High Court dismisses legal challenge to decision by council not to re-instate temporary cycle lanes

The Royal Borough of Kensington and Chelsea has defeated in the High Court an attempt by campaigners to reinstate a cycle lane.

In Better Streets for Kensington and Chelsea & Anor, R (On the Application Of) v Royal Borough of Kensington and Chelsea [2023] EWHC 536 (Admin) (14 March 2023) Mr Justice Lane dismissed both grounds argued by Better Streets for Kensington and Chelsea (BSKC) and its founder Justin Abbott.

The claimants challenged the council’s decision in March 2021 not to reinstate temporary cycle lanes on Kensington High Street, which had been removed the previous December having originally been installed seven weeks previously as part of the council’s active travel plan.

This plan included some 16 projects designed to be introduced quickly “but also on a temporary basis”, with consultation coming later on any the council might decide to make permanent.

Almost as soon as the cycle lanes were installed in October 2021, the court heard an online petition to have them removed started, which gathered more than 3,000 names. Objections were also made by local businesses and the emergency services.

The council then decided to remove the cycle lanes.

BSKC sent a pre-action protocol letter to which the council responded that a claim for judicial review would be premature and that it “does not accept that it is under a duty to consult in reaching a fresh decision and will not be carrying out such consultation”.

Although the council did not consider itself under a duty to consult about removing the lanes, Lane J noted it received 3,134 emails and other correspondence and was told “all individually [were] examined and coded for analysis”.

BSKC eventually secured permission for judicial review on grounds of failure to consult correctly and of irrationality.

The latter claim was that the council framed its decision as being whether to install the cycle lanes, rather than reconsider their removal, that the council did not properly inform itself of relevant considerations; and that there was no rational basis on which the decision to remove could have been reached.

Giving judgment, Lane J said: “There was manifestly no statutory duty to consult…on the facts of the present case, the claimants have come nowhere near showing that there has been a promise to consult, of the kind required by the case law. By the same token, it is manifest that an established practice of consultation has not arisen.”

He said the correspondence received by the council had been carefully reviewed by officers, with key themes summarised in the relevant report and “there is nothing before me which casts doubt on the fact that the leadership team had regard to these when reaching its decision”.

Lane J said: “Taking matters overall, I reject the submission of the claimants that, if and insofar as this was a ‘consultation’, it was not merely a consultation with some flaws but was clearly and radically wrong. It was nothing of the kind.”

Turning to irrationality, the judge said: “I find that the claimants have not demonstrated any irrationality on the part of the defendant.

“At heart, the fact that this is a ‘merits’ challenge becomes evident at the point at which the claimants make it plain that, in their view, the only rational decision the defendant could have taken in March 2021 was to install the temporary cycle lanes, which had been earlier removed.

“There are huge and, I find, insurmountable difficulties in making good this contention, on the basis of irrationality.”

Mark Smulian