England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HIS HONOUR JUDGE COTTER QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		19 April 2016

LORD JUSTICE JACKSON:

This judgment is in four parts, namely:

Part one. Introduction,

Part two. The facts,

Part three. The present proceedings,

Part four. The appeal to the Court of Appeal.

Part 1. Introduction
1. This is an appeal by Devon County Council (the defendant) against a decision of the Administrative Court quashing a traffic regulation order. I shall use the abbreviation "TRO" for traffic regulation order. The main issue in this appeal is whether the judge correctly construed the word "restrict" in regulation 9 of Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996.
2. As Mr Whale, counsel for the Devon County Council, observed in his submissions this morning, this is clearly a very short point of statutory construction and it is critical to the decision of this appeal. I am extremely grateful to counsel for coming directly to the point and isolating the issue so clearly for the assistance of this court.
3. In this judgment, I shall refer to the Road Traffic Regulation Act 1984 as "the 1984 act." The 1984 Act permits local authorities to make TROs in order to facilitate the movement of vehicular traffic along roads in their area. The Devon County Council therefore has statutory power to make TROs in respect of vehicles driving around Devon.
4. The Act also allows a local authority to make experimental traffic orders. These I shall refer to as "ETOs". An ETO lasts for a limited period so that the local authority and the local community can see how a particular new arrangement works out in practice.
5. Section 122 of the 1984 act provides:

"Exercise of functions by strategic highway companies or local authorities

(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway...

(2) The matters referred to in subsection (1) as being specified in this subsection are -

(a) the desirability of securing and maintaining reasonable access to premises;

(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;

(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);

(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and

(d) any other matters appearing to the strategic highways company or the local authority to be relevant."

6. Paragraph 35 of schedule 9 to the 1984 act says:

"If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds -

(a) that it is not within the relevant powers, or.

(b) that any of the relevant requirements has not been complied with in relation to the order,

he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session."

7. I shall refer to the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 as "the 1996 regulations." So far as material, regulation 9 of the 1996 regulations provides:

"(1) The order making authority shall cause a public inquiry to be held before making an order to which paragraph (3) applies and may cause such an inquiry to be held before making any other order.

(2) A public inquiry shall be held by an inspector appointed by the order making authority and selected from a panel of persons chosen by the Secretary of State to hold such inquiries.

(3) Subject to paragraphs (4) and (5), this paragraph applies to an order if...

(b) its effect is to prohibit or restrict the passage of public service vehicles along a road and an objection has been made to the order in accordance with regulation 8 -

(i) in the case of a road outside Greater London, by the operator of a local service the route of which includes that road; or

(ii) in the case of a road in Greater London, by the operator of a London bus service the route of which includes that road or by Transport for London."

8. Having set out the relevant statutory provisions, I must now turn to the facts.

Part 2. The facts

9. Totnes is a small town in Devon on the banks of the River Dart. Like many towns in Devon, it has steep hills. Like many towns of medieval origin, it has narrow roads and consequent problems of traffic jams. In particular there has been congestion in Fore Street and High Street. They are two narrow roads which run through the centre of Totnes in an east/west direction. According to the evidence of the highways engineer of the Devon County Council, these two historic roads date back to the Elizabethan period.
10. The locations of Fore Street, High Street and other roads relevant to the issues in this case are set out on a plan which most helpfully is about to be prepared by counsel and supplied to this court for the purpose of annexing to the judgment. I would mention en passant, without wishing to offend anyone, that it is helpful in cases like this if user friendly plans are prepared for the assistance of the court before a hearing begins, not after it has ended.
11. The defendant council looked at a number of options for reducing the volume of traffic in Fore Street and High Street. The problem arose because many drivers in Devon, instead of bypassing Totnes, were simply driving into the town and using Fore Street and High Street as a shortcut in order to get through the town and out on to Plymouth Road on the western side.
12. One option considered by the council was to ban vehicles from turning right from the High Street into Plymouth Road. Such a ban would prevent drivers passing through Totnes and using those two central streets as a shortcut. Another option under consideration was to reverse the flow of traffic on Station Road and Lower Fore Street.
13. The second option would mean that people entering Totnes from Bridgetown could not simply drive westwards along Fore Street and High Street. In order to get halfway up Fore Street, they would need to turn right, then drive up Coronation Road and turn left into Station Road. That would take them down to a T junction halfway up Fore Street. I shall refer to this T junction as "the "T junction". At the T junction, drivers would then turn right into Fore Street and continue along westwards in order to reach High Street.
14. The defendant resolved to adopt the second option, initially on an experimental basis. The defendant made an ETO giving effect to option two, which came into force on 22 March 2013. The defendant subsequently made the new arrangements permanent by means of the Devon County Council (Fore Street and Station Road, Totnes) (Traffic Regulation) Order 2014. I shall refer to this as "the TRO". The TRO came into force on 27 August 2014.
15. There is a community bus service in Totnes which has existed for many years and which is known as "Bob the Bus". I shall refer to it as BTB. BTB owns three bright yellow buses, Bob 1, Bob 2 and Bob 3. Bob 1 and Bob 2 go on circuit round Totnes enabling passengers to get to and from their chosen shops or doctors' surgeries or other destinations. The great majority of the passengers on Bob 1 and Bob 2 are elderly persons and quite a few of these would have difficulty walking unaided up the steep slopes of Totnes. Bob 3, as I understand it, does not go on circuit round the town, but is available for hire by local non-profit groups.
16. In recent years, there have been strong feelings in Totnes about how to deal with the problem of traffic jams. No one has suggested, and I do not suggest, that the problem is a straightforward one or that any individual solution is ideal. Some residents support option two, as mentioned earlier in this judgment, and believe that the ETO and the RTO are the best way forward. Other groups are strongly opposed to option two. They object to the ETO and the RTO. In particular, shopkeepers and traders in Fore Street are opposed to option two, because it reduces the number of people visiting Fore Street and therefore damages their businesses.
17. BTB opposes option two. The ETO and the TRO prevent Bob 1 and Bob 2 from driving straight along Fore Street and High Street, as those buses used to do.
18. If Bob 1 or Bob 2 wishes to carry customers to all the shops and other destinations in Fore Street, it now needs to do the following. It starts from The Plains roundabout at the east end of Fore Street. It is not permitted to drive westwards along Fore Street, so it heads north up Coronation Road, where on the evidence there is a certain amount of congestion. It reaches a roundabout at the top of Coronation Road at the junction between Coronation Road and Station Road. The bus then turns left down Station Road and it arrives at the T junction. The bus then has to turn left, so as to head eastwards down Fore Street in order to deposit passengers at their various destinations. The bus then arrives back at The Plains roundabout. It then sets off once more on its travels up Coronation Road. It arrives once again at the roundabout where Coronation Road meets Station Road. Once again, it turns left and heads southwards down Station Road. When it gets to the bottom of Station Road and reaches the T junction, the bus now turns right into High Street and heads westwards once more. So Bob is still able to deliver passengers to and collect passengers from all points of Fore Street, but now the journey is a much longer and more convoluted one.
19. While the ETO was in place, the various groups who opposed option two made vigorous representations to the defendant. In particular, the co-ordinator of BTB sent a robustly worded e-mail to the defendant's senior traffic engineer, Mr Mike Jones. In that e-mail, the co-ordinator wrote:

"Main factors to be considered that have caused a problem to our community service are:

• The bus is not able to serve Fore Street since the reversal as there is simply no room to extend the timetable to drive around Fore Street and back up High Street on to the current route. This has caused difficulty to a number of passengers who used to get off the bus halfway up Fore Street, particularly the less able shopper.

• The bus is running late on the timetable due to being caught up in congestion on Coronation Road when it travels from the bus stop opposite the Seven Stars, around the roundabout on Plains and along Coronation Road to access Station Road, then on to the High Street. With our current route, the bus does this 10 to the hour and 20 past the hour (13 times a day except Fridays which is 10 times). The current timekeeping survey should highlight days and times when this is happening. (I will send you analysis of this before 12 July).

• The timetable has been confusing for the more elderly passengers who have travelled regularly with Bob the Bus for some time and been used to being able to get off at convenient stops throughout the town.

• We can only predict the congestion to be significantly worse during the peak summer months and therefore are concerned that our delays will be longer and potentially losing more passengers, particularly visitors who are not going to wait around for a bus that could be up to 30 minutes late on the timetable."

The co-ordinator sent other e-mails to the senior traffic engineer. She also attended a meeting with him in June 2013. The defendant local authority was unmoved by these representations. The defendant put the new arrangements on to a permanent footing, albeit subject to review, by making the TRO.

A number of local residents were aggrieved by this decision. Accordingly, they commenced the present proceedings.

Part 3. The present proceedings

20. By a claim form issued in the Administrative Court on 1 October 2014 a group of local residents calling themselves "Sustainable Totnes Action Group" applied for an order quashing the TRO. The claimants made this application pursuant to paragraph 35 of schedule 9 to the 1984 Act.
21. The Sustainable Totnes Action Group is a group of persons, not a single individual. Accordingly, the trial judge, His Honour Judge Cotter QC, ordered that one member of the group, Ms Sarah Jane Williams, be substituted as claimant. Ms Williams is and was an active member of the Sustainable Totnes Action Group. She lives in Totnes. She runs two shops on Fore Street. One is a fashion boutique called "FAB". The other is a beauty and aromatherapy salon. The introduction of the ETO and the TRO has, on the evidence, been damaging to Ms Williams' two businesses because of the reduced number of persons in Fore Street.
22. The claimant in these proceedings advanced seven somewhat diffuse grounds of challenge. These grounds were narrowed down and refined during the hearing in the High Court with considerable help from counsel on both sides. Both counsel for the claimant and counsel for the defendant were mindful of their duty to the court in that respect.
23. The two most important grounds of challenge, as they emerged during the hearing below, were these. First, the claimant said that the defendant had failed to hold a public inquiry as required by regulation 9 of the 1996 Regulations. Secondly, the defendant had failed to comply with section 122 of the 1984 Act.
24. The judge heard this action on 12 February 2015 and handed down his judgment on 6 March 2015. He upheld the claimant's challenge based on regulation 9 of the 1996 Regulations. The judge took the view that the arrangements put in place by the TRO did "restrict the passage of public service vehicles along a road". He noted that objection, indeed vigorous objection, had been taken by BTB. There was no dispute that BTB was operating public service vehicles. He noted that the claimant was a person whose business was directly affected by the ETO and the TRO.
25. The judge was not in his judgment saying that at the end of the day the TRO was not the best solution to the intractable traffic problems of Totnes. What the judge concluded was this. Because of the issues in play and the conflicting interests between the various groups in the locality, there needed to be a public inquiry as provided for by regulation 9 of the 1996 Regulations. This is exactly what the legislator had in mind and this was, in the judge's view, a classic situation where the inquiry should be held and a decision reached after full argument from all affected parties. The judge therefore upheld the claimant's challenge based on regulation 9 of the 1996 Regulations. Accordingly, he quashed the TRO.
26. The judge also dealt obiter with the claimant's challenge based on section 122 of the 1984 Act. He held that the defendant was required to set out its analysis of the section 122 considerations. The defendant had not done so. Therefore, if the judge had not quashed the TRO on the basis of regulation 9, he would have done so on the basis of section 122.
27. In the result, therefore, the claimant's claim succeeded. The defendant council was aggrieved by the judge's decision. Accordingly, it appealed to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

28. By an appellant's notice filed on 23 April 2015 the defendant appealed to the Court of Appeal on three grounds. First, the defendant council said that Sustainable Totnes Action Group was not a legal person. Therefore, the action could not proceed at all. Secondly, the TRO did not amount to a restriction within the meaning of regulation 9 of the 1996 Regulations. Thirdly, said the defendant council, the judge erred in finding a breach of section 122 of the 1984 Act.
29. The appeal has come on for hearing today. Mr Stephen Whale appears for the Devon County Council, the appellant defendant, as he did in the court below. Mr Robert McCracken QC leading Mr Gavin Collett appears for the respondent claimant. Mr Collett appeared in the court below, but Mr McCracken appears for the first time at this stage of the litigation. In the event, we did not need to call upon counsel for the respondent.
30. Mr Whale has put his arguments today very clearly for the assistance of the court. The first issue is whether the judge fell into error in allowing the action to proceed in the name of Ms Williams, when initially it had been commenced by the Sustainable Totnes Action Group. Mr Whale submits that Sustainable Totnes Action Group is not a legal person. The action, therefore, never got off the ground properly and that must be an end to the proceedings.
31. I do not accept that submission. It seems to me that Part 19 of the Civil Procedure Rules ("CPR") caters for the problem which has arisen in this case. Ms Williams is and always has been a member of the Sustainable Totnes Action Group. She ought to have been named as claimant at the outset. In my view, the judge properly exercised his powers under CPR Part 19 in substituting Ms Williams as claimant. These rules exist to enable the court to resolve the matters in issue, not to throw up unnecessary technical obstacles.
32. The second issue to which Mr Whale turned was this. He said that the word "restriction" in regulation 9 has not been the subject of any previous authority. A decision of this court is required. He described this as the important point of principle in the case.
33. Mr Whale accepted that the other ingredients set out in regulation 9 are satisfied. Bob is a public service vehicle. Objection had been taken as required by the regulations. So everything turned upon whether or not the judge was right in his interpretation of the word "restrict".
34. Mr Whale directed the court's attention to paragraphs 92 and 93 of the judgment, where he submitted that the judge fell into error. In those paragraphs, the judge said:

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

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

35. Mr Whale submitted that the judge's invocation of common sense was incorrect. One must apply the rules of statutory construction, not any general appeal to common sense, in determining what a regulation such as this means.
36. I think that when the judge referred to common sense, what the judge meant was this. He was going to look at the natural meaning of the words and then apply his common sense in determining whether the events in this case fell within the natural meaning of the word "restrict". I do not accept that criticism of the judge's approach.
37. Mr Whale's next submission was this. He said the word "restrict" is not determined by reference to Bob's timetable or chosen routes. The word "restrict" must be construed objectively.
38. I agree with Mr Whale that we do not simply focus on Bob and say, "Well, is Bob's travelling around Totnes in accordance with its timetable restricted?" What we have to look at is the effect of the TRO on public service vehicles generally. The effect of the TRO on public service vehicles generally is this. Those drivers who wish to traverse Fore Street and High Street can no longer simply drive east to west as they used to. Instead, they need to undertake the circuitous double loop which I described in part two of this judgment. Of course, they can still achieve that journey, but it becomes a longer and more convoluted one.
39. Bob is merely one of the vehicles which is affected by the TRO. So although I accept Mr Whale's point that we must not look at Bob alone, the changes to Bob's journey are illustrative of the effect on all public service vehicles travelling through or around Totnes.
40. The next issue which Mr Whale debated is whether the word "restrict" in regulation 9 simply means physical restriction or whether it means something broader than that. In his original skeleton argument he put forward considerations which suggested that it might refer to physical restriction only. In his oral submissions, he accepted that it must go somewhat wider.
41. Mr Whale gave sensible examples of physical restrictions. For example, the erection of gates or bollards which rise up in the road threatening approaching traffic. He also gave some examples of non-physical restrictions: for example, a restriction on waiting, limiting the waiting time, or restrictions on parking. Those would be restrictions within the meaning of regulation 9(3)(b).
42. Another example which Mr Whale gave is one which we see in this case, namely a rule that vehicles that exceeding a particular length cannot go round a particular corner. In this case, vehicles of extended length are no longer permitted to turn right at the T junction. Mercifully, Bob is well within the length restrictions. So Bob is not prevented from turning right at the T junction.
43. The heart of Mr Whale's submission is this. If a local authority imposes a one way restriction on a road, that is not a restriction within the meaning of the word "restrict" in regulation 9. In this case, what the local authority has done is to change the rules. The new rules say that traffic in Lower Fore Street can only pass from west to east. Formerly, traffic in Lower Fore Street was only allowed to pass from east to west. That change, says Mr Whale, is not a restriction.
44. In the course of argument, Briggs LJ tested this argument. He asked Mr Whale to consider a normal two way road with cars and lorries passing in both directions. Suppose the local authority says: "No longer will we allow that. Vehicles can only pass in one direction. This will now be a one way street." Briggs LJ asked whether that would be a restriction. Mr Whale said no, that would not be a restriction. Briggs LJ then followed that up. Supposing the imposition of a one way street sign meant that vehicles had to go on an extremely long and circuitous route in order to get from A at one end of the street to B at the other end of the street, would that be a restriction? No, said Mr Whale, it would not. Indeed, consistently with his submissions, Mr Whale had to say no in answer to the question, but I think that really exposes the flaw in the defendant's case.
45. Rules which prevent vehicles travelling one way or the other along a road are "restrictions" in the ordinary meaning of that word. In this case, you can no longer drive from The Plains roundabout straight through Totnes, going up Fore Street and up High Street. Instead, you have to wind your way up Coronation Road, turn left at the roundabout, come back down Station Road, then rejoin Fore Street and head off westwards. If for any reason you wish to visit all of the premises in Lower Fore Street, Upper Fore Street and High Street (indeed, Bob does this), then you need to make an extremely circuitous route involving a double loop.
46. In my view, rules which impose those requirements do "restrict the passage of public service vehicles along a road". Therefore the judge was correct in his interpretation of regulation 9.
47. Mr Whale very fairly accepts that if the judge was correct in substituting Ms Williams as claimant and if the judge was correct in his interpretation of the word "restrict," then that is an end of this appeal. It is not necessary to go on and consider whether or not the judge was right in relation to section 122.
48. In this judgment, I am not expressing any approval or disapproval of the judge's decision on section 122. We have not heard argument on that issue in court today. I can see from the skeleton arguments that there are serious issues as to whether or not the judge's judgment was right on that point. We do not need to decide that today.
49. In my view, the judge was correct on the first two issues. That is fatal to Devon County Council's appeal. In my opinion, this appeal should be dismissed.

50. LORD JUSTICE KITCHIN: I agree.

51. LORD JUSTICE BRIGGS: I also agree.