ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
SIR ROSS CRANSTON (Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LEWISON
THE RIGHT HONOURABLE LORD JUSTICE COULSON
| TRAIL RIDERS FELLOWSHIP
|- and -
|HAMPSHIRE COUNTY COUNCIL
Mr Stephen Whale (instructed by Hampshire Legal Services) for the Respondent
Hearing date: 3rd July 2019
Crown Copyright ©
Lord Justice Longmore:
1) first whether, when making the TRO, Hampshire had proper regard to, and complied with, its duty under s. 122 of the Road Traffic Regulation Act 1984 ("the 1984 Act"). That provision imposes on a local authority when considering whether to make a TRO, a duty to "secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)" as far as practicable (s. 122(1)) having regard to factors including the maintenance of local amenities and reasonable access to premises and any other matters appearing to the local authority to be relevant (s. 122(2)); and
2) second, whether the report of Hampshire's consultation with the road policing unit of Hampshire Constabulary pursuant to paragraph 20 of Schedule 9 of the 1984 Act, which was not passed to the individual decision-maker, was a "relevant consideration in the legal sense" and/or whether the judge correctly exercised a discretion not to quash the order notwithstanding the failure of the decision-maker to have regard to the report.
"1. Traffic regulation orders outside Greater London
(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a "traffic regulation order") in respect of the road where it appears to the authority making the order that it is expedient to make it –
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
(b) for preventing damage to the road or to any building on or near the road, or
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or
(d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or
(e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or
(f) for preserving or improving the amenities of the area through which the road runs, or
122 Exercise of functions by strategic highways 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 or, in Scotland, the road.
(2) The matters referred to in subsection (1) above 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;
(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 …
Para 20 of Schedule 9
(1) … before making an order under or by virtue of … section 1 … a local authority shall consult with the chief officer of police of any police area in which any road … is situated."
"(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
"The order is proposed to prevent damage to the lanes by misuse of 4x4 vehicles and trail type motorcycles which make the lanes dangerous and almost impossible to use safely by other users, such as horse riders and pedestrians.
The lanes are also being used as access for trespass onto private land and public footpaths, particularly by motorcycles, which results in mud being churned up causing difficulties to access the Bere Farm track, and results in flooding down the farm access."
i) the duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians;
ii) the duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2), such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act;
iii) the issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered; and
iv) in the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself, or an inference to this effect may be drawn since the decision has been taken by a specialist committee or officer who can be taken to have knowledge of the relevant statutory powers.
"44. Clearly the Council did not expressly refer to section 122 in the process of making the Order and it did not expressly consider the section during the process. On my reading of the authorities neither omission is fatal. The issue is whether the duty was satisfied as a matter of substance. In his submissions Mr Pay placed emphasis on the expeditious and convenient movement of vehicular traffic, but that is only one aspect of the section. Section 122(1) also mentions the expeditious and convenient movement of pedestrians. There are also the factors in section 122(2) and the relationship between section 122(1) and 122(2) as explained earlier.
45. Quite apart from Mr Jarvis' expertise and the implications which can be drawn from that, the Statement of Reasons demonstrates that as the decision-maker he complied in substance with the section 122 duty. The statement refers to pedestrians, access, amenity effects and safety. The officer's report recommending the order which Mr Jarvis read, and his decision letter adopting it, considered these matters, along with the continued use of the lanes by vehicular traffic. But that was rejected as an option for the reasons given. In several places there is an express acknowledgement that a balance needs to be struck. In my view the section 122 duty was in substance fulfilled."
"53. The claimant's submission in this regard is that while the officer's report stated the proposed order had the full support of the local police, that was only part of the story since the RPU did not support it. In that regard the officer's report was misleading by omission. The Council had recognised that Sergeant Gilmour's representation did not comprise the consultation required by paragraph 20 Schedule 9 of the Act, namely the chief officer of police. It had therefore consulted the RPU to discharge its statutory obligation but then failed to disclose this to the decision-maker, Mr Jarvis. Thus he did not have regard to this as a relevant consideration and made his decision on the basis of incorrect facts.
54. At first blush I had some sympathy with this submission. However, the RPU response was wrong and muddle-headed. As Mr Sykes noted when he received it, its author seemed not to have read the proposal given the question posed about whether the only safety implication was to protect landowners' property from damage. On its face, the proposal set out other safety concerns.
55. The RPU response continued with what might be thought to be some starling assertions on behalf of a police force: (i) erecting prohibition notices would encourage wrong-doing; (ii) the order would be unlikely to have the desired effect on those already committing offences; (iii) an "access only" order would be almost unenforceable; and (iv) an order would raise expectations of the police where none existed previously. Perhaps the real reason for the RPU's approach was, as the response said, that the police had limited resources. Mr Jarvis's evidence is that the RPU often does not support the making of new orders as it does not want Hampshire Constabulary to have to commit resources to enforcing them.
56. Given the nature of the RPU response, it is perhaps unsurprising that the officer's report omitted mention of it. The crucial point was that Sergeant Gilmour had expressed his support for the proposed order on no less than three separate occasions. It was he [who] would have the responsibility for enforcing the proposed order, and he seemed to take the commendable approach that if adopted it could and would be enforced.
57. The officer's report should have included reference to the RPU report but pointed out its inadequacies. In my view it was not "so obviously material" to be a relevant consideration in the legal sense. Alternatively, as a matter of discretion I accept Mr Whale's submission that this shortcoming does not reach the level of seriousness to warrant the quashing of the Order."
The parties' submissions
1) Mr Jarvis as the delegate of the traffic authority for this purpose should at least have been aware of and considered the requirement of the section; once it is accepted (as it is) that he did not expressly consider section 122, the order must be quashed;
2) if that is wrong and the question is whether he conducted the appropriate balancing exercise, he did not in fact do so; there is no reference to any balancing exercise in the Statement of Reasons and Mr Sykes' report of 20th February 2018 does not mention any balancing exercise or, to the extent that it does, does not start, as it should, from the premise that the lanes should be open to all traffic;
3) the 1984 Act required Hampshire to consult with the RPU; although Mr Sykes did seek the views of the RPU and received them by way of a response from Ms Bagshaw, that response was never passed on to the decision-maker (Mr Jarvis) and was therefore never considered by him; that was also a fatal flaw in the making of the TRO; and
4) the TRO had therefore to be quashed.
1) the fact that Mr Jarvis did not expressly consider section 122 of the 1984 Act when making the TRO is not the end of the matter; the authorities showed that it was not necessary for the decision-maker to mention or consider section 122, if in fact he struck the right balance between the duty to secure expeditious movement of traffic as required by section 122(1) and the factors set out in section 122(2);
2) Mr Jarvis did indeed strike that balance because the report made by Mr Sykes to him before he made the TRO set out considerations which, if not expressly, at least on a true understanding of the report showed that a balance was being struck between the duty to secure expeditious movement of traffic (including pedestrians) and the factors referred to in section 122(2) particularly the effect on the amenities of the locality and the need to preserve or improve them (factor (b)) and dealing with the potential noise and nuisance and damage done from motor vehicles being matters appearing to Hampshire to be relevant (factor (d));
3) The RPU response was so muddle - headed and wrong that it could never have been a material consideration in making the TRO and the failure to pass it on to Mr Jarvis was not a ground for quashing the order; and
4) in any event the judge had a discretion when deciding whether the TRO should be quashed and his refusal to do so was an exercise of that discretion which should not be disturbed.
"The second main point is in relation to the duty under section 122 to have regard to the desirability of maintaining reasonable access to premises. I do not find section 122 an altogether easy section to construe. It refers to a wide range of different matters which have to be taken into account, but it is not clear precisely how the priorities between these various matters are to be ordered. The words "so far as practicable" show that some limitation is intended on the weight to be given to some of the factors. In Greater London Council v Secretary of State for Transport  J.P.L. 513 at 517, the Court of Appeal appear to have assumed that those words qualify the duty to have regard to the items in subsection (2), thus, in effect, making those matters subordinate to the matters which are referred to in subsection (1). However, there appears to have been no detailed argument on the point in that case and the comments appear to be obiter. To my mind, it seems more likely that the intention is the other way round. Had it been as the Court of Appeal suggest, one would have expected the parenthesis to read, "having regard so far as practicable to the matters specified in subsection (2) below". Furthermore, it is difficult to see the purpose of such a limitation on a duty which is simply to "have regard" to certain matters, since it is always practicable to have regard to matters, not always to give then effect. It is more likely that the limitation was intended to qualify the duty in subsection (1) to secure the expeditious, convenient and safe movement of traffic, that being a duty which would otherwise be expressed in absolute terms."
In the later case of Trail Riders Fellowship v Powys County Council  EWHC 2142 (Admin) Cranston J commented (para 25):-
"That was a case where the traffic authority had made an experimental traffic regulation order banning the use of heavy goods commercial vehicles on an access road to a landfill site. In fact there was no effective experiment and the order was quashed for that reason. The order also failed because the authority had not considered under section 122 the desirability of securing and maintaining reasonable access to the site and what that might entail. Only when it had done that, Carnwath J held, could it proceed to the balancing exercise which section 122 involved, however that section was to be interpreted: at 209 F-G."
The section 122 balancing exercise
1) the decision-maker should have in mind the duty (as set out in section 122(1) of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable;
2) the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and
3) the decision-maker should then balance the various considerations and come to the appropriate decision.
As I have already said, this is not a particularly difficult or complicated exercise nor should it be.
Failure to have in mind the RPU report
Lord Justice Lewison:
"I quite accept that, in many cases, a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty." (Emphasis added)
"First, that 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."
Lord Justice Coulson:
IN THE COURT OF APPEAL (CIVIL DIVISION)
Appeal No. C1/2018/3077
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR ROSS CRANSTON sitting as a Judge of the High Court)
Claim No. CO/2381/2018
IN THE MATTER OF THE HAMPSHIRE (VARIOUS ROADS, WARNFORD) (PROHIBITION OF DRIVING) (EXCEPT FOR ACCESS) ORDER 2018
AND PART VI SCHEDULE 9 ROAD TRAFFIC REGULATION ACT 1984
BEFORE THE RIGHT HONOURABLE LORD JUSTICE LONGMORE,
THE RIGHT HONOURABLE LORD JUSTICE LEWISON and
THE RIGHT HONOURABLE LORD JUSTICE COULSON
DATED 18 JULY 2019
|TRAIL RIDERS FELLOWSHIP
|HAMPSHIRE COUNTY COUNCIL||Respondent|
UPON the Appellant's appeal herein
AND UPON HEARING Mr Adrian Pay of Counsel on behalf of the Appellant and Mr Stephen Whale of Counsel on behalf of the Respondent
IT IS ORDERED:
DATED 18 JULY 2019
BY THE COURT