KEYHOLE BRIDGE USER SAFETY GROUP (R on the application of) v BOURNEMOUTH, CHRISTCHURCH AND POOLE COUNCIL

The Claimant challenges the decision made by the Defendant (“the Council”) on 1 March 2021, to revoke the Bournemouth, Christchurch and Poole (Whitecliff Road) (No Vehicles Except Cyclists and Waiting Restrictions) Experimental Order (No.2) 2020 (“the Order”). The Order prohibited vehicle access (other than bicycles) on Whitecliff Road at the point where it runs under a narrow bridge, known as Keyhole Bridge, into Poole Park. It was an experimental traffic order (“ETO”) made pursuant to section 9 of the Road Traffic Regulation Act 1984 (“RTRA 1984”).

The Claimant is an unincorporated association whose members are local residents living in Bournemouth, Christchurch and Poole.

Permission to apply for judicial review was granted on 14 July 2021 by Neil Cameron QC, sitting as a Deputy High Court Judge.

The Claimant’s grounds of challenge may be summarised as follows:

The Council acted in breach of Schedule 5 to the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 (“the 1996 Regulations”), by curtailing the statutory 6 month period for representations (both objections and statements in support).

The Council promised that the experimental closure of the road would operate for 6 months and then be reviewed, that the public would be consulted on the closure, and responses received by 21 February 2021 would be taken into account in the review. This gave rise to a procedural legitimate expectation. Councillor Greene decided to revoke the Order on 27 January 2021, and the Overview and Scrutiny Board upheld the decision on 1 March 2021. The Council failed to honour its promises and curtailed the consultation period for no justifiable reason, which was so unfair that it amounted to an abuse of power.

When deciding whether or not to revoke the Order, the Council failed to take into account material considerations, namely, consultation responses which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed.

The Council acted irrationally when deciding whether or not to revoke the Order, by relying on unevidenced assumptions about the detrimental effect of the ETO on air quality.

In response, the Council submitted:

The objections procedure in Schedule 5 to the 1996 Regulations was not a general consultation about the merits of the Order; its purpose and scope was to give the public an opportunity to object to the Council continuing the provisions of the experimental order indefinitely in a permanent order. It did not prevent the Council from exercising its discretion to revoke the Order at any time prior to the 6 month period for lodging objections.

The Council did not make any clear and unambiguous representations, as contended by the Claimant, which were capable of giving rise to a procedural or a substantive legitimate expectation. In any event, the decision to revoke the Order did not take effect until 1 March 2021, when it was confirmed by the Overview and Scrutiny Board. Until 1 March 2021, members of the public could and did continue to make representations, which were taken into account, and thus met the expectation that the consultation period would continue until 21 February 2021. Alternatively, the Council lawfully resiled from any legitimate expectation.

In law, the duty on the Council was to have regard to the material issues before making its decision. The Claimant was not able to point to any issues which were not already before the Council in numerous other representations when it made its decision. The representation from Mr and Mrs Philips did not raise any new issues. Responses which were never made, such as from Dr Mew, could not amount to a material consideration as they did not exist.

The Claimant’s case on irrationality was a disagreement with the merits of the decision, rather than a demonstration that it was perverse.

Section 31(2A) of the Senior Courts Act 1981 applied, as it was highly likely that the outcome would not be substantially different if the conduct complained of had not occurred.

On 4 August 2020, the Council exercised its powers under section 9 RTRA 1984 to make the Order. It was accompanied by a Statement of Reasons and a Notice of Making. The Statement of Reasons stated that the Order was made in discharge of the Council’s duty under section 122 of the RTRA 1984 “to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)” and, in accordance with the provisions of section 1(1) of the RTRA 1984, it appeared to the Council that it was expedient to make the Order.

The Statement of Reasons and the Notice of Making included the following statement:

The Council also issued an “Information Document” which described the effect of the Order and stated in the introduction:

Later on the document stated:

The Order came into force on 14 August 2020. It did not specify its duration but under section 9(3) of the RTRA 1984, it could not continue in force for longer than 18 months.

The works to close the route to vehicles (installation of large plant containers) were carried out in the week commencing 17 August 2020.

In October 2020, there was a change in the administration of the Council. A new Leader and Cabinet were appointed, and Councillor Michael Greene, an experienced Member, was appointed to be Portfolio Holder for Transport and Sustainability.

On 15 October 2020, the Council announced that it intended to revoke the Order but that statement was later retracted. In his witness statement, Councillor Greene related that he undertook a review of 8 ETOs which had recently been made in the area. He obtained information and views from lead officers and local ward members, and considered the consultation responses. Among other matters, he explored the impact of the ETOs on neighbouring roads and areas, so as to consider possible adverse impacts from the displacement of traffic out of the ETO areas.

The responses to the non-statutory “informal” consultation were recorded in the “Portfolio Holder Decision Record” as 270 responses (60%) in favour of the measure and 164 responses (37%) opposed to the measure, received from 19 August 2020 to 11 January 2021. The responses to the statutory “formal” consultation were recorded in the same document as 128 responses in support, and 35 responses objecting, received from 7 August 2020 to 6 January 2021.

On 15 January 2021, Councillor Greene published a “Proposed Decision” to revoke the Order. Interested Parties were invited to comment on the proposal, over a period of 5 days, until 22 January 2021. It was not on the Council’s consultation webpage as, according to the Council, it was not a formal consultation. The Council explained at the time that the “five day period is similar to the publication of an agenda whereby interested parties can make their views known to relevant members” (second witness statement of Ms Susan Smith, at paragraph 3(i)). Some 438 responses were received, and scheduled to the document headed “Post Engagement Final Decision”.

On 27 January 2021, Councillor Greene confirmed his decision to revoke the Order in the document headed “Portfolio Holder Decision Post Engagement Final Decision” and the “Portfolio Holder Decision Record”. An Equality Impact Assessment was undertaken. Councillor Greene explained in his witness statement that he considered all the responses which had been received.

The decision to revoke was published on the Council’s website on 28 January 2021. Comments or representations were not invited.

The decision was subject to the Council’s Call-in procedure under the Council’s Constitution. Under rule 10.4 of the Procedure Rules in the Constitution, the decision could not be implemented until five clear working days after the decision was made, recorded and published, pending a possible Call-in. The Call-in period commenced on 28 January 2021, and closed on 4 February 2021.

Twelve Councillors requested a Call-in for detailed reasons which criticised both the decision and the process. Among other matters, they complained that the consultation procedure was flawed as it was “advertised to be consulted from August 2020 to at least 21 February 2021”, and “no rationale was given as to why it was felt necessary to withdraw the scheme early”.

The Overview and Scrutiny Board was asked to review and scrutinise Councillor Greene’s decision in the light of the reasons submitted in support of a Call-in. The Board met on 1 March 2021. At a lengthy meeting, Councillor Hadley presented the reasons for the Call-in, and proposed a motion that the Board should “recommend a referral back to Cabinet for them to consider an extension as allowed under the legislation to 18 months, during which time the following items are to be considered – air pollution, congestion and journey times, consultation with schools, disability groups and community groups – and these are brought back to Cabinet for a final decision at the end of this period”. Councillor Greene gave a detailed explanation and justification for his decision. Among other matters, Councillor Greene explained that “[t]he consultation was closed because a significant number of responses had already been received and nothing new had come out of the responses during this time to further inform the decision”. By 8 votes to 7, the Board voted against Councillor Hadley’s motion.

The Monitoring Officer advised the Board that Councillor Greene’s decision could now be implemented with immediate effect. By rule 10.5 of the Procedure Rules, the decision could not be implemented until the Call-in Procedures had been followed.

Members of the public were able to view a livestream of the meeting of 1 March 2021, but they could not participate. In accordance with the Council’s Constitution, there were strict deadlines for members of the public to submit questions, statements and petitions in writing prior to the meeting. Ms Smith sent her comments direct to Board members, and four other supporters of the Claimant sent representations which were posted on the Council’s website and circulated to Board members. The representations were considered at the meeting.

On 30 January 2021, two members of the public (Mr and Mrs Phillips) responded to the consultation procedure, supporting the continued closure of the road. The Council replied, on 3 February 2021, stating that the Order had already been revoked, on 28 January 2021. Mr and Mrs Phillips lodged a complaint. In its response, the Council explained the process which had been followed. It said that:

Dr K. Mew made a witness statement in support of the claim explaining that she had been ill in 2020 and subsequently sheltering at home in 2020 because of the COVID-19 pandemic and so she was unaware that there was an ongoing consultation. By the time she found out it, it was too late for her to submit a representation supporting the closure of the road because the consultation period had been curtailed and the Order revoked.

The Council is a traffic authority within the meaning of section 1 of the RTRA 1984 which provides:

In exercising its powers under the RTRA 1984, the Council is under the general duty set out in section 122 RTRA 1984, which provides:

Section 9(1) of the RTRA 1984 provides that a traffic authority may “for the purpose of carrying out an experimental scheme of traffic control”, make an order referred to as an “experimental traffic order” (an “ETO”). By sub-section (3), an experimental traffic order shall not continue in force for longer than 18 months.

Section 10(2) RTRA 1984 makes provision for the modification or suspension of all or part of an ETO by the authority on specified grounds, which were not employed in this case.

The procedural provisions relating to ETOs are set out in the 1996 Regulations.

Once an ETO has been made, the authority must publish a notice of making (regulation 17(2) of the 1996 Regulations) stating that the order has been made and containing the particulars listed in Parts I and III of Schedule 1 to the 1996 Regulations. By paragraph 7 of Schedule 1, these include a “statement that documents giving more detailed particulars of the order are available for inspection and a statement of the places at which they are so available and of the times when they may be inspected at each place.”

An ETO may not come into force before seven days have expired from the publication of the notice of making: regulation 22(2) of the 1996 Regulations. By regulation 22(3) and (4), documents must be deposited and made available for inspection whilst the order is in force according to the requirements of Schedule 2 to the 1996 Regulations which provides (so far as is material) as follows:

Schedule 5 to the 1996 Regulations sets out the statements to be included in a notice of making relating to an ETO, in the following terms:

Regulation 23 of the 1996 Regulations applies where an authority seeks to replace an ETO with a permanent order in the same terms. It provides as follows:

A duty to consult may arise from a legitimate expectation of consultation, even in the absence of any statutory or other legal requirement to consult (R (Moseley) v Haringey LBC [2014] 1 WLR 3947, per Lord Reed at [35]).

A legitimate expectation may arise from an express promise or representation made by a public body. We are not concerned here with the class of legitimate expectation that may arise from custom and practice.

In order to found a claim of legitimate expectation, the promise or representation relied upon must be “clear, unambiguous and devoid of relevant qualification”: R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, per Bingham LJ at 1569G.

Bingham LJ’s classic test has been widely approved and applied. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] AC 453, Lord Hoffmann said, at [60]:

The onus of establishing a clear, unambiguous and unqualified representation rests on the Claimant.

The Courts have given guidance on how Bingham LJ’s test in MFK is to be applied. In Paponette and Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32, Lord Dyson JSC, giving the judgment of the majority of the Board, said, at [30]:

A paradigm case of procedural legitimate expectation was set out by Laws LJ in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at [29 – 30]:

In R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, Laws LJ explained the principled reasons why the courts will require a public authority to honour its promises, unless there is a good reason not to do so. He did not distinguish between existing and future rights. He said, at [68] – [70]:

Where a consultation is carried out the “Sedley” requirements will apply as endorsed by the Supreme Court in Moseley, per Lord Wilson, at [25]:

Despite some inconsistencies and inaccuracies in the documents issued by the Council when it made the Order in August 2020, I find that the Council undertook two procedures: a statutory objections procedure and a non-statutory consultation procedure.

The Council carried out a statutory procedure, pursuant to Schedule 5 to the 1996 Regulations, which by law ought to have been confined to inviting any objections to the Council making a permanent order in the same terms as the experimental order. In my judgment, the Council erred by inviting representations in support, as well as objections. Under Schedule 5, the period for making objections was 6 months, beginning with the date on which the experimental order came into force. The Order came into force on 14 August 2020, and so the period for making objections expired on 14 February 2021. In my judgment, the Council erred in treating the end date of the statutory consultation as 21 February 2021.

I accept Ms Olley’s submission that neither the RTRA 1984 nor the 1996 Regulations impose a minimum time period of 6 months during which an ETO must remain in force and cannot be revoked. Section 10 RTRA 1984 makes specific provision for an ETO to be suspended or modified, but it does not prevent a traffic authority from exercising its general powers to revoke a traffic order. In particular, the objections procedure in Schedule 5 did not operate as a bar on the Council revoking the Order before the 6 month period had expired. The purpose of the objections procedure is to enable members of the public to object to the traffic authority introducing a permanent order in the same terms as the ETO. Where a traffic authority is seeking to introduce a permanent order, the 6 month period for objections must be allowed to run its course. But where a traffic authority merely decides to revoke the ETO, the Schedule 5 procedure ceases to have any relevance. In any event, as the ETO remained in force for over 6 months, from 14 August 2020 to 1 March 2021, because of the Call-in, the point is academic.

Finally, the thrust of the Claimant’s complaint was that supporters of the Order were deprived of the opportunity of making representations because of the curtailment of the statutory objections period. However, as Schedule 5 only provides for the making of objections, not expressions of support, the Claimant did not suffer any prejudice by the curtailment of the opportunity to make objections during the 6 month period.

For these reasons, Ground 1 does not succeed.

The Council also carried out a non-statutory consultation, which was much broader in scope than the statutory objections procedure. It invited the public to express their views, either in support or opposition to the closure of the road to vehicles, and its objective of providing a safer environment for walking and cycling, to encourage sustainable modes of travel. The Information Document stated that the consultation would commence on 7 August 2020. Comments received by 21 February 2021 would be considered as part of a review to be carried out 6 months after the works implementation date, which was in the week commencing 17 August 2020.

The Claimant submitted that, in the Information Document, the Council made clear and unambiguous promises to the public that (1) the ETO would operate for at least six months as a trial; (2) that the public would be able to make consultation representations on the ETO during the six-month trial; and (3) any consultation responses received by 21 February 2021 would be taken into account at the six-month review. These gave rise to a legitimate expectation.

Ms Olley submitted that the Information Document was ambiguous and unclear, pointing to the vague reference to a review “in early 2021” which was not consistent with a review after 21 February 2021, and the errors in the scope and end date of the statutory consultation, to which I have referred above. However, on a fair reading of the Information Document, I am satisfied that the Council did make clear and unambiguous representations, as summarised at paragraph 49 above, which gave rise to a legitimate expectation.

The Claimant submitted that the Council’s promises were not honoured because of the curtailment of the trial and the consultation period. Ms Olley submitted that the Order and the trial did operate for more than 6 months and the public were able to make representations up until the Council upheld the decision to revoke the Order on 1 March 2021. The difference between what was promised and what was actually delivered was minimal and insignificant.

I accept Ms Olley’s submission that the Council’s representation that the Order would operate for more than 6 months from the date of the implementation of the works was honoured. The Order and the trial road closure continued until 1 March 2021, which was later than the date of 21 February 2021 given in the Information Document.

However, I do consider that the public consultation period was curtailed by the early decision to revoke. Councillor Greene made his proposed decision to revoke on 15 January 2021, which was some 5 weeks earlier than 21 February 2021. There was a brief opportunity to comment on the proposed decision to which a large number of residents (438) responded. However, once the decision was made on 27 January 2021, the only opportunity to comment was prior to the meeting on 1 March 2021. It was revealing that the Council rejected the consultation response by Mr and Mrs Phillips, dated 30 January 2021, on the grounds that the decision to revoke had already been made. In my view, only those like Ms Smith, who were following Council business very closely, would have been able to avail themselves of the opportunity to make representations for consideration at the meeting on 1 March 2021, because it was not published on the website as a public consultation and not widely publicised.

Furthermore, from 27 January 2021 onwards, the decision to revoke had been made (though not implemented) and so the Sedley consultation requirements (proposals must still be at a formative stage and the consultation responses conscientiously taken into account in finalising any proposals) were no longer met. Councillor Greene states that he took all responses conscientiously into account, before his decision to revoke and before the Call-in meeting, and there was nothing further to say on the matter. However, the evidence indicates that he had already formed a view that the Order ought to be revoked at least by 15 January 2021, if not before.

Overall, I consider that the procedure which was adopted was significantly less favourable to the public, in particular to supporters of the closure of Keyhole Bridge, than the promised consultation running through to 21 February 2021, followed by a review, at which the decision-maker would consider all the consultation responses lodged by then and decide “whether the changes should be made permanent, retained ... or removed” or alternatively, whether the trial should be extended (Information Document).

A public body may be justified in resiling from a representation which has given rise to a legitimate expectation “by the force of an overriding legal duty owed by the decision-maker or other countervailing public interest” (per Laws LJ in Bhatt Murphy at [29]). Surprisingly, the Post Engagement Final Decision document did not address the reasons why the consultation period had been curtailed, which suggests that Councillor Greene did not pay sufficient regard to its legal duty to honour the legitimate expectation. However, Councillor Greene explained to the Board at the meeting on 1 March 2021 that “[t]he consultation was closed because a significant number of responses had already been received and nothing new had come out of the responses during this time to further inform the decision”. In his witness statement, at paragraph 4, Councillor Greene referred to the “disquiet expressed by both ward councillors in a number of areas, and residents within certain areas, about the impact of the experimental orders and the inevitable speed with which they had been implemented”.

In response to the complaint by Mr and Mrs Phillips, the Council said:

In my judgment, these reasons did not amount to a countervailing public interest of sufficient weight to justify a departure from the requirement of fairness and good administration that public authorities should honour assurances which they have given to the public (see the judgments of Laws LJ in Bhatt Murphy and Nadarajah at paragraphs 40 and 41 above).

Accordingly, Ground 2 succeeds. I am not persuaded that relief should be refused under section 31(2A) of the Senior Courts Act 1981. Given the weight of public opinion in favour of the closure of the road, and the very close vote at the meeting of 1 March 2021, I am not satisfied that it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, that is to say, if the consultation and the review had been carried out in accordance with the promises in the Information Document.

The Claimant submitted that, when deciding whether or not to revoke the Order, the Council failed to take into account material considerations, namely, consultation responses which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed.

I accept Ms Olley’s submission that, whilst the Council was under a duty to have regard to the material issues before making its decision, responses which were never made (such as from Dr Mew) could not amount to a material consideration as they had not come into existence. In my judgment, Ms Olley was correct to submit that this ground did not fit the circumstances of the case.

After Ground 3 was pleaded, it emerged that the response from Mr and Mrs Phillips which was made on 30 January 2021 was not considered. In the light of my conclusions on Ground 2, it ought to have been considered as a material consideration before the decision was made. To that extent, this ground succeeds. However, I accept that the issues raised by Mr and Mrs Phillips were considered as they were raised in other earlier consultation responses. In my view, relief should be refused under section 31(2A) of the Senior Courts Act 1981, as it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, that is to say, if the Council had taken into account the consultation response of Mr and Mrs Phillips before making the decision to revoke.

The Claimant submitted that the Council acted irrationally when deciding whether or not to revoke the Order, because it relied on unevidenced assumptions about the detrimental effect of the ETO on air quality. In particular, that there was no direct evidence to establish that the closure of the road had a negative impact on air quality in Parkstone Road and Sandbanks Road because of the displacement of through traffic on to those roads.

I received evidence and submissions from the Claimant to the effect that the 2016 survey, relied upon by Councillor Greene, concerned a different road scheme and the 2017 Air Quality Report showed low nitrogen dioxide levels on Parkstone Road in July 2016 when the road in Poole Park was closed.

I received competing evidence and submissions from the Council to the effect that the closure of the Keyhole Bridge route had increased traffic volumes, queueing and congestion in Sandbanks Road and Parkstone Road. The 2016 Study, which also restricted through traffic in Poole Park (albeit at a different point), demonstrated the congestion caused in Parkstone Road by displacement traffic. As these roads were built up, the consequent reduction in air quality was likely to outweigh air quality improvements in Poole Park, which was extremely open. The results in the 2017 Air Quality report were based on a measuring device located at an open and exposed area, 5.8 metres from the edge of the carriageway, and 37 metres from the nearest property, so significant increases in traffic volume would be required before there would be any noticeable deterioration in air quality or impact on residents. Some measurements were taken during the summer school holidays when there was reduced peak-hour traffic.

In my judgment, the Claimant’s case on irrationality was a disagreement with the merits of the decision, rather than a demonstration that it was perverse. There were genuine and weighty competing considerations, for and against the road closure. The experiences and views of local people did not need to be strictly evidenced or supported by formal studies in order to be taken into account and relied upon. Ultimately, the Council had to make an exercise of judgment, in its capacity as the local traffic authority, and whichever way it decided, it was bound to disappoint some residents. An exercise of judgment is not susceptible to judicial review. In my view, the Council’s decision was rational; the Claimant has not come close to overcoming the high threshold required for a rationality challenge.

The Claimant has succeeded on Grounds 2 and 3 (in part only), but failed on Grounds 1 and 4. Relief is refused on Ground 3, as section 31(2A) of the Senior Courts Act 1981 applies.

As to relief on Ground 2, the Claimant submits that, in order to remedy the breach of legitimate expectation, the decision of 1 March 2021 ought to be quashed. It is common ground that quashing the decision of 1 March 2021 would have the effect of reviving the Order. The Claimant further submits that the entire trial closure and consultation should be re-run for a period of at least 6 months, and then a fresh review should take place.

The Defendant submits that an entire re-run goes far beyond what is required in all the circumstances of this case, and the Claimant’s proposal is an opportunistic response by supporters of the road closure. The Defendant also submits that it would be confusing and unnecessary to close the road again, and any further period of consultation should be limited to completing the 6 month period, followed by a review.

Broadly, I agree with the Defendant’s submissions. In my judgment, there is no justification for re-running the entire trial closure and consultation afresh. There was an effective trial closure for more than 6 months – from 14 August 2020 to 1 March 2021 – and it is inconceivable that local people will have forgotten how it operated in practice. In any event, the vast majority have already cogently expressed their views, between 14 August 2020 and 22 January 2021. The Court ought to have regard to the practicalities and the cost when considering what relief is appropriate.

In my judgment, in order to remedy the unfairness and unlawfulness which has occurred, it is not necessary to quash the decision of 1 March 2021, revive the Order and close the road. I consider that the Council ought to conduct a further non-statutory consultation to enable the public to give their views on the changes which were implemented by the Order, with effect from 14 August 2020 until its revocation on 1 March 2021. The Council should then conduct a review, which takes into account all the responses which have been received, including responses to the previous statutory and non-statutory consultations, and responses to the proposed decision to revoke, and the Call-in procedure. Those who have already responded ought not to send a further response, unless there is a genuinely new point to be made. In principle, the purpose of the review will be to decide whether the changes which were implemented by the Order should be made permanent, retained with minor alterations, or removed. This reflects the promise made in the Information Document in August 2020.

In the light of my conclusions, the parties then reached an agreement for a further consultation and review, on the terms set out in the final order.