IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
Mr Justice Silber
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
MR JUSTICE WALL
THE QUEEN ON THE APPLICATION OF
- and - RICHMOND UPON THAMES
LONDON BOROUGH COUNCIL
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)
Miss Nathalie Lieven (instructed by R J M Mellow Head of Legal Services
London Borough of Richmond upon Thames for the defendants)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Clarke:
Grounds of Appeal
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.
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
“(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
“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.”
“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.”
“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.
“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.”
“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 20th 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”.
“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.
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 27th/28th 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.
Notification and Consultation
“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”.
“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”.
“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”.
“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.
“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.”
“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”.
Report to Interested Groups
“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  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.”
Consultation with the Respondent and Discretion
“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  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.”
“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  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.”
“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…”
Mr Justice Wall
I agree, and have nothing I can usefully add.
Lord Justice Henry
I also agree.