High Court judge allows legal challenge but declines to quash experimental traffic order

A High Court judge has allowed a legal challenge to the introduction of an experimental traffic order (ETO) in the City of London, but refused to quash the ETO.

In Tomkins v City of London Corporation [2020] EWHC 3357 (Admin) the claimant brought a statutory challenge, pursuant to paragraphs 35 and 36 of Schedule 9 to the Road Traffic Regulation Act 1984 (RTRA 1984), to the validity of the ETO, which was made by the City of London Corporation (the City) on 2 March 2020.

The ETO restricts motor vehicle traffic along Beech Street in the Barbican area. Only zero emission motor vehicles are permitted to travel along the street, other than for access. All types of motor vehicles are permitted access to the buildings whose vehicle entrances are on Beech Street.

The order closed the junctions between the street and two side roads, Golden Lane and Bridgewater Street, creating access difficulties for both residents and non-residents in the nearby areas. Beech Street is the only means of vehicular access to some parts of the Barbican.

The claimant, a leaseholder of a flat in the Barbican estate, owns a petrol vehicle and leases a car parking space in the underground Lauderdale Tower car park. The main entrance to the car park is in Aldersgate Street, close to the entrance to Beech Street. Previously the claimant approached it from Beech Street but he can no longer do so. He cannot enter the car park from the northbound carriageway of Aldersgate Street because a central reservation prevents it. Alternative access to the car park is "circuitous and difficult".

There were eight grounds of challenge:

1. The City failed to undertake a non-statutory consultation of Barbican residents before deciding to proceed with the ETO at the meeting of the Streets and Walkways Sub-Committee on 3 December 2019. This was in breach of the common law duty of fairness. Residents had a legitimate expectation that they would be consulted in advance about an experimental traffic scheme which would have such a significant impact upon them.
2. The City unlawfully failed to consult the Barbican Association and the Lauderdale Tower House Group under regulation 6 of the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 when it was appropriate to do so.
3. The City failed to hold, or consider holding, a public inquiry, pursuant to regulation 9 of the 1996 Regulations.
4. The City did not properly carry out the balancing exercise required under section 122 RTRA 1984 as it failed to consider a less restrictive approach which would achieve the same benefits with fewer disbenefits. In the absence of any public consultation, the City also failed to take into consideration the concerns of those who would be affected by the scheme.
5. The City failed to comply with the procedural requirements in regulation 23(3) of the 1996 Regulations to make the relevant documents available for public inspection.
6. The City failed to provide an adequate statement of reasons, as required by paragraph 2(d) of Schedule 2 to the 1996 Regulations.
7. From the outset, the Beech Street zero emissions scheme was not a genuine experiment, as required by section 9 of the RTRA 1984. Once traffic levels diminished, due to the Covid 19 pandemic, it was no longer possible to monitor traffic levels and so no experiment could be conducted.
8. The public's statutory right to object was substantially prejudiced by procedural errors and omissions. The reduction in traffic meant that it was not possible to experience the impact of the ETO under normal conditions.

Mrs Justice Lang allowed the claim on grounds 3, 5 and 6 only.

In relation to ground 3, the City had conceded that it did not consider whether or not to hold a public inquiry. The judge said this amounted to an error of law.

However, she added that, on the evidence before her, she had no doubt that the City would have decided against holding a public inquiry if it had turned its mind to regulation 9. “It viewed the ETO as a temporary measure, to be introduced as speedily as possible. It did not even consider that a public consultation was required before making the ETO, let alone a public inquiry. If it had decided not to hold a public inquiry, in the exercise of its broad discretion under regulation 9, I consider it is unlikely that its decision would have been held to be unlawful on grounds of irrationality or any other public law ground ….

“Therefore, applying the approach in the case of Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041, it is not appropriate to quash the decision on this ground as the result would have been the same even absent the error of law complained of.”

On ground 5, the judge said: “In my view, there was a significant failure to comply with the statutory requirements. However, my powers to quash the ETO because of a failure to comply with any of the relevant requirements only arise if I am satisfied that the Claimant has been substantially prejudiced by the failure to comply (paragraph 36(1)(b) of Schedule 9 to the RTRA 1984). I do not consider that the Claimant was substantially prejudiced by being unable to inspect the deposited documents, or see the ETO online because he closely followed the making of the ETO and was able to source the information which he needed to make his objection and this claim in good time.

“Nonetheless this was a significant breach of the statutory requirements which could well have prejudiced others. Therefore, I propose to make a declaration stating that the City failed to comply with the requirement in Schedule 2 to the 1996 Regulations to make the deposited documents available for public inspection, and therefore the requirement in regulation 23(3)(b) of the 1996 Regulations has not been met. This will prevent the City from relying upon the truncated procedure for making an ETO permanent, as that is conditional upon the requirements in regulation 23(3) being met.”

In relation to ground 6, Mrs Justice Lang said the statement of reasons in this case was “clearly inadequate” and did not meet the statutory requirements.

Closure of a road to petrol and diesel vehicles was an extreme measure that needed to be explained and justified, she added.

“However, my powers to quash the ETO because of a failure to comply with any of the relevant requirements only arise if I am satisfied that the Claimant has been substantially prejudiced by the failure to comply (paragraph 36(1)(b) of Schedule 9 to the RTRA 1984). Because the Claimant had closely followed the City's decision-making process, researching the committee reports and minutes, he was well-informed about the reasons why the City made the ETO. I do not think that the inadequate statement of reasons impeded him in making his objection to the permanent scheme or bringing this claim,” the judge said.

“Nonetheless, in my view, this was a significant failure to comply with the statutory requirements, which may well have prejudiced others. I propose to make a declaration stating that the statement of reasons was unlawful as it was inadequate and did not comply with the statutory requirements in paragraph 2(d) of Schedule 2 to the 1996 Regulations. Therefore the requirement in regulation 23(3)(c) of the 1996 Regulations has not been met."

This would also prevent the City from relying upon the truncated procedure for making an ETO permanent.

Mrs Justice Lang refused the claimant's application for the City to pay his costs. “Although he succeeded on three of the eight grounds, he did not succeed in quashing the ETO. The Council succeeded on five of the grounds, and the issues on which the Council succeeded occupied the majority of the hearing, and the post-hearing submissions. The City incurred significant costs in preparing and presenting those issues. Their costs far exceed the Claimant's claim for costs in respect of the grounds on which he was successful. The City is not pressing for its costs, but has instead proposed that there should be no order for costs. In all the circumstances I consider that this is a just and appropriate order.”