Williams & Ors (The Sustainable Totnes Action Group) v Devon County Council

This claim was originally commenced by Sustainable Totnes Action Group (‘STAG’), against the Defendant, Devon County Council. It is a statutory application under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (“the 1984 Act”) for an order quashing the Devon County Council (Fore Street & Station Road, Totnes)(Traffic Regulation) Order 2014 (“the TRO”) made on 21st August 2014.

The Defendant made an experimental traffic order (an “ETO”) on 12 March 2013 reversing the direction of vehicular traffic on Station Road and part of Fore Street in Totnes and prohibiting vehicles longer than a prescribed length from proceeding along a prescribed section of Fore Street. So the changes brought about by the ETO had been in force for 19 months at the time this claim was issued. They have proved very controversial. The Defendant made the ETO permanent through the TRO albeit subject to review in 2016.

The Claimant STAG was a group of individuals; local traders and residents that were opposed to the ETO and the RTO..

Before setting out the material facts and my analysis of the respective submissions it is necessary to first set out some of the procedural history of the claim.

By late cross applications the Defendant sought an order for security for costs against the Claimant, STAG in the sum of £12,365 (pursuant to CPR25.12) and STAG sought permission to change the identity of the Claimant to Sustainable Totness Action Group Limited ; a company limited by guarantee (pursuant to CPR 19.2). It also sought permission to amend its grounds.

Having considered the papers as a matter of urgency I made an order of 9^th February 2015 requiring that the Claimant file and serve;

I refused the applications for security for costs and for change of the status of the Claimant. I also granted permission to rely upon the amended grounds.

As is usual in the Administrative Court I set out brief reasons within the order. They were as follows

Following my order a list was subsequently supplied that showed STAG to have 21 members.

The Administrative Court Office lawyer Mr Gardner made an order on 11^th February 2015 that the claimant, the Sustainable Totnes Action Group, be removed from the claim and Jane Sarah Williams of 24 Fore Street, Totnes, Devon, TQ9 5DX be added as the sole claimant, subject to the terms of CPR 19.6(1)(b). i.e. as a representative of the members of the identified group for the purposes of an order under CPR19.6(1)(b).

The action proceeded and Ms Williams and the group were represented by solicitor and Counsel at the hearing.

I now turn to the facts.

Totnes is a market town at the head of the estuary of the River Dart in Devon. It has a long recorded history, dating back to AD 907 when its first castle was built; and it was already an important market town by the 12th century. Indications of its former wealth and importance are given by the number of merchants' houses built in the 16th and 17th centuries.

The town, which has a population of around 8,000, is built on a hill rising from the west bank of the River Dart, which separates Totnes from the suburb of Bridgetown. It is at the lowest bridging point of the river and there are two road bridges, a railway bridge and a footbridge over the river in the town. Its main retail core is based around the thoroughfare provided by Fore Street and High Street, which is effectively one street which has an arch over it part way up called Eastgate. Eventually the High Street narrows to a width capable of single vehicle passage, appropriately called “The Narrows”.

This route into the town lies straight ahead over a small roundabout for a vehicle or person crossing over the old bridge over the Dart.

Like many historic towns the street network of Totnes was not designed for modern traffic flows and vehicle sizes. Fore Street and High Street have been subject to a prohibition of motor vehicles except for access for many years, but this has been difficult to enforce. A traffic survey in December 2011 showed that a third of vehicles breached this restriction. Some were clearly using the route to avoid congestion on the main A385 Station Road.

Given that this is a busy shopping area and the road is narrow the possibility for interaction between pedestrians and vehicles was obvious and accidents did occur.

In 1975 and at a time before major work was undertaken to surrounding roads there was an experiment to see if traffic could be diverted from the centre. It was associated with poor trading figures within the town and with traffic congestion and was subsequently abandoned

In March 2012 a proposal was made by the Defendant to introduce an experimental right turn ban at the top of the High Street into Plymouth Road. The intention was to cut down illegal through traffic. However objections were raised and the plan was postponed to allow Totnes Town Council to make its own suggestions (it had objected on behalf of “Bob the Bus” a local community travel co-operative). The proposal only achieved 17% approval during a public consultation.

The Defendant then commissioned a report from Hamilton-Baille Associates examining “Movement, safety and pedestrian comfort in Totnes” which considered a number of potential ways forward including pedestrianisation. It set out the option subsequently adopted as an ETO and stated that it would be likely to reduce through traffic significantly but would generate significant difficulties at a Junction (Station Road/Fore Street) as vehicles would have to turn right and this would “remove the natural continuity and legibility of Fore Street and require the need to re-locate parking bays.” It was described as not a simple or straightforward option but worth investigating. The initial conclusion was that given the fragile state of market town economies it would be inadvisable to introduce any radical measures.

The Defendant’s head of highways then produced a report dated 30^th November 2012 recommending a reversal of flow on Station Road and lower Fore Street. It was said to provide in its body a summary of the results of traffic surveys, casualty collision investigations and recent public consultations. It noted that works upon a gas main required the closure of High Street to traffic from January 2013 for three months. This gave an opportunity to explore the changes required when the street was closed and to have an ETO in operation when it reopened.

There was a meeting of the Defendant’s South Hams Highways and Traffic Orders Committee (“HATOC”) on 30^th November 2012. The report was considered and its recommendation adopted.

The ETO commenced on 22^nd March 2013. It reversed the direction of vehicular traffic on Station Road and part of Fore Street in Totnes and prohibited vehicles longer than a prescribed length from proceeding along a prescribed section of Fore Street. Its stated purpose was to

“reduce both the level of illegal traffic, risk to vulnerable road users and enhance the economic and cultural life of the town”.

The Defendant resolved to make the ETO changes into the RTO on 25 April 2014 and it was made on 21^st August 2014 by HATOC.

The ETO and TRO have proved controversial, divisive and provoked very significant objection. Initially a group was formed and known as “Re-open Totnes”, then the group became the Totnes Traders Action Group (‘TTAG’). As TTAG it opposed the ETO at all HATOC meetings arguing primarily that the ETO was unsafe and detrimental to trade within Totnes.

A detailed chronology of the steps involved and TTAG is as follows

The Claimant seeks an order that the TRO of 21^st August 2014 be quashed on the basis that the order is made

“in breach of s.35(b) that the Defendant has not complied with the relevant requirements and/or alternatively that the Defendant has acted outside of its relevant powers under s.35(a) in accordance with the standard principles of Judicial Review. Further and/or in the alternative that the Defendant is in breach of the duty set out within section 122 of the RTRA84 or in the alternative the Defendants are in breach of Regulation 6 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996. In either case the Court is asked to quash the Order under section 36(1)(b) of schedule 9 of the RTRA84.”

Following the late amendment there were seven grounds of challenge.

Mr Whale submitted that the issues raised by these grounds and the claim generally can be distilled to the following:

Although he put the issue of the identity of the Claimant as the final issue it seemed to me that logically it was the first issue to consider. If there was no proper Claimant at the time of the commencement of proceedings then the claim must fail regardless of the other grounds.

Mr Whale submitted that STAG was not a “person” within the meaning of paragraph 35 of schedule 9 to the 1984 Act, so was not entitled to question the validity of the TRO.

My order in adding Ms Williams as the representative Claimant did not have retrospective effect ; so the question of the status of the Claimant had to be posed as at the time of issue of proceedings.

Schedule 1 to the Interpretation Act 1978 states that a person includes “a body of persons…unincorporated.” However Mr Whale argued that as at the time of issue STAG did not meet this test as it was not a “body”. It had not long existed, had no formal membership and no list of members. He argued that it was not analogous to an unincorporated body, with a constitution and a formal list of members, such as an unincorporated sports club.

Further he submitted that there was no evidence of any defined objective or of specific interests that could be prejudiced as there was no evidence that any person connected with or part of STAG had a direct financial and personal interest that had been affected by the order.

So the first issue is whether, at the time of issue of proceedings the group known or described as STAG was sufficiently certain as an entity to constitute an unincorporated association.

Consideration of the documentation before me has revealed the following ;

The only direct evidence before me as to the history of STAG is contained in a witness statement by Ms Williams who stated

“ my fellow traders and I were becoming very concerned about the effects that these changes were going to have on the town and on our businesses. Together we formed a group to engage with the town, residents and traders. The group originally went under the name of re-open Totnes. Unfortunately, despite the fact that we were simply trying to make sure that a complete picture was being put to HATOC members, or involvement was not welcomed by DCC and we found ourselves being branded a “pressure group”. After the 24^th September 2013 meeting we rebranded as Totnes Traders Action Group (“TTAG”) and we have recently updated the group’s name again to reflect the fact that its membership is not only limited to traders. It is now known as the Sustainable Totnes Action Group (“STAG”)

This is somewhat at variance with the description given in parts of the letter of 3^rd December 2014 sent by the former solicitor. Not unsurprisingly the Defendant has relied upon its content and it forms a main pillar of Mr Whale’s submissions.

However I find that letter to be confused and confusing.

Ordinarily an unincorporated body, if purporting to act in a corporate capacity, cannot enter into a contract such as a retainer with a solicitor. Indeed prima facie even a member of an unincorporated association will not be personally liable for the acts of those who entered into contracts on behalf of the association. Exactly who can be/is liable depends on the agreements between the members and what acts of authority and/or ratification had occurred. It was possible for all the members to be liable if they gave appropriate authority, either in terms of the general agreement between the members or in respect of particular transactions.

As I have already pointed out I would expect that legal representatives would know at any given time who they acted for, such a matter being obviously relevant to a number of issues not the least of which are the retainer , obtaining of instructions, to whom a duty of care is owed. Indeed were litigation to be pursued without an identifiable client or group of clients the legal representatives could even be exposed to an application pursuant to section 51 Senior Courts Act 1981 that they be responsible for the costs.

The solicitor stated that his client had changed its name from TTAG and that TTAG had an identified membership, but also stated that the renamed group did not have a membership. If it had no defined membership it is difficult to see how a retainer could exist or how any individual had the risk as to costs to which reference is made. It seems to me that the acknowledgment of such risk necessarily supposes the existence of an identifiable group of individuals who make up the group and who face a shared obligation. It is consistent with a known group of members.

Ms Williams’ witness statement (signed with a statement of truth) confirms that all that happened was that TTAG changed its name to STAG as it now had members who were not traders. It seemed to me that this could only be read as meaning that as at the time of issue there was in existence a list of members for the unincorporated association known as STAG. I asked Mr Collett to take instructions to confirm that my reading of the witness statement was correct and he (and several members of the public behind him) confirmed that this was indeed correct.

As a result there was indeed a conflict between the witness statement and the letter of 3^rd December 2014.

In all the circumstances I think that it can only be right to proceed on the basis that the witness statement correctly reflects the facts as opposed to the confusing content of a letter sent by a former solicitor acting for STAG.

So at the time of issuing proceedings and contrary to Mr Whale’s submissions, STAG had

The issue of whether or not a body constitutes an unincorporated association is necessarily high fact specific. Mr Whale referred to Conservative and Unionist Central Office-v-Burrell [1982] 1WLR 522 as an example of a situation in which the court had found a group not to have the characteristics of an unincorporated association for the purposes of section 526(5) of the Income and Corporation Taxes Act 1970. Lawton LJ stated with elegant simplicity,

“Since membership of an unincorporated association is based on agreement between members a starting point for examining the legal nature of the party is to consider how anyone can join it.”

In that case the answer was that nobody could join the party directly. However in the present case there was a co-ordinator, an e-mail address to send the request to join and a list of members. So STAG met what in my view is likely to be the legal and indeed practical condition precedent (of being an unincorporated association for the purposes of commencing an action such as the present or indeed a judicial review) in the vast majority if not all cases ; an identifiable membership. Returning to my comments about the instruction of a solicitor this would mean that there was an identifiable number of individuals who were the instructing body and to whom a duty of care was owed. Further, from any Defendant’s perspective if there was ever a need to seek to enforce a costs order then it would provide a means to the identification of individuals who could potentially be jointly and severally liable.

However it does not appear to me that an identifiable membership by itself can suffice. There needs to be agreement between the members usually as reflected in a set of identifiable rules or a code or a contractual or other bond between them. Such a requirement should not be overly onerous and it bears repetition that such matters are very much fact specific.

In the present case there was a single and clear aim ; the reversal of the TRO and RTO. Any money in the group’s bank account was to be used for this aim; as I presume it was with the instruction of experts and a legal team. If the aim was achieved then no doubt all members could be contacted to see if agreement could be reached as to re-imbursement or donation to some other, in all probability charitable, cause.

In light of the matters which I have set out it is my judgment that STAG satisfied the necessary requirements such that it could properly be considered an unincorporated association at the time of the issue of proceedings. This unincorporated association was made up of an identifiable group of individuals. The end result is that the test of a relevant person was satisfied at the time of issue and continues to be satisfied

These difficulties could have been avoided. As subsequently occurred by virtue of my order an individual member could have be chosen as a representative claimant of the group ; see e.g. Artistic Upholstery-v-Art Forma (Furniture) Limited [1999] 4 All ER 277 and no issue would have arisen or been taken. However this obvious course was not adopted at the outset.

Eventually a company was formed and the clear intention was that the unincorporated association would simply fall away. However this was after the litigation had commenced and significant costs had been incurred and I refused to order that it could be substituted as the Claimant for the reasons that I have already set out. Rather I allowed the substitution of one of the existing members of the association at the time the proceedings commenced who would then continue as a representative claimant. That meant that there was liability resting with a set group of individuals for all steps taken in the litigation.

It seems to me that this case highlights the importance of a group considering its nature and standing before commencing litigation including judicial review. I am well aware of the fact that in Judicial review claims (which this is not) a flexible approach has been taken in a number of cases (see generally De Smith’s Judicial Review paragraph 2-012). However, a claim can proceed by representative claimant or claimants or through a company set up for the purpose ( subject to security for cost issues and potentially a challenge as to standing), but the choice to issue as an unincorporated association is to be avoided; notwithstanding that it has happened in some judicial review cases without status being questioned.

In actions such as the present where there was and is undoubtedly an issue of significant local importance directly or indirectly impacting upon many people it may be thought by some to be an unattractive and technical argument for a public body to run that the incorrect vehicle has been used for commencing the action. However many public bodies are creatures of statute and/or increasingly subject to funding restrictions and are duty bound to consider who will be available to satisfy any favourable costs order and it will often not now be an “arid issue” upon which no time should be wasted ( per McPherson J in R-v-Director of Rail Franchising ex parte Save Our Railways [1996] CLC 589 ; although the Court of Appeal in the same case noted that the status of two of the Applicants was “ at least questionable” but others were clearly individuals with sufficient standing).

Turning to the issue of whether the group had or has sufficient interest to be capable of being prejudiced by the TRO I have little hesitation is finding that it does. Ms Williams herself has two retail outlets both on Fore Street ( and within the list of members there are several other addresses on Fore Street and High Street) and the impact on businesses has been at the forefront of TTAG and then STAG’s submissions as to why the new traffic system is damaging the economic heart of Totnes by denying easy access for shoppers/users of its facilities. I shall in due course deal with the impact on the community bus service ; if members of the public cannot easily use this facility to get to the shops/premises on this thoroughfare then they will not come as frequently or at all adversely impacting upon their lives and the financial wellbeing of the businesses they previously visited with relative ease.

Having dealt with the issue of standing I now turn to the substantive arguments and the seven grounds as advanced.

As for the evidence before me there were witness statements from Ms Williams and Ms Price on behalf of the Claimant and three witness statements from Mr Jones on behalf of the Defendant.

Before considering the detail of the seven grounds it is necessary to set out the relevant legal framework

I start with the Road Traffic Regulation Act 1984. Section 1 empowers traffic authorities to make TROs.

So section 1(1)(f) empowers a traffic authority to make a TRO where it appears to the authority that it is expedient to make an order for preserving or improving the amenities of the area through which the road runs. Expedient is synonymous with advantageous, advisable on practical grounds, suitable or appropriate: see the judgment of Baker J in Trail Riders Fellowship v Devon County Council [2013] EWHC 2104 (Admin) at paragraph 43.

Section 2 sets out what a TRO may provide.

Section 122 of the Act, contained within general and supplementary provisions, sets out duties which are imposed upon local authorities when exercising their functions under the 1984 Act. It sets out that

“(1)

It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable 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 or, in Scotland, the road.

Under schedule 9 Part II paragraph 13 of the Act, any Order being made by a Local Authority to restrict access to any use of a road by any class of vehicle requires the consent of the Secretary of State (“SoS”).

Schedule 9 also sets out the right to apply to this Court and the Court’s powers

Turning to the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996, these were made under the powers set out in the 1984 Act. Regulation 6 states as follows

Under the regulations

So where it appears to an authority that an order is likely to affect the passage on any road of ambulances or fire-fighting vehicles, it shall consult the appropriate NHS Trust/NHS Foundation Trust and the fire and rescue authority.

Regulation 8 states

—(1) This regulation applies where the sole effect of an order (“a permanent order”), which is not an order made under section 9 of the 1984 Act, is to reproduce an continued in force indefinitely the provisions of an experimental order or of more than one such order (“a relevant experimental order”), whether or not that order has been varied or suspended under section 10(2) of the 1984 Act.

Regulations 6 (consultation), 7 (notice of proposals) and 8 (objections) shall not apply to a permanent order where the requirements specified in paragraph (3) have been complied with in relation to each relevant experimental order.

The requirements are that—

the notice of making contained the statements specified in Schedule 5;

deposited documents (including the documents referred to in sub-paragraphs (c) and (e)) were kept available for inspection in accordance with Schedule 2 throughout the whole of the period specified in regulation 22(4);

the deposited documents included a statement of the order making authority’s reasons for making the experimental order;

no variation or modification of the experimental order was made more than 12 months after the order was made; and

where the experimental order has been modified in accordance with section 10(2) of the 1984 Act, a statement of the effect of each such modification has been included with the deposited documents.

In the application of regulations 10, 11 and 13 and Schedule 3 to a permanent order to which regulations 6, 7 and 8 do not apply by virtue of paragraph (2)—

the notices of making published in respect of each relevant experimental order shall be treated as the notice of proposals published under regulation 7(1)(a) in respect of the permanent order;

any objection made in accordance with the statement included by virtue of paragraph (3)(a) in the notice of making published in respect of a relevant experimental order shall be treated as an objection duly made under regulation 8 to the permanent order.

I now turn to the Claimant’s grounds.

Although they were only introduced by the late amendment I shall deal with the grounds concerning consultation with the Secretary of State and the need for a public inquiry issues ( grounds (iii),(v) and (vii)) first as if required either would be a condition precedent to a lawful order.

Taking ground (iii) first it is the Claimant’s case that in preventing vehicles of over 32 feet 2 inches (9.8 metres) in part of Fore Street and the High Street, the Defendant has prevented use by vehicular traffic of a kind, and in a manner, which was suitable having regard to the existing character of the road, adjoining property. Further the closure of the road for more than eight hours in any period of 24 hours so as to prevent access for vehicles of any class to any premises situated on the road required the consent of the Secretary of State

It is common ground that as a result of the TRO vehicles of over 32 feet 2 inches (9.8 metres) are indeed prohibited from proceeding more than 5 metres west of the junction between Fore Street and Station Road.

Under schedule 9 Part II paragraph 13 of the 1984 Act any order being made by a Local Authority to restrict access to any use of a road by any class of vehicle requires the consent of the Secretary of State subject only to sub-paragraphs (2) and (3) of the paragraph.

Mr Collett also submitted in his skeleton argument that the consent of the Secretary of State was required where

“the effect of the prohibition by the order of the use of the road to which it relates or of any restriction on the use of that road contained in the order would be to prevent vehicles, or vehicles of any class, being loaded or unloaded in that road or to prevent persons boarding or alighting from a vehicle being used in the provision of a local service within the meaning of the Transport Act 1985on that road,…” (s.13(3)(b)).

That submission is, in my judgment, wrong as sub paragraph (3) only refers to orders proposed to be made under section 9 i.e. experimental traffic orders. Rather it is sub-paragraph (2) that was relevant. Mr Whale submitted that there were no relevant objections for the purposes of sub-paragraph 2(b)(i) ; so as a result the consent of the Secretary of State was not required

Mr Collett submitted that a number of objections were made by the various retailers, in total and at least 20 were noted by the Defendant in the ETO feedback document. He said that a more accurate figure would be considerably higher being 152 from the Chamber of Commerce and 186 from residents. However, he could not point to any reliable record of a complaint by the owner, lessee or occupier of premises in the part of Fore Street and High Street covered by this exclusion of HGVs to its inclusion in the order. Rather the complaints were in relation to the balance of the order. The best that he could manage was one recorded complaint dated 25^th March 2013 stating “trader… worried about delivery lorries being banned”, In the absence of further detail this cannot be sufficient to be considered a relevant objection.

Mr Jones of the Defendant had written a letter addressed to all properties of Fore Street and High Street on 19^th March 2013 i.e. before the ETO was in force and these were hand delivered to all premises. In his statement he sets out that

“ There are no retail premises on upper Fore Street or High Street requiring the services of vehicles longer than 32 feet 2 inches… Prior to the experimental orders, DCC identified only two premises on lower Fore Street regularly serviced by large articulated vehicles and these can still do so by travelling along Station Road and turning left into Lower Fore Street.”

In my view this probably explains the lack of any complaints in relation to the exclusion of HGVs.

Put simply this ground fails as there have been no relevant complaints to trigger the requirement of the consent of the Secretary of State.

I should add that Mr Collett submitted that even if no objections to the ETO had been made that it was clear from The Queen on the Application of LPC Group Plc v Leicester City Council [2002] EWHC 2485 Admin that the Defendant was duty bound to consider the implications of the duty imposed upon them. As a general statement of principle in relation to section 122 of the Act that is of course correct. However in relation to this exclusion it could not possibly give rise in the present case to any requirement or duty to act other than the Defendant did given that

So ground (iii) provides no basis for challenge to the TRO

As for ground (v) Mr Collett had set out in his skeleton that the effect of the order was to prevent persons boarding or alighting from a public service in the way in which the service had operated before the order was made. Accordingly the consent of the Secretary of State was required by virtue of paragraph 13. However he did not pursue this argument with any conviction in his oral submissions ; recognising that he had a far stronger argument under ground (vii) that concerned public service vehicles.

In my judgment the ETO and TRO did not prevent a person from boarding or alighting from a bus, rather its significant impact on the bus service was of a very different nature. As a result ground (v) falls away.

It is necessary to set out some details as regards Bob the Bus, the community bus service that has been operating through the provision of a regular service throughout the day into and through Totnes since 1997

Prior to the ETO the bus had a daily half hourly service that would proceed into Fore Street at the bottom of the hill and pass up it and onto High Street stopping on a number of occasions on the way. I have no doubt the journey would ordinarily take some time as passengers, many elderly (80% of the total passengers having concessionary travel) alighted and got on to access shops and amenities, but not such an excessive time as to deter passengers. Importantly the route served all the major shops and major amenities including the Post Office and the Banks. It was obviously very popular as in 2011/12 it carried 18,255 passengers a year (as against a total population of just under 8,000). The passengers provided a significant degree of business to the retailers on these streets.

The effect of the ETO and then the TRO is that the bus cannot enter the bottom of Fore Street as it previously did, rather it has to proceed around the east side of Totnes centre along Coronation Road and turn left into Station Road. It then proceeds along Station Road until it meets Fore Street, well up the hill, at a T junction. There is then a choice. The bus can turn left and service the shops and main Post Office going back down the hill or turn right and proceed up the hill and past the rest of Fore Street and High Street. If one bus is to service the whole of Fore Street it has to turn left at the junction, proceed down the hill and then at the bottom proceed onto Coronation Road and complete the whole loop again i.e. eventually turn left into Station Road. When it arrives back at the junction, which given the “serious congestion” that can occur on Coronation Road may well be a significant time later, it can then turn right up Fore Street.

So in terms of the much greater distance travelled and time taken there is a very significant difference between the route that can now be taken by a bus from that before the ETO.

Given its resources and the time taken Bob the Bus cannot currently undertake the “double loop” journey so the lower part of Fore Street is not currently served by a bus. Even so there has been disruption to the timetables by the need to carry out the initial loop. The effect on passenger numbers has been dramatic (and it is to be borne in mind that 80% of passengers pay no fare). As was recorded in the Defendant’s own report on the ETO dated 24^th September 2013

“Due to re-routing required by the experiment the service has found it difficult to keep to its original schedule and it is believed this is a key contributory factor in a 30% drop in passengers which is not deemed sustainable by the service provider…………………lower Fore Street is no longer directly served in particular which has affected disabled and elderly passengers needing to use the Post Office. Devon County Council has continued discussions with representatives of Bob the bus to discuss potential re-routing options. “Bob” has now indicated informally that its preferred option, other than a return to the pre-experiment layout, would be the engineered right turn ban at the junction of High Street and Plymouth Road

Under regulation 9 the Defendant was subject to a requirement by way of condition precedent of the making of an order to cause a public inquiry to be held (with an inspector appointed by the order making authority and selected from a panel of persons chosen by the Secretary of State to hold such inquiries) if the effect of the proposed order

“is to prohibit or restrict the passage of public service vehicles along a road and an objection has been made to the order in accordance with regulation 8”

In this regulation “public service vehicle” has the meaning given by section 1 of the Public Passenger Vehicles Act 1981 and Bob the Bus qualifies.

Not surprisingly given the effect of the ETO the officers of Bob the Bus made representations and objections. As Ms Price, the co-ordinator of the service, sets out in her witness statement shortly after it came into force she sent e-mails to Mr Jones of the Defendant explaining the problems the bus service faced. On 28^th June 2013 the Chairman of Bob the Bus, Mrs Boswell and Ms Price met with Mr Jones and they explained the problems. It is not in issue that the actions of Ms Price, if not others, constituted objections for the purposes of regulation 8 and further that by virtue of regulation 23 such objections are treated as objections duly made to the permanent order i.e. the TRO

So if the effect of the order was such that it “restricts the passage of public service vehicles along a road” there was a requirement to hold a public inquiry.

Mr Whale argued that as buses could reach all parts of Fore Street and High Street there was no restriction for the purposes of the section and as a result no duty to hold a public inquiry. However I cannot accept that submission ; it simply fails to apply a common sense test. In comparison to the ordinary progression along a street the bus is clearly limited and controlled in what it can do and the limitation was always going to have and has in fact had real and substantial practical effect as Ms Price set out in her witness statement.

In my judgment the change from the previous position, resulting in the inability of the bus to drive along a road dropping off passengers and a requirement to proceed in an extended double loop, with significant extra distance covered and time taken, to service the whole of Fore Street and High Street would strike any reasonable person as an obvious restriction on access and passage along the streets.

As a result it is my judgment that there was a clear breach of the obligation to hold a public inquiry and as a result a failure to comply with a relevant requirement in force before the order could be made.

The question that then falls for consideration is whether the interests of the applicant have been substantially prejudiced by this failure. If, but only if, that is proved may the court quash the order.

I have not found this a difficult question to answer. The omission was not an inconsequential failure of form or procedure. There is a reason why a public inquiry is ordinarily required and the present case is a paradigm example as the documents before me reveal issues that needed to be addressed in a public forum if all views were to be properly considered. Such an inquiry could well alter views. The failure to provide a public inquiry has, in my view, created obvious prejudice for the applicant group. To give specific example of an issue to be addressed, there is a duty under s.122(2)(c) of the 1984 Act to have regard to

“the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; …”

An obvious issue to be considered at a public inquiry would be any alternative measures. In March 2012 Bob the Bus had been against the proposed no right turn into Plymouth Road as a means of controlling illegal traffic using Fore Street and High Street. Indeed Mr Jones stated within his witness statement that

“ In part the orders were the result of attempts to resolve traffic issues on Fore Street and High Street without stopping “Bob” from using the Plymouth Road signals ( the operator objected to the right turn ban canvassed in early 2012)”

However, once the ETO came into force and within the representations it was made clear by Ms Boswell and Ms Jones on behalf of Bob the Bus that the no right turn option would be preferable to the ban on entering at the bottom of Fore Street as introduced by the ETO, such was the impact it was having. As I have set out this was noted in September 2013 and it was stated that there were to be ongoing discussions. Although Mr Jones notes in his witness statement that Inspector Tomlinson had some concerns it was certainly not dismissed as an alternative measure that met the stated aims of the exercise.

I have no doubt that STAG and/or STAG Limited would put forward its evidence and support and assist Bob the Bus in its presentation to the inspector (much as Bob the Bus has supported this claim). The passengers of Bob the Bus would be allowed a public forum to make their comments. As a valuable and laudable community service has suffered a significant negative impact I have no reason to believe that they would not do so.

I note that Mr Jones seems to doubt the effects upon Bob the Bus ; see second witness statement, paragraph 21, but like must be compared with like for a true conflict to arise on the evidence and the annual passenger figures support Ms Price’s view.

Of course the reduction in the number of passengers carried into the centre also means a significant knock on reduction in trade for the retail outlets. This would also bring into play consideration of the duty to consider the desirability of securing and maintaining reasonable access to premises and the effect on the amenities of any locality affected.

I therefore do not see the holding of a public inquiry as in any way just a formality and the loss of this opportunity has to be considered significant prejudice to the interest of the members of the applicant, the users of Bob the Bus and the public of Totnes generally.

I should add that I have not found any reference to the need to consider a public inquiry within the reports or minutes and it appears to have just been overlooked by the Defendant.

So ground (vii) succeeds and as a result the RTO must, in my judgment, be quashed.

The fact that a public inquiry must be held and an inspector appointed means that many of the arguments raised in the balance of the Claimant’s grounds will re-surface (but not the need for the consent of the Secretary of state ; hence my detailed consideration of grounds (iii) and (v)). It seems to me that given section 122 and the facts of this case the inquiry will have to consider ;

As a result I do not believe that it is necessary to consider the balance of the grounds in very great detail. However given the evidence and detailed submissions before me and the large amount of local interest in the case to which the packed court gave testimony, I shall make some observations on grounds (i),(ii),(iv)(v) and (vi) and section 122.

Mr Collett commenced his submissions with an overarching argument in relation to section 122 that had not been set out as a specific ground rather as a supporting argument in his skeleton for grounds (iii) and (iv) ; see paragraphs 3.8, 3.9 and 5.5. Whilst it should properly have been a freestanding ground Mr Whale took no objection and I heard full argument on the point.

The TRO was made against a background of complex interlinking issues and competing factors raised by TTAG, Bob the Bus and others. Mr Collett submitted that the Defendant through its committee HATOC failed to consider or to expressly record its consideration of the specific factors set out under section 122. He submitted that a balancing exercise must be conducted as it is required by s.122, but that there is no evidence that the duty under s.122 was brought to the HATOC’s attention, that they undertook any balancing exercise or how, if at all, they reached any conclusions upon the factors set out within the section.

There were four reports and four meetings of HATOC before the TRO was made. Mr Jones sets out in his witness statement that

“ All four reports had a section on legal considerations explaining that the provisions on the Road Traffic Regulation Act and its related regulations had been complied with. The provisions of section 122 of the Act are implicit within much of the four officers reports which provide detail of the illegal traffic movement identified, of the monitoring undertaken and the modifications made to facilitate access to premises. Responses relating to matters covered by s 122 of the Act were reported to the committee and available to be viewed by members”

However there is no evidence to show any consideration of section 122 by the committee prior to the ETO. The report of 30^th November 2012 simply stated no more than ; “ legal considerations ; if introduced the ETO will comply with the provisions set out in the Road Traffic regulation Act 1984 and its related regulations” . It did not set out the factors to be considered. The minutes of the meeting of HATOC on 30^th November make no reference of the duty to consider any specific matters.

The reports of 12^th July2013 and 24^th September 2013 simply stated that the ETO then in force complied with the provisions set out in the Road Traffic Regulation Act 1984 and its related regulations. The minutes of 12^th July 2013 and 24^th September 2013 show no consideration of the section perhaps because the reports do not raise it. The HATOC minutes of 25^th April reveal that there was discussion and consideration of a number of competing issues but no specific consideration of the relevant statutory section and the necessary balancing exercise.

It is difficult to see how the provisions of section 122 of the Act are “implicit within much of the four officers reports” or how the committee addressed the matters set out in the section, if at all.

Mr Collett relied upon the decision in Wilson & Another v Yorkshire Dales National Park Authority [2011] EWCR 1425 ( Admin). In that case His Honour Judge Behrens, sitting as a Judge of the High Court, held that whilst the Defendant had considered a number of matters and carried out a degree of balancing, it had not demonstrated that it carried out the balancing exercise required by s.122 in respect of each of the orders.

The Defendant, the Yorkshire Dales National Park Authority (“ YDNPA”) made TROs in respect of eight unsealed roads the effect of which was to prohibit access by mechanically propelled vehicles to the roads. As the Judge recorded

“YDNPA produced a final framework document in relation to the management of the use of green lanes in the Yorkshire Dales. At the end of the document is a checklist for making a TRO. Under Part B of that check list there is a whole page devoted to section 122 RTRA 1984 which is ticked as being “always relevant to consider”. Mr Pay points out that there is no evidence that the check list was considered in this case. No documents have been produced to demonstrate that the boxes in the check list have been filled in.”

Judge Behrens conclusion was that

“Whilst I accept that the Access Committee considered a number of matters and carried out a degree of balancing, I cannot accept that it has been demonstrated that it carried out the balancing exercise required by section 122 in respect of each of the TROs. The necessity to carry out such an exercise was not brought sufficiently to its attention and there is no evidence that the exercise was in fact carried out.”

Mr Collett submitted that in the present case neither the information with the order or the minutes reveal any specific consideration of section 122.

Mr Whale submitted that the HATOC committee which decided to make the TRO is, as its name makes clear, a specialist one. Its specialist responsibilities/activities include approving the details of and implementation of traffic regulation orders. It is chaired by an experienced DCC Cabinet member and includes the experienced Leader of DCC.

Further, he argued that the fact that an authority makes no express reference to section 122 is not one that gives rise to a claim that it failed to consider section 122 and/or failed to discharge its statutory duty. He relied upon the judgement of Baker J in Trail Riders Fellowship v Devon County Council [2013] EWHC 2104 (Admin). That case concerned a single stretch of road inBurrington in Devon. At its south-western end it has a junction with a road running north out of Burrington and at its north-eastern end has a junction with the A377 Trunk Road running between Exeter and Barnstable. There were only two residential properties situated along the road, the most northerly of which is Bouchland Farm. The minutes of the defendant's Public Rights of Way and Grants Subcommittee record that:

The Claimant argued that the Defendant authority failed to direct itself that it could only make a TRO if it considered that it was expedient to do so for one of the statutory purposes in section 1 of the 1984 Act. Further, that the Defendant failed to consider properly, or at all, the matters set out in section 122 of the Act and, in particular, failed to consider its duties under section 122(2) of that Act. In response the Defendant argued that it was self-evident from the reasons provided by the Defendant for the making of the order that it made the order because it considered it was expedient for the purposes of section 1(1)(a) of the 1984 Act, and that it was justified in doing so. Further, that it was “implicit that the provisions of section 122 were considered”, in that the reasons provided in the notice of its proposal to make a TRO mentioned not only the issue of safety, but also the proposal did not affect access to premises and provided for alternative routes. Baker J decided in favour of the Defendant stating

I start my analysis of this issue by noting, as Judge Behrens did in Wilson, that section 122 has been considered by the Courts on a number of occasions and has proved a difficult section to grapple with. As Carnwath J (as he then was) stated in UK Waste Management v West Lancashire DC [1996] RTR 201 at 209 C – G:

However, it is clear that any relevant authority has to perform a balancing exercise between the duty in section 122(1) and the factors in section 122(2). In R(LPC Group) v Leicester CC [2002] EWHC 2485 (Admin) Sir Christopher Bellamy set out the following principles to be applied when considering a ground such as that advanced by Mr Collett

As Mr Justice Baker stated in Trail Riders there is a duty upon an authority to provide adequate reasons for its decision to make the order. Further, that, as has long been recognised, the extent of the particularity of the reasons which are to be required of a decision-making body will depend on a number of factors, not least the degree of complexity of the issues involved. As Lord Brown said in South Bucks District Council and Another v Porter[2004] UKHL 33:

In Trail Riders, unlike the present case, the section 122 factors and the competing considerations could not be considered particularly difficult to weigh up. Indeed Baker J stated

“Moreover, the issues which fell to be considered in this case, whilst exciting controversy, were not in themselves matters of particular complexity”.

Each case must be considered on its own facts and what may be considered implicit in one decision may not be in another ; even if by the same body.

I have already set out the relevant reports and minutes. Unlike Wilson there is no express reference to section 122 in any report, save to states that there will be or is compliance with the section ; a statement that singularly fails to outline the need to undertake the exercise of consideration of the s122(1) aim and the matters in sub-section (2). Given the need to exercise care when interpreting the section and the complexity of the issues and competing evidence and arguments on the facts of this case I would not have been satisfied that it was shown that the Defendant had given proper regard to the matters set out in section 122(1) and (2) and that it had directed its mind to matters it was bound to consider. That it had and how it had been considered cannot be gleaned from what can be legitimately considered to be implicit from any decision and I do not believe that Mr Whale’s general assertion of competence and experience can save the day given how complicated the matters at hand were for the committee.

So had the requirement for a public inquiry not been established the decision reached would have been subject to successful challenge by reason of this failure.

In my Judgment the jurisprudence in relation to section 122 highlights the need for an authority to specifically set out its analysis of section 122 considerations in reaching any decision upon any complicated question.

I now turn to the balance of the grounds advanced

Grounds (iii), (v) and (vii) stood apart from the balance of the grounds as they concerned straightforward allegations of failures to comply with regulatory requirements to seek consent or consult before an order could be made.

When considering the other specific grounds raised it is important to always bear in mind the limits of the court’s role. Although this case concerns a statutory application under the 1984 Act, the general principles of judicial review and statutory applications apply. The grounds in paragraph 35 of Schedule 9 to the Act are the same as those under section 288 of the Town and Country Planning Act 1990 which sets out that if any person

As a result an application such as this is not an opportunity for a review of the merits of the relevant decision. A description of the court’s role when given a power to consider an appeal such as that provided under paragraph 35 was given by Sullivan J (as he then was) in R(Newsmith Stainless Ltd) v Secretary of State for Environment, Transport & the Regions [2001] EWHC 74 (Admin), as follows :

As for the principle that matters of judgment and weight are within the exclusive province of DCC as decision-maker; see generally Tesco Stores Ltd v SSE [1995] 1 WLR 759

It is necessary to set out these overarching principles as Mr Whale submitted, with justification, that the Claimant’s skeleton argument repeatedly failed to adhere to these principles. For example, paragraph 1.8 it was submitted that , “the Court will wish to concentrate on whether the scheme does or does not enhance road safety”. It would be wholly wrong for me to have embarked on such an exercise. As Mr Whale forcefully and correctly pointed out, “the hearing is not a trial and the court will not make factual findings on such matters”.

So in so far as the Claimant’s grounds raised specific arguments that the TRO is detrimental to public safety, adversely affects the viability of the businesses in the centre of Totnes, causes congestion and adversely affects the effective provision of public transport within the town, such results being contrary to section 122 of the 1984 Act, they are allegations as to the merits. As such they are not matters for this court, rather for the Councillors forming HATOC.

For the avoidance of any doubt that does not mean of course that every political decision made by an elected county council is immune from challenge in proceedings such as this or in judicial review proceedings. However it does mean that I was conscious to avoid being lured by Mr Collett into making a judgment about the merits of a decision by a democratically elected body.

I shall briefly deal with each of the specific grounds in turn

The first ground is that the Defendant (through HATOC), failed to consider a report on road traffic safety from TMS Consultancy and failed to take into account relevant accidents caused by the ETO.

Again this engages a general principle applicable to applications such as this and judicial review generally. Insofar as there is a conflict in the written evidence which the court cannot otherwise resolve, it is bound to prefer the Defendant’s evidence: see Flattery v Secretary of State [2010] EWHC 2868 (Admin).

The Claimant commissioned a Traffic Management and Safety Report from TMS Consultancy and Mr Collett submitted that its content proved that the intention of the TRO (and before that the ETO) had not been achieved. He also provided a detailed critique of the Defendant’s safety assessments. However questioning the interpretation and balancing of evidence is an attack on the merits and requires the threshold to be met that the result was “Wednesbury unreasonable” i.e. fell foul of the famous formulation of Lord Green MR in Wednesbury Provincial Picture Houses-v-Wednesbury Corp [1948] 1KB 223 that the decision was so unreasonable that no reasonable authority could ever come to it. As has been repeatedly stated this is a high threshold.

Mr Whale submitted that the TMS report was only part of the evidence considered and that paragraphs 16-20 of the Claimant’s Grounds make a number of factual assertions, all of which are wrong. Specifically

So the issue is not whether, having heard Mr Collett’s persuasive advocacy I would have come to a different conclusion to the HATOC members, but whether having considered all the available evidence the result was “Wednesbury unreasonable”. There was a good deal of material and like much statistical evidence was capable of being interpreted in different ways by the committee. I would not have been satisfied that this ground was established.

The second ground is that HATOC failed to consider the adverse impact on the businesses situated on the affected streets and in particular, failed to give appropriate weight to the detailed reports prepared and submitted to the Committee on the adverse impact of the ETO. Mr Collett submitted that the Defendant had “breached its duty under s.122(1)(a) RTRA 1984 and in particular has, in the exercise of its functions, acted contrary to s.122 (2)(b) and (d)”. One of the stated aims of the ETO was “to enhance the economic and cultural life of the town” and the Defendant’s own stated aim in the Local Transport Plan was economic growth, yet it was not mentioned as a purpose in subsequent HATOC reports and minutes of the meeting.

Mr Collett argued that the decision reached was Wednesbury unreasonable in light of the following:

Mr Collett conceded that there had been some analysis within the Head of Highways report of 25th April 2014 which had concluded that the “economic data was not conclusive” . However he submitted that such analysis failed to identify what and how their ‘other sources’ showed a different picture apart from referring to the numerical amount of businesses in March 2013 compared with March 2014. At the very minimum, the Defendant should have, given the findings of the report, undertaken further investigations themselves.

In response Mr Whale pointed to the following ;