Montpeliers and Trevors Association, R (on the application of) v City of Westminster

Montpelier and Trevor Squares are residential squares in a conservation area in the City of Westminster near the boundary between the City and the Royal Borough of Kensington and Chelsea (“RBKC”). They are used as ‘rat-runs’ by substantial volumes of through traffic, something that the residents of the two squares are anxious the City should control by the appropriate exercise of its powers under the Road Traffic Regulation Act 1984.

On 17 April 2002 the City, acting in exercise of its powers under section 9 of the Act, made The City of Westminster (Prescribed Routes) (No 2) Experimental Traffic Order 2002 which came into effect on 29 April 2002 (“the 2002 Order”). Putting matters shortly, the 2002 Order authorised the installation of barriers preventing use of the squares by through traffic, though not by the residents, who were given permits enabling them to pass through the barriers. The 2002 Order was modified in accordance with section 10(2) of the Act with effect from 20 September 2002 so as to extend the class of persons entitled to permits. The effect of section 9(3) of the Act was that the 2002 Order would necessarily come to an end after 18 months, that is on 28 October 2003, unless then made permanent.

The procedure for making experimental or permanent traffic orders under the Act is laid down partly in the Act and partly in The Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996, SI 1996/2489. Regulation 22(1) provides that the normal procedures for objection laid down in regulations 7 and 8 shall not apply to an experimental order and regulation 23(2) provides that those procedures shall not apply to an order making an experimental order permanent if, as in the case of the 2002 Order, the experimental order contains the statements required by Schedule 5 of the Regulations. Where, as in the case of the 2002 Order, Schedule 5 applies, the effect is, inter alia, that “any person” may, within six months of any modification of the order in accordance with section 10(2), object to the order being made permanent. Thus in the present case RKBC was entitled to object within six months of 20 September 2002 to the City’s proposals, set out in the 2002 Order in accordance with Schedule 5, to make the 2002 Order permanent when it would otherwise expire in October 2003. RKBC made formal objection on 3 January 2003. Put shortly its objections centre on the use of barriers: it has no objection to less stringent measures. The residents are emphatic that the barriers should remain. Thus the essential battle lines were drawn.

It is accepted on all sides that the continuation of the 2002 Order would, within the meaning of section 121B(1)(b) of the Act, be “likely to affect” roads in RBKC. In these circumstances, and given that RBKC had made an objection, the effect of sections 121B(1), 121B(3)(c) and 121B(3)(d) of the Act was to prevent the City exercising its powers to make the 2002 Order permanent unless either RBKC withdrew its objection or the Greater London Authority (“GLA”), having considered RBKC’s objection, gave its consent. The practical position in which the City accordingly found itself in early 2003 was that it could not meet the residents’ requirements unless it could either persuade RBKC to withdraw its objection – unlikely because RBKC had first voiced its objections to barriers as long ago as 1993 – or persuade GLA to agree.

In July 2003 the City’s officers delivered a report to the City’s Cabinet Member for Economic Development and Transport. Entitled Review of Montpelier Square and Trevor Square Barrier Scheme, it recorded that since the barriers became operational and up to 20 March 2003 (the cut-off date for Schedule 5 objections) the City had received 357 written objections (304 of these being signatories to four petitions from residents in areas outside but near to the squares) and 48 letters expressing support for the scheme (24 of these being signatories to a petition from the residents of the two squares). The Review was described as outlining alternative options

The author of the Review identified seven possible options, numbered 1a, 1b, 2, 3, 4a, 4b and 5. Option 1b was to keep the existing barrier scheme but with slight modifications. Option 1a was to keep the existing barrier scheme but to extend the permit eligibility area (that is, the area whose residents would be entitled to permits enabling them to pass through the barriers). The author of the Review recognised that Option 1a was “likely” to meet a “large number” of the outstanding objections, but noted that it was opposed by RBKC. The recommendation in the Review was that it was “appropriate to reduce the options for consultation to options 2, 3 and 5”, in other words to exclude from the consultation process those options – 1a and 1b – which provided for the retention of the barriers. The author of the Review concluded:

On 4 August 2003 the City’s Cabinet Member for Economic Development and Transport made his decision. Following the advice in the Review he selected options 2, 3 and 5 for consultation and

Following that decision the City issued a consultation leaflet. Explaining why options 1a and 1b were excluded from consultation, the leaflet said:

The outcome of that public consultation was recorded in a further officer’s report – Review of Montpelier Square and Trevor Square Barrier Scheme: Results of Public Consultation – sent to the Cabinet Member for Economic Development and Transport in October 2003. It recommended the adoption of a modified and elaborated version of the original option 5 (option 4 in the consultation leaflet). It recorded that, contrary to previous thinking, no steps would now be taken to revoke the 2002 Order: it would simply be allowed to expire in any event on 28 October 2003. That advice was accepted by the Cabinet Member for Economic Development and Transport, who on 3 December 2003 made a formal decision selecting option 4 (the old option 5). Included amongst the brief reasons given for that decision was this:

Following that decision the appropriate steps were taken by the City to make a new (permanent) traffic order implementing option 4. The resulting order – The City of Westminster and Kensington and Chelsea (Prescribed Routes) (No 1) Traffic Order 2004 (“the 2004 Order”) – was made on 10 March 2004 and came into force on 31 March 2004. It is common ground that the effect of section 124 of the Act is that it is now too late to challenge the validity of the 2004 Order. In any event there is no suggestion that the 2004 Order is itself invalid.

The claimant, an association representing the residents of the two squares, commenced proceedings on 29 October 2003 (CO/5731/2003) challenging the decision of 4 August 2003. Apart from various interim relief, not in the event pursued, the only relief sought in the claimant’s Form N461 is an order to quash the decision to omit the extension of the barrier scheme from the list of options consulted upon. For some reason, which I fear reflects little credit on the court, it was not until 24 March 2004 that the application for permission was considered on the papers by Goldring J. He ordered the City to file an acknowledgement of service within 21 days. It failed to do so. By then the claimant had commenced further proceedings on 16 March 2004 (CO/1348/2004) challenging the decision of 3 December 2003 (the Form N461 refers to the decision as having been taken on 18 December 2003 but nothing turns on that for the City, properly in all the circumstances, does not take any ‘time’ point against the claimants in this respect). Again, as in the case of the earlier proceedings, apart from various interim relief, not in the event pursued, the only relief sought in the claimant’s Form N461 is an order to quash the decision. On 5 May 2004 both cases came before Newman J on the papers. The City, in defiance of Goldring J’s order, had still filed no acknowledgement of service in CO/5731/2004 nor had it filed any acknowledgement of service in CO/1348/2004. Newman J gave the claimant permission to apply for judicial review in both cases.

More time passed, and eventually both cases were listed for substantive hearing before me on Tuesday 5 October 2004. Only on the afternoon of the previous Friday – 1 October 2004 – did the City finally get round to instructing solicitors, who instructed counsel the same afternoon. On Monday 4 October 2004 – eleven months after the first proceedings had been commenced and the day before the hearing – the City took its first effective steps to defend the proceedings, by serving on the claimant a witness statement of Peter Large, the City’s Deputy Director of Legal Services, and a skeleton argument.

In these circumstances the first question I had to decide was whether the City should be allowed to participate in the hearing at all. Having filed nothing at all until the day before, it required permission under CPR 54.9(1) to take part in the hearing. Mr Thomas Cosgrove on behalf of the City applied for permission to take part; Ms Gillian Carrington on behalf of the claimant opposed that application.

In his witness statement Mr Large said:

The City’s conduct is utterly lamentable. Its breaches of the rules are inexcusable. It would be tedious to catalogue each of its defaults. It suffices to emphasis that, from the beginning until almost the end, the City has wholly failed to comply with the requirements of CPR Part 54. On top of that it simply disobeyed – defied – Goldring J’s order. The apology proffered by Mr Large is perfunctory and little more than formulaic. Like too many apologies offered in such circumstances it provides absolutely nothing by way of explanation. Apologies come relatively cheap; proper explanations are far more painful. Moreover, as Ms Carrington pointed out, Mr Large’s apology rings rather hollow when read in the light of a letter which he himself had written on 1 September 2004 saying that he was “about to instruct Counsel urgently to draft a formal response to the applications” and indicating that he would be doing so within the week. I specifically asked Mr Cosgrove whether he wished to say anything more in the light of this letter: presumably on instructions he declined the invitation.

As I commented during the hearing, the City is not the Warmington-on-Sea UDC making its first ever visit to an unfamiliar court. The City is an experienced litigant – and an experienced litigant, moreover, in the Administrative Court. It has treated the court, but more importantly the claimant – which after all represents some of the City’s own citizens and council tax payers – in a cavalier and almost contemptuous fashion. Mr Large’s witness statement does little to mitigate matters; if anything the reverse. Almost the only thing to be said in the City’s favour is that it does not stand alone in the dock. In the course of two days during the same sittings in the Administrative Court I was faced not only with the City’s failures but also with comparably serious failures to comply with CPR Part 54 on the part of two other London boroughs. It is simply not good enough.

That said, the jurisdiction under CPR 54.9(1) is not to be exercised for the mere sake of inflicting exemplary punishment. Mr Cosgrove made clear that the City was not seeking to rely upon any new evidence other than that relating to the making of the 2004 Order. Ms Carrington for her part accepted that she was able to proceed and did not seek an adjournment. There being, therefore, no prejudice to the claimant that could not be remedied, if need be, by an appropriate order for costs, I accordingly allowed Mr Cosgrove to address me. I formally give the City permission to take part in the hearing notwithstanding its non-compliance with CPR 54.9(1)(b).

Essentially the same grounds are relied upon by Ms Carrington in support of her submissions that the decision of 4 August 2003 was unfair and unlawful, that the consultation exercise is similarly flawed, and that the decision of 3 December 2003 was likewise unfair and unlawful. As she put it in her skeleton argument, the decision of 3 December 2003 was tainted by illegality for the same reasons as the 4 August 2003 decision; the effect of the 3 December 2003 decision was to remove the barriers, but that decision stemmed from and was premised on the consultation decision of 4 August 2003 and the consultation process itself, both of which were flawed.

Ms Carrington has five major complaints:

failure to consult properly;

unfairness;

irrationality / unlawfulness / irrelevant considerations;

breach of section 122 of the Act;

breach of legitimate expectation.

failure to have regard to the City’s policies;

failure to have regard to the Singleton Report;

acting on faulty information;

failure to give reasons.

First, however, I must mention the question of relief. The claimant’s Form N461s, as I have already said, sought by way of final relief only quashing orders in relation to the two decisions of 4 August 2003 and 3 December 2003. No mandatory relief was sought. But at the hearing, and in response to questions from the Bench – questions prompted in part by Mr Large’s comment in his witness statement that a quashing order would not of itself assist the claimant or have any practical effect given the removal of the barriers –, Ms Carrington made it clear that she was also seeking a mandatory order requiring the City to carry out the form of consultation which, she says, it ought to have done but had failed to do.

The claimant relies upon two well-established principles of law:

If a local authority decides to embark upon a non-statutory process of consultation the applicable principles are no different from those which apply to statutory consultation: see R (Partingdale Lane Residents Association) v Barnet London Borough Council [2003] EWHC 947 (Admin), [2003] All ER (D) 29, at para [45].

Consultation must be undertaken when proposals are still at a formative stage, must give sufficient reasons to permit the consultee to make a meaningful response, must allow adequate time for consideration and response, and the results of the consultation must be conscientiously taken into account in finalising any proposals: see R (Wainwright) v Richmond upon Thames London Borough Council [2001] EWCA Civ 2062, [2001] All ER (D) 422, at paras [9]-[10], and Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) at paras [111]-[114]. The crucial point, as the Deputy Judge expressed it in Partingdale at para [47], is that “consultation must take place at a stage when a policy is still at a formative stage … a proposal cannot be at a formative stage if the decision maker does not have an open mind on the issue of principle involved”.

In the present case, says Ms Carrington, the consultation following the decision on 4 August 2003 was not taken at the formative stage. There had been a pre-determination against the option of retaining the barriers and that option was simply excluded from consultation.

Mr Cosgrove submits that the option of retaining the barriers was considered – and, as it happens, rejected – following what he says was lawful and fair consultation. He does not differ from Ms Carrington on the law. He simply seeks to analyse what happened rather differently. Ms Carrington identifies the relevant consultation as being that which took place after and in accordance with the decision on 4 August 2003. Mr Cosgrove, in contrast, identifies the relevant consultation as being that which, he says, had already taken place before and which led on to the decision on 4 August 2003. The relevant consultation, he says, ended on 20 March 2003 and was fully considered in the Review prepared in July 2003. That consultation, he says, involved all the possible options, and cannot be characterised as either inadequate or unfair. Moreover, as he points out, it generated, as we have seen, letters both of support and objection to the retention of the barriers. And all the responses – including those supportive of the retention of the barriers – were fully considered in the July 2003 Review. It was, Mr Cosgrove submits, as a result of this consultation that the option of retaining the barriers was rejected. Once that decision had been taken on 4 August 2003 then, he says, it is clear that the purpose of the later consultation was simply to consider the remaining alternative options. There was nothing at that stage, he says, to prevent the City consulting on some only of the possible options.

On this point I agree with Ms Carrington, and essentially for the reasons she gives. The short point, as it seems to me, is that the exercise which took place prior to July 2003 was not a process of consultation of the kind that the City’s Director of Planning & Transportation had had in mind in December 2002 or that the author of the July 2003 Review had in mind – that is, a process of general and full consultation with the residents and business and other interests in the area of the kind that in the event was carried out in September 2003. It was merely a statutory process whereby those who objected to the 2002 Order being made permanent could make their objections known. True it is that, in the event, supporters of the retention of the barriers also made their views known, but that is not the same as saying that there was a general process of consultation on a range of options of the kind that was subsequently carried out in September 2003.

The insuperable difficulty which, as it seems to me, faces the City is that neither the statutory process that took place prior to July 2003 nor the further process that took place in September 2003 (nor, for that matter, the combination of the two) satisfies the Partingdale Lane test: the statutory process was not a process of consultation meeting the Partingdale Lane criteria; and the subsequent process, although a process of consultation, was vitiated by the fact that one of the options – and an option which on any view was of central significance – had already been excluded from further consideration.

Ms Carrington relies upon R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin), [2002] All ER (D) 385, at paras [28], [32], for the proposition that, as Maurice Kay J put it, “consultation, whether it is a matter of obligation or undertaken voluntarily, requires fairness”, fairness in this context meaning procedural fairness rather than substantive fairness. In that case it was held to be unfair, and indeed irrational, to exclude Gatwick from the options presented in a consultation exercise relating to the future development of air traffic in the South East: see at paras [29]-[31].

Arguing by analogy from that case, and she suggests that on the facts the analogy is really rather close, Ms Carrington submits that to exclude the options of retaining the barriers and/or extending the permit area was unfair because it deprived the consultees once and for all of their only real chance to express their views on those options, in just the same way as in the Medway case it was unfair to deprive the objectors of their one real chance of presenting their case in relation to Gatwick: see at para [32]. The consequence, says Ms Carrington, of the decision to exclude the options of retaining the barriers and/or extending the permit area from consultation was that:

no or no effective representations could be made as to the option of retaining the barriers; the consultation document provided no or no adequate opportunity for consultees to express a view on the merits of either of those options;

the City would never be in a position to know the views of the consultees on the option of retaining the barriers;

while it was possible to note that there were those who favoured retention of the barriers, the City would not be in a position to weigh their views against the views of those who did not so wish;

the consultation document did not permit of full and fair expression of views on the options which were included: there was no mechanism for expressing a preference between the options (consultees were asked only if they supported, did not support or had no views on any given option), additional comment was invited only on the issues covered by the consultation document (there was no provision for consultees to comment generally or on matters not canvassed in the consultation leaflet), and there was no mechanism for those with no enthusiasm for any of the four options to make their views known.

Again, Mr Cosgrove does not differ from Ms Carrington on the law. But he says there was no unfairness. The present case, he submits, is factually different from the Medway Council case, for the claimant and the other consultees have not, he says, been deprived once and for all of their only real chance to express views on all the various options. There have, he says, been a number of opportunities for the consultees to do precisely that: in particular, during the statutory consultation process which ended in March 2003 and, again, during the further consultation process in September 2003. And, as he points out, several people voiced opposition to the removal of the barriers during the latter consultation process and their views were taken into account in the October 2003 Review.

Again, and for much the same reasons, I agree on this point with Ms Carrington. Fairness in my judgment required that there should be a process of consultation in which those being consulted could express their views on all the various options. That never took place. It is no good Mr Cosgrove saying, even if it is the case, that proponents of the retention of the barriers expressed views supportive of that contention in the course of both the statutory process and the subsequent consultation exercise. Fairness required a consultation process in which all those interested, whether pro or con, were invited to express their views on all the various options. The statutory process, though it did not in the event exclude from consideration those supporters of the retention of the barriers who expressed their views, had not canvassed views generally: the only views explicitly canvassed were those opposing the perpetuation of the 2002 Order. That no doubt sufficed to meet the statutory requirements, but it did not meet the requirements of fairness in a situation where what was proposed was a general consultation of all interested parties. The subsequent process did canvass the views of all interested parties, but only in relation to a restricted range of options. Fairness required that all the various options be put to the consultees. That was never done. The same point can be put another way. The process was not fair, either in its constituent parts or overall, because some supporters of the retention of the barriers may have thought that it was not the moment to voice their views during a statutory process of making objections and likewise may have thought there was no point in expressing views supportive of the retention of the barriers in the course of a consultation exercise which had apparently already ruled that option out of further consideration.

It is said that the City acted irrationally and/or unlawfully and/or took into account irrelevant considerations:

in deciding to exclude from consultation the options of retaining the barriers and/or extending the permit area;

in taking into account RBKC’s objections as a reason for excluding from consultation the options of retaining the barriers and/or extending the permit area: there was at the relevant time, says Ms Carrington, no proposal by the City to exercise any power under the Act, only a proposal to consult on a range of options, so RBKC’s objection was simply irrelevant; and

in treating RBKC’s objections as, in effect, the determinative reason for excluding from consultation the options of retaining the barriers and/or extending the permit area: this, says Ms Carrington, amounted to an unlawful predetermination and, moreover, constituted an unlawful evasion of the statutory process for resolving disputes set out in section 121B of the Act, and was in any event irrational.

The first of these three points adds nothing to Ms Carrington’s other arguments. In relation to the other two Mr Cosgrove says that RBKC’s objections were considered by the City to be valid and weighty, that the City was entitled to take those objections into account in arriving at its decision on 4 August 2003, in just the same way as it was entitled to take into account all the other objections and other representations it had received, and that it was entitled to conclude that RBKC’s objections were sufficiently persuasive to justify the conclusion that the barriers should not be retained. The mere fact that, had RBKC been unhappy with the decision reached, it could have invoked the procedure under section 121B of the Act is irrelevant, he says, if the substance of its objections contributed to the decision not to retain the barriers.

On these two points I agree with Mr Cosgrove and for the reasons he gives. These complaints would not on their own entitle the claimant to any relief.

So far as is material for present purposes section 122 of the Act provides as follows:

It is common ground that section 122 requires a local authority, before it exercises any function under the Act, to consider all the matters referred to in section 122(2), regardless of whether or not it has received any objections to what it is proposing. Only after each of the matters referred in section 122(2) has been considered can the local authority proceed to the balancing exercise required by section 122: see R (LPC Group plc) v Leicester City Council [2004] All ER (D) 261 at paras [53], [57]-[60]. As Ms Carrington puts it, section 122 imposed on the City a free-standing duty so to exercise its functions under the Act as to achieve the aims set out in section 122(1) whilst having regard, in the particular circumstances of this case, to the matters set out in sections 122(1) – “the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)” – 122(2)(a) – “reasonable access to premises” – 122(2)(b) – “the amenities of [the area]” – section 122(2)(bb) – air quality – and 122(2)(c) – “the passage of public service vehicles”.

Ms Carrington complains that in failing to consult on the options of retaining the barriers and/or extending the permit area the City failed to consider relevant factors under section 122. Specifically, she complains that the effect of the decision of 4 August 2003 was to exclude from consideration at a later stage, when the City came to exercise its functions under the Act, certain of the matters set out in sections 122(1) and (2). Her case is that the options of retaining the barriers and/or extending the permit area would or might facilitate “the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)”, would ensure that reasonable access to the properties in the two squares is maintained, preserve the amenities of the area, enhance air quality in the two squares, and facilitate “the passage of public service vehicles”. So, she says, the City, by refusing to consult on retaining the barriers and/or extending the permit area, has unlawfully precluded itself from carrying out the balancing exercise and taking into account relevant matters as required by section 122.

Similarly, she says, the October 2003 Review entirely failed to consider the effect on the amenity of the locality that the removal of the barriers would have; and the decision of 3 December 2003, she says, failed to identify the weight given to amenity, to the environmental air quality, to access to premises, or to the safety of pedestrians and other road users, and failed to indicate how any of these factors had been weighed in the balance against the convenient and safe movement of vehicular and other traffic.

In fact, Mr Cosgrove submits, it is clear from both the July 2003 Review and the October 2003 Review that the statutory context was recognised and that potential benefits to the squares were considered when the decision not to retain the barriers was taken. Perfectly adequate reasons, he says, were provided by the statement of decision on 3 December 2003.

The essential fallacy in this part of Ms Carrington’s argument is revealed by the very way in which she summarises the case in her skeleton argument: “Declining to include the option for consultation amounts to excluding a relevant consideration under section 122 … in order to have proper regard to these factors, the [City] should at the least have consulted on the option of retaining the barriers.” The fact that the City excluded from the consultation process a particular option – a particular solution – does not mean that it was excluding from consideration any of the various statutory factors which section 122 required it to take into account. Section 122(1) identifies the particular statutory objective which the City has to secure. Section 122(2) identifies the matters to which the City has to have regard in seeking to achieve the statutory objective. Section 122 says nothing about the particular means by which the statutory objective is to be achieved. Ruling out a particular means of achieving the statutory objective does not mean without more ado that a local authority is failing to have regard to the relevant statutory factors. Nor, in the present case, does the fact that the City ruled out a particular means to achieving the section 122(1) objective mean that it was ruling out of consideration any of the matters referred to in section 122(2). There is in fact nothing to show that the City excluded any of the statutory factors from consideration, even after it had taken the decision on 4 August 2003. On the contrary, and as Mr Cosgrove submits, both the July 2003 Review and the October 2003 Review recognised the relevant statutory context and, as it seems to me, took it properly into account. It is not as if, for example, the retention of the barriers was the only way in which the City could lawfully comply with its obligations under section 122.

There is in my judgment no substance in Ms Carrington’s argument on this point.

Ms Carrington submits that what she says was the express representation made at the meeting on 10 December 2002 created a legitimate expectation that the residents of the two squares would be allowed to make representations as to the merits of all the options, including the options of retaining the barriers and extending the permit area, before any decision was reached. This legitimate expectation, she says, was thwarted by the decision of 4 August 2003 and the terms of the subsequent consultation document. She submits that in these circumstances the court should, as she puts it, intervene to require the City to consult lawfully and properly.

In support of this contention she relies upon the principle as stated by Lord Woolf MR in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at paras [57]-[58]:

Mr Cosgrove submits that it is clear, as he puts it, that no member of the then unformed claimant association could have relied upon any alleged representation in December 2002 to their detriment. Pointing, for example, to the fact that in December 2002 the City had not yet considered the formal RBKC objection – it was not even made until 3 January 2003 – he asserts that there is no requirement of fairness or good administration that should restrict the City’s ability to adapt a consultation process in the light of changing circumstances.

In my judgment this case falls precisely within Lord Woolf’s formulation of the guiding principle. The process, as I have already held, was not fair. A clear representation had been made in December 2002 – a fact, it is to be noted, recognised and acknowledged by the author of the July 2003 Review. This representation – this promise – was not honoured. I do not understand how it can be said that the City was in some way relieved from carrying out its commitment merely because – and this is the reason given – it subsequently received a formal objection from RBKC. Why should an expression of view by RBKC justify the City resiling from a commitment which had been given publicly and seemingly in unqualified terms? It is not, after all, as if RBKC had some statutory or other veto on the City’s plans. And, in any event, RBKC’s views were well known and of long standing.

Mr Cosgrove is unable to identify any good reason, let alone any overriding reason, why the City should be relieved from honouring the legitimate expectation it created that there would be proper public consultation on all the options. In my judgment there is none. On this point also Ms Carrington is entitled to succeed.

The remaining issues arise only in relation to the 3 December 2003 decision.

Ms Carrington asserts that the City erred in law by failing to take account of its own transport policies contained in the draft Unitary Development Plan at Policy Trans 1, Policy Trans 14 and Policy Trans 16, that is that the City failed to take into account the squares’ status as local roads, the residential quality of the area, that the squares are in a conservation area and the environmental impact of the removal of the barriers. This argument was barely pursued before me and is in any event, in my judgment, devoid of substance. These matters were all taken into account, just as the section 122 factors were taken into account, and the fact that the City did not pursue a particular means of giving effect to these policies – the retention of the barriers – is for this purpose neither here nor there.

Ms Carrington next complains that the City erred in law by failing to consider a report prepared for the claimant by Singleton Clamp and Partners, Consulting Engineers. This report, she asserts, gave the City “a statement of reasons why the proposals were neither lawful nor viable and a cogent statement of the position so far as the amenities of the area was concerned.” She elaborated those submissions in her skeleton argument, summarising the main conclusions of the report.

I do not think there is any merit in this part of Ms Carrington’s argument. In the first place, as she herself concedes, it is not clear that the report had even reached the City’s Cabinet Member for Economic Development and Transport when he made his decision on 3 December 2003. Secondly, insofar as the report is relied upon as setting out reasons why the City’s proposals were unlawful, it adds nothing to the claimant’s other arguments. Thirdly, insofar as the report is relied upon as setting out reasons why the City’s proposals were not viable, it amounts to no more than an argument on the factual merits of the claimant’s case that the barriers should remain, and the factual merits of that debate are no proper part of this application for judicial review. Finally, I do not understand on what basis it can be said, as Ms Carrington does, that in failing to take the report into account the City has failed to comply with its duty under section 122 of the Act. This seems to me to be but a variant of the previous argument on the point which I have already rejected.

Next, Ms Carrington complains that the City erred in law by taking into account what she says was factually incorrect or unsubstantiated information. She asserts that no or no adequate evidence has been adduced to support the contentions: that the barriers caused intensification of traffic on the surrounding primary roads resulting in congestion; that the barriers were detrimental to road safety; that they caused an increase in journey times; and that they had a detrimental economic effect on local commercial communities. Again, this argument was barely pursued before me and is in any event, in my judgment, devoid of substance. It amounts to little more than an attempt to argue the case for the retention of the barriers on the merits.

In the detailed grounds in support of the second application (CO/1348/2004) it was asserted that the decision of 3 December 2003 was also amenable to challenge because the City had failed to give any, or any adequate, reasons for its decision. Reference was made to R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531, R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 and R v Brent London Borough Council ex p Baruwa (1997) 29 HLR 915. The complaint was that the decision of 3 December 2003 provided no reasons for the City’s selection of option (d), the removal of the barriers and the implementation of a 7.5 tonne limit. Alternatively, it was said, any reasons provided failed adequately to explain why the City selected option (d). As it was put in Ms Carrington’s skeleton argument, the decision of the City’s Cabinet Member for Economic Development and Transport on 3 December 2003 was, in its context, one which ‘cried out for reasons’. Moreover, she says, his decision failed to address, adequately or at all, either the articulated concerns of the claimant or the detailed analysis in the Singleton report, and to explain and justify what she says were the City’s departure from its own transport policies.

Mr Cosgrove says that perfectly adequate reasons were provided by the statement of decision on 3 December 2003.

On this point also I agree with Mr Cosgrove. The statement of decision on 3 December 2003 set out what was said to be the ‘Reason for Decision’ as follows:

It follows that the claimant has succeeded on the central core of its case, albeit that on some of its more peripheral arguments – none in the event crucial to the outcome – it has failed.

Ms Carrington says that the case is really very simple. The decisions of 4 August 2003 and 3 December 2003 were taken in the teeth of the claimant’s objections and, in the case of the later decision, in the face of the first judicial review proceedings. It would, she says, have been a simple matter for the City to have acceded to the claimant’s reasonable requests in July 2003, but it did not do so. Despite all that has happened since, and despite the making of the 2004 Order, there is, she submits, no prejudice to good administration if I now grant the relief she seeks. The City, she says, has failed to have regard to any of the claimant’s representations, has failed to comply with rules and orders of the court, and cannot now be allowed to rely on such a ground.

Mr Cosgrove submits that this is a case where the relief sought is no longer necessary or practical. He relies, of course, upon events since December 2003, in particular the implementation of the 2004 Order and the removal of the barriers. Furthermore, he says, any suggestion that further consultation should now take place would be redundant as there is, according to him, no process or decision to be made to which such consultation could attach. In any event, he says, the only support for a permanent barrier scheme seems to come from the residents of the two squares and there is, he asserts, no particular reason why their interests should prevail over other residents in the area.

I agree with Ms Carrington. Merely to quash the two decisions will achieve nothing and will deny the claimant any effective remedy for what I have found to be the City’s unlawful actions.

There will be an order quashing the two decisions of 4 August 2003 and 3 December 2003 and a mandatory order to put the claimant so far as possible back in the position it and its members would have been in had there been a proper process of consultation in 2003. That order, which I will ask counsel to settle between them, will require the City:

to conduct a public consultation in such manner and with such sections of the public as it shall think appropriate as to whether it should exercise its powers under the Act to make (whether in substitution for or in addition to the 2004 Order) an experimental or permanent traffic regulation order providing for such traffic regulation measures as it may wish to consult on but including in the consultation all those traffic regulation measures (both in relation to the area defined in the 2002 Order and in the wider area which has been referred to) which were prescribed in the 2002 Order; and

to determine (having regard to the results of such consultation and in accordance with the law) whether it will take any and if so what steps prescribed by the Act to make an experimental or permanent traffic regulation order.

In substance the claimant has succeeded in its claim, albeit, as I have said, that it has failed on some of its more peripheral arguments. Subject to any further submissions that Mr Cosgrove may wish to put before me I would therefore propose to order the City to pay the claimant’s costs. However, subject to any further submissions that Ms Carrington may wish to make, I would propose to exclude from those costs the costs incurred by the claimant in obtaining the Singleton report. Even if these would otherwise be costs properly recoverable as part of the costs of the proceedings I do not at present see why the City, even though it has lost, should have to pay the costs of an expert report which goes primarily to the factual (de)merits of the underlying dispute rather than to anything which I have to consider as part of this application for judicial review and which, in any event, goes to a part of the claimant’s case which I have rejected.

I should add that, if the City had succeeded, I would not have been minded to make a general order for costs in its favour. Given its seemingly total inactivity prior to 1 October 2004 I would have been minded to limit its costs to the period immediately before the final hearing, including the costs of the hearing on 5 October 2004 but excluding the costs of the hearing on 6 October 2004. But for the need to deal as a preliminary point with the question of whether or not the City should be allowed to participate the hearing would in all probability have concluded at the end of the first day rather than continuing into a second day.

By way of footnote I record that the draft of this judgment was sent in the usual way to counsel on 20 December 2004. I indicated that I intended to hand it down on 21 December 2004. I was asked and agreed to defer that, pending the return from holiday of counsel. It is for this reason that I am now handing judgment down on 13 January 2005.