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Cite as: [2001] EWCA Civ 2062

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Wainwright, R (on the Application of v Richmond Upon Thames London Borough Council [2001] EWCA Civ 2062 (20th December, 2001)

		Neutral Citation Number: [2001] EWCA Civ 2062
		Case No: C/2001/0961

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
Mr Justice Silber

Royal Courts of Justice
Strand,
London, WC2A 2LL

20 December 2001

B e f o r e :

LORD JUSTICE HENRY
LORD JUSTICE CLARKE
and
MR JUSTICE WALL
____________________

THE QUEEN ON THE APPLICATION OF
HILARY WAINWRIGHT
Claimant/
Respondent

- and -

RICHMOND UPON THAMES
LONDON BOROUGH COUNCIL
Defendant/
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr James Maurici (instructed by Rowe & Maw for the claimant)
Miss Nathalie Lieven (instructed by R J M Mellow Head of Legal Services
London Borough of Richmond upon Thames for the defendants)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Clarke:

Introduction

This is an appeal from an order of Silber J dated 11^th April 2001 quashing a decision (“the decision”) of the Transport Sub-Committee (“the committee”) of Richmond London Borough Council (“the council”) dated 28^th June 2000 approving proposals for a toucan crossing and associated works outside no 81 St Margaret’s Road, Richmond. The judge refused permission to appeal but permission was subsequently granted by Dyson LJ.

The Claim

The claimant and respondent is Mrs Hilary Wainwright who lives in flat 2, 83 St Margaret’s Road. She challenged the decision by way of judicial review on her own behalf. In doing so she did not (and does not) represent other residents in the vicinity. The ground upon which she challenged the decision was that there had been inadequate notification and general consultation before it was made. The judge so held and, in the exercise of his discretion, quashed the decision.

Grounds of Appeal

The council advances three grounds of appeal as follows:

i) that the respondent had herself been fully consulted and in the circumstances of this case there were no grounds to allow her application given that there was no error of law in respect of her own claim;

ii) that the standard of the consultation required which was applied by the judge was unreasonably high given the absence of any statutory duty to consult; and

iii) that this was a case where the court should have exercised its discretion not to quash the decision.

The respondent takes issue with each of those grounds and advances a further argument by way of respondent’s notice which raises a fourth question as follows:

whether the decision to quash should be upheld on the additional basis that the conduct of the council in relation to the hearing which the committee afforded to the respondent and others before the meeting itself was a breach of natural justice and prevented there being fair and effective consultation.

The Statutory Framework

The council’s powers are, so far as relevant, set out in the Road Traffic Regulations Act 1984 (“the 1984 Act”). Section 6 allows a relevant traffic authority, here the council, to make an order for controlling or regulating the vehicular and other traffic, including pedestrians. Section 23 provides, so far as relevant:

“(1) A local traffic authority may establish crossings for pedestrians on roads on which they are the traffic authority, and may alter or remove any such crossings….

(2) before establishing, altering, or removing a crossing a local traffic authority –

…

(b) shall give public notice of that proposal; …”

It is common ground that the only way in which the decision could be challenged was by way of judicial review. The respondent obtained leave to move for judicial review from Ouseley J.

The Council’s Duty

It is common ground that the only relevant statutory duty imposed upon the council was the duty to give public notice of the proposal in accordance with section 23(2)(b) of the 1984 Act. I accept Mr Maurici’s submission that that duty must encompass a duty to consider representations received in response to such a notice, since the purpose of notifying the public of the proposal can only have been to give members of the public an opportunity to make representations and there would be no point in such representations being made if they were not to be considered by the council.

It is in any event common ground that a duty to consult interested members of the public may arise where the parties to be consulted have a legitimate expectation of consultation which results either from a promise or from an established practice of consultation: see eg R v Camden LBC ex p Cran (1996) 94 LGR 8, per McCullough J at 38.

The council correctly accepted before the judge and accepts before us that it owes such a duty. As it is put in Miss Lieven’s skeleton argument on this appeal, the council at all times accepted that it had made representations that it would consult on proposals such as this and, specifically, that it would consult in respect of this particular proposal. That concession was, to my mind, correctly made. The judge pointed to documentary acceptance on behalf of the council that it had a duty to consult with affected local residents and added at paragraph 19:

“More specifically, the conduct of the defendants in relation to the proposed crossing (such as by putting notices on lampposts in St Margaret’s Road) illustrates that their understanding of their duties to consult “affected local residents” would extend not only to those who live there but to those who use this part of St Margaret’s Road. This acceptance of the need to consult and therefore to notify local residents is fortified by the fact that it appears to be common ground that Mr Head of the defendants was initially enthusiastic about having a pre-decision meeting between residents and council officers to discuss the proposals prior to the Sub-Committee meeting on 27 June 2000. It seems clear that there was a duty to notify and consult affected local residents, who either lived in or used St Margaret’s Road but especially those who lived in the immediate vicinity of the proposed road changes. Nevertheless those who would be most affected by the toucan crossing were those, who lived almost outside it in the odd-numbered houses between 81 and 91 St Margaret’s Road and their position requires special attention.”

There remains an issue between the parties as to the extent of the consultation that discharge of the duty to notify and consult required. The underlying principles are not in dispute. They were identified by Mr Stephen Sedley QC in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 and were adopted by Hodgson J in his judgment in that case at p 189. They are:

“First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”

Those principles were elaborated in this way by McCullough J in ex p Cran at p 38 as follows:

“What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated.

The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.”

So far as they go, those passages in my judgment correctly state the relevant principles.

They do not, however, provide a complete answer to the question which arises for decision in this case. Thus, they do not address the question what is the necessary extent of the notification or consultation required in order to discharge the duty. As McCullough J pointed out, all will depend upon the circumstances. For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing. Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out. The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion. In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it.

The Decision

A toucan crossing is a signal-controlled crossing for pedestrians and cyclists, which has wider crossing lanes than the familiar pelican crossing does. Apart from having pedestrian red and green signals, toucan crossings also have a green cycle signal. The proposals which led to the committee’s decision quashed by the judge were contained in a report of the council’s head of Highway and Transport (“the report”) which recommended that the committee “approve the proposals as advertised under section 6 and section 23” of the 1984 Act as detailed in paragraphs 3.6 to 3.10 of the report and as shown on a drawing appended to the report.

The scheme was summarised at paragraph 3.6 of the report as follows:

“The proposal is to introduce a Toucan crossing outside No. 81 St Margaret’s Road providing a cycle crossing facility on this section of the London Cycle Network. This crossing facility will replace the refuge outside No. 89 St Margaret’s Road. Highway realignment works will widen the footway on both sides of St Margaret’s Road and narrow the section of the carriageway. This will allow for a segregated cycle lane to be introduced on both footways to direct cyclists from the side roads to the toucan crossing. The carriageway realignment will also create a more uniform road curvature improving driver visibility.”

The committee endorsed the recommendations in the report at a meeting which began on 27^th June 2000. The relevant item was item 11 on the agenda and the decision was made in the early hours of 28^th June after a short debate. The respondent and others spoke at the meeting, albeit shortly. The respondent subsequently wrote to the council on 17^th August 2000 expressing a number of concerns about both the legality and the merits of the decision. The council replied offering a speedy review of the proposal and procedures to be undertaken by a review panel including a councillor who was not a member of the committee and an officer from outside the Highways and Transport team.

The review panel was set up and concluded that:

“although there were areas where we felt that improvements to processes could be made, the Panel concluded the decision was not unlawful. The reasons for this are set out in the attached report. I also asked the solicitor who deals with planning and transport matters to review the conclusion we had come to, on the basis of the evidence in the attached note. He has confirmed the view that the decision is lawful. The Panel will of course be happy to discuss any points with you when you come on Thursday. You will recall I said we would also review the substantive decision even if we came to this conclusion.”

The respondent was not satisfied. She raised a number of matters and subsequently met the review panel. As the judge pointed out, on 20^th September 2000 the review panel sent a revised note of the review of the decision making process and a copy of its conclusions in which it stated that “the decision was not unsafe”. One of the points in issue between the respondent and the committee was a conflict of evidence between officers and local residents concerning the notification procedures which had been employed by the council. The review panel observed that there was “no evidence to justify accepting one version rather than the other”.

Although the decision was made as long ago as 28th June 2000 it has still not been implemented, at least in part because of the judicial review proceedings and now because of this appeal. That is so even though, as the judge put it:

“The claimant accepts that a decision on whether to introduce such a crossing and, if so, the type and location of the crossing is a decision properly to be taken by the defendant, provided that it is an informed decision taken after proper consultation with interested parties including local residents. She contends that an informed decision after proper consultation was not taken in this case.”

We were informed in the course of the appeal that, since the decision, the council has carried out a further consultation process and re-considered the matter. We were told that it has decided to maintain its decision, save that it has decided to move the crossing about 5 metres to the east. As we understand it, the respondent has reserved the right to challenge that decision by way of judicial review, although she has not yet taken steps to do so. This appeal is concerned only with the original decision and the order quashing it.

The Judgment

The council’s case before the judge was that notices were published about the scheme in local papers on 10^th and 28^th March, site notices were posted in the road, individual notifications were sent to 70 properties and reports were made to the Traffic Management Liaison Group and the Cycling Liaison Group. The respondent’s case was that, in breach of its duty, the council failed properly to notify and consult with appropriate members of the public.

As I indicated earlier, the judge accepted that part of the respondent’s case, which he identified as issue one. However, in addition, the respondent made a number of further specific allegations as follows:

i) that the council withdrew an offer of a pre-decision meeting in breach of a legitimate expectation on the part of the respondent and other interested and affected residents;

ii) that the report was inaccurate, with the result that there was no fair and effective consultation and/or that the committee failed to take relevant considerations into account;

iii) that the conduct of the committee meeting on the 27^th/28^th June 2000 itself prevented fair and effective consultation; and

iv) that the fact that a safety audit was not undertaken until after the committee’s decision prevented there being a fair and effective consultation.

The judge considered those points as issues two to five respectively.

The judge rejected each of those submissions and, with one exception, the respondent does not challenge his conclusions in this court. That exception is point three (or issue four), to which I have already referred, namely that the conduct of the committee amounted to a breach of natural justice and prevented there being a fair and effective consultation. Before specifically addressing the four questions raised in the three grounds of appeal and the respondent’s notice, it is convenient to consider the criticisms which the judge made of the system of notification and consultation adopted by the council.

Notification and Consultation

As already indicated, the system adopted by the council to notify and consult the public contained four principal elements, namely press notices, site notices, individual notification and reports to interested groups. I shall consider them in turn.

Press Notices

The council issued two press notices which were published in one edition of the local paper, which is published weekly. The first was dated 10^th March 2000. Its heading expressly referred to section 23 of the 1984 Act and, to a “proposed toucan crossing in St Margaret’s Road, Twickenham”. It simply stated that the council:

“HEREBY GIVES NOTICE that to facilitate pedestrian movements and improve road safety to pedestrians and pedal cyclists, they propose to introduce a new toucan crossing facility between the junctions with The Barons and Baronskill Road.

The judge criticised the notice in these terms:

“36 … it does not identify the precise location of the crossing or the ability or right of readers to make any representations to the defendant concerning the proposal or that any such representations would be considered by the defendants.

37 Both these omissions are significant as notification and consultation entails giving those notified “sufficient reasons for any proposal to permit an intelligent consideration and response” in the words of Mr Sedley QC which I have already quoted or “information which is accurate to enable them to make a meaningful response” in the words of McCullough J, which I have also cited. In this case, the information communicated was totally inadequate notification for the purpose of consultation as the first notice did not give, as I have explained, any sufficient details of the location. Second, by failing to invite responses, the notice was, at best notifying readers but it suffered from the major flaw that it was not inviting comments, which must be an essential pre-condition or ingredient of the consultation process”.

In my judgment, the judge was being too critical of the notice. As to the first criticism, it is true that the notice does not identify the precise location of the proposed crossing, but, as Miss Lieven correctly pointed out, anyone familiar with St Margaret’s Road would know almost exactly where it would be. The notice describes the crossing as between the junctions of St Margaret’s Road with the Barons and with Baronskill Road. The plan shows that those junctions are comparatively close together, so that anyone likely to be interested would know almost exactly where the crossing was likely to be.

As to the second criticism, while it is true that the notice does not specifically state that persons interested should contact the council and make representations if they wished, it is to my mind obvious that the purpose of the notice was to enable such people to contact the council. Thus, while it would no doubt have been better to state expressly that further information could be obtained from and representations made to a particular person or department within the council, to do so would surely have been doing no more than stating the obvious.

The second notice was inserted in the same paper after about 24^th March 2000. Its heading, also in capital letters, stated “Proposed double yellow lines, relocated parking place and extended bus stop clearway in St Margaret’s Road, Twickenham”. The body of the notice gave notice that the council intended to make traffic orders under the 1984 Act and the Road Traffic Act 1991. It gave details about the proposed yellow lines, the relocation and extension of residents’ parking places and the extension of a bus stop clearway. Unlike the first notice, it did not refer to the toucan crossing but it did indicate where the draft order and the council’s statement of reasons for proposing to make the order could be inspected. It also expressly stated that persons desiring to object to the proposals should write to the Head of Highways and Transport within 28 days of the date of the notice giving the grounds of objection. It gave the appropriate address.

The judge observed that the notice did not notify or seek views on the toucan crossing and that (as he put it) to that important extent it did not fulfil any role in the notification and consultation process concerning the toucan crossing. That criticism is sound, so far as it goes, but anyone who had seen the earlier notice would be likely to associate the two.

Miss Lieven submits that the importance of the notices was that they notified interested groups of council proposals of this kind. I accept that submission. While it is unlikely that, for the most part, individuals read such notices, the notices are of value to local interest groups who tend to look out for such notices in the local press and, in my judgment, would have found the notices sufficient to prompt further enquiries and, if appropriate, make representations to the council.

Site Notices

Site notices under section 23 of the 1984 Act were posted on two lamp posts in St Margaret’s Road on 28^th March 2000. It is I think common ground that the notices, which were dated 10^thMarch, were in the same form as the first of the press notices discussed above. In addition to his criticisms of the terms of the notice to which I have referred, the judge further criticised the council because the date on which the notices were posted was after the deadline for comments in the letter sent to residents, which is discussed below. The same criticism could be advanced of the deadline in the second of the press notices to which I have referred. In commenting on a statement by Mr Chesman, who is a solicitor employed by the council, that any responses would be considered, the judge said:

“that might be so but I agree with the claimant that readers of the site notices would have been discouraged from making representations as the notices stated that the time for making representations had expired and that they would have had no reason to believe that there would have been any point in making any representations after the due date”.

The judge, to my mind, correctly, identified the purpose of the notices as being to draw the attention of a wider group than that of residents in the immediate vicinity. He said this:

“In addition, I also believe that the failings in the street notices means that those who lived outside the immediate vicinity of 81-91 St Margaret’s Road but who used St Margaret’s Road regularly, fall within the group who should have been consulted; unfortunately, they also would not have had the opportunity for commenting as they would not have been properly notified. I apprehend that the purpose of putting up street notices on about 28 March 2000 was to draw to the attention of this group the precise plans for the Toucan crossing and this [is] what should have been done at an earlier stage so as to give this group an opportunity of commenting but, as I have explained, this was a futile exercise in this case as inadequate time was given and the practical effect of this was that this group lost their right to be consulted and I regard this as a further breach of the defendants’ obligations”.

I regret that I do not share the judge’s criticisms of the site notice and do not think that the council was in breach of its obligations in this respect. The difficulty which I have with the conclusion that readers of the notices would have been discouraged from making representations as the notices stated that the time for making representations had expired or that this was a futile exercise as inadequate time was given is this. No one who read the notice, whether in the press or on the lamp post, but who had not received the letter, would be aware of the deadline as there is no reason to think that anyone who had received the letter would have been unable to make representations within the deadline. In any event, the committee meeting which made the decision did not take place for a further three months after 28^th March. In these circumstances I am unable to share the views of the judge on this topic.

Individual Notification

The council decided to mail local residents with a letter setting out details of the proposals. In the event two such mailings took place. The judge criticised both. The evidence available to him was less full than the evidence which the council has asked us to consider. The respondent objected to our considering the new evidence but, in case we decided to do so, she also sought to rely upon a further statement. It was agreed that we should look at the evidence (as it used to be called) de bene esse. I shall consider first the position as it was on the evidence before the judge.

The judge described the first mailing as follows:

“26. The claimant contends that the mailing of the proposals was carried out in such a way that many local residents did not receive notification from the defendant of its proposals. The first mailing letter (the first letter”) was posted through the claimant’s external letterbox on 4 March 2000 with the deadline for responses being stated to be 20 March 2000. Although there were four flats in that building, only one letter was posted through the external letterbox and as the claimant was the first person to reach the post that morning, she picked up that letter.

27. She discovered that of her neighbouring houses, namely those numbered 81-91 St Margaret’s Road, each house only received one copy of the first letter as only one copy had been put through each external door despite that fact that each of the buildings contained four separate households with the exception of No. 89 which had three properties and No. 81 which consisted of one residence. In addition, the basement flats in these houses have separate letterboxes, which were missed altogether as were the two flats whose doorway is behind No. 89 despite clear markings indicating their existence. It seems that no other households received the first letter despite the potential for their occupants to be affected by the proposals. In any event, the copies of the first letters were not in envelopes and so might easily have been discarded as or with unsolicited junk mail, which, the claimant explains, is received in abundance”.

As a result of complaints by the respondent and several of her neighbours as to the inadequacy of the mailing of the first letter, the council decided to organise a second mailing. The judge was, in my judgment, justified in concluding that the first mailing was disorganised and unsatisfactory as it failed to achieve its purpose of notifying those affected and, in particular those who lived between 81 and 91 St Margaret’s Road.

The judge described the second mailing as follows:

“29. The defendant arranged a second mailing letter (“the second letter”) dated 8 March 2000 and this contained a simplified plan and information regarding the Toucan crossing. Some of the faults of the first letters were repeated. One copy of this document was posted through the communal external letterbox of the claimant’s building, even though there were four flats in that house. The claimant was the first person to reach the post on that morning and when she picked it up, she noted that the deadline for comments had been extended to 27 March 2000. It seems that despite the complaints concerning the mailing of the first letter, the mailing of the second letter suffered from the same deficiencies as those in the earlier mailing with only one copy of it being posted through each communal external letterbox of the odd-numbered houses in the group between 81 and 91 St Margaret’s Road, but the mailing of the second mailing took place over a wider area”.

The judge pointed out in paragraph 30 that the council’s review panel later explained that there were no guidelines specifying the area to be covered by personal notification and that there was no record to identify whether every property within the identified boundary received its own copy. The judge accepted that the distribution was seriously defective in the way alleged by the respondent in her witness statement. He said this:

“31. It seems that houses in St Margaret’s Road with one external box but containing a number of flats only received one copy of the second letter per external box and this seriously limited distribution and notification. It is particularly unfortunate that this occurred in respect of the occupants of numbers 81-91 St Margaret’s Road even though the proposed toucan crossing was on their doorsteps. As a result of the mailing system devised and operated by the defendant, four residents of 81, 83, and 89 St Margaret’s Road named by the claimant did not receive a copy of either the first or the second letters. In addition, the claimant has adduced cogent evidence to show that some people, who fell within that boundary of the map which according to the defendant marks the boundaries of the second mailing, have told her, as appears to be the case, that they did not receive a copy of the second letter and some of those were not included in the mailing of the first letter. The defendants are not in a position to dispute the assertions, which I have no reason not to accept. So it seems that there were serious and repeated deficiencies in the delivery process for both the first and second letters and I will have to return to consider the consequences or this.”

The judge ultimately expressed his criticisms of the mailing process in this way:

“41. In this case, I believe that there are valid and serious criticisms that must be made of the notifications process adopted by the defendant. I have already outlined the way in which the two letters were distributed and that many people who lived next to or very close to the proposed site of the Toucan crossing did not receive them. The claimant has in her second witness statement given many examples of people living within a very short distance of the proposed crossing who did not receive either the first or the second letters. It does not surprise me that many of the residents of the houses adjoining the proposed crossing did not receive either the first or the second letter as it was an inevitable result of the defendant’s decision to send only one copy of the letter to each house even though it was known to the defendant or should have been known to them that there were several households within each house. The duty to notify interested parties carries with it an obligation to take reasonable steps to ensure that those interested parties are so informed. I am particularly troubled about the failure to notify some of those living in the odd-numbered houses between 81-91 St Margaret’s Road, who were living only yards away from the proposed Toucan crossing and who for the reasons that I will develop, would be seriously affected by it and yet they did not receive a copy of either the first or the second letters.

42. In this case, the defendant’s efforts to notify by the first and second letters fell far short for many reasons especially with regard to those people who lived in St Margaret’s Road. First, I agree with Councillor Mann, who said on 29 March 2000 that “where there are x flats, x copies should be put through the letter box” and no cogent reason has been put forward as to why this could not have been done or was not done on either mailing, especially in the houses adjacent to or bordering on the proposed crossing in the house at 81-91 St Margaret’s Road

43. Second, it seems that there were other defects in the mailing system as there were those within the boundaries selected for the delivery of the second letter who did not, in fact, receive them. Surprisingly and unfortunately, no records of the defendant are available of the instructions actually given by the defendants to the distributors of the first and second letters or the records relating to such distributions. I conclude that many people, who live in St Margaret’s Road and very close to the crossing and would be affected by it in the ways that I indicated did not receive any notification of the proposed Toucan crossing in either of the letters or, for the reasons that I have given, through the newspaper or street notices. For the reasons that I have given none of these measures taken by the defendant either individually or cumulatively constitute a discharge of their duties to notify those living in St Margaret’s Road, close to the proposed Toucan crossing”.

The judge then set out in some detail his reasons for concluding that it was of particular importance to the residents of nos 81 to 91 St Margaret’s Road that they should receive details of the proposals. I shall not set out those reasons here. It is sufficient to say that I entirely agree with the judge that the council should have taken all reasonable steps to ensure that all such residents were properly notified and consulted.

I further agree with the judge that the council’s system of notifying those residents contained flaws. In particular, as Councillor Mann put it, “where there are x flats, x copies should be put through the letterbox”. Yet the system adopted did not ensure that that occurred. For my part, although I would not be as critical as the judge, I agree with him that in this respect the council was in breach of the duty to notify and consult which it accepted. In short no reasonable council charged with a duty of notifying and consulting local residents would have done so by mailing less than one letter per flat.

I do not regard that as imposing too onerous a duty on the council. I recognise that there are or may be difficulties in identifying how many residents there are in a particular house, but it is surely not asking too much of a council which is under a duty to notify and consult local residents with regard to a scheme such as a toucan crossing of this kind to instruct the person who is to carry out a mailing to ensure that at least one letter is delivered for each flat. Nor is it asking too much of such a person to use his best endeavours to ensure that at least one letter be in fact delivered for each flat.

In these circumstances, on the basis of the evidence before the judge, I agree in part with the criticism of the mailing process which he set out in paragraphs 41 to 43 of his judgment quoted above. However, the extent of the operation, namely to mail some 70 properties seems to me to have been well within the reasonable ambit of the council’s discretion and, for my part, I am not persuaded that any significant number of the residents of 81 to 91 St Margaret’s Road was in fact deprived of the opportunity to make comments or representations to the council. That is because of the action taken by the respondent to bring the proposal, and indeed the council’s failings, to their notice. I shall return to this point below. I should also note in passing that no criticism was or could be properly advanced against the contents of the second set of letters.

I have reached the above conclusions on the basis of the evidence before the judge. As indicated earlier, the council sought permission to rely upon further evidence before us. That evidence was largely in the form of a witness statement from the student who was employed by the council to carry out the second mailing. However, the evidence could have been available to the council at first instance if it had chosen to obtain it, which it did not. In these circumstances, I would decline to admit it on this appeal.

Report to Interested Groups

The proposal was published to the council’s Traffic Management Liaison Group on 21^st July 1998 and 9^th December 1999 and to the Cycling Liaison Group on 16^th March 2000, both of which considered the proposed scheme and supported it. Those groups include representatives of the police, ambulance service, fire brigade, bus companies and cycling associations and advise the council on proposed traffic orders. The respondent herself was present at the meeting of 16^th March 2000 and, as I understand it, expressed her views. I do not think that the council can fairly be criticised for failing to do more in terms of consulting groups of this kind.

Conclusion

My conclusion under the head of notification and consultation is that the only respect in which the council can fairly be held to be in breach of its duty to notify and consult is in failing, to the extent set out above, to organise and carry out an adequate mailing of local residents in the crucial area in the close vicinity of the proposed crossing. It follows that I accept in part the submissions made in the context of ground (ii) of the appeal.

Respondent’s Notice

It is convenient to consider here the point raised by the respondent’s notice. Before the judge, a number of complaints were advanced. The first was that the conduct of the meeting itself prevented there being a fair and effective consultation. It was said that the members of the committee showed little interest in what local residents, including the respondent, had to say, that the debate was very brief and that objections to the scheme were not given detailed consideration. However, the judge rejected that submission and it is not put in quite that way on this appeal.

The point raised by the respondent’s notice is that the objectors were not given copies of the agenda which included the report. As I understand it, the problem was that there were many documents attached to the agenda, including the report, which of course only related to one item on the agenda, and there were not enough copies to go round. The judge dealt with these points in this way:

“72. The claimant also contends that she and other residents were unable to obtain copies of the agenda which included the report despite that fact that one resident had gone to the defendant’s offices earlier in the day to try to obtain one but was unsuccessful. Thus it is said that the representations that they were able to make could not be directed to the advice that had been given to the Sub-Committee and which provided the structure for the decision-making process with the result that the claimant and others could not point out the deficiencies in the report, and which I have already considered under Issue 3. Put in another way, it is contended that the claimant did not know the case that they had to meet and this was particularly important as the residents only had three minutes in which to make their speeches.

73. Another answer to the complaints of the claimant is that the Defendant explains correctly in view that members of the Transport Sub-Committee, who have experience in matters of this nature, had received and read the reports in advance. So they would have been familiar with the facts and issues. It seems that the Committee asked a reasonable number of relevant questions before debating the issue and making a decision. The Committee Clerk’s note of the meeting shows that the claimant and three other people addressed the committee and covered safety issues, the merits of the scheme for cyclists, the effect of extending the pavement and other issues. The minutes also show that the issues were debated by the councillors with at least five of them speaking and detailed technical questions were asked of Mr C A Smith, a principal highway engineer in the employment of the defendants.

74. The defendant points out that it is not appropriate to subject the conduct and decision-making of a local authority committee to this form of scrutiny and criticism about its decision-making. As Schiemann J was pointed out in R v Poole Borough Council ex parte Beebee [1991] 2 PLR 27 at 31 expressed “grave reservations about the usefulness of this sort of exercise”. I agree but in any event this form of scrutiny does not reveal any significant defects.

75. The defendants also cannot understand why the claimant could not obtain a copy of the agenda as it had been made available for inspection at public libraries and other council offices since well before the meeting. In any event, I accept the defendant’s contention that if the claimant had asked the committee clerk at the meeting for a copy of the agenda, it would have been supplied to her. The defendant also explains that they were only obliged to provide a reasonable number of copies of the agenda in the meeting room at the start of the meeting in accordance with section 100B(6) of the Local Government Act 1972 and that they complied with this obligation. Nothing has been put forward to me which suggests that there has been any breach of natural justice under this head which entitles the claimant to any relief.”

Mr Maurici submits that the judge was wrong to reach those conclusions. However, in my judgment, the judge was right for the reasons he gave. The respondent and others had every opportunity of obtaining and commenting upon the report if they had wished to take it. They had had an opportunity of making representations in writing earlier and had a brief opportunity of addressing the meeting. I do not think that there is any fair basis upon which it could be held that the council was in breach of its duty of notification or consultation with regard to anything done in the period leading up to the meeting or during the meeting itself.

Consultation with the Respondent and Discretion

I turn to grounds (i) and (iii) of the appeal, which it is convenient to consider together. As already indicated, it is the council’s case on this appeal, as it was before the judge, that the respondent had herself been fully consulted and that in the circumstances there were no grounds upon which to grant judicial review of the decision, given that there was no error in respect of her own claim. It is common ground that the respondent was aware of the proposed scheme and had every opportunity to make representations to the council. She made representations of substance. Thus on 26^th March 2000 she wrote a detailed letter to Mr Troke, the council’s senior transport engineer. She began by thanking him for talking to her about the proposals and for “arranging to distribute the plans more widely among my neighbours”. Annexed to the respondent’s two-page letter was a four and a half page analysis together with two appendices, of which the first was entitled “Detailed Observations” and ran to three pages and the second was entitled “the Cycle Network” and ran to six pages. In short the respondent herself had ample opportunity to make such representations to the council about the scheme as she wished and she availed herself of that opportunity to the full.

The judge accepted that that was the case but held that the respondent was not thereby deprived of a right to challenge the decision by way of judicial review and that he should nevertheless quash the decision. The judge expressed his conclusions on this point in paragraphs 23 and 24 of his judgment as follows:

“23. Before dealing with these allegations, it is convenient at this point to deal with a submission made by the claimant in the light of the fact that she herself was properly notified as she had received a letter setting out the details of the Toucan crossing; so she was able to, and did, make cogent and detailed submissions on the proposals. It is contended on her behalf that this does not prevent her pursuing a claim for judicial review because there were other residents, who should have been but were not actually consulted and notified. The effect of such failure is, as Latham J explained, that “others who were affected were not in a position to provide any support for [the claimant] with representations of their own which could have materially affected the strength of any representations which she herself might have made” (R v Lambeth London Borough Council, ex parte N [1996] ELR 299, 311).

24. I did not understand the defendants to dispute this contention, which I accept but it will only assist the claimant if she can establish that the defendants acted wrongfully in failing to notify and consult others, who should have been notified and consulted.”

Like the judge, I do not understand the council to challenge those propositions in principle. The submissions made by Miss Lieven in this regard may be summarised as follows. Where a claimant has himself or herself been fully consulted, it will only be in rare cases that he or she can rely on the lack of consultation of others. The mere number of objectors is not itself generally material, rather it is whether they have additional points to make. There were no other persons in this case who made witness statements stating that they had not been consulted, were not aware of the proposals and wished to make representations. Although the respondent in her witness statement referred to other people who had not received letters of consultation, many of these people clearly did know about the proposal and therefore either did make representations or chose not to. There was therefore no evidence that the respondent was in fact deprived of any support or that other persons would have made any additional points. Further, it is apparent from the respondent’s second statement that she had actually contacted other residents of the properties between 81 and 91 St Margaret’s Road, which the judge thought particularly important properties, to find out whether they had been consulted. It therefore appears to be overwhelmingly likely that these people were aware of the proposal, if only because the claimant had informed them of it.

For my part I accept the submission that, in a case of this kind, it will only be in a rare or (at least) comparatively rare case that a claimant who has the opportunity of making detailed representations will be able to rely upon a failure to consult others. I also accept the submission that this is not such a case. I accept Miss Lieven’s submissions as set out in the last paragraph.

In particular, it appears to me that, not only did the respondent have and take every opportunity to make detailed representations to the council about the scheme, but she herself consulted widely among local residents. It is, I think, clear from the respondent’s evidence that she made enquiries of those living in the vicinity. Thus, on picking up the first letter, she made enquiries of neighbouring residents and, as she put it in her second statement, ascertained who had and who had not received the letters. She also made enquiries of her neighbours after the second mailing and discovered that there were those who did not receive the letters. As a result some of her neighbours wrote to the council and it seems to me to be clear that, as a result of conversations with the respondent (if not otherwise), many of those who did not receive the letters learned of the proposed crossing.

In these circumstances I do not think that it is a fair conclusion that there were a significant number of local residents who were deprived of the opportunity of making representations which they would otherwise have made. There seem to me to be two further particular factors to take into account in this regard. The first is the evidence of Mr Chesman on behalf of the council that the number of responses in fact received, namely 23 from individuals and 2 from bus companies, represents a high percentage of replies to a consultation exercise of this kind, of which he has had a good deal of experience. The second is that the respondent has not been able to identify any particular point that any resident might have made which might have made a difference to the proposals or the ultimate decision. Although in some cases that may not be significant because it may be difficult to find out what other interested people or groups might have thought, I do not think that that can fairly be said to be the case here. It is plain that the respondent was not only in close touch with her neighbours before the decision was made, but has been in close touch with them since. She has had every opportunity to adduce evidence from those living in the vicinity but has not adduced evidence from anyone with a new point to make that might have made any difference.

Having reached the conclusions of breach of duty which he did, the judge exercised his discretion by quashing the decision. He did so by applying what he described as the principled approach of Bingham LJ in R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR 344 and 352 which was subsequently approved in R v Broxtowe Borough council ex p Bradford [2000] IRLR 329. Bingham LJ expressed the principles in this way:

“While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this:

1. unless the subject of the decision has had the opportunity to put his case it may not be easy to know what case he could or would have put if he had the chance.

2. As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at page 402, experience shows that what is confidently expected is by no means always that which happens.

3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if a complainant’s position became weaker as the decision-maker’s mind became more closed.

4. In considering whether the complainant’s representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden terrority of evaluating the substantial merits of a decision.

5. This is a field in which appearances are generally thought to matter.

6. Where the decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied.”

Those principles do I think have some relevance to a case of this kind, but they should, in my judgment, be read with two important considerations in mind. The first is that it must be borne in mind that in the ex p Cotton case the Court of Appeal was dismissing an appeal from a decision of Simon Brown J in which he had said that “to make good a natural justice challenge” an applicant must establish there is a real, as opposed to a purely minimal, possibility that the outcome would have been different”: see [1990] IRLR 344 At 348. Unlike the judge, I do not read the approach of Bingham LJ to be different from that of Simon Brown J. Thus the question is whether, if there had been no breach of duty, there is a real, as opposed to a purely minimal, possibility that the outcome would have been different, but in trying to answer that question the court should have in mind the principles identified by Bingham LJ.

The second consideration, which is I think of particular importance, is that this class of case is somewhat different from that being in considered in ex p Cotton and ex p Bradford. In those cases, there was a clear “subject of the decision”, namely a police officer and a teacher respectively, whereas here the persons to be notified and consulted were not the subject of the decision in anything like the same direct way. They were simply people who would or might be affected by the decision.

In the instant case, for the reasons given above, I have reached the conclusion that the council was not in breach of duty in the same way as the judge thought. Its breach of duty was in failing to ensure that a sufficient number of letters was delivered to each property in the vicinity of the proposed crossing. In these circumstances, it seems to me that this court must exercise its discretion whether or not to quash the decision afresh.

I recognise that in a case in which the Divisional Court was considering a refusal by a minister to hear further representations from local authorities with regard to rate support grants, namely R v Secretary of State for the Environment ex p Brent London Borough Council [1982] 1 QB 593 Ackner LJ said at p 647 that:

“it would of course have been unrealistic not to accept that it is certainly probable that, if the representations had been listened to by the Secretary of State, he would have nevertheless have adhered to his policy. However, we are not satisfied that such a result must inevitably have followed …. It would in our view be wrong for this court to speculate as to how the Secretary of State would have exercised his discretion if he had heard the representations … we are not prepared to hold that it would have been a useless formality for the Secretary of State to have listened to the representations…”

The judge placed reliance upon that passage. However, as stated above, the conclusions which I have reached on the facts are in some respects markedly different from those of the judge and, in my judgment there is no real possibility that the council would have reached a different decision if the mailings had been such as to comply with its duty to notify and consult. It would not have led to a significant number of members of the public making representations who did not in fact do so. Moreover, no-one has been able to suggest any new point of substance which might have been made. There can I think be no doubt that the council would have exercised its discretion in the same way. To my mind there is no element of speculation on that point. This battle has been fought with great vigour and determination by the respondent, Mrs Wainwright, who put her case forcefully before the council at the time, just as it has been put before the courts since, but I do not think that in all the circumstances justice requires that the decision should be quashed.

On the contrary, for the reasons which I have given, I would allow the appeal and reverse the order quashing the decision of the council on 28^th June 2000.

Mr Justice Wall

I agree, and have nothing I can usefully add.

Lord Justice Henry

I also agree.

Order: Appeal allowed; submission on costs to be made to be in writing by 11^th January 2002; application for permission to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)