A council breached a procedural legitimate expectation when it decided to re-open a road under a narrow bridge that had been shut to vehicle access under an experimental traffic order (ETO), a High Court judge has found.
However, in Keyhole Bridge User Safety Group, R (On the Application Of) v Bournemouth, Christchurch and Poole Council  EWHC 3082 (Admin) Mrs Justice Lang declined to quash the local authority’s decision.
The case involved a challenge by an unincorporated association – whose members are local residents living in Bournemouth, Christchurch and Poole – to the decision by BCP Council on 1 March 2021, to revoke the Bournemouth, Christchurch and Poole (Whitecliff Road) (No Vehicles Except Cyclists and Waiting Restrictions) Experimental Order (No.2) 2020 ("the Order").
The Order prohibited vehicle access (other than bicycles) on Whitecliff Road at the point where it runs under Keyhole Bridge, into Poole Park.
The ETO was made pursuant to section 9 of the Road Traffic Regulation Act 1984 ("RTRA 1984").
The claimant's grounds of challenge were summarised by Mrs Justice Lang as follows:
i) BCP Council acted in breach of Schedule 5 to the Local Authorities' Traffic Orders (Procedure)(England and Wales) Regulations 1996 ("the 1996 Regulations"), by curtailing the statutory 6 month period for representations (both objections and statements in support).
ii) The council promised [in an "Information Document"] that the experimental closure of the road would operate for 6 months and then be reviewed, that the public would be consulted on the closure, and responses received by 21 February 2021 would be taken into account in the review. This gave rise to a procedural legitimate expectation. Cllr Greene, Portfolio Holder for Transport and Sustainability, decided to revoke the Order on 27 January 2021, and the Overview and Scrutiny Board upheld the decision on 1 March 2021. The council failed to honour its promises and curtailed the consultation period for no justifiable reason, which was so unfair that it amounted to an abuse of power.
iii) When deciding whether or not to revoke the Order, the council failed to take into account material considerations, namely, consultation responses which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed.
iv) BCP Council acted irrationally when deciding whether or not to revoke the Order, by relying on unevidenced assumptions about the detrimental effect of the ETO on air quality.
In response, the council submitted:
i) The objections procedure in Schedule 5 to the 1996 Regulations was not a general consultation about the merits of the Order; its purpose and scope was to give the public an opportunity to object to the council continuing the provisions of the experimental order indefinitely in a permanent order. It did not prevent the council from exercising its discretion to revoke the Order at any time prior to the 6 month period for lodging objections.
ii) The council did not make any clear and unambiguous representations, as contended by the claimant, which were capable of giving rise to a procedural or a substantive legitimate expectation. In any event, the decision to revoke the Order did not take effect until 1 March 2021, when it was confirmed by the Overview and Scrutiny Board. Until 1 March 2021, members of the public could and did continue to make representations, which were taken into account, and thus met the expectation that the consultation period would continue until 21 February 2021. Alternatively, the council lawfully resiled from any legitimate expectation.
iii) In law, the duty on the council was to have regard to the material issues before making its decision. The claimant was not able to point to any issues which were not already before the council in numerous other representations when it made its decision. A representation from Mr and Mrs Philips, two members of the public, did not raise any new issues. Responses which were never made, such as from a Dr Mew, could not amount to a material consideration as they did not exist.
iv) The claimant's case on irrationality was a disagreement with the merits of the decision, rather than a demonstration that it was perverse.
v) Section 31(2A) of the Senior Courts Act 1981 applied, as it was highly likely that the outcome would not be substantially different if the conduct complained of had not occurred.
Mrs Justice Lang found that the claimant succeeded on Grounds 2 and 3 (in part only), but failed on Grounds 1 and 4.
In relation to ground 2 (legitimate expectation), the judge said that overall she considered the procedure which was adopted to be “significantly less favourable to the public”, in particular to supporters of the closure of Keyhole Bridge, than the promised consultation running through to 21 February 2021, followed by a review, at which the decision-maker would consider all the consultation responses lodged by then and decide "whether the changes should be made permanent, retained ... or removed" or alternatively, whether the trial should be extended (Information Document).
She added that the reasons given by the council for the change in approach - including that there had been a change of administration at the local authority - “did not amount to a countervailing public interest of sufficient weight to justify a departure from the requirement of fairness and good administration that public authorities should honour assurances which they have given to the public”.
In relation to ground 3 (material considerations), the judge said that, after the ground was pleaded, it emerged that the response from Mr and Mrs Phillips which was made on 30 January 2021 was not considered.
“In the light of my conclusions on Ground 2, it ought to have been considered as a material consideration before the decision was made. To that extent, this ground succeeds. However, I accept that the issues raised by Mr and Mrs Phillips were considered as they were raised in other earlier consultation responses.”
Relief was refused on Ground 3, as section 31(2A) of the Senior Courts Act 1981 applied, the judge said.
As to relief on Ground 2, the claimant submitted that, in order to remedy the breach of legitimate expectation, the decision of 1 March 2021 ought to be quashed. It was common ground that quashing the decision of 1 March 2021 would have the effect of reviving the Order.
The claimant further submitted that the entire trial closure and consultation should be re-run for a period of at least 6 months, and then a fresh review should take place.
BCP Council submitted that an entire re-run would go far beyond what was required in all the circumstances of this case, and the claimant's proposal was an opportunistic response by supporters of the road closure.
The defendant local authority also submitted that it would be confusing and unnecessary to close the road again, and any further period of consultation should be limited to completing the 6 month period, followed by a review.
Mrs Justice Lang said that, “broadly”, she agreed with the defendant's submissions. “In my judgment, there is no justification for re-running the entire trial closure and consultation afresh. There was an effective trial closure for more than 6 months – from 14 August 2020 to 1 March 2021 – and it is inconceivable that local people will have forgotten how it operated in practice. In any event, the vast majority have already cogently expressed their views, between 14 August 2020 and 22 January 2021.”
The judge added that the Court ought to have regard to the practicalities and the cost when considering what relief was appropriate.
“In my judgment, in order to remedy the unfairness and unlawfulness which has occurred, it is not necessary to quash the decision of 1 March 2021, revive the Order and close the road. I consider that the council ought to conduct a further non-statutory consultation to enable the public to give their views on the changes which were implemented by the Order, with effect from 14 August 2020 until its revocation on 1 March 2021,” she said.
Mrs Justice Lang said BCP should then conduct a review, which takes into account all the responses which have been received, including responses to the previous statutory and non-statutory consultations, and responses to the proposed decision to revoke, and the Call-in procedure. “Those who have already responded ought not to send a further response, unless there is a genuinely new point to be made.”
The judge added: “In principle, the purpose of the review will be to decide whether the changes which were implemented by the Order should be made permanent, retained with minor alterations, or removed. This reflects the promise made in the Information Document in August 2020.”
In the light of Mrs Justice Lang’s conclusions, the parties then reached an agreement for a further consultation and review, on the terms set out in the final order.
Responding to the High Court ruling, Cllr Greene said: “We are pleased that the court has dismissed the main point of contention that the decision was ‘irrational’. Indeed, the judge made clear that the claimant's argument did ‘not come close’ to demonstrating that.
“The judge was not satisfied that the announcement was made 37 days short of the six-month period originally advertised. Our argument was that it was highly unlikely any evidence or argument would have come forward in that remaining time that would be substantially different from that which had already been made and considered.
“However, we are happy to respect its ruling that we should hold a non-statutory consultation for 40 days to rectify this in case genuinely new evidence can be presented which is significant enough to mean the decision could be changed. We would specifically ask those thinking about responding to that consultation to consider the judge's comment in the judgement that Those who have already responded ought not to send a further response, unless there is a genuinely new point to be made."
Cllr Greene said the council was also pleased that the judge had accepted there was no need to close the road again during this consultation.
The 40-day online consultation exercise will run between February 28 and April 8 2022. Following the end of the consultation exercise a report on the findings will be brought to a future Cabinet meeting for a decision on which of the options to take forward, BCP said.