Hackney Council has successfully defended a legal challenge in the High Court to the validity of two experimental traffic orders (ETOs) it made.
The case of SM (A Child) & Anor v London Borough of Hackney  EWHC 3294 (Admin) was brought by children with disabilities through their fathers as litigation friends. They complained that they had been severely prejudiced by increased car journey times to and from their school.
Hackney made the two ETOs on 25 September 2020, with them eventually taking effect from 9 November 2020. The two ETOs were:
- 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
- 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).
The application was made under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984. It was not a judicial review; Mr Justice Kerr noted that permission was not required but the challenge must be (and was) brought within six weeks from the date the order was made; and otherwise may not (see paragraph 37 of the same Schedule) be questioned in any legal proceedings whatever.
Mr Justice Kerr said the grounds of challenge were, however, founded on conventional principles of public, equality and human rights law frequently aired in judicial review proceedings. In this case, the grounds were failure to discharge the public sector equality duty, failure to consult and breach of article 8 or article 14 (read with article 8) of the European Convention on Human Rights (ECHR).
Hackney resisted the application. It contended that it properly discharged its duty to have "due regard" to the matters specified in section 149 of the Equality Act 2010; that it was under no obligation to consult more widely than it did prior to making the ETOs; and that there was no interference, or alternatively a justified interference, with the applicants' article 8 rights and no violation of their rights under article 14 read with article 8.
On ground 1 (failure to comply with the PSED), Mr Justice Kerr said: “It is a curiosity that the Tameside duty of enquiry attracts a rationality threshold and the steps needed to perform it are therefore (subject to rationality) a matter of judgment for the decision maker; but the section 149 duty sets an objective standard and the court, not the decision maker, must decide whether the standard has been met or not. I keep in mind that different standards apply to the two duties; and that in the context of a temporary experimental decision, the decision maker by definition does not know all it needs to know to make a final decision.
“In the factual context of the public health emergency and the clear need for accelerated decision making, I reject the applicants' submission that Hackney should have conferred with the families, or representatives of the families, of the class of affected pupils at S School. It was not irrational to confine the enquiries made in relation to S School to those made on 14 September 2020. Hackney did not breach its duty of enquiry by failing to ask further questions of [the headteacher] or [the school administrator] about journey times to S School and the impact of any increases on some disabled children attending that school.”
As for the "due regard" duty, Mr Justice Kerr said he preferred Hackney's submission that it was adequately performed, even though it did not, at the initial stage of the experiment, include drilling down to consideration of the specific impact on a particular sub-cohort of disabled children who could be adversely affected by increased journey times.
“The impact on those with protected characteristics including disability was considered carefully and there was to be ongoing monitoring and assessment. I therefore reject the first ground of challenge,” Mr Justice Kerr said.
On the second ground (failure to consult), the High Court judge said the scope of the duty to consult was now often drawn from the judgment of the court in the Richard III case (R (Plantagenet Alliance) v. Secretary of State for Justice  3 All ER 261), at [98(2)]. The applicants relied on the first, second and fourth cases: a statutory duty to consult, an established practice of consultation and an exceptional case where a failure to consult would lead to conspicuous unfairness.
It was common ground that Hackney had a statutory duty to consult to the extent provided for by regulation 6 of the Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 and it was not disputed that Hackney consulted various bodies in accordance with that regulation.
“The question for me is whether either regulation 6 or a legitimate expectation of consultation enjoyed by the applicants (or both) and the demands of fairness meant that more extensive consultation than took place was required,” Mr Justice Kerr said.
The judge said Hackney undertook pre-implementation public consultation on some nine School Streets schemes from 2017 to 2019. “That practice of general public consultation clearly went beyond what regulation 6 required. It was not restricted to the named consultees listed in regulation 6 and organisations representative of affected parties which, Hackney considered, were appropriate bodies to be consulted. The consultation was open to any member of the public, who could comment using the online facility.”
Mr Justice Kerr said he accepted the applicants' submission that there was, in this case, a settled past practice of consulting the general public in the area before making ETOs to give effect to School Streets schemes. A legitimate expectation that the public would be consulted on this occasion therefore "may (not must) arise", as this is a case "where a public decision-maker changes, or proposes to change, an existing policy or practice" (per Laws LJ in the Bhatt Murphy case, at ).
The judge said: “The question may then become whether it was (ibid.) "unfair or an abuse of power", after the Covid-related DfT and TfL guidance in May 2020, to cease its practice and adopt a different one: namely, to consult before implementation more narrowly within the confines of regulation 6 and leave the wider public consultation process until after implementation, through the formal written objection procedure and the 'Commonplace' online facility, or by telephone or freepost for those not digitally connected.”
Mr Justice Kerr said that in this case, there was an exchange of views at a video meeting on 14 September 2020 between Hackney and staff at S School and others involved in the Orthodox Jewish community, before the ETOs were made.
“That could be described as consultation of a kind; indeed, Hackney itself submitted that it 'consulted' the S School prior to the two ETOs being made. That willingness to listen to the views expressed during the video meeting should not be held against Hackney on the basis that it was consultation not properly carried out,” he said.
“Cases where there is a breach of the requirement to consult in a manner that is (as the applicants put it) "Coughlan compliant" should be confined to cases such as Article 39 where there is real unfairness in what was done; for example because, as in that case, there is a lack of even-handedness because crucial consultee organisations are left out. It should not extend to a case such as this where no formal consultation took place beyond performing the statutory obligation, but comments were informally entertained at a video meeting.”
The judge concluded that this was not a case like R (Article 39) v. Secretary of State for Education  PTSR 696, “and that there were good reasons in the public interest for departing from the established practice; namely, the advent of the pandemic, the ensuing lockdown, the guidance and advice urging authorities to accelerate School Streets and LTN schemes and the fact that the changed practice still accorded (subject to one further submission [which he considered later in his judgment]) with the 1996 Regulations including the objection process (ordained by regulation 23 and Schedule 5) and the right of challenge (under paragraph 35 of Schedule 9 to the ROTRA).”
As to the submission that Hackney acted in breach of regulation 6, the judge assumed in the applicants' favour that it was for the court rather than the local authority to determine, objectively, which bodies qualified as bodies "representing persons likely to be affected". Clearly, the decision as to which such bodies are thought "appropriate to consult" is that of the local authority and must be rational.
Mr Justice Kerr said: “I accept in part the submission that the S School is such a body, if (as I assume) that is a decision for me. I would accept that it represents its pupils, and their parents and carers, with regard to matters touching directly on the S School's responsibilities. It represents them in matters relating to the content of their education. I would accept, also, that it is responsible to parents, carers and pupils for maintaining access to the S School.
“However, I do not accept that the S School represents its pupils, parents and carers with regard to journey times to and from their homes to the School. The S School has no responsibility to parents to keep the roads open, and the journey to school short and swift. As we know from AD's evidence, most of the increase in SDJ's journey time is the result of a road closure near his home which has nothing to do with S School. It is not surprising that [the headteacher’s] concern at the meeting on 14 September 2020 was focussed on access to the S School.”
Based on that reasoning, Mr Justice Kerr did not accept that it would have been irrational to exclude the S School from the list of regulation 6 bodies it was thought "appropriate to consult". “The Interlink Foundation was a more natural candidate, since it represents members of the Orthodox Jewish community living in the area and likely to be affected by the ETOs. In any case, Hackney did hold a video discussion with S School staff.”
The judge therefore dismissed the second ground of challenge.
On the third ground (ECHR article 8, or article 8 read with article 14), Mr Justice Kerr found the ETOs justified, for the following reasons:
- The degree of adverse impact by reason of disability was limited. “It affects not disabled people generally or a high proportion of them (as would, for example, a lack of disabled access to a prominent public building). It affects a small sub-group of disabled children suffering from a particular kind of disability which is such that the measure affects them adversely. Further, the adverse effect of the ETOs on that sub-group comes about not directly but by the indirect route of increasing the journey time to and from the S School.”
- The remaining reasons for finding the ETOs justified were those relied on by Hackney: the orders were “experimental, subject to monitoring and review, there is an objection process and a right of challenge; they are consistent with Hackney's policy and with central government guidance and TfL's advice; they target air pollution and improved safety by inhibiting rat running; they support healthier travel and improved accessibility; they benefit others; the Harrington Hill ETO is limited to school hours in term time; and exemptions are possible”.
- By the same reasoning, the judge rejected the applicants' submission that "[t]he potential benefits of an experimental traffic scheme do not outweigh the real and tangible detriment caused by the scheme to a highly disadvantaged sub-group of children". However, Mr Justice Kerr said he hoped that an exemption would be explored, if not for individual private vehicles, for vehicles carrying several children and identified by registration number, to be considered on a case by case basis. Hackney had already expressed willingness to consider this.
The judge said he did not find any further facts emerging in the post-decision evidence which Hackney ought to have known about before it took the decision to make the two ETOs which pointed to a contrary conclusion; nor anything that cast doubt, as a cross-check, on Hackney's estimate in September 2020 of the likely impacts of the ETOs.
“Judging Hackney's actions up to and the time they were made on 25 September 2020, I find the two ETOs to be justified despite the regrettable but limited adverse impact they have had and continue to have on the applicants," he said.
Mr Justice Kerr continued: “Although I have much sympathy for the applicants and other affected children at S School, I reach my conclusion without doubt or hesitation. It is striking that if the ETOs were quashed, not just the applicants but others without special needs or any disability and having nothing to do with S School would once again be able to make rat runs through the back streets south of Mount Pleasant Lane and to drive through the barrier at the northern end of it.
“That would dilute and, indeed, partially defeat the impact of the ETOs and reduce the benefits they are expected to deliver; a consequence that would have to be endured if the ETOs were not lawfully made; but, as I have decided they were lawfully made, one that need not ensue.”