AA & Sons Ltd v Slough Borough Council

This is a statutory review pursuant to section 124 and Schedule 9 paragraph 35 of the Road Traffic Regulation Act 1984 (“RTRA”) in relation to four traffic regulation orders (“TROs”) adopted by Slough Borough Council (“SBC”) in 2012 which concern four roads in a largely residential area within the Slough conurbation. The four roads are: Chalvey Road West, Chalvey Road East, Ragstone Road and Ledgers Road. SBC made the TROs on the 20 November 2012 in its capacity as the traffic authority.

The Claimant operates a supermarket on Chalvey Road West and is concerned about the impact of the orders on local trade. The Claimant has advanced a substantial number of objections to the adoption of the TROs. In particular it submits: that SBC failed to have regard to or treat the Claimants’ written submissions and objections as relevant; that the consultative exercise conducted by SBC prior to adoption of the TROs was inadequate; that SBC failed to give proper reasons for making the TROs; that SBC failed to have any or any proper regard to the “A4 Brunel Heart of Slough” project that was on-going throughout the period during which the TROs were being trialled; that SBC failed to act upon evidence in rejecting a recommendation from the Overview & Scrutiny Committee that a trialling of Chalvey Road West returning to two way operation should be undertaken before the TROs were made permanent; that SBC failed to trial different options for Chalvey Road West in breach of a legitimate expectation that they would do so; and finally that SBC failed to give proper or lawful consideration to the holding of a public enquiry into the making of the TROs.

The roads in issue have proven problematic over a lengthy period of time. They have been used as a “rat run” between the A4 and M4 corridors. This has created an unacceptably high incidence of accidents including involving pedestrians and has led to increased pollution as a result of an increase in stationary traffic. A survey conducted in 2009 of the views of local residents in Chalvey identified, inter alia, as priorities for the area: an improvement of provision for parking; an improvement in the appearance of the streets; and, changes to roads to deter rat running and in order to reduce accidents.

In August 2011 SBC introduced a number of experimental TROs. These had the effect of making a series of roads within the Chalvey area one way for their entire length. The statement of reasons accompanying the experimental TROs were in the following form:

“The local community in Chalvey has repeatedly told the Council, through correspondence and consultation, that traffic problems are a major concern in Chalvey…. These problems include traffic congestion, road casualties, pollution and environmental concerns, and concerns that all these combine to degrade the quality of life of residents. In consultation with the residents groups, the Council has developed a package of measures, which may alleviate these problems: closure of Chalvey Road West in one or both directions, one-way operation of Ledgers Road, Ragstone Road and Chalvey Road East, reversal of the one-way operation of Martin Road, and parking controls in various locations to complement these measures. The reason for promoting these measures, on an experimental basis, is to enable the Council to test different combinations of the measures, in consultation with the local community, to be able to assess and decide whether a combination of the measures would be a good permanent solution to the long standing problems. The reason for promoting the measures as separate orders is to enable the Council to respond flexibly to feedback from the community and to the impact of the measures on the wider network.”

Contrary to the expectations of SBC these proposals led to protests. In the witness statement of Ms Lynsey Brookfield, Team Leader (Road Safety and Integrated Transport) for SBC the following is stated:

“In August 2011 a public protest was held between 100-150 members of the public who supported the highway trials, but called for the Council not to completely close Chalvey Road West to all traffic as had been agreed at the Cabinet meeting on 18 July 2011. In response to this protest, it was recommended by officers that Chalvey Road West would not be fully pedestrianised, but that a one way system should be trialled instead.”

In consequence the plan was varied to introduce a one-way system in Chalvey Road West with new parking provided for shoppers. The experimental measures were implemented in October 2011 in conjunction with work then being conducted by Thames Water who were in the process of closing roads in Chalvey to replace the main sewer in the area. The intention was that Thames Water would complete their works upon a road and then, whilst the road closure was still operative, SBC would implement the experimental one-way system on the road which would then re-open. The aim of this was to minimise disruption to residents and businesses within the Chalvey area.

In the ensuing months progress reports upon the operation of the experimental TROs were provided to, inter alia, the Overview & Scrutiny Committee of SBC. The minutes of the meeting of 11^th October 2011 show the range of issues being debated. For example a report was provided by the Assistant Director (Transport and Planning). She introduced officers from Thames Water who gave a presentation about the position of the replacement of water mains in Chalvey and as to how this impacted upon the experimental TROs. The Assistant Director explained that the works conducted by Thames Water were separate and unconnected to the experimental road proposals. A report was also provided by the Head of Transport detailing the history of the proposals and providing an update on the latest progress of the scheme. It was stated that there would be “public engagement” over the next few months by way of meetings with identifiable groups and drop in sessions. It was stated that this engagement “…would assess whether the proposed measures were welcomed by the Chalvey community.” The minutes also record the wide range of different views expressed by those in attendance. One issue concerned the relationship between the experimental orders and the “Heart of Slough scheme”. The minutes record: “A member questioned how the wider Slough community had been consulted because Chalvey Road was a major artery through Slough from East to West. Bearing in mind there were works going on for the Heart of Slough Scheme, Chalvey Road was a major alternative route – why could the traffic phases not have been experimented with?” The Assistant Director reminded the Committee that many of the consultation questions had centred on environmental issues and residents had confirmed that improvements which reduced “dirt and grime” were very important. It was emphasised that Chalvey was a community and not just a rat run for traffic. The Committee was also advised that there would be an embargo on road works during the run up to the Olympic Games and for this reason there had been no other option but to carry out the Thames Water works and the Heart of Slough works at the same time.

In March 2012 the Council distributed questionnaires to approximately 6,000 residents relating to the experimental TROs and their operation. Responses were invited by 20 April 2012 a period which was subsequently extended. Nine questions were asked inviting the answer “yes” or “no” or “no opinion”. During this period an organisation called the “Chalvey Business and Community Forum” collected a petition of 2686 signatures which objected to the one-way experimental TRO trials. The Claimant, through its then director, objected that SBC had not considered any or any sufficient alternatives.

On 26 June 2012 an Extraordinary Meeting of SBC was held to address these concerns during which the Mayor invited the Claimant to address the Council on behalf of the petitioners. A debate ensued in the course of which Councillor Wright, seconded by Councillor Smith, moved;

“That the one-way experimental traffic system in Chalvey be reversed at the earliest opportunity”

The motion was put but was defeated by 6 votes to 29 votes with 1 abstention. Following the debate and the vote upon the motion the following resolution was adopted:

“That the Petition be noted and that the Cabinet be requested to take note of the points made in the debate and the representations submitted by the Lead Petitioner when the matter is considered at the Cabinet Meeting on 16 July 2012.”

On 10 July 2012 the Overview & Scrutiny Committee of SBC met to consider the operation of the experimental TROs. The Committee endorsed the one-way traffic management systems implemented in Ragstone Road, Ledgers Road and Chalvey Road East but resolved to recommend:

“That the Council undertake a further study of the impact of Chalvey Road West returning to two away operations (in conjunction with the other roads remaining one-way before making a final decision on the future of Chalvey Road West.”

It is recorded in the minutes that an equal number of members voted for and against the proposal and the Chair used his casting vote in support of the recommendation.

On 16 July 2012 the Cabinet of SBC met to decide whether to confirm and make permanent the experimental TROs. The Cabinet had before it an extremely detailed report prepared by the officers, amounting to approximately 280 pages, comprising 40 pages of analysis to which was then attached very detailed records of the consultation exercise conducted. It is worth starting with the conclusion of the officers in section 7 of the report:

“The response from the Chalvey Road public consultation has been one of the largest responses to any similar consultation that officers can recall. There are strong feelings among both supporters and opponents of the experimental measures, and these are reflected in the comments and correspondence.

The questionnaire responses do not, in the view of officers, provide a clear enough steer for a straight forward decision based on the community’s preference. Cabinet should note that the consultation is not a referendum – there is no obligation on the Council to choose the solution favoured by the majority, counted either by household or by individual.

It is now Cabinet’s responsibility to weigh up the feedback received and then decide which elements of the experimental scheme to make permanent, and which roads should return to two-way operation. Cabinet may also decide to promote suggestions that have been submitted by respondents to the consultation, or indeed to promote new suggestions altogether.”

The matter was expressed in slightly different terms in the outset of the report. In section 2 under the heading “Recommendation(s)/Proposed Action”, the following is stated:

“Officers have not recommended which roads should remain one-way and which should return to two-way operation. Given the range of responses received it has not been possible to identify an undisputed preferred outcome, for any of the roads involved. Therefore these are political decisions, rather than technical decisions. Cabinet should take into account all the evidence gathered during the public consultation in making their decisions in respect of each of the roads involved.”

The officers identified what it perceived to be the “Key” decisions. These included whether Chalvey Road West and Chalvey Road East should remain one-way or return to two-way operation.

In order to assist the Cabinet the officers then set out a lengthy recitation of 34 conditional recommendations designed to highlight the issues upon which decisions would, or might be, required. In particular the officers recommended that regardless of the outcome the Cabinet should work with the local community to: finalise the design of the permanent solution; consider lowering the classification of the roads through Chalvey; review direction signage in and around Chalvey to discourage through traffic; review pedestrian crossing points at certain locations, and, introduce a 20 mph zone covering Chalvey Road West, Chalvey Road West, Ledgers Road (and its side roads), Montem Lane (and its side roads), Ragstone Road, Martin Road, College Avenue, The Cresent and Kings Road.

The minutes record that having received the report from the officers there was extensive discussion between the members of the Cabinet. It was recorded that the Chair of the Overview & Scrutiny Committee addressed the Cabinet: the Committee felt strongly that further work was needed given the inconclusive nature of the consultation exercise. The Committee recommended that a further study of Chalvey Road West returning to two-way operation be carried out. It is plain from the minutes of the meeting that there was a discussion of all outstanding issues and that the concerns in relation to Chalvey Road West were in the minds of the Cabinet members. Nonetheless, the Cabinet resolved that subject to localised modifications the scheme introduced on an experimental basis should be made permanent including making Chalvey Road West one way in an eastbound direction.

However, because the proposed permanent TROs contained certain modifications SBC decided to consult, once again. On 12 October 2012 SBC published a notice pursuant to section 1 RTRA and Regulation 7 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the 1996 Regulations”) of the proposed making of the TROs. In relation to Chalvey Road West the notice stated:

“Except for any peddle cycle or any vehicle being used for police, fire brigade or ambulance purposes in an emergency, no person shall, cause or permit any vehicle to proceed in the length of Chalvey Road West which extends from its junction with High Street Chalvey to its junction with Ledgers Road in a direction other than east.”

The notice explained that copies of the proposed order, plans showing parts of the highway and relevant areas affected, and a statement of the Council’s reasons for proposing to make the Orders, could be inspected at specified locations. The notice then stated that any objections and representations relating to the proposed orders were required to be made in writing to a designated person prior to 2 November 2012. It was specified that all objections must specify the grounds upon which they are made. It is clear that the invitation to make objections and representations was in relation to the specific proposal contained within the Notice. The invitation was not however expressly limited to representations and objections only in relation to the modifications to the proposal.

On 1 and 2 November 2012 the Claimant served objections and representations to the proposed orders. No other person served any submissions. Multiple grounds of objection were advanced which covered all the matters that had previously been consulted over. The Claimant took the opportunity to launch a full blown attack on the substance of the TROs and the procedure adopted leading up to their adoption. These objections were considered by SBC but were rejected:

“The Council does not accept any of the objections as they are not relevant to the consultation process for the advertised permanent Traffic Regulation Orders but rather they relate to the experimental traffic scheme and its consultation process. However, in order to assist, and to enable careful consideration of each heading and issue listed, the Council has provided a response to each point.”

The above quotation arises out of a document prepared by SBC and forms part of what is described as a “Significant Decision”. The accompanying document states that the purpose of the Significant Decision was for SBC to consider objections and representations made against the proposed permanent TROs. It sets out the background to the proposals. It records that SBC received only two formal written objections which were in identical form with the first being from the Claimant and the second from Mr Ashiq Ali Abdeali a director of the Claimant. The document states that SBC gave careful consideration to both sets of objections. It recorded that no additional unanticipated costs would be incurred if the objections were rejected and works to the permanent scheme were to proceed as planned. In the summary to the document it is stated that SBC exceeded the legal requirement for consultation with members of the community affected by the experimental traffic scheme in Chalvey. SBC then proceeded to analyse, item by item, each and every one of the objections raised by the Claimant. I do not set these out here but I refer to those which are relevant below.

On 20 November 2012 the TROs were finally adopted. This must be considered to be the decision susceptible to challenge in this case.

Section 124 RTRA provides that Schedule 9 shall have effect in relation to the validity of permanent TROs. Schedule 9 Part VI paragraph 35 sets out the grounds upon which the lawfulness of a TRO may be challenged. These are:

“a)

that it is not within the relevant powers, or

b)

that any of the relevant requirements has not been complied with in relation to the order…”

The powers to adopt a TRO are contained in section 1 RTRA. For that power to be exercised it must appear to the authority making the order that it is expedient to make the order for, inter alia:

Pursuant to section 2 RTRA a TRO may include measures prohibiting, restricting or regulating the use of a road, for example introducing one-way operation. The experimental TROs were made pursuant to section 9 RTRA.

Under section 122 RTRA a local authority adopting a TRO is under a duty to exercise the function:

“… to ensure the expeditious, convenient and safe movement of vehicular and other traffic and other traffic (pedestrians) and the provision of suitable and adequate parking facilities on and off the highway.”

Procedural requirements for the making of TROs are set out in the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996. Regulation 6 requires consultation prior to the adoption of an order. It is submitted by the Claimant that a failure to consult and/or have regard to relevant matters in the adoption of a TRO may justify the quashing of an order: see for example R (on the application of LPC Group Plc) v Leicester City Council [2002] All ER (D) 261.

Pursuant to Regulation 7, TRO proposals must be published by the placing of notices in newspapers, the display of notices in the highway and the delivery of letters to the premises occupied by persons likely to be affected by the Order and by the depositing of documents under Schedule 2. Documents deposited pursuant to Schedule 2 should include a statement setting out the reasons why the authority proposes to make the order. The reasons for the adoption of a TRO must correspond with the lawful purposes set out in section 1 RTRA which govern the exercise of the power: see for example Samuel Smith Old Brewery (Tadcaster) v North Yorkshire CC [2000] WL1791589 (14 December 2000). Regulation 8 concerns objections to a TRO which must be in writing and state the grounds upon which they are made. Pursuant to Regulation 9(1) the authority has a discretion to hold a public inquiry prior to the adoption of a TRO. Pursuant to Regulation 13 the authority must consider all objections duly made to a TRO.

Before turning to consider the individual grounds of challenge I should set out some observations about the test to be applied in this case. Mr Comyn categorised it as a traditional “Wednesbury” challenge. However, this nowadays does not readily capture the essential task confronting any judge. It is now to be treated as trite that the margin of appreciation which a decision maker has is heavily fact and context dependant: see for a summary of some of the leading case law on this per Lord Mance JCS in Kennedy v The Charity Commission [2014] UKSC 20 (26^th March 2014) paragraphs [52]-[55]. In the present case the following considerations apply. First, as with planning cases, it is important not to read officers reports with an overly strict eye and it is necessary to consider them in the round setting aside drafting infelicities and errors unless they are material and likely to lead to unfairness. Secondly, in a case such as the present a wide margin of discretion must be accorded to the decision makers who are possessed of local, specialist, knowledge that the court does not have and which the court should hence be loathe to second-guess. Thirdly, this wide margin will extend to such (non exhaustive) matters as the modus operandi of the consultation exercise, the weighing of the pros and cons of the proposed scheme, and the extent to which they consider it necessary to investigate particular issues in greater or lesser depth and detail. With these points in mind I turn now to consider the grounds advanced by the Claimant for its submission that the decisions taken by the Defendant in adopting the TROs were unlawful.

The Claimant submits that unlawfully and in breach of its statutory duty the Defendant, as disclosed in the Significant Decision and in the Council’s response to the Claimant’s objections, refused to accept as “relevant” or material to the making of the TROs the majority of the Claimant’s representations or objections to the proposed TRO upon the basis that they did not “relate” to the TROs. In particular the Claimant submits that since the Defendant objected that the representations and objections advanced by the Claimant did not relate to the matters raised by the consultation process that this necessarily and “manifestly” meant that they failed to have any proper regard to or take into considerations relevant matters. I have set out at paragraph [17] the text of the entry made by the Defendant to almost all of the Claimants objections. In the course of argument it was explained by the Defendant that the reason for this was that virtually all of the Claimants points could and should have been made during the prior consultation exercise and, moreover, since there was jurisdiction to challenge the experimental TROs and this had not occurred it was now too late to do so. Hence the conclusion as to lack of relevance.

I do not accept the objection raised by the Claimant. There are two points to make. First, and regardless of whether the Defendant was correct in its criticism of the Claimant’s objections and representations, the Defendant did in fact nonetheless proceed to consider each and every one of the objections and it set out its response thereto. Accordingly even if, ex hypothesi, the Defendant erred in law in analysing the objections as irrelevant to the experimental TROs as opposed to the proposed permanent TROs it cannot be said that the Defendant failed to address the substance of the objections. Indeed the Claimant’s objections are expressly referred to on the first page of the Significant Decision report and Appendix 2 to the Significant Decision proceeds to set out each of the objections and representations raised by the Claimant and then the Council’s response to each point. By way of example in relation to the Claimant’s objections that the consultation was misleading and inadequate the Claimant complained and objected that at the SBC Cabinet meeting of 31^st May 2011 it had been resolved that the consultation would be carried out with respect to the making of traffic regulation orders in Chalvey to identify a “preferred option” but that no such specific consultation had in fact been carried out in respect of the experimental TROs to identify a preferred option. In particular it was said that no option of not making traffic orders at all had been properly considered by SBC. The response of SBC to this was on the merits of the objection and was in the following terms:

“This objection does not relate to the matter raised by the consultation process for the permanent Traffic Regulation Orders.

The council confirms that the full history of the Chalvey consultation process was set out in the cabinet report dated 16 July 2012. A brief summary of the consultation to identify a “preferred option” is as follows:

- Prior to the Cabinet meeting on 31 May 2011, the residents of Chalvey were consulted with to identify the most important priorities for the Council to address in the context of the Chalvey Regeneration Project.

- Officers then met with the traffic-committee of the Chalvey Forum during which a great many solutions were considered by all parties, including the option of doing nothing. It was acknowledged by both officers and the Forum that all options, including doing nothing ie not making traffic orders, carried advantages and disadvantages.

- After the Cabinet meeting on 31 May 2011, the Commissioner and officers met with approximately 40 members of the Chalvey community at a meeting at the Hangout on 15 June 2011 to discuss the options that had been presented at the Cabinet meeting. All those present were able to ask questions about the options, and to make new suggestions.

- The Commissioner and officers subsequently met and corresponded with a range of individuals and residents groups. Responses to the options varied considerably among different groups and individuals.”

This typifies and illustrates the approach which the Defendant adopted to the Claimant’s objections and representations.

This brings me to the second point. The Defendant is correct to say that the vast majority, though not all, of the representations and objections did not focus upon the logistics, modalities or operational impact of the proposed TROs which had been made the subject of the notice. Rather the objections and representations delved back into past history and sought to criticise the manner in which the experimental TROs had been consulted over. To this extent the objections did not relate to the matters raised in the consultation process. They were more remote and distant from the issues upon which the Council was now seeking views. However, by its terms, SBC did not limit the post-July consultation only to the modifications to the proposed TROs, ie the new points of the proposals. As such they opened themselves to the possibility that new points about the earlier consultation exercise would be raised. I can understand SBC’s frustration with the Claimant for raising matters it could have raised earlier but that was the risk SBC faced when reopening the consultation without limitation. The important point in all of this however is that SBC did consider the objections on their merits. They were not ignored; they were simply not accepted. I have recorded above that the report concluded with the observation that in the view of the Council the objections which had been raised did not “merit any modification or amendment to the proposal within the scheme.” This was a conclusion on the merits of the objections. In short the Claimant’s submission that the Defendant ignored its submissions fails.

The Claimant submits that the questionnaire compiled by the Defendant for the purposes of the consultation was inadequate in that multiple questions invited the single answer “yes”, “no” or “no opinion” in circumstances where a number of questions incorporated multiple components all of which were capable of being answered in separate and different ways. For example question 1 asked whether the experimental measures had increased the volume of traffic and made the environment quieter. A single answer to this question might (it was submitted) be misleading because it was capable of different responses. Question 2 asked “Do you support the introduction of a new one-way [vehicular traffic] system, new 30 minute parking and a new cycle lane in Chalvey Road West?” The Claimant submitted that this incorporated three discrete questions such that, once again, a single answer was potentially misleading and inapposite. The Claimant submitted further that the equivocation caused by questions 1-5 were compounded by the erroneous assertion contained with the questionnaire that “the measures implemented in each road depend on each other”. It is submitted that there was no evidence that the one-way systems were in fact “dependant” on the provision of parking or cycle lanes. In essence it is submitted that the decisions were irrational because the evidential basis was flawed.

I do not accept these submissions.

In order to understand the questions it is necessary to place them in their proper context. The questions were contained within a document made widely available to nearly 6,000 local residents. The Council received nearly 1000 responses which, in statistical terms, represents a very strong response rate. The questionnaire was preceded by explanatory material which included a map of the proposals and an explanation as to why the road layout had been changed in Chalvey. The Council in a number of places explained that the various components of the experimental TROs were interdependent ie they were being advanced as a package. For example it stated:

“Please note that the measures implemented in each road depend on each other – the new parking and cycle lanes are only possible because the roads have been made one-way. If the one-way systems are not supported in the four roads affected, and we re-open any of these roads to two-way traffic, we would have to remove some or all of the new parking provisions to make room for two-way traffic, and also remove the contra-flow cycle lanes.”

The questionnaire was then divided into three sections. The first section sought information upon the respondee and requested information about a range of personal information including, for example: whether the respondee was a freeholder or tenant within Chalvey; whether they had a business interest in Chalvey; whether they used the shops or businesses in Chalvey, or used the bus service; whether they had a child within a local school; whether they attended a place of worship in Chalvey; whether they drove through Chalvey or had some other interest in the vicinity. The second part of the questionnaire contained the questions. Most contained an explanation for the question in order to facilitate understanding. Each question included a space in which the respondee could add comments. Specifically with regard to Chalvey Road West, question 2 asked:

“Do you support the introduction of a new one-way system, new 30 minute parking and a new cycle lane in Chalvey Road West?”

The text relating to this was as follows:

“Please note that if Chalvey Road West is re-opened to two-way traffic, the new parking outside Ambala would remain and we would reinstate the parking lay-by outside Chalvey Supermarket. However the new parking outside the church and on the northern side of the road, and also the contra-flow cycle lane would have to be removed to make way for two-way traffic.”

There can, in my judgement, be not a shadow of a doubt but that the Cabinet was fully cognisant of all of the issues surrounding Chalvey Road West. It was explicitly pointed out that the components contained within particular questions were mutually interdependent. This explained why a number of questions contained linked parts. The linking of different components into single questions was logical and based on the prior policy decisions taken in relation to the configuration of the various options in each TRO. If respondees wished to object or in any way comment upon the questions they were free to do so in the comments section of the questionnaire. Furthermore, every single comment was extracted and grouped together under each question and was provided in an exhaustive annex to the officer’s report. The annex ran to approximately 80 pages. I have read the comments and their variety and richness demonstrates vividly that the community was thoroughly engaged and understood the issues. The Cabinet, when considering the position of Chalvey Road West, was able to analyse respondees’ comments in relation to that particular aspect of the proposal in a comprehensive manner. Mr Comyn, for the Claimant, submitted that the graphs contained within the officers’ report which summarised, in absolute numerical terms, the division of answers between “yes”, “no” and “no opinion” were misleading because they, necessarily, over generalised the wide range of responses to each question which was evident from the comments provided. I disagree. The graphs provided headline information to the Cabinet. It was part of a detailed mix of information and evidence provided by the Officers and the Cabinet was perfectly able to form a holistic view of the evidence which was presented to them. In my judgment the consultation was comprehensive and effective. The questionnaire was appropriately framed. The answers and comments which it generated were collated and all the results conveniently summarised for the Cabinet. Far from being irrational this was a well conducted and successful consultation.

In summary this ground of objection fails.

Under this heading the Claimant submits that the officers incorrectly advised the Cabinet that the decision that they were to take was a “political” decision and not a “technical” decision (see paragraph [12] above) and that, in consequence, the Cabinet misdirected themselves by failing to take account of a number of relevant “technical” considerations that it was required to either have regard to or take account of pursuant to sections 1 and 122 RTRA.

The suggestion that the officers invited the Cabinet to adopt an overtly political decision not based upon the merits is unsustainable. The reference to the fact that the decision to be taken was “political” reflected nothing more than the fact that the officers were unable to make a specific recommendation and hence the decision was one for the councillors – the “politicians” – based upon the evidence. Indeed in the quotation set out above at paragraph [12] the instruction to the cabinet was specifically to take into account all the relevant evidence. In reality the debate about the word “political” was not the heart of Mr Comyn’s criticism. Mr Comyn used the expression “political” essentially as context for a more specific submission that the Council failed to give any or any proper consideration to two particular technical issues, namely, first, the desirability of providing access to premises and, second, the issue of air quality.

A starting point for this analysis is that it is apparent from the officer’s report that it was structured to address each of the three main issues which the officers had identified at the outset as key to the consultation exercise. These were: (1) better parking for residents and local shoppers; (2) improvements to the look of streets and open places; and (3) changes to roads to deter rat running and reduce accidents. When analysed against the statutory framework each of these falls, four-square, into the middle of those facts and matters which the authority was duty bound under the statutory framework to address its mind to. It follows that since these represented the basic tramlines along which the consultation and the officer’s report travelled there is but little chance that the consultation or the officers report or the Cabinet’s decision, was ever likely to have come off the rails or tramlines. This is the context in which the submissions about access and air quality must be appraised.

I now address each of these in turn.

In relation to the issue of access to premises the Claimant referred to section 122 RTRA 1984 which states that it is the duty of every local authority so to exercise the functions conferred upon them by this Act “… having regard to the matters specified in subsection (2) below… to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway…”. Section 122(2)(a) stipulates that one of the matters to which regard must be had is:

“… the desirability of securing and maintaining reasonable access to premises.”

The Claimant submitted that based upon the Officers report and the reasons for the TROs the Defendant had erred in failing to have regard to the desirability of securing and maintaining reasonable access to premises. The underlying pith and substance of this objection was that the supermarket belonging to the Claimant was situated on Chalvey Road West and access to the supermarket would be adversely affected by the introduction of the one-way restriction.

Section 122 RTRA 1984 has been considered in previous authority. In particular the courts have considered the scope and effect of this provision in UK Waste Management Limited v West Lancashire District Council and others [1996] QB 201, and, in R (on the application of LPC Group Plc) v Leicester City Council [2002] All ER (D) 261. In UK Waste Management Ltd Carnwath J stated:

“What is clear is that the authority must at least consider the desirability of securing or maintaining reasonable access and in doing so they must ask themselves what reasonable access would entail. Only when they have done that can they proceed to the balancing exercise which section 122 involves, however precisely it is interpreted.”

In LPC Group plc Sir Christopher Bellamy QC (formerly a judge of the European Court (CFI) in Luxembourg but here sitting as a Deputy High Court Judge) adopted the view expressed by Carnwath J in UK Waste Management to the effect that the local authority must “at least” consider the desirability of securing and maintaining reasonable access and in so doing must ask itself what reasonable access would entail; but that following that exercise the authority could then proceed to the balancing exercise which section 122 involved. In paragraphs 59 and 60 of his judgment Sir Christopher Bellamy QC stated:

“59.

It would also seem to me to follow that, in addition to considering the question of reasonable access under section 122(2)(a), the local authority must at least consider and take into account both the matters mentioned in section 122(1), that is to say not merely 'the expeditious, convenient and safe movement of vehicular and other traffic’, but also ‘the provision of suitable and adequate parking facilities on and off the road’.

60.

This duty, it seems to me, arises, and remains, independently of whether the traffic authority receives any objection. In my view the duty to consider objections, if there are any, or any inspectors report, if there is one, under regulation 13 of the 1996 Regulations is a quite separate matter.”

It follows from the above that it is necessary to consider whether the Cabinet addressed their collective mind to the relevant question of access and to the other matters referred to in section 122(1). Further, as Sir Christopher Bellamy QC indicated, this was a matter the Cabinet had to address itself to regardless of the existence of objections.

In my view there is no doubt but that the Cabinet addressed itself to all of the relevant matters. The question of access to premises on Chalvey Road West was raised at all stages of the consultation and decision making process. By way of example during the consultation Mr Ashiq Abdeali (the Claimant’s former director) specifically raised the question of access to the supermarket owned by the Claimant. He answered question 2 of the questionnaire as follows: “No. Chalvey Supermarket has their own very large car park and the one-way system has made it very hard to access it.” The Officers report, in the section identifying its purpose, identified as one of the three top priorities identified by respondents to the consultation “better parking for residents and local shoppers”. It was accepted by Mr Comyn on behalf of the Claimant that the issue of parking was one aspect of access to premises in that the larger the number of parking spaces the easier it would be for shoppers to access local commercial and business premises. Hence the specific concerns of the Claimant and the related issue of parking was a “live” issue during the consultation exercise. Mr Edwards QC for the Defendant submitted that it was a “statement of the blindingly obvious” that a core issue for the Cabinet was balancing competing issues of access to premises with the consequence of reducing the incidence of “rat running” throughout the vicinity. Reducing the amount of traffic through Chalvey inevitably impacted upon the volume of passing trade which clearly risked causing prejudice to local businesses. The Cabinet was acutely aware that local businesses might be prejudiced as a result of a reduction in the throughput of traffic.

Indeed the Defendant met with local businesses in the context of a “Chalvey Business Forum” on 25 June 2012. The Forum was an informal association of businesses and residents which was created to address issues surrounding, inter alia, the experimental TROs. On 25^th June 2012 the Defendant’s officers discussed the scheme at length with representatives of the Forum. The minutes of the discussion include the following which clearly show that even the local business community understand and recognise that there were adverse trade-offs which would necessarily arise for passing trade resulting from traffic reduction measures:

“The Chalvey Business Forum are exceedingly grateful that Chalvey has been the focus of the Council’ attention, and are very keen to find a solution to the perceived problems, including congestion, road safety etc. The forum has been keen to work with the Council since the inception of the project, and has been disappointed that they have not been able to work more closely with the Council to achieve a solution which, in their view, would be a better compromise than the present arrangement. Furthermore the Forum is disappointed that early suggestions that different options would be tested as part of the experiment did not materialise.

The Forum’s view is that Chalvey was in need of attention, and shared the view that the perceived problem with congestion, road safety, etc need to be addressed. The Forum welcomes many aspects of the experimental measures: for example the traffic calming to slow traffic - for example the additional parking for businesses and their customers. However the Forum does not believe the current arrangement to be the best solution.

The businesses represented by the Forum previously enjoyed a catchment that extended across Slough. For example customers would come from Langley, Upton, Manor Park and Cippenham. These customers are now reporting to the businesses that their journeys into and out of Chalvey have been so disrupted by the one-way systems, that they are being discouraged from shopping in Chalvey. The Forum perceives a significant detrimental impact due to this change in shopping choices. Even for very local customers, the collection of heavy items – for example flour and oil – now necessitates a lengthy journey.

The Forum believes that if the present arrangement continues into the long term, the businesses will decline and gradually disappear, and that this would be highly detrimental to Chalvey as a place. The Forum believes that it is possible to restore two-way operation in Chalvey Road West and Chalvey Road East, and still retain nearly all of the additional parking that has been provided in the context of the experimental project. This would be the Forum’s ideal solution for Chalvey Road West and Chalvey Road East, together with measures to restrain the volume and speed of traffic. The Forum would be exceedingly disappointed if it were to be reduced or removed in the event of Chalvey Road West and/or Chalvey Road East returning to two-way operation.”

The Cabinet thus had well in mind the difficulties of striking a balance between the effect of the proposals on business viability and the need to reduce the “rat running” that plagued the area. The minutes of the meeting held on 16^th July 2012, at which it was resolved that the experimental TROs should be made permanent subject to consultation, include a reference to the fact that the “Commissioners” (ie those members of the Council with particular responsibility for traffic) were concerned that the “rat running” would return if Chalvey Road West were to return to two-way operation. This was in the context of the Vice Chair of the Overview & Scrutiny Committee expressing his concern as to the effect of the proposals on “business viability”. The same document also records that the Cabinet agreed to support businesses within Chalvey appealing their rateable value through the local valuation office to identify whether the proposed changes would materially affect the businesses located there. This is clear evidence that the Cabinet addressed itself to the issue and performed a balancing exercise.

In short there is ample evidence that the Cabinet addressed its mind squarely to the pros and cons of the proposal and its impact upon access. They had a difficult decision to take. The mere fact that the TROs, as adopted in their permanent form, could exert an adverse affect upon businesses within the locality is simply not to the point. It was inevitable that there would be winners and losers as a result of the introduction of the permanent TROs. But that fact alone does not give the losers the right to succeed in an application for judicial review. In my judgement the Defendant adequately addressed the issue and did not misdirect itself within the context of section 122 RTRA.

The second aspect of this objection concerns the issue of air quality. Section 122(2)(bb) imposes a duty upon the authority to have regard to “… the strategy prepared under section 80 of the Environmental Act 1995 (National Air Quality Strategy)”. A similar requirement is imposed by virtue of section 1(1)(g). In my judgement the Defendant addressed itself to the question of air qualiy in section 3 of the Officers’ report under the heading “Regeneration and environment” the officers stated:

“Another of the stated aims of the regeneration is the improvement of the urban environment which can be achieved in part by reducing congestion and standing traffic. The declaration of an Air Quality Management Zone along the town centre section of the A4 has been made necessary by increased volumes of traffic and congestion. In this location the increased pollution is being addressed by improvements to the road network around the former Brunel roundabout and investment in smart technology to manage traffic flow. Due to the previous road layout in Chalvey and the complexity of some of the junctions standing traffic used to be a common feature, which not only increased pollution output but presented difficulties for residential traffic.”

One of the purposes of introducing the TROs was better to manage traffic flow through the area. As Mr Edwards QC for the Defendant submitted there was once again an element of the issue being “a statement of the obvious”. If one reduces traffic throughput then one automatically reduces pollution caused by standing traffic and this was, as a matter of fact, a prevailing problem prior to introduction of the TROs. In my judgement it is important in this context, to observe that not every issue which arose for consideration required an exhaustive or comprehensive qualitative or quantitative analysis prior to being submitted into the mix of facts and matters that the Cabinet had to address itself to. In particular it was not, in my view, necessary for the Cabinet to engage in lengthy and protracted and no doubt costly research into the specific environmental impact of the proposed TROs. The Cabinet was well within the scope of its legitimate discretion to draw the obvious conclusion that a reduction in the volume of the traffic would exert some beneficial (albeit not calibrated or quantified) effect upon levels of pollution. It is notable that none of the respondents to the consultation exercise suggested anything other than that a reduction in traffic would exert a positive effect on the environment.

Further the Claimant has not advanced any evidence to suggest that reducing traffic would not reduce pollution. The “Equality Assessment” prepared for the Cabinet includes an assessment upon whether matters such as parking, enforcement, traffic signals, congestion and air quality exerted any effect upon various groupings and segments within the community based upon age, disability, pregnancy and maternity, race, religion and belief, and income. In section 6 of this report the following is stated:

“Chalvey Neighbourhood Board Action Plan. The list of priorities includes a series of traffic related issues, including parking spaces, enforcement, traffic signals, congestion, and air quality. No date is shown on this list, but it is clear that a number of these issues have previously been marked for responses – recommendations from the transport and Highways teams. The current experimental measures are an important aspect of such response.”

Whilst it is true, as the Claimant submitted, that an assessment of air quality is not the normal subject matter of an equality impact assessment, nonetheless in the present context it was plainly one relevant matter for inclusion in that report. However, its principal significance lies in the fact that it was a matter which the Cabinet had regard to when assessing the impact of the TROs upon the community as a whole.

In my judgement the Cabinet addressed itself to the question of air quality. The Cabinet was comprised of people who were able to form a view as to the impact of the TROs upon this matter. They did so. There can be no criticism in the approach that they adopted.

The Claimant also submitted that the reasoning given for the adoption of the permanent TROs was inadequate. The statement of reasons which accompanied each TRO was in identical form:

“STATEMENT OF REASONS

The one way system with cycle contra-flow were initially implemented on an experimental basis in Chalvey in order to provide better parking for residents and local shoppers, improve the look of streets and open places and to deter through traffic and reduce accidents.

Following extensive public consultation, Slough Borough Council’s Cabinet met on 16 July 2012 and agreed to make the current experimental one-way system with cycle contra-flow systems permanent.”

The Claimant submitted that this was in breach of the statutory requirement to provide reasons for the TRO.

In Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2000] WL664476 (19 April 2000) the following Statement of Reasons was found attached to a proposed TRO:

“The County Council, therefore, considers is expedient to make the Order for the following reasons:

(i)

For avoiding danger to persons or other traffic using the road, or for preventing the likelihood of any such danger arising;

(ii)

For facilitating the passage on the road for any class of traffic (including pedestrians);

(iii)

For preserving or improving the amenities of the area through which the road runs.”

It is apparent from the judgment of Mr Justice Maurice Kay in that case that this formulation was approved of by the Court. Mr Comyn submitted that, in contrast, the reasons attached to the proposed TRO were inadequate. They merely recorded the reasons for the initial, experimental, implementation of the TRO but provided no reasons for the transposition of the experimental TROs into permanent TROs. I do not agree. Although the statement of reasons attached to the proposed permanent TRO might have been better expressed, read, in the round, they are intended to indicate that the reasons which justified the introduction of the experimental TRO remained valid following the consultation and therefore now justified making the experimental TROs permanent. In my judgement the Statement of Reasons should be read as if they contained the words “… for the same reasons” at the very end of the text. This was, in my view, the intention of the draftsmen of the statement. This is, furthermore, evident from the circumstances surrounding this case. The reasons for the permanent TRO were: to provide better parking for residents and local shoppers, to improve the look of streets and open places, and to deter through traffic and reduce accidents. These three objectives run through the entire consultative exercise and remained as valid at the culmination of the process as they did at the outset.

In my judgment there was no requirement to go further than provide a concise summary statement of the reasons for the adoption of the permanent TROs and that is what the Statement of Reasons provides. In the alternative, even if I had concluded that the Statement of Reasons was inadequate I would not have quashed the decision upon this basis. At most I would have remitted the matter to the Defendant in order for a fuller statement of reasons to be provided. However given that, in my view, any breach would have been entirely technical I would in fact have been minded simply to have made a declaration that the statement was inadequate and then granted no further relief: See for an illustration of when a declaration may be sufficient in relation to a failure to provide adequate reasons by a planning authority Timmins, and, A W Lymn v Gedling Borough Council [2014] EWHC 654 (Admin) at paragraphs [91]-[108].

Mr Comyn submitted that since the Heart of Slough major works were ongoing throughout the trialling of the TROs the Defendant was bound to engage in a detailed analysis of the potential impact of these works upon the results of the consultation exercise conducted in relation to the proposed TROs. In particular he submitted that the results from the consultation might have been skewed or distorted by virtue of the fact that traffic was diverted or otherwise not flowing normally due to the Heart of Slough works during the trialling of the experimental TROs. I asked Mr Comyn what he considered the Council should have done. He was unable to provide a specific answer but stated that there needed to be “some assessment”. He stated that there was no evidence of any such assessment and, accordingly, a relevant consideration was ignored.

Mr Edwards QC for the Defendant, in response, made the following points. First, he submitted that it was simply wrong to suggest that issues surrounding the “Heart of Slough project” were not on the Cabinet’s radar. It was pointed out that, inter alia, submissions had been made about the impact of this project by the South Central Ambulance Service and the Royal Berkshire Fire and Rescue Service. Secondly, a number of other public services had submitted evidence indicating that general throughput of traffic through Chalvey appeared to be the same or better than previously and that there was no evidence that the Heart of Slough project had exerted any material impact upon the evidence emanating from the consultation. Secondly Mr Edwards QC pointed out that the Claimant had not raised this point during the substantive consultation exercise and had not adduced any evidence before the court that at any relevant point in time the existence of the Heart of Slough project in fact exerted a distorting effect upon the evidence gained during the trialling or consultation. Thirdly he submitted that the evidence, which was unchallenged, was that the major part of the relevant works were completed by May 2012 and that it would have been open to any interested person to submit evidence based upon a “before and after analysis” to the Cabinet prior to the adoption of the final decision, but that no one had. Fourthly, he submitted that regardless of the impact of the Heart of Slough project there was a pressing need to introduce TROs and that in the circumstances the Cabinet simply had to do the best that it could with the evidence available to it. Fifthly, and in any event, he contended that the issue was one which the Cabinet, possessing local skill and experience, would have been aware of and could factor into their consideration. All of these are, in my view, cogent and powerful arguments. In my judgment the matter was squarely before the cabinet, it addressed its mind to it, and it did not consider that the existence of the Heart of Slough project constituted a good or valid reason for altering its view or delaying the adoption of the decision. I can discern no conceivable error in the approach of the Cabinet in this regard.

The Claimant submits that it had a legitimate expectation that the Council would trial a range of different options but that in breach of that expectation it failed to do so. This argument is, in my judgment, unsustainable. Mr Comyn relied upon two emails which he suggested gave rise to this expectation. The first was an email from Mr Swindlehurst of the Council to Mr Ashiq Abdeali (then a director of the Claimant) in which he stated:

“Responses to our trials or the formal consultation as I said in the recent meeting. We are still refining the layouts and measures we will trial.”

In my view no conceivable legitimate expectation can arise from this email. Councillor Swindlehurt was expressly stating that as of that date, the council was still “refining” the layouts and the measures that they would trial. This is very far removed from being a promise that they would trial the precise series of permutations preferred by the Claimant.

The second email relied upon by the Claimant is from Ravinder Heer to Mr Swindlehurst in which it is recorded that, following a meeting with the Council, the Council “would like to conduct trials on all three options along with any other options that may be put forward.” Elsewhere in the same email one finds the following:

“Lastly, it was also agreed in the meeting that all concerned will gauge the opinion of the public during any trial, and if the consensus is that the trial is not acceptable, the Council will terminate that option as a possibility and consider other possibilities.”

This is not a statement from the Council. It is a statement from a respondee to the consultation. Insofar as it is relied upon to prove an unequivocal promise from the Council it is inconsistent with the statement from Mr Swindlehurst, on 23 June 2011, that the Council was still “refining the layouts and measures we will trial.” It was common ground between the parties that for there to exist a legitimate expectation the minimum condition was the existence of an unequivocal promise: see for example R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 (Court of Appeal). There was none here. Mr Edwards QC pointed out, in addition, that final decisions as to the configuration of the experimental TRO did not lie with the officers but with the Cabinet so that one individual, such as Councillor Swindlehurst, did not in any event have the authority to make an unequivocal promise. I accept these submissions.

The final ground raised by Mr Comyn on behalf of the Claimant was that the Defendant erred in failing to hold a public inquiry pursuant to Regulation 9 of the 1996 Regulations. Pursuant to Regulation 9 in some circumstances, which do not apply in the present case, an authority is required to cause a public inquiry to be held. However in all other cases it has a power so to do. The Claimant submitted that by virtue of (a) the inability of the professional advisors to recommend the adoption of the experimental traffic orders on any technical ground and (b) the very substantial public interest in the traffic regulations proposed, there should be a public inquiry and it was irrational not to hold one. The Claimant in fact made this submission to the Council prior to the adoption of the permanent TROs. It was hence an issue the Defendant addressed during the consultation. In response SBC pointed out that it had already conducted a full public consultation which had generated a response which was “an extraordinary return for any public consultation”. Furthermore, SBC pointed out that the views of the community had been sought through signs installed on site, press releases, articles in the local press, hand delivered leaflets to all addressees within the Chalvey catchment area, public meetings held on the roads most affected, public exhibitions to which everybody in the catchment area was invited, direct approaches to community groups within Chalvey, a dedicated Chalvey Roads email address and telephone number, information on the Council’s website and an online survey.

In my judgment the suggestion that the Council erred in failing to convene a public inquiry is misconceived. The Court does have the power to find that a failure to exercise a power to appoint an inspector is unreasonable and unlawful; but it would necessitate unusual and possibly exceptional factual circumstances to justify such a ruling: see eg Whitmey v The Commons Commissioners [2004] EWHC Civ 951 (in relation to decisions to make private land into village greens). No such exceptional or unusual circumstances arise here. The consultation exercise conducted by the Defendant was commendable. It generated a high level of interest and information. This was placed squarely before the Cabinet in a comprehensive and well drafted officers’ report. The Cabinet was thereby fully aware of all relevant considerations and addressed its mind to those matters. The Claimant has not explained how or why the convening of an inquiry would generate any new or better evidence. Nor has it explained how the cost of such an exercise could be justified. Nor was there any groundswell for an inquiry. The mere fact that the officers declined to recommend the adoption of a particular solution (favoured by the Claimant) to the Cabinet is irrelevant to the question whether a public inquiry should be held. The fact that it was a matter of great public interest is also irrelevant to the question as to whether an inquiry should be held. This is because, as I have already observed, the officers obtained an extensive selection of views and opinions from the local community and these were squarely before the Cabinet when it came to take its decision. I reject this particular ground of challenge.

Finally, the Claimant submitted that given the substantial and adverse impact on the Chalvey business community a public inquiry was required to be held by reason of Article 6 of the European Convention on Human Rights. In its substantive response to this submission in November 2012 the Defendant stated that Article 6 was only concerned with fair trial procedures in criminal law. Mr Edwards QC for the Defendant accepted that this was incorrect and also that it embraced civil adjudications. However, he submitted that nonetheless Article 6 had no application to the sort of decision in issue in the present case.

In R (Maftah) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA Civ 350 the Court of Appeal addressed when an issue arising in administrative proceedings engaged Article 6. The court recognised that administrative actions were capable of having an adverse impact upon the position of individuals. However, not every administrative decision which exerted an effect upon private rights engaged Article 6. It was “…the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights.” (ibid paragraph [24]). The Court stated by way of example that the nature and purpose of taxation was such that despite its direct impact upon property rights taxation fell outside the scope of Article 6. In determining whether “civil rights” were engaged one looked to the nature of the relevant power and not to its effects. Mr Edwards QC submitted that the adoption of a TRO was a decision taken in the broadest possible public interest and was concerned with a balancing of public and private interest considerations such as amenity or safety or access to business premises. It was accepted that the TROs would have an effect upon individuals but this did not in and of itself make the process for adopting the TROs one which was subject to Article 6. This is not, given the conclusion that I have arrived at in relation to the question of public inquiries, an issue that it is strictly necessary for me to decide. However, I agree with the submissions of Mr Edwards QC that a decision on the part of a council under Regulation 9 refusing to convene a public inquiry is not a decision which engages Article 6 of the Convention. The adoption of TROs following a mandatory consultation is a decision taken at a high level. It necessarily balances a wide range of interests all of which can impact in some manner upon the position of individuals whether that be in terms of noise, pollution, passing trade, etc. But this exercise of power is far too broad and remote from individual rights to engage Article 6 and thereby, as it was submitted by the Claimant, to confer upon one citizen out of the multitude, the right to a determination of its civil rights via an inquiry.

For all the reasons set out above the application for statutory review fails.