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County council concedes it unlawfully removed cycle lane, agrees to pay defendant £25,000 in costs 

West Sussex County Council has conceded that it unlawfully removed a cycle lane because it failed to take into acount relevant statutory guidance.

In a consent order issued last week in the High Court, it was declared that the local authority acted unlawfully in removing the cycle lane on the A270 Upper Shoreham Road by decisions taken in November 2020 because it failed to take into account statutory guidance made under section 18 of the Traffic Management Act 2004.

The order also said the defendant council should pay the costs of the claimant, Cycling UK, its costs of the claim, in the amount of £25,000.

Section 18 of the 2004 Act relates to guidance to network management authorities and says that:

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“(1) The appropriate national authority may publish guidance to [network management] authorities about the techniques of network management or any other matter relating to the performance of the duties imposed by sections 16 and 17.

(2) In performing those duties a [network management] authority shall have regard to any such guidance.”

The county council installed the bike lane via a temporary traffic regulation order following a council decision in July 2020 and removed it five months later in November.

The Statement of Reasons in the consent order said: "The Network Management Duty in section 16 of the Traffic Management Act 2004 ('the 2004 Act') applied to the Council's decision to remove the Cycle Lane, as did the statutory guidance issued under section 18(1) of the 2004 Act ('the Statutory Guidance')”.

"The Council was obliged to have regard to the Statutory Guidance and act in accordance with it, or give clear and cogent reasons for departing from the Statutory Guidance."

In making the decision to remove the cycle lane, the council unlawfully failed to take the Statutory Guidance into account, the Statement of Reasons said.

"The Statutory Guidance applied equally to the decisions to implement and to remove the Cycle Lane. The Statutory Guidance indicated that there was a need for active travel measures, even with the pressures of Covid-19 on public transport reducing, because the active travel measures helped to maintain a green recovery and there is a need for people to carry on cycling. The Statutory Guidance also required the collection of data and evidence to assist with the long-term embedding of a change in travel habits. The Council ought to have taken all these matters into account."

Duncan Dollimore, Cycling UK’s head of campaigns said: “In Shoreham, Cycling UK has drawn a line in the sand, showing there are repercussions for councils which ignore government guidance. Hopefully West Sussex County Council’s acceptance they acted illegally will put a stop to short sighted decisions like this happening across other parts of the UK.

“This is a victory for people who want their children to travel to school in safety, for people who don’t have to breathe polluted air, and for everyone who would like healthier, safer streets where we live and work.”

Cycling UK said it hoped the creation of Active Travel England, a new inspectorate body tasked with driving up standards of cycling and walking infrastructure and awarding funding for projects that improve health and air quality, would mean such legal challenges are no longer necessary.

Mr Dollimore added: “Challenging councils which act illegally by ignoring government guidance shouldn’t be the work of charities like Cycling UK. We hope Active Travel England will make sure councils not only promote cycling, but ensure they act lawfully and don’t waste public funds.”

Estelle Dehon, barrister at Cornerstone Barristers (who, with Dr Christina Lienen, acted for Cycling UK), said: “At its heart, this case is about the value of active travel, both in terms of promoting human health by reducing air pollution and in addressing the climate crisis. The Statutory Guidance which the council should have followed made this clear.

“Building on our client’s legal success, it is now time for a consistent approach to be taken across the UK, similar to that in Wales, where there is a strong obligation on all local planning authorities to promote active travel. Given how many deaths are caused by air pollution, and the need for the most urgent action to reduce greenhouse gas emissions, this should be a top priority.”

A West Sussex County Council spokesperson said the council settled the court case so as to avoid further cost to the public purse “in relation to a decision taken some time ago and which has no implications for other proposals or schemes”.

It added: “We have accepted that we should have included in a council report a clearer account of government guidance and its effect before taking the decision. This may or may not have led to a different a decision about the temporary cycleway in Shoreham.

“Cycling UK has expended a great deal of money on this process but there is no prospect of the temporary Upper Shoreham Road cycleway scheme – which was introduced as an emergency, temporary measure during the pandemic – being restored and the guidance in question no longer applies.

“The declaration therefore has no significance other than to resolve the litigation Cycling UK chose to undertake. We decided to minimise costs by making the declaration rather than have the matter go to a further hearing where the best outcome Cycling UK could reasonably have achieved would have been the declaration now agreed."

Adam Carey

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