England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		The Royal Courts of Justice The Strand London WC2A 2LL
		18 October 2002

Introduction

1. The claimant, LPC Group PLC, challenges Part 207 of the New Leicester Traffic Regulation (Amendment 19) (Hamilton Industrial Estate Area Order) 2002 ("the contested order") in so far as that order prohibits vehicles waiting at any time on Hill Top Road, Leicester. The defendant, Leicester City Council, is the relevant traffic authority for the Hamilton Industrial Estate under section 1 of the Road Traffic Regulation Act 1984 ("the 1984 Act").
2. The contested order was made pursuant to sections 1 and 2 of the 1984 Act on 19 June 2002 and came into effect on 1 July 2002. Section 122 of the 1984 Act sets out certain matters that the traffic authority must take into account when exercising its functions under that Act. The procedure for making orders of the kind here in question is set out in The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, SI 1996 no. 2489 ("the 1996 Regulations"). Schedule 9, Part VI to the 1984 Act provides a specific statutory procedure for challenging certain orders made under that Act, including orders made under section 1: see paragraph 34 of that schedule. That procedure is akin to an application for judicial review: see R v Worcestershire County Council ex parte Boyden [1991] C.O.D. 31.
3. The claim in this case was made on 5 July 2002. On 10 July 2002 Mr Justice Stanley Burnton ordered, by consent, that the provisions of the contested order be suspended until the disposal of the claim.

The factual background

4. The geography of the case is best understood by reference to the map which forms Annex 1 to this judgment. Hill Top road is on the eastern side of the Hamilton Industrial Estate. If one travels north up Waterside Road, one turns right into Hill Top Road which, shortly afterwards, goes round to the left and then proceeds to run for about one-third of a mile in a generally north-easterly direction up to the applicant's premises. The applicant's premises are situated at the top of Hill Top Road, and consist of a large commercial paper mill making tissue paper. The applicants have been on the site for about 18 years and employ 500 people. Since 1999 the applicant's operations have been expanded by the construction of a new mill on the same site. The investment made was some £30 million. There was correspondence between the claimant and the defendant's Planning Department in 1999 at the time when planning permission for the new mill was granted. I revert to that correspondence below.
5. At present, as I understand it, the top part of Hill Top Road leads, to all intents and purposes, only to the applicant's premises, although there is some evidence that construction vehicles require access to an undeveloped site at the northern extremity of Hill Top Road. As one comes up Hill Top Road from the south, the applicant's premises are situated on the left-hand (or north-western) side of the road, the right-hand (or north-eastern) side of the road being open land, except that the applicant's staff car park is situated on the right-hand side about half way up. Towards the top of Hill Top Road there is also a turning to the left, called Valley Road, which runs west, bisecting the applicant's site. The applicant's main entrance is the gatehouse at the northern extremity of Hill Top Road on the north-western side. Hill Top Road is unadopted, but it is common ground that in law it is nonetheless a "road" which may be subject to a traffic regulation order under the 1984 Act. There are no bus or public transport routes along Hill Top Road.
6. The problem in the present case arises from the fact that the claimant's paper mills are dependent on the delivery of paper pulp for production purposes, and on the collection of the finished products. There are, I am told, some 30 deliveries and 65 collections a day, in heavy container lorries. Because, for safety reasons, there is a limit to the number of vehicles that can be permitted to enter the claimant's premises at any one time, it has been the practice for a number of years for lorries awaiting access to the site to wait on the western side of Hill Top Road. I am told that there are regularly 8 lorries waiting, but that the number can be higher than that. It appears that at times the queue stretches well down the western side of Hill Top Road, past the turning to Valley Road, and past the entrance to the staff car park on the eastern side. The photos in the Court bundle show some lorries parked as far down as the bend in Hill Top Road – a distance which, I am told, would suggest a queue of some 15 lorries waiting to enter the claimant's site. Because the lorries are parked only on one side of the road, there appears to be room for emergency and other vehicles to gain access to the plaintiff's site despite the queue.
7. The site is open 365 days a year, which means there approximately 11,000 deliveries a year. All those deliveries enter the claimant's site through the gatehouse entrance at the north-western extremity of Hill Top Road. The claimant's distribution centre is accessed by the same gatehouse. The collecting lorries account for some 24,000 collections a year. This makes some 35,000 'lorry movements' a year in total.
8. According to the claimant, it is extremely difficult to organise collections and deliveries of this magnitude without some lorries having to wait in Hill Top Road to obtain access to the site. Mr Pennington, who is the Group Health, Safety and Environment adviser for the LPC Group, puts it like this in his second witness statement of 18 July 2002:

"48. It is impossible to logistically manage such an immense volume of traffic. We do provide a delivery time to each delivery driver. Likewise, we also provide a collection time to each collecting driver. However, the deliveries of pulp come primarily from outside of the United Kingdom, as we import approximately 70% of our pulp requirements from Scandinavia, Portugal, Brazil and Mexico. It is delivered through 3 pulp merchants, Encell, Sodrä, and Botnia Pulps. These companies use London Agents, but deliver their pulp through a number of the Kent ports together with Harwich and Hull. In addition to the overseas deliveries approximately 30% comes from our recycled paper facility in Scotland.

49. This causes us great difficulties. Although it is easy enough for us, to tell a delivery driver when he should arrive, the driver, however, can only arrive at such time as shipping schedules and road conditions allow. Many of the deliveries are undertaken by outside contractors who, of course, have to work to their own schedules as well.

50. Insofar as the collecting drivers are concerned, again it is easy enough for us to tell the drivers when to arrive, but in view of traffic conditions on the UK's roads and indeed traffic congestion in the Leicester area, it is not so easy for them necessarily to keep to their arrival "slots" either.

51. We do try. In order to enforce the system, a driver that arrives on time will be given priority over those who arrive late. However, of course, some drivers also arrive early and they then have to wait for their allocated slot. Those that arrive late have to wait until a free slot becomes available for them to deliver or collect the product.

52. The plant operated by LPC is a high risk plant. Pulp and paper – particularly tissue – are, of course, extremely flammable. Indeed, over the past 12 months we have had a number of fires on the site.

53. Although the mills are in a continuous process 365 days a year, because of the health and safety concerns and indeed the space that we have on site, we can only allow 2 lorries onto the site to make deliveries of pulp at any one time. Furthermore, we can only allow 4 lorries onto the site to collect the finished product.

54. The upshot of all of this is that lorry drivers must wait to get access to the site. As I have said, those who are able to arrive on time are given priority, but those who are early or late inevitably must undergo a period of waiting before they are granted access by our gatehouse staff."

9. In these circumstances, the claimant says, the contested order will have a catastrophic effect on its business. The paper mills are in a continuous production process, and entirely reliant on the existing volume of deliveries and collections. There are no alternative waiting facilities nearby. A transport café 10 miles away on the A46 and a motorway service station 14 miles away on the M1 are not suitable alternatives, and it would be difficult for the claimant to acquire land for a "lorry park". Thus if the 'no waiting' restrictions are enforced, drivers will be forced to return home, or drive around aimlessly waiting for their 'slot'. This situation, says the claimant, will cause the claimant to lose both suppliers and customers, fairly rapidly.

The statutory procedure followed in this case

10. In January 2002 the defendant's Traffic Group Manager submitted a report to the Director of Environment, Development and Commercial Services "seeking authorisation to commence the statutory procedures required to amend the existing waiting restrictions in the Hamilton Industrial Estate Area, including Hill Top Road, as part of the review of Traffic Regulation Orders in Leicester City". The "Supporting Information" attached to that Report states:

"1.1 As part of the on-going review of Traffic Regulation Orders in Leicester City work commenced in Hamilton Industrial Estate Area in August 2001.

1.2 Several complaints have been received from local businesses and members of the public regarding dangerous and obstructive parking at various locations. We have also been informed of damage caused by trailer parking, which has been taking place along Hill Top Road, Waterside Road and Valley Road. These roads are approaching adoption and a number of remedial works have already been identified. We have been advised to take this problem into consideration when determining restrictions on these roads.

1.3 Extensive on-street surveys were carried out by officers to determine the nature and extent of restrictions considered necessary to ensure that access for emergency service vehicles, large goods vehicles and buses, could be maintained at all times.

1.4 Hamilton Industrial Estate area is mainly occupied by commercial properties. Many of the businesses in the area regularly receive deliveries from large goods vehicles. Site investigation has shown that there is a particular problem of trailer and lorry parking at all times of the day and night along Hill Top Road, Waterside Road and Valley Road. There are also a number of vehicles parking along Cannock Street during the day, when a single yellow line and daytime restriction is enforceable. These vehicles are parked in a manner likely to inconvenience and endanger other road users, particularly large goods vehicles, which experience difficulties negotiating bends, entering junctions and premises.

1.5 No waiting at any time restrictions have been proposed in locations where it is considered necessary to deter trailer parking and prevent further damage to the highway. No waiting at any time restrictions have also been proposed to protect all entrances, junctions, turning heads and bus stop areas, together with locations where bends in the road limit visibility. Several locations along Cannock Street and Wenlock Way will retain daytime restriction Monday to Saturday to allow shift workers to park in the evening.

1.6 No waiting at any time restrictions have also been proposed on Donald Close, as a number of complaints have been received from residents regarding dangerous parking close to the junction, reducing visibility for those vehicles leaving the close onto Humberstone Lane.

1.7 All existing traffic manoeuvre restrictions in the area are proposed to be retained and no new manoeuvre restrictions are proposed.

1.8 The extent of the proposals are shown on the attached plan ref TF09541 and schedule. The formal reason for this proposal is to facilitate the passage of traffic on the roads concerned and for preventing damage to the roads mentioned above."

11. This Report was prepared by Sarah Russon, who according to her witness statement of 28 July 2002 is a traffic officer with the defendant who is familiar with the Hamilton Industrial Estate and Hill Top Road in particular.
12. That proposal was approved by the Director of Environment, Development and Commercial Services – who is the officer authorised to act on behalf of the defendant for these purposes – on 15 January 2002.
13. There then commenced the statutory order making procedure in accordance with the 1996 Regulations. Under regulation 6 of those regulations the defendant was obliged to consult the authorities responsible for the ambulance, police and fire services, as well as other representative organisations of various kinds. Apparently over 20 organisations were consulted. Pursuant to regulation 7 of the 1996 Regulations, the Council also published a notice in the Leicester Mercury on 18 February 2002. That notice states the defendant's proposal to introduce waiting restrictions on a number of roads including:

"HILL TOP ROAD

1. Prohibit a vehicle waiting at any time

a. north and west side from its junction with Waterside Road to its northern most extent, including the turning head

b. south and east side from its northern most extent to its junction with Waterside Road, including the turning head."

14. The notice also states:

"A copy of the draft Order, a copy of the relevant map and a copy of the Council's statement of reasons for proposing to make the Order may be seen at the Legal Services Division, New Walk Centre, Welford Place, Leicester at all reasonable hours. Any objections to the making of the Order must be made in writing for the attention of Karon Grew, Town Clerks Legal Offices and be received at the address below not later than the 11^th March 2002 and must specify the grounds for the objection. Any queries contact Mrs Grew on Leicester (0116) 2526367."

15. In addition, some 16 notices in the same form were posted by Sarah Russon herself, along the whole length of Hill Top Road, covering about one-third of a mile.
16. As I understand it, "the Council's statement of reasons for proposing to make the Order", referred to in the above notices was available for inspection at the Legal Services Division of the Council, as required by the 1996 Regulation. That statement of reasons was constituted by the report of January 2002 and the Supporting Information referred to above.
17. Under regulation 8 of the 1996 Regulations, objections are to be made within 21 days of the publication of the relevant notices. Only one objection, later withdrawn, was lodged against the defendant's proposals. The claimant did not lodge an objection.
18. Mr Pennington was aware of the notices posted along Hill Top Road and of the need for objectors to contact the Council. He tells the court, in paragraph 59 of his witness statement dated 18 July 2002, that he consulted the claimant's board of directors, their architect, Mr Goodwin, and the internal design team. All assumed, Mr Pennington says, that the Council had no power to impose waiting restrictions because Hill Top Road was unadopted. At all events, no objection was made.
19. The order imposing the waiting restrictions was sealed on 19 June 2002 and notices announcing the making of the order were placed in the Leicester Mercury and in Hill Top Road on that day. On that same day, 19 June 2002, Mr Pennington saw one of the notices in Hill Top Road announcing that an order imposing waiting restrictions had been made, and indicating that there was a period of six weeks in which to appeal. He telephoned the Council on that day and spoke to Sarah Russon. He was apparently told that the order would come into force on 1 July 2002, which it did.

Arguments of the parties

20. The claimant argues that the defendant is in breach of section 122 of the Act of 1984 in failing to have regard to the relevant statutory considerations set out in that section, and notably the requirement in section 122(1) "to secure the provision of suitable and adequate parking facilities on and off the highway", and the requirement in section 122(2)(a) to take account of "the desirability of securing and maintaining reasonable access to premises". According to the claimant, the defendant knew of the need for lorries awaiting entrance to the claimant's site to wait on Hill Top Road. In addition, it failed to take account of the facts that Hill Top Road, or at least the top section, serves only the claimant's site; that Hill Top Road is unadopted, and, in effect "a backwater" with no public transport or through routes; that the claimant needs to be able to have lorries waiting close to its site in order to be able to function properly; that waiting restrictions would be seriously detrimental to the claimant; that there is no history of an access problem to the claimant's site while other vehicles are waiting; and that no alternative waiting areas are available to the claimant.
21. Moreover, says the claimant, the defendant did not consider anything other than a blanket restriction even though the problems identified in "the Supporting Information" mainly concerned trailer parking. Any perceived problems could be dealt with by a 'no waiting' restriction limited in time. Any problem of visibility at the Hill Top Road/Valley Road junction could be dealt with by a limited restriction at that junction.
22. The defendant thus failed properly to consider the considerations identified in section 122(1) of the 1984 Act, and failed to take into account the considerations set out in section 122(2)(a). It thus acted unreasonably within the meaning of Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223: see UK Waste Management v West Cowes DC [1997] RTR 201, at 209C-211D.
23. Secondly, says the claimant, the defendant was in breach of its duty to serve a notice of its proposals on the claimant under Regulation 7(c)(iii) of the 1996 Regulations.
24. The claimant also contests the defendant's interpretation of correspondence passing between them in 1999 at the time of the development of the second paper mill, and considers that the second mill has not, in fact, led to additional parking in Hill Top Road.
25. The defendant argues (1) Since the claimant did not exercise its statutory right to object, the only grounds it is entitled to advance in the High Court under paragraph 35 of Schedule 9 to the Act of 1984 are that it was precluded from objecting because of procedural error, or that there is an error on the face of the order made. Neither is the case here. (2) The defendant had no obligation to consult the claimant under Regulation 7(c)(iii) of the 1996 Regulations. (3)  There is no basis for saying that the defendant erred in the exercise of its discretion on Wednesbury grounds. The defendant relies in particular on the "Supplementary Information" attached to the report dated January 2002, and on the evidence of Miss Russon.
26. The defendant also draws the court's attention to correspondence between the claimant and the defendant in 1999, at the time when the claimant's site in Hill Top Road was being developed by the construction of a second paper mill. As I understand it, the claimant already had the premises to the south of Valley Road, but the new paper mill was on part of the site to the north of Valley Road. It was proposed that there would be two bridges across Valley Road connecting the two parts of the claimant's site. At the time David Trubshaw, the relevant planning officer of the Planning Department, had raised the problem of lorries parking on adjoining roads. Mr Goodwin, the claimant's architect, wrote to Mr Trubshaw on 22 November 1999 a letter which stated:

"LPC has issued a statement to all their carriers instructing them not to park on the public roads in the vicinity of the LPC site.

LPC confirm that they would support the introduction of parking restrictions if the Local Authority wished to impose them."

27. On 29 November 1999, Mr Goodwin wrote again to Mr Trubshaw stating:

"Regarding your last point raised during our telephone conversation concerning lorries waiting to enter the LPC site, we have discussed this with our Client and they confirm that because of the introduction of the proposed bridge conveyors across Valley Road, this will dramatically reduce the waiting time for lorries making external deliveries."

28. In his report to the Development Control Sub-Committee on 1 December 1999 Mr Trubshaw stated:

"An issue that has arisen in recent years has been the parking of lorries awaiting entrance to the site on adjoining roads. This is due to the security arrangement operated by the company which precludes entry into the site until the allotted time. I am anxious to ensure that the expansion of the site does not result in additional parking of lorries on Waterside Road and Hilltop Road and I have asked the company to give some assurance to this effect. I will report orally on this matter."

29. Under the heading "Further Considerations", Mr Trubshaw went on:

"With regard to the parking of lorries on adjacent roads, the applicant states that the proposed bridge conveyors across Valley Road will reduce unloading times and thereby reduce the waiting time for lorries making deliveries. The development will also enable the applicant to close their factory in Thurmaston, thereby reducing the number of lorry visits to the Hamilton site. The applicant has also written to suppliers advising that lorries should not park on adjacent roads whilst waiting entry to the site and state that they would support the imposition of parking restrictions if felt necessary by the highway authority.

… I am satisfied from the assurance given by the applicant that the proposal should not lead to additional parking of lorries on adjacent roads."

30. What appears to have happened subsequently is that there has been a delay in constructing the two bridges over Valley Road, the first of which is not now due to be built before the end of this year. Hence the hoped for reduction in waiting lorries on Hill Top Road, as a result of the construction of these bridges, has not happened. The claimant denies that the 1999 development has in fact led to "additional" parking in Hill Top Road. Mr Trubshaw, in his witness statement of 21 August 2002 denies the claimant's suggestion that, in 1999, parking in Hill Top Road was acceptable to the Council "provided it did not increase". Mr Trubshaw states that, in the light of the claimant's stated intention to write to all its carriers instructing them not to park in Hill Top Road, there was no reason to expect that the claimant's operations would lead to parking in adjacent roads. If it did, Mr Trubshaw considered that the defendant had the claimant's support for parking restrictions.
31. The defendant has produced a number of photographs ("SLR 11") "to show the reasoning behind the making of the order". These photographs, says Miss Russon in her statement of 25 July 2002, indicate that parked vehicles cause problems of visibility on the bends in Hill Top Road, and at the junction of Valley Road and Hill Top Road. She also says in that statement that the presence of private entrances on the western side of the bottom half of Hill Top Road mean that parking cannot be permitted there. Trailer parking has also damaged the top half of Hill Top Road. Contractors need access to the top of Hill Top Road, and the western part of Hill Top Road down to Valley Road needs to be kept clear to allow safe vehicle access for large goods vehicles ("LGVs"). At paragraph 35 of that statement Miss Russon says that, although there might have been objections, "businesses are generally able to schedule arrivals and departures of LGVs". Any objections would have been considered.
32. In a second witness statement dated 21 August 2002, Sarah Russon says this at paragraph 10:

"It is asserted that no consideration was given to the provision of suitable and adequate parking facilities (see paragraphs 17, 22 and 27 of the Skeleton Argument). This is simply not the case. Our first concern, in terms of priority, was safety, then damage to the road (although there is some overlap with safety). We also took into account, as required, the desirability of maintaining access to premises (including LPC's). We also considered parking provision. As regards staff and customer parking there was clearly sufficient on-site parking (and the Claimant does not suggest otherwise). It was clearly unacceptable for trailers to be left on the highway. As regards lorries on the road (whether LPC's or otherwise), as I said in paragraph 35 of my first Witness Statement, businesses in my experience are generally able to schedule arrivals and departures of goods vehicles (and Mr Pennington's Witness Statements have not persuaded me otherwise in respect of LPC's operations). There did not appear, therefore, to be any need for on-site provision."

33. As to the lack of alternatives available to the claimant, Sarah Russon says in her statement of 21 August 2002:

"… businesses in my experience are generally able to schedule arrivals and departures of LGVs. They also frequently make use of official lorry parks, as well as lay bys and motorway service stations. This operation is enhanced by the widespread use of mobile phones by LGV drivers. If objections had been raised, we would have of course considered them."

Procedural issues

(1) Does the court have jurisdiction to entertain the claimant's arguments?

34. The defendant submits that, having failed to object, the claimant is now unable to raise before this court any point other than a procedural error which prevented him from doing so, or an error on the face of the contested order.
35. Paragraphs 35 to 37 of Part VI of the Schedule 9 of the Act of 1984 provide:

"35. If any person desires to question the validity of, or 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.

36.—(1) On any application under this Part of this Schedule the court—

(a) may, by interim order, suspend the operation of the order to which the application relates, or of any provision of that order, until the final determination of the proceedings; and

(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.

(2) An order to which this Part of this Schedule applies, or a provision of any such order, may be suspended or quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant.

37. Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever."

36. According to paragraph 34 of Part VI of Schedule 9:

"the relevant powers" means "… the powers with respect to such an order conferred by this Act"

"the relevant requirements" means "any requirement of, or of any instant made under any provision of this Act with respect to such an order".

37. It is common ground that the contested order in this case is made under section 1 of the Act and is thus an order to which Part VI of Schedule 9 applies: see paragraph 34(1) of that Schedule.
38. Paragraph 35 of Schedule 9 expressly provides that "any person" may make an application to the High Court or to the Court of Session for the purpose mentioned in that paragraph. Paragraph 35 does not say "any person who has made an objection in accordance with the statutory procedure" may apply to the court, nor does it say "any person who has made an objection, or who has a reasonable excuse for not making an objection", may so apply. In my judgment "any person" in paragraph 35 of Schedule 9 means what it says, and its meaning is not to be implicitly cut down by reference to whether or not the person in question has previously made an objection according to the procedure laid down in the 1996 regulations.
39. It is expressly provided, in paragraph 37 of Schedule 9, that paragraph 35 provides the only means of contesting a traffic regulation order. In my judgment, in a case involving access to the courts, it is unlikely that Parliament intended the plain wording of paragraph 35 to be implicitly cut down.
40. Cases in which a person wishes to pursue an application under paragraph 35 of Schedule 9 without having previously made an objection are likely to be rare. However, they could exist, for example if the person concerned had been posted abroad, absent on holiday, or seriously ill, or if, as is said by the claimant in the present case, the person concerned had simply made an error, thinking that the proposed order did not apply to him. Paragraph 35 does not, however, require (or indeed entitle) the court to enquire into whether there was a reasonable excuse for the failure to object; it simply provides that "any person" may apply to the Court, without making any link whatever to the objection procedure set up under other provisions of the 1984 Act.
41. Pursuant to paragraph 35(a) of Schedule 9 such an application may be made by any person desirous of questioning the validity of an order "on the grounds that it is not within the relevant powers". In my judgment, an application in which the principal ground is that the defendant failed to have regard to the relevant statutory provisions and/or acted in a manner that was unreasonable in the Wednesbury sense is a claim made on the grounds that the order "is not within the relevant powers" for the purposes of paragraph 35(a).
42. I therefore reject the defendant's argument that the claim made here falls outside the Court's jurisdiction under paragraph 35 of Schedule 9 of the Act of 1984. The absence of any objection may, however, be relevant on the question of costs.

The alleged failure to consult

43. As to the claimant's argument that it should have been specifically consulted before the contested order was made, regulation 6 of the 1996 Regulations provides:

"6.—(1) An order making authority shall, before making an order in a case specified in column (2) of an item in the table below, consult the persons specified in column (3) of the item.

…

7. All cases (a) The Freight Transport Association

(b) The Road Haulage Association

(c) Such other organisations (if any) representing persons likely to be affected by any provision in the order as the order making authority thinks it appropriate to consult"

44. Regulation 7(1) of the 1996 Regulations provides:

"7.—(1) An order making authority shall, before making an order,—

(a) publish at least once a notice (in these Regulations called a "notice of proposals") containing the particulars specified in Parts I and II of Schedule 1 in a newspaper circulating in the area in which any road or other place to which the order relates is situated;

(b) in the case of an order under section 6 of the 1984 Act, publish a similar notice in the London Gazette;

(c) take such other steps as it may consider appropriate for ensuring that adequate publicity about the order is given to persons likely to be affected by its provisions and, without prejudice to the generality of this sub-paragraph, such other steps may include—

(i) in the case of an order to which sub-paragraph (b) does not apply, publication of a notice in the London Gazette;

(ii) the display of notices in roads or other places affected by the order; or

(iii) the delivery of notices or letters to premises, or premises occupied by persons, appearing to the authority to be likely to be affected by any provision in that order."

45. It does not seem to me that the claimant, which is a public limited company, is "an organisation representing persons likely to be affected by any provision in the order" for the purposes of regulation 6.
46. The claimant, however, argues that the defendant should have delivered a notice or letter expressly to the defendant's premises under regulation 7(1)(c)(iii). Had it done so, the claimant would have reacted, and lodged an objection.
47. In my view, the defendant knew, or must be taken to have known, of the large number of lorries normally waiting in Hill Top Road for the purpose of obtaining access to the claimant's site. In those circumstances, it may well have been desirable for the defendant to send a letter to the claimant, as a company likely to be more affected than most by the defendant's proposals. However, under regulation 7(1)(c), the obligation on the defendant is to take such other steps "as it considers appropriate" for ensuring that "adequate publicity" about the order is given to persons likely to be affected. Such steps "may include" the steps mentioned in sub-paragraphs (i) to (iii) of regulation 7(1)(c). The question, therefore, is whether, as a matter of law, the Council has failed properly to exercise its discretion under regulation 7(1)(c) in not sending a notice or letter specifically to the claimant under regulation 7(1)(c)(iii).
48. In this case, the required statutory notice was published in the Leicester Mercury, under regulation 7(1)(a). In addition, the defendant acting under regulation 7(1)(c)(ii), erected 16 notices along Hill Top Road, which is about a one-third of a mile long, in order to ensure that adequate publicity was given to persons likely to be affected by the proposals.
49. In my judgment those notices under regulation 7(1)(c)(ii) did constitute "adequate publicity" within the meaning of regulation 7(1)(c), especially since the defendant's intention did expressly come to the attention of the claimant as a result of Mr Pennington reading one of the notices. Given that the defendant has a discretion under regulation 7(1)(c) to take such action "as it considers appropriate", it does not seem to be that the defendant acted outside its margin of discretion in relying on the statutory notice under regulation 7(1)(a) and the erection of notices under paragraph 7(1)(c)(ii) to draw its proposals to the attention of persons affected, including the claimant. I therefore reject the claimant's argument based on the lack of specific consultation under regulation 7(1)(c)(iii).

Did the defendant act within its powers under section 122 of the Act?

The statutory context

50. Section 1(1) of the Act of 1984, as amended, provides:

"1.—(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

…"

51. Section 2 of that Act provides:

"2.—(1) [A traffic regulation order may make] any provision prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic, or by vehicular traffic of any class specified in the order,—

(a) either generally or subject to such exceptions as may be specified in the order or determined in a manner provided for by it, and

(b) subject to such exceptions as may be so specified or determined, either at all times or at times, on days or during periods so specified.

(2) [The provision that may be made by a traffic regulation order] includes any provision—…

(c) prohibiting or restricting the waiting of vehicles or the loading and unloading of vehicles; …"

52. Section 122 of the Act of 1984 provides:

"122.—(1) It shall be the duty of [every] 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) 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 local authority … to be relevant."

53. In UK Waste Management Ltd v West Lancashire District Council and others [1996] QB 201, the traffic authority made an experimental traffic order banning the use of heavy goods vehicles on the sole access road to the claimant's landfill site which was heavily used by lorries delivering waste to that site. Carnwarth J referred to section 122 of the 1984 Act in these terms:

"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 [1986] 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 matter 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 them 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.

However, it does not seem to me crucial to decide that matter. What is clear is that the authority must at least consider the desirability of securing and maintaining reasonable access and in doing so they must ask themselves what reasonable access would entail. Only when they have done that can they proceed to the balancing exercise which section 122 involves, however precisely it is interpreted."

54. At p. 210E the learned judge commented that an assertion by the council officers in that case that an alternative route offered reasonable access "is simply not enough when the traffic authority knows quite well that the Rainford access, given the existing legal constraints, is not adequate for the heavy goods requirements of the site."

Analysis

55. In the present case there is no procedural flaw in the making of the contested order. It is equally clear that the defendant has a discretion whether to make the order, under sections 1 and 2 of the Act of 1984. As is well known, in Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Lord Greene said at p.229:

"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."

56. In my view, the main question is whether the defendant has had proper regard to the matters set out in section 122(1) and (2) of the Act of 1984. If it did not, the defendant did not direct its attention to matters that it was bound to consider.
57. Section 122(1) requires the local authority to exercise its functions to secure two objectives, namely "the expeditious, convenient and safe movement of vehicular and other traffic", and "the provision of suitable and adequate parking facilities on and off the premises". The exercise of functions to achieve those twin objectives is, however, expressed to be "so far as practicable", having regard to the matters specified in section 122(2). For present purposes the relevant specified matter is that set out in section 122(2)(a), namely "the desirability of securing and maintaining reasonable access to premises".
58. I respectfully adopt the view of Carnwarth J (as he then was) in UK Waste Management, cited above, that the local authority "must at least consider the desirability of securing and maintaining reasonable access and in so doing they must ask themselves what reasonable access would entail". Moreover, following Carnwarth J, it is only when they have done that that they can proceed to the balancing exercise which section 122 involves.
59. It would also seem to me to follow that, in addition to considering the question of reasonable access under section 122(2)(a), the local authority must at least consider and take into account both the matters mentioned in section 122(1), that is to say not merely "the expeditious, convenient and safe movement of vehicular and other traffic", but also "the provision of suitable and adequate parking facilities on and off the road".
60. This duty, it seems to me arises, and remains, independently of whether the traffic authority receives any objections. In my view the duty to consider objections, if there are any, or any inspector's report, if there is one, under regulation 13 of the 1996 Regulations is a quite separate matter.
61. Whether the defendant took into account the relevant statutory considerations must, it seems to me, be ascertained primarily from the document "Supporting Information". That document constitutes the statutory statement setting out the reasons why the authority proposed to make the order, and is required to be deposited and made publicly available pursuant to Schedule 2 of the 1996 Regulations: see, in particular, paragraph 2(d) of Schedule 2. This statement of reasons must be prepared and deposited before the stage of objections is reached.
62. Turning then to the "Supporting Information" (see paragraph 10 above), it is, as I understand it, common ground that the complaints from local businesses and members of the public regarding dangerous and obstructive parking, referred to in paragraph 1.2 of the Supporting Information, do not refer to the claimant's activities in Hill Top Road.
63. Paragraph 1.2 of that document also refers to "damage caused by trailer parking" along roads including Hill Top Road. This matter is then taken up at paragraph 1.5 where it is said "No waiting at any time restrictions have been proposed in locations where it is considered necessary to deter trailer parking and prevent further damage to the highway". It does appear, therefore, that the prevention of damage to the highway from trailer parking was a major reason relied on by the defendant for the no waiting restrictions in Hill Top Road. That is confirmed by the fact that a large number of the defendant's photographs exhibited to Sarah Russon's first witness statement to illustrate the defendant's reasoning are concerned with trailer parking or damage to the highway: see numbers 1, 2, 11, 12, 13, 14, 15 (see also no. 18 showing a parked trailer).
64. In principle, trailer parking is undoubtedly a legitimate matter to be taken into account by the defendant under section 122, presumably under section 122(2)(d). However, it is common ground that the problem of "trailer parking" being referred to here occurs when a trailer is detached from its lorry and left in the road, very often overnight or for a prolonged period. The claimants argue that that is a quite different problem from the matter of the lorries queuing in Hill Top Road waiting to enter the claimant's site. The claimant denies that there is any material damage to the highway resulting from the queuing of lorries. The claimant also contends that the defendant's photographs show only trivial damage to the highway, none of which results from queuing, as distinct from trailer parking.
65. I see force in the claimant's contentions on this point. As far as Hill Top Road is concerned, there is little evidence of trailer parking, and Miss Russon very fairly concedes that she has "no recent direct proof that LPC-related trailers are left unattended in Hill Top Road".
66. In any event, if and to the extent that trailer parking in Hill Top Road was or is a problem, it seems to me that a blanket restriction of "no waiting at any time", simply to deal with the problem of trailer parking, mainly overnight, goes well beyond what would have been regarded as reasonably necessary to deal with that problem. Whatever balance is to be struck between the defendant's various statutory duties under section 122, it does not seem to me to be reasonable, in the Wednesbury sense, to prevent all queuing by lorries to enter the claimant's premises in order to deal with the different (and largely overnight) problem of trailer parking. A lesser restriction (e.g. waiting limited to a restricted number of hours or prohibited overnight) would have sufficed to deal with trailer parking, as Miss Russon acknowledges in her second witness statement, at paragraph 9: "If the only issue was about trailer parking at night, which was causing damage, we may have considered simpler restrictions". I therefore conclude that trailer parking, which figures largely in the defendant's reasons, does not suffice, in itself, to justify the blanket "no waiting at any time" restriction in this case.
67. However, the defendant, supported by Sarah Russon's evidence, contends that there were, in fact, matters other than trailer parking taken into consideration. As to that, paragraphs 1.3 to 1.5 of the Supplementary Information read as follows:

"1.3 Extensive on-street surveys were carried out by officers to determine the nature and extent of restrictions considered necessary to ensure that access for emergency service vehicles, large goods vehicles and buses, could be maintained at all times.

1.4 Hamilton Industrial Estate area is mainly occupied by commercial properties. Many of the businesses in the area regularly receive deliveries from large goods vehicles. Site investigation has shown that there is a particular problem of trailer and lorry parking at all times of the day and night along Hill Top Road, Waterside Road and Valley Road. There are also a number of vehicles parking along Cannock Street during the day, when a single yellow line and daytime restriction is enforceable. These vehicles are parked in a manner likely to inconvenience and endanger other road users, particularly large goods vehicles, which experience difficulties negotiating bends, entering junctions and premises.

1.5 No waiting at any time restrictions have been proposed in locations where it is considered necessary to deter trailer parking and prevent further damage to the highway. No waiting at any time restrictions have also been proposed to protect all entrances, junctions, turning heads and bus stop areas, together with locations where bends in the road limit visibility."

68. In the case of Hill Top Road, or at least the northern half of that road, it is not suggested that access by emergency vehicles was a problem, nor is Hill Top Road on a bus route. There is no evidence that the queue of lorries waiting to enter the claimant's premises has in fact caused difficulties for large goods vehicles entering or exiting the claimant's site, which they do at the rate of 95 lorry movements per day. Since Hill Top Road leads virtually only to the claimant's premises the impact on road users unconnected with the claimant would not appear to be very great. In those circumstances, I am not satisfied that what is said in the "Supplementary Information" at paragraph 1.3 to 1.5 focuses on, or even refers to, the specific situation on the ground in the northern half of Hill Top Road.
69. More particularly, it does not seem to me that the Supplementary Information shows that any, or any proper, balancing exercise has been carried out by the defendant under section 122(1) and (2)(a) of the Act, at least as regards Hill Top Road. Paragraph 1.8 of the Supplementary Information states that "the formal reason for this proposal is to facilitate the passage of traffic on the roads and for preventing damage to the roads mentioned above", but it does not appear from the Supplementary Information that any consideration was given to "the provision of suitable and adequate parking facilities on and off the highway" or to "the desirability of securing and maintaining reasonable access to premises", at least as far as Hill Top Road is concerned.
70. In many cases of traffic regulation orders of the 'no waiting' kind, the authority's justification for making the order will be obvious, both from the reasons given and the factual context. But in my view the present case is a wholly exceptional case on the facts. The claimant is a large industrial enterprise employing 500 people. Its operations are dependent on some 35,000 lorry movements a year entering or leaving the Hill Top Road site. The defendant knew, or must have been presumed to know, the general scale of those operations. At all events the defendant knew that lorries were queuing in Hill Top Road on a significant scale for the purposes of entering or leaving the claimant's site at the far end of Hill Top Road. It must, in my judgment, have been reasonably apparent to those who carried out the on-street surveys that the introduction of "no waiting at any time" restrictions on the western side of the top half of Hill Top Road would, potentially, cause a serious problem of access to the claimant's premises for a large number of lorries waiting there for the purpose of entering those premises. Since, for safety reasons, only a limited number of lorries can physically enter that site at any one time, the remainder must either wait in the road or make alternative arrangements.
71. In those circumstances it seems to me that the issue under section 122(2)(a), namely the desirability of securing and maintaining reasonable access to premises was one to which the defendant ought to have had regard when preparing its statutory statement of reasons. Similarly, in my view, the observable situation on the ground should have brought to the defendant's mind the question whether, if "no waiting at any time" restrictions were brought into force, it would still be possible to secure "suitable and adequate parking facilities on and off the highway", within the meaning of section 122(1), as regards lorries waiting to have access to the claimant's premises. Nothing in the Supplementary Information shows that those matters were taken into account or that any balance between the statutory considerations set out under section 122 has, in fact, been struck.
72. In the exceptional factual circumstances of the present case, it seems to me that it is not sufficient for the defendant to rely on the fact that the claimant could have objected, but did not. It seems to me that, when preparing and publishing the reasons for its proposals, as it is required to do under the 1984 Act, the local authority is already obliged to take into consideration the matters referred to in section 122, even before the stage of objection is reached.
73. It is true that in her two witness statements Miss Russon indicates various matters which, she says, she took into account: see notably, paragraphs 25 to 35 of the statement of 25 July 2002 and paragraphs 10 and 11 of the statement of 21 August 2002. However, it is well recognised that in the normal course of events the reasons for a decision must come from the decision itself: see R v Westminster City Council, Ex parte Ermakov [1996] 2 All ER 302. Although, depending on the circumstances, there may be a degree of latitude where evidence is proffered to elucidate, correct or add to the reasons appearing from the contemporary record, the court on judicial review is normally cautious about doing so.
74. In the present case, "the decision maker" is, in accordance with a statutory delegation, the Director of Environment, Development and Commercial Services of the defendant. Whatever Miss Russon may or may not have thought at the time, there is no evidence that the various matters referred to in Miss Russon's statements ever came to the attention of, or were borne in mind by, the decision maker, i.e. the Director. More specifically, although Miss Russon refers, in her statement of 25 July 2002, to a number of matters, such as visibility on the bends in the lower part of Hill Top Road, and visibility at the Valley Road/Hill Top Road junction, that evidence does not seem to me to show that any proper balancing exercise, whereby those considerations were balanced against the requirements of "securing and maintaining reasonable access" or securing "adequate parking facilities on or off the highway", was ever carried out, at least so far as the northern end of Hill Top Road was concerned. Given, I emphasise again, the exceptional situation on the ground in this case, with a very large number of lorries having to be moved in and out of the claimant's premises, and the fact that Hill Top Road is a "backwater" serving virtually only the claimant's premises, it seems to me that the defendant was required specifically to take into account, and strike a balance, between the various statutory considerations set out in section 122.
75. Miss Russon in her second witness statement of 21 August 2002 asserts at paragraph 10 that the provision of adequate parking facilities and the desirability of maintaining access to premises were, in fact, taken into account. As a matter of law, however, in my judgment, having regard to the Ermakov principle, this court should base itself on the contemporary material that was before the decision maker rather than on the later witness statements of Miss Russon, not least because neither the court nor the claimant has any objective means of verifying what considerations were taken into account by the decision maker at the time, other than the contemporary documents.
76. More generally, however, I have the impression that Miss Russon's view is that businesses "should be able to schedule arrivals and departures of goods vehicles". While that may be generally so, Mr Pennington's evidence persuades me that the number of vehicle movements in question puts this case into an exceptional category, in which it could not have been reasonably assumed that better scheduling procedures would, of themselves, completely obviate the need to have any facility for even limited waiting in the vicinity of the claimant's premises at the top end of Hill Top Road. The alternative, canvassed in argument, that the claimant could equip itself with a "lorry park" also gives rise, in my view, to obvious difficulties of practicality and time scale.
77. For these reasons in my judgment the contested order was not within the relevant powers for the purposes of paragraph 35 of Schedule 9 of the Act of 1984, despite the claimant's failure to object.
78. I have considered whether this conclusion is affected by the correspondence between the claimant and the defendant in 1999 when planning permission was granted for the new mill. The claimant has, apparently, been unable to find any trace of the letter which it stated in the letter of 22 November 1999 to have written to its customers instructing them not to park in the vicinity of the site. It seems to me either that the letter was not, in fact, written, in which case the letter of 22 November 1999 was highly misleading, or it was written but no attention was subsequently paid to the instruction which it contained. Either way, the claimant's behaviour in this regard appears to be open to serious criticism. It is also true that in the letter of 22 November 1999 the claimant indicated that it was prepared to support the introduction of parking restrictions, although it may be said perhaps that the claimant did not necessarily mean a total ban on all parking in the vicinity.
79. I have considered whether these matters would form a basis for the court, in its discretion, to refuse to grant the claimant relief in this case, notwithstanding the conclusion in law to which I have arrived. I have, however, rejected that possibility, for two reasons. First, there is no evidence that, when they came to make the contested order, the defendant's officers responsible for parking matters knew or took into account the exchanges between the Planning Department and the claimant in 1999. Secondly, precisely what was said or understood between the parties at that time is a matter of some dispute in the evidence, and I am not satisfied that the court has a sufficiently firm factual basis on which to refuse the claimant the relief to which it would otherwise be entitled.
80. As to the precise terms of the relief to be granted, the existing interim order made on 10 July 2002 applies to the whole of Hill Top Road. On the material before me, the matter concerns the western side of Hill Top Road from its northern end down towards the first bend, but I will hear argument as to the terms of the final order. It goes without saying that the defendant may wish to recommence the statutory procedure, as they are entitled to do, but that is another matter. I will also hear argument on the issue of costs.