict traffic directly outside the school for 30-90 minutes at either end of the school day. Signs, barriers and/or cameras stop non-residents driving through the School Street. Residents and blue badge holders have access."
"● Reduce congestion in the street associated with school opening and closing.
● Improve local air quality and reduce emissions around the school gates.
● Increase road safety and accessibility for non-motorised users.
● Encourage active travel to school for pupils and parents.
● Provide pupils, parents and staff with more space for social distancing outside the school gates."
"4.21 …benefit pupils attending all schools in Hackney; including SEND, religious and independent schools; in the long term. This is because reducing private vehicle traffic and the associated harm benefits all residents in Hackney by improving air quality, reducing road danger and ensuring that essential travel can take place without being delayed by congestion and gridlock.
4.22. The School Streets scheme would not be achieving its objectives if it created a problem elsewhere for children with extensive needs in their journey to school. The Council needs to ensure that residents who require motor vehicle transportation are still able to get around in a way which is consistent with the Council's transport strategy objective to 'ensure that the needs of' older people and those with visual and mobility impairments are considered in all plans and proposals to upgrade the public realm."
"6.3. Disability?: Hackney has lower than average rates of residents who identify as having a disability. In November 2017, 4.1% of the local population (11,234 people) were claiming Disability Living Allowance or Attendance Allowance. The main modes of transport used by disabled Londoners at least once a week are walking (78%), bus (55%), car as a passenger (44%) and car as a driver (24%). Therefore, the number of mobility impaired residents potentially affected by School Streets is low. However, consideration has been given to the impact on disabled residents living within the School Street Zones (including SEND pupils), and disabled visitors to the area.
6.4. There would be minimal impact on access for disabled residents to their properties within the School Streets zone, as they would be eligible for an exemption. Provision has been made for Blue Badge holders who require access to the zones as visitors to be added to the list of approved vehicles if they contact the Council to request this. However, Blue Badge holders who have not registered in advance would not be automatically able to enter during the times of operation.
6.5 For those with limited mobility who would need to access a property within the zone during the restricted times, and who have not registered in advance for an exemption, the maximum walking distance from an address in the centre of the zone to the edge of the zone would be kept to a minimum. A pedestrian access survey, assessing the quality of the walking route from the edge of the zone to the furthest property within the zone, would be conducted at the School Streets location post-implementation and any findings would be flagged for remedial action.
6.6 Discussions have been held with Hackney Learning Trust, who provide school transport for disabled pupils, to mitigate the impact of School Streets schemes on their journey times and provide a School Streets exemption where no other alternatives are feasible. This also includes taxis and private hire vehicles operating the service on behalf of the Learning Trust. These vehicles then have access at all times both to the pupils' home address and their school."
"While children enabled to travel safely by active modes to school will be the primary beneficiaries of this objective, these schemes will have positive impacts for parents and children in particular. In addition as the school run has such a large influence on peak traffic flows with their attendant negative consequences, so the benefits of this should extend to all EQIA groups. However consideration has to be given to "white listing" residents including Blue Badge holders - the latter needing access to their designated parking spaces. More detailed equalities assessments will be done for each individual School Street."
"Low Traffic Neighbourhoods will have positive impacts on all equality groups in terms of congestion, air quality and health. The majority of Hackney's households (70%) do not own cars. Any measures to provide alternatives to private ownership will benefit them. It is recognised that some residents including disabled and older people and carers will continue to require the use of a car particularly where the use of Community Transport or Dial A Ride cars or car clubs are unsuitable. We are also aware that behaviour change may be more challenging among groups with large families such as the Charedi Jewish population who in some cases are currently quite car dependent."
"to provide an update on specific equalities considerations that have been raised or otherwise come to light so far during the experimental period of the above schemes. This review is intended to inform both the need for any interim modifications to these schemes in the light of equalities considerations and also the final Equalities Impact Assessment (EIA) that will be published in due course alongside the experimental scheme review. This document is not a replacement for that final EIA. In carrying out the review all protected characteristics have been considered."
"The Council accepts that as a result of restricting route choice for pupils to and from [S] school that there is a risk of an impact, however infrequent, to certain disabled children who experience detrimental impacts due to their disability. The Council has to weigh the risk of this harm to a certain cohort of disabled residents against the benefits of the scheme, including benefits to other disabled residents identified in the initial impact assessment."
"72.Whilst the evidence gathered to date on journey times and traffic volumes does not indicate any increase, it may be the case that, on balance, a small increase in journey times would be considered tolerable and proportionate (even when the special educational and physical needs of these pupils are taken into account) in order to achieve the wider benefits of the School Streets and LTN schemes for pupils of Harrington Hill Primary School and local residents.
73.The Council accepts that as a result of restricting route choice for pupils to and from Side-by-Side school that there is a risk of an impact, however infrequent, to certain disabled children who experience detrimental impacts due to their disability. The Council continues to weigh the risk of this harm to a certain cohort of disabled residents against the benefits of the scheme, including benefits to other disabled residents identified in the impact assessment.
74.In any case, it is understood that Side-by-Side school will be relocating from the existing site on Big Hill, north of the traffic filter on Mount Pleasant Lane to a new site at Avigdor Mews, Lordship Road, N16. Therefore, any amendment of the ETO's now would not materially affect these pupils' journeys to school when the move is complete. As such, it would be disproportionate at this time at least to consider any amendment to the ETOs in relation to these pupils' journeys to school.
75.The recommendation of this review is continued monitoring of the impact of each ETO on the Protected Groups following the publication of the final delegated powers decision report, and ongoing review of the Council's exemptions policies and processes across the School Streets and Low Traffic Neighbourhood schemes to ensure a consistency of approach and application."
Issues, Reasoning and Conclusions
First ground of challenge: failure to comply with the public sector equality duty
"To the extent that views are expressed on matters requiring assessment or evaluation the Court should go no further in its review than to identify whether the essential questions have been conscientiously considered and that any conclusions reached are not irrational. Inessential errors or misjudgments cannot constitute or evidence a breach of the duty."
Second ground of challenge: failure to consult
"the case law is clear that, whether or not a consultation is a legal requirement, if it is embarked on it must be carried out properly and fairly: R v North and East Devon Health Authority, Ex p Coughlan  QB 213. In my judgment, the obiter observations of the Divisional Court in R (Christian Concern) v Secretary of State for Health and Social Care  EWHC 1546 (Admin) to the e?ect that a legitimate expectation of consultation arising out of past practice is capable of being overridden by the need to act swiftly in the context of the pandemic are of little if any relevance in the present case where the Secretary of State in fact chose to carry out a consultation."
"the court will not allow the decision-maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision-maker, or other countervailing public interest … ."
Third ground of challenge: ECHR article 8, or article 8 read with article 14
"In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or 'other status'. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking. It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. Lord Nicholls of Birkenhead captured the point at para 3 of R (Carson) v Secretary of State for Work and Pensions  1 AC 173. He observed that once the first two elements are satisfied:
'the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
"the ECtHR employs a flexible approach when deciding what standard is to be applied when considering justification … unless one factor is of overriding significance, it is necessary for the court to make a balanced overall assessment."