Low traffic neighbourhoods

Philippa Jackson analyses the latest rulings in relation to low traffic neighbourhoods and what they mean for future legal challenges.

Low traffic neighbourhoods (“LTNs”) introduced in response to the Covid-19 pandemic have proved controversial, to say the least, and have attracted widespread media attention. It is hardly surprising, therefore, that there have now been several attempts to challenge the implementation of LTNs in the Courts, albeit with limited success to date.

In June 2021, Kerr J dismissed a judicial review challenge brought by a disabled resident to the introduction of LTNs in Lambeth through the mechanism of experimental traffic orders (“ETOs”):  see R (Sheakh) v London Borough of Lambeth [2021] EWHC 1745 (Admin).

Now we have the judgment of Dove J in R (HHRC Ltd) v Hackney Borough Council [2021] EWHC 2440 (Admin), handed down on 6th September 2021, whereby the Court dismissed a judicial review challenge to the adoption by Hackney Council of an Emergency Transport Plan entitled “Rebuilding a Green Hackney – Emerging Transport Plan: responding to the impacts of Covid-19 on the transport network”. This included the proposed introduction of LTNs as part of a suite of alternative traffic management measures, although these LTNs had already largely already been created through the use of ETOs made under section 9 Road Traffic Act 1984 in response to the Covid-19 pandemic.

HHRC argued that, in adopting the ETP, the Council had failed to discharge its traffic management duties under section 16 Traffic Management Act 2004 and had failed properly to investigate the impact on air quality of the proposals, as well as breaching the public sector equality duty (“PSED”) under section 149 Equality Act 2010 by failing to have due regard to the impact of the proposals on vulnerable groups. Finally, the Claimant argued that there had been a failure to undertake proper consultation.

In relation to the Council’s duties under section 16 of the 2004 Act, however, Dove J emphasised the significance of the Covid guidance and the circumstances which prompted the SSoT to act by producing it. The Covid-19 global pandemic created an entirely unprecedented emergency and one which called for prompt action to address a situation for which there was little precedent and no blueprint. Moreover, given the extremity of these circumstances, the guidance clearly contemplated action being taken urgently and within weeks. The ETP’s “promotion of temporary and experimental LTNs accompanied by further monitoring and consultation” was held to be entirely consistent with the advice in the statutory guidance.

For the same reasons, it was no breach of the network management duty to adopt the ETP without conducting surveys and modelling of the impact on road users and residents, since the guidance clearly identified a requirement for urgent action which did not allow for the undertaking of extensive further inquiries and investigations. There was also no unlawfulness in implementing the ETOs on a temporary basis, followed by air quality monitoring and evaluation of air quality impacts.

Finally, the Court noted that the LTNs remain experimental and temporary in nature and that there would be an opportunity to examine the effects of the schemes on traffic movements and air quality during the experimental operation of them.

The claim based on alleged breach of the PSED also failed. Applying Sheakh, Dove J observed that “it is possible in some circumstances for a form of iterative or progressive assessment of equalities impacts to properly discharge the PSED” and held that this duty had been properly discharged here, bearing in mind that LTNs or similar schemes had been included within earlier policies adopted by the Council, as well as the availability of review of the impacts in the light of further monitoring, consultation and response. As Dove J put it, the ETP “is part of a continuum and its focus upon equality impacts was sufficient and proportionate for the stage within the process which it occupied.”

As to the alleged failure to consult, it was common ground that there was no express statutory duty to consult under section 16 of the 2004 Act. Nor was there a common law duty to consult upon the ETP itself, bearing in mind the Covid-19 guidance produced to deal with the conditions created by the pandemic, which envisaged in relation to Covid-19 related traffic management initiatives that consultation would take place alongside and at the same time as experimental implementation.

So, where does this leave legal challenges to LTNs introduced in response to the pandemic? While each case will need to be considered on a case-by-case basis, it is clear that the Covid-19 guidance and the wholly exceptional circumstances of the pandemic provide considerable protection to Local Planning Authorities seeking to introduce LTNs through the mechanism of ETOs. The temporary nature of ETOs and the fact that they allow for ‘real time’ monitoring and evaluation, as well as further consultation in due course, were also factors to which Dove J gave considerable weight.

Nonetheless, it remains to be seen whether the evidence supports making LTNs a permanent fixture. As recently as 19th September 2021, Ealing Council announced that it plans to abolish seven of its LTNs, due to widespread public opposition and a lack of evidence of any positive impact on either traffic congestion levels or local air quality. At the stage of making LTNs permanent, we can expect heightened scrutiny of the evidence in support of and against their creation and, perhaps, a greater willingness on the part of the Courts to review the lawfulness of such decisions.

Philippa Jackson is a barrister at 39 Essex Chambers.