England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 December 2002

Mr Justice Richards:

1. The claimant company, Decra Plastics Limited ("Decra"), challenges the Waltham Forest (Prescribed Route) (No.1) Traffic Order 2002 ("the traffic order"), which was made by the defendant council, the London Borough of Waltham Forest, on 2 July 2002 and was due to come into operation on 22 July 2002, though its operation has been suspended by injunction pending the resolution of the challenge. The challenge is brought both by way of statutory challenge under paragraph 35 of schedule 9 to the Road Traffic Regulation Act 1984 and by way of judicial review. Strictly speaking, the statutory challenge is to the traffic order itself whereas the judicial review challenge is to the decision to make the order. The substantive issues, however, are the same and nothing turns on the dual procedure.
2. The traffic order, which is referred to loosely in the documents as a closure order, prohibits vehicular traffic from entering part of a road known as South Access Road. To the north lies the Markhouse Avenue residential area. To the south lies the borough's main industrial area which includes Forest Business Park, the Roxwell Industrial Estate and the Argall Avenue Industrial Estate. In between, and immediately adjacent to South Access Road, are a number of council facilities, including a sports ground, a household waste and recycling centre, a council depot and a tip site.
3. The council explains that the order is the final part of a programme of highway and traffic regulation works designed to rationalise commercial traffic movements and to enhance residential amenity in this part of the borough. Prior to those works the only means of access by traffic to much of the industrial area (including Forest Business Park) and to the council's facilities was via South Access Road and the residential area to the north. Only the southern part of the industrial area had access from the south, along Argall Avenue. There was a long history of complaints from residents about the volume of commercial traffic through the Markhouse Avenue residential area. Moreover the council wished to redevelop the tip site but took the view that it would be inappropriate to do so if all the traffic had to pass along South Access Road and through the residential area. Accordingly it was decided to provide suitable means of access from the south to the relevant parts of the industrial area and to certain of the council facilities.
4. The principal elements in the programme were (i) the construction, as part of the Leyton Relief Road project, of a north-south spur, namely Argall Way, between Argall Avenue (East) and Lea Bridge Road, so as to connect the industrial area to Lea Bridge Road and the strategic road network; (ii) the widening and extending of Argall Avenue (East) and the construction of a new access road, known as the New Access Road, from the end of the extended Argall Avenue (East) to South Access Road; and (iii) the imposition of waiting and loading restrictions in Argall Avenue (East) so as to facilitate the flow of additional traffic along that road. There were other details that it is unnecessary to describe. The broad effect was to enable access from the south via Argall Way, Argall Avenue (East) and the New Access Road to parts of the industrial area and to certain of the council facilities that could previously be accessed only from the north via the Markhouse Avenue residential area and South Access Road.
5. The traffic order was seen as a final and necessary part of the programme. It would ensure that traffic to those parts of the industrial area which previously had access from the north would now have to use the new road links from the south, thereby achieving the desired improvement in amenity in the Markhouse Avenue residential area. Without it, moreover, traffic to those parts of the industrial area which previously had access from the south would now have the additional option of access from the north, thereby harming residential amenity in that area. It was therefore planned that completion of the junction between the New Access Road and South Access Road, i.e. the final element in the overall connection, would coincide with the coming into operation of the traffic order.
6. Decra is a manufacturing company which has been located in the Forest Business Park since 1989. At present, access to its premises is from the north, via South Access Road and Markhouse Avenue. The effect of the order will be to block off access from the north and to require Decra's staff and commercial vehicles to gain access from the south. Decra does not object to commercial traffic being prevented from gaining access from the north: it recognises the strength of the argument about the effect of commercial traffic on residential amenity. It objects strongly, however, to its staff being prevented from travelling to and from work along that route. It says that its current location was chosen in part because of convenient local access for its workforce, which was regarded as a key priority in maintaining the stability of the company. The majority of its staff live to the north. To require them to make a lengthy detour along the main road system, which is already heavily congested, in order to gain access from the south will greatly lengthen their journeys to and from work (typically by some 70 minutes a day). This is unacceptable to staff and has been cited by some as a reason for resignation. There is also concern about the safety of access along Argall Avenue (East), despite the measures to widen the carriageway and the imposition of waiting and loading restrictions. Furthermore Decra considers that the council has acted unfairly by deciding on closure of South Access Road at a point that will leave access to the council facilities from the north as well as from the south, as compared with an earlier proposal which would have precluded access to the council facilities from the north.
7. With that introduction I turn to examine the relevant history in greater detail.

Factual history

8. A report to the council's Land Strategy Committee dated 8 November 1995 recommended that a feasibility study be undertaken "to fully evaluate options for a highway link between the Argall Avenue Industrial Estate and South Access Road" in conjunction with the Leyton Relief Road project. Three route options were contemplated, the first of which was essentially what has now been implemented. The report stated that the proposal would allow road access to be severed between Markhouse Avenue and South Access Road and would provide massive safety and environmental benefits for the residents of the area. At that time it was contemplated that the closure would be near to the join between Markhouse Avenue and South Access Road, thereby precluding access to the council facilities from the north. The eventual point of closure, however, was further down South Access Road. The report further stated that the link and associated traffic management would have implications for the operation of the council depot and Forest Business Park, so that "any further development of the scheme would involve transportation modelling and environmental impact appraisal". The view eventually reached, however, was that no environmental impact assessment was required.
9. The Land Strategy Committee approved the feasibility study and an appraisal of the options was carried out. A further report to the Committee, dated 10 June 1997, dealt primarily with the remediation and development of the tip site but also dealt with the wider issues of access to the area. It referred to three main options, essentially as before but now contemplating closure of South Access Road at the new position so as to allow access to the civic amenity site and the sports ground from the north. Two further options were considered problematic and undesirable. The report recommended that there be formal consultation on options 1-3 with local businesses, residents, the council depot operators and others. The recommendation was approved.
10. There followed a consultation exercise which included the distribution of leaflets and the holding of public exhibitions to explain the proposals. At a meeting of 9 September 1997 the Committee required further consultation to be carried out because of the poor response from businesses. Further questionnaires were therefore delivered to businesses and further public meetings were held. As a result of comments made at a public meeting on 18 November 1997, option 1 was refined and the amended version became option 1c. Council officials visited local businesses. Mr Alan Campbell, a senior project engineer in the Environmental Services Department and the maker of the council's principal witness statement in these proceedings, states that he personally visited most of the businesses in Forest Business Park, including Decra. Decra's evidence confirms the meeting and states that at the meeting Decra's directors objected strongly to the closure and stated that none of the proposed routes was acceptable. They were told that their objections would be reported back to the committee making the decision.
11. At a meeting on 20 January 1998 the Land Strategy Committee decided that option 1c should be the preferred option but that meetings should be held with the businesses to finalise the scheme. The council accepts that this decision amounted to a commitment to some form of closure of South Access Road, but points out that that would have been so whichever option was preferred, since closure of South Access Road formed part of them all. Decra complains about the adequacy of the information presented to the Committee about the results of the consultation exercise, but I am satisfied on the evidence as a whole that members had copies of the written responses and a note of the meetings held, including the meeting with Decra, and that the decision was taken in knowledge of the objections that had been made.
12. The steps taken following the decision in favour of option 1c included an application for planning permission for the New Access Road and the construction of that road in 1999; and the promotion of a compulsory purchase order in respect of land required to widen the carriageway and provide loading bays along Argall Avenue (East). Decra relies on the fact that the inspector appointed to consider the compulsory purchase order recommended that the order should not be confirmed on the ground that the council had confined its consideration to option 1c and had failed to consider alternative routes properly, and that option 2b might be preferable. The Secretary of State, however, disagreed with the inspector and confirmed the order on 28 March 2001, stating that there was a compelling case in the public interest to acquire the land to permit the implementation of option 1c and that he was not convinced that any of the alternatives was preferable in the public interest. In the event the order was unnecessary since the council had acquired all the land by agreement in the meantime; and the day before the order was confirmed the council had granted authorisation for the works in Argall Avenue (East).
13. In February 2001, in the light of progress to date, the council informed the tenants of the Forest Business Park of plans for the final highway works and the proposed road closure. This led to representations from Decra, among others, criticising the proposed road closure and the way in which the council had decided on it. Between April and November 2001 there was extensive correspondence between Decra and the council. There were two public meetings, in July and October, each attended by Decra. Decra also suggested a number of alternative measures. In particular, it put forward and then amended an option that would allow car access across the closure by means of a width restriction and a barrier controlled by a security guard. This was subject to a detailed appraisal by the council's Mr Campbell but was considered unsatisfactory.
14. It was only after that process of consultation that the council, on 15 November 2001, made the draft traffic order now under challenge. Shortly before that decision Decra put forward another option, this time to allow car access across the closure by means of an automatic barrier operated by a swipe card. It followed this up in further correspondence in December 2001, giving a detailed criticism of the closure proposal and again putting forward its two alternative options (the security guard option and the automatic barrier option). I should mention in particular Decra's letter of 3 December 2001 in which, having voiced objections to the draft traffic order and advocated the two alternative options, Decra advanced arguments in favour of a public inquiry. It contended first that the council was under a duty to hold a public inquiry (a point not now pursued). In the alternative, it referred to the council's duty to consider the exercise of its discretion to hold a public inquiry, stating:

"It seems to me unquestionable that in the circumstances of this case an independent public inquiry should be held if the Council is minded to seek to implement the draft traffic management order for the following reasons:

1. the proposed order is highly controversial and unpopular per se;

2. we have put forward two reasonable and workable counter-proposals;

3. there is a recent precedent of the Council failing to properly consider alternative proposals – I refer to the Inspector's conclusions in his report regarding the 1999 compulsory purchase order inquiry;

4. by virtue of section 122 of the Road Traffic Regulation Act 1984 the Council has a statutory duty to exercise its traffic management functions under the Act 'so far as practicable having regard to (inter alia) (a) the desirability of securing and maintaining reasonable access to premises, to secure the expeditious, convenient and safe movement of vehicular and other traffic'. In our view the Council's proposal offends this statutory requirement whereas our counter-proposals do not. Surely it would be more appropriate, should it prove necessary to test this, that such an evaluation is at an independent public inquiry than in court proceedings;

5. by virtue of section 6(1) of the Human Rights Act 1998 it is unlawful for the council as a public authority to act in a way which is incompatible with a Convention right. By virtue of Article 6(1) of the Act, Decra has a right to a fair trial in the determination of its civil rights and obligations. Additionally, by virtue of Article 1 of the First Protocol to the Convention it has the right to the peaceful enjoyment of its property I am advised that a decision by an independent inspector may well accord with the protected rights, whereas the Council being 'judge in its own cause' would not;

6. the council has chosen the 'traffic management order route' from a range of statutory powers which it enjoys and could have utilised to seek to achieve what is, effectively, a road closure to vehicular traffic. Other powers which it could have used, but has chosen not to so use, would have involved a statutory right to compensation for those adversely affected, as well as scrutiny by an independent tribunal of what it proposed."

15. There followed further meetings between Decra and Mr Campbell at which the alternative options put forward by Decra were discussed but Mr Campbell remained unconvinced about their suitability.
16. A meeting of the council's Highways Scrutiny Committee on 13 March 2002 was attended by representatives of local businesses and local residents. Decra's representative was allowed to speak for 15 minutes. Local residents were also allowed to speak. The Scrutiny Committee voted to recommend that the draft traffic order be confirmed by the council's Cabinet.
17. A lengthy report was then prepared by Mr Campbell and other officers for the purposes of the Cabinet's meeting to consider confirmation of the order. The report recommended confirmation of the order. It described the proposal itself, the wider scheme of which it formed part and the implications for traffic flows. It referred to the alternatives considered, including the two options put forward by Decra, a detailed appraisal of which was included in a 10-page appendix to the report. There was also a summary of the consultation process. Members were informed that copies of the letters of objection and petitions had been placed with the secretariat for use by them. The points of objection were themselves summarised in a separate 15-page appendix (see below).
18. A section on legal implications included the following advice to members:

"The Local Authority Traffic Orders, Regulations 1996 requires consultation prior to making an Order. This process has been completed and objections have been received and considered. The Regulations state that an inquiry may be held before making an order to close the road, therefore, there is no obligation to do so. However a question remains as to whether the procedure laid down in the Regulations complies with Article 6 of the European Convention on Human Rights. Officers do not necessarily accept that the proposed road closure would involve determining any civil rights of objectors, but if it does the determination must be by an independent inspector and an impartial tribunal sitting in public. If the Council held its own public inquiry objectors would be able to put their points in public in adversarial proceedings with full procedural rights. However the inspector would report to the Council, which is neither impartial nor independent. A right of appeal to the High Court exists but this is confined to points of law. It could therefore be argued that the statutory procedures do not comply with Article 6: there is no reported case on this point. Nevertheless, the making of a Traffic Regulation Order would be more likely to comply with Article 6 if an inquiry were to be held than if one were not to be held."

19. The conclusion to the report stated that the proposed new access road and associated road closure had the potential to provide industrial traffic from a large area of industry in South Access Road with a purpose-built link to the Leyton Relief Road. Diverting commercial traffic away from its current route would greatly improve the environmental conditions in the Markhouse Avenue residential area. The proposal to implement a point closure in South Access Road had received a significant number of objections from the employers and employees from the industrial premises at the southern end of South Access Road and from residents of the Lea Bridge Road area. Whilst both alternative options put forward by Decra would bring about environmental improvements to the Markhouse Avenue residential area, they would not achieve the traffic reductions associated with the council's proposed scheme and they were not without their own practical problems. Another option that would allow limited access through the council's depot also failed to achieve the traffic reductions and had significant operational difficulties for the depot.
20. The summary of points of objection, contained in appendix A to the report, was a detailed analysis identifying and commenting on 74 separate points. I will concentrate here on three matters. The first concerns the arguments that the closure of South Access Road would give rise to lengthy additional journey times, in particular for employees of businesses in Forest Business Park, and would adversely affect the businesses' ability to keep and attract employees. Such points were covered in detail under various headings, including "Additional journey time" (point 1), "Erosion of personal leisure time" (point 3), "Increased congestion in Lea Bridge Road" (point 4), "Businesses less attractive to employees" (point 6), "Businesses would move out of the area" (point 8), "Increased lateness" (point 26) and "Employees would leave their employment" (point 74).
21. Secondly, in relation to the question of a public inquiry, it was stated under the heading "Called for review or public inquiry" (point 16) that:

"Officer Comment – Local Authorities Traffic Orders, Regulations 1996 Clause 9(1) states:-

'The Order making authority shall cause a public inquiry to be held before making an order to which paragraph (3) applies (this relates to loading and unloading vehicles) and may cause such an inquiry to be held before making any other order.'

Therefore under the Regulations the council does not have to hold an inquiry.

Human Rights Act 1998 Article 6 … [the text of the article was set out]

Should a public inquiry be held, the inspector would be appointed by the Council and selected from a panel of persons chosen by the Secretary of State to hold such inquiries. If a public inquiry is not held, a challenge could be made under the Human Rights Act 1998."

22. Thirdly, in relation to the argument that the council would be acting contrary to s.122 of the Road Traffic Regulation Act 1984 if the traffic order were confirmed, it was stated under the heading "Against section 122 of RTRA 1984" (point 36):

"Officer Comment – A Local Authority is under a duty to exercise any of their functions under the 1984 Act in such a way (so far as is practicable) as to secure the expeditious, convenient and safe movement of traffic (vehicles and pedestrians).

Regard has to be made for the desirability of securing and maintaining reasonable access to premises, the effect on the amenities of any locality affected and, 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, and any other maters appearing to be relevant.

Access to the premises will be maintained via Argall Avenue."

23. On 11 June 2002 the Cabinet decided to confirm the draft traffic order. Decra's evidence is that at the meeting the road closure issue was given very little time.
24. The traffic order was published on 2 July 2002 and was expressed to be made on that day and to come into operation on 22 July 2002. It defines a prohibited area across South Access Road and provides that no person shall cause any vehicle to enter the prohibited area. It does not apply to pedestrians and it contains an exception for pedal cycles. The order is accompanied by the statement of reasons that also accompanied the draft order, in these terms:

"As part of the overall Argall Avenue extension scheme approved by the Council, the closure of South Access Road just to the south of the access road leading to Low Hall Sports Ground is required in order to protect the Markhouse Avenue residential area by removing industrial traffic accessing Allied Bakeries, TRS International Foods Limited and Forest Business Park.

Now that the Leyton Relief Road has been completed and opened, this industrial traffic can now use Argall Avenue, Argall Way and the interchange at Lea Bridge Road to gain access to the Relief Road, the M11 Link Road and the rest of the motorway network.

The removal of traffic generated by the above-mentioned industries from the Markhouse Avenue residential area is essential in order to improve the environmental conditions for the residents in this area and the continued use of the area by industrial traffic would be against the principle of the overall scheme and the transport policy set out in the Unitary Development Plan. Improved air, noise and dust pollution will be gained by the residents in the area as well as improved road safety.

Residents from the Markhouse Avenue area must still be able to access the Civic Amenity/Recycling Centre site and Low Hall Sports Ground and therefore the road closure has been located south of the access points to these sites.

Pedestrian access will be unaffected by the closure and northbound cyclists will be exempt from the closure and will be able to use a dedicated cycle gap located adjacent to the kerb. Southbound cyclists will be able to use a dedicated cycle track lying to the south-east of the closure on the pavement."

25. On 4 July 2002 Decra wrote to complain about the confirmation of the traffic order and stated inter alia that of particular concern was the council's position with regard to holding a public inquiry. The letter restated the arguments previously advanced as to the existence of a duty to hold a public inquiry and/or the duty to consider the exercise of the council's discretion to hold such an inquiry. If the council's decision was not to hold a public inquiry, the letter asked for the council's reasons. The council's reply dated 11 July 2002 referred to the relevant passages in the report to Cabinet, which I have already quoted, and stated:

"The Cabinet was therefore made aware of the option to call for a public inquiry. The Cabinet having been informed of the points in favour of the road closure and the objections to it, confirmed the road closure order and chose not to call for a public inquiry in this case."

26. Similar points were made in a further letter dated 17 July 2002 in response to a letter before claim from Decra's solicitors.
27. The consideration that was given to the question of a public inquiry has recently been elaborated in a witness statement of Mr Anthony Buckley, Leader of the Council and Chair of the Cabinet. I deal later with the correct approach to his evidence. What he says in relation to a public inquiry is this:

"I read the report carefully, including the analysis of the objections and the comments about calling an inquiry …. I discussed the report with my fellow Councillors. It was clear to me that they had read it also.

I was in any event familiar with the objections that had been made to the proposals. In particular I was very familiar with the stance of Decra, having attended the meetings in 2001 referred to above.

I fully understood that the Council had discretion whether to call an inquiry or not …. However, I considered that I could properly take into account the representations that had been made by objectors and could weigh those against the case for a closure on the basis of the material that was presented in the report. This was why I voted to confirm the Order without holding an inquiry.

In coming to this view I was certainly influenced by the careful analysis of the technical aspects of the Decra counter-proposals by officers. However, I fully appreciated that Decra did not agree with the views of officers for the reasons set out in their representations.

I reached my view on these matters following my discussions with fellow Councillors and Officers, before the vote. It is my firm belief that they shared this view."

28. In addition to the traffic order effecting the closure of South Access Road, separate orders were made to impose waiting and loading restrictions on Argall Avenue (East). Drafts of the orders were made on 6 June 2002 and the orders were confirmed on 19 July 2002. Those orders are not under challenge. It is, however, relevant to note that Decra has criticised conditions in Argall Avenue (East) and in these proceedings has adduced a substantial body of photographic and other evidence in support of its criticisms. What is said is that even after the road has been widened and the loading and waiting restrictions have been put in place, the road is simply not wide enough to ensure that the carriageway is left clear when lorries are parked there and are being loaded and unloaded. This goes to concerns previously expressed about the safety of traffic using the road to access Decra's premises and forms an additional facet of the complaint about the council's decision to confirm the traffic order and thereby to require all traffic to use that route.
29. Decra also complains about the fact that the location of the closure point means that council vehicles and council employees in their private cars can still gain access to the council facilities from Markhouse Avenue and South Access Road even though businesses in Forest Business Park are denied use of that route for their employees and commercial vehicles. The officers' report stated (appendix A, point 7) that all of the council's operational vehicles would use Argall Avenue once new security arrangements were in place. Decra says that such vehicles are in practice still using South Access Road; and detailed evidence has again been provided in these proceedings. The council's response is that this is permitted only where that is the obvious route, e.g. to mow the grass in the sports ground or to visit the school in South Access Road. Whatever the factual position on that may be, it is common ground that council employees in their cars are still able to travel to and from work along the route which, by reason of the traffic order, is now closed to Decra's employees.

The grounds of challenge

30. Mr Moys advanced four main grounds of challenge: (1) the council erred in law in using powers under the Road Traffic Regulation Act 1984 ("the 1984 Act") rather than using powers for stopping up the highway under the Highways Act 1980 ("the 1980 Act"); (2) it acted unlawfully in failing to hold a public inquiry before making the order and/or in failing to give reasons for not holding a public inquiry; (3) it acted in breach of its duty under s.122 of the 1984 Act, in particular by failing to consider whether Decra would have reasonable access to its premises if the order were made; and (4) it was biased and/or acted unfairly and/or in breach of legitimate expectation.
31. In relation to (4), and by way of backdrop to the submissions generally, I should make clear that it did not form any part of Decra's case before me that the decision was made in breach of Article 6 of the European Convention on Human Rights, whether by reason of the lack of public inquiry or otherwise. Although the claim forms and skeleton arguments referred to alleged breaches of the Human Rights Act 1998, at the hearing Mr Moys expressly disavowed any reliance on them. He indicated that Decra did not wish to complicate and lengthen the case by developing arguments in that complex area. On behalf of the council, Mr Langham advanced the positive case, which in the circumstances he did not need to develop, that there was no breach of Article 6, and he relied in particular on the reasoning of the Court of Appeal in R (on the application of Adlard) v. Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 671. On the face of it, the council's case on this issue is a strong one and in my view Mr Moys was sensible not to pursue any argument under Article 6.

(1) Error of law in using 1984 Act

32. The gist of Mr Moys's first submission was that the council misconstrued and/or abused its powers by making an order under the 1984 Act. What the traffic order seeks to do is to effect a road closure at a specific point, and the proper and usual course in such a situation would have been to proceed under the 1980 Act for a stopping-up order. An application for a stopping-up order would have been determined by a magistrates' court and that would have given Decra the opportunity to challenge the proposal before an independent tribunal.
33. I have no hesitation in rejecting that submission, for the following reasons. First, Mr Moys conceded in oral argument that the traffic order was made for a purpose falling within s.6 of the 1984 Act (though he had contended to the contrary in his skeleton argument). The concession was plainly correct. The order was made "for controlling or regulating vehicular and other traffic" and therefore fell within the general terms of s.6(1); and, so far as concerns particular purposes referred to in that subsection, it was made inter alia "for preserving or improving the amenities of the area through which the road runs" (see s.6(1)(b) and s.1(1)(f)). Since the order fell within the powers of the 1984 Act, it is difficult to see how it can have been erroneous in law to make the order under that Act.
34. Secondly, although Padfield v. Minister of Agriculture, Fisheries & Food [1968] AC 997 was cited, it was not explained by Mr Moys how the making of the order under the 1984 Act could be said to have been contrary to the policy or purposes of that Act. Nor was the case advanced on the basis that the order was made under the 1984 Act rather than the 1980 Act for the ulterior purpose of avoiding independent scrutiny of the proposal. In any event the evidence could not support any such contention.
35. Thirdly I accept Mr Langham's submission that, contrary to the premise upon which Mr Moys's argument rested, the result achieved by the traffic order could not have been achieved by a stopping-up order under the 1980 Act. Section 116(1) of the 1980 Act provides:

"Subject to the provisions of this section, if it appears to a magistrates' court … that a highway … as respects which the highway authority have made an application under this section -

(a) is unnecessary, or

(b) can be diverted so as to make it nearer or more commodious to the public,

the court may by order authorise it to be stopped up or, as the case may be, to be so diverted."

36. In this case, although what was proposed was frequently described in general terms as a "road closure" or a "closure order", the order did not involve either stopping up the highway or diverting it. What it involved was the regulation of rights over the highway, so as to prevent most vehicular access across the "closed" area but to leave pedestrian access unaffected and to make an exception for pedal cycles going north (with a separate cycletrack to the side for southbound cyclists). Accordingly an order regulating traffic under the 1984 Act was appropriate whereas a stopping-up order under the 1980 Act was not.

(2) Failure to hold a public inquiry

37. The submissions under this head relate to regulation 9(1) of the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, which provides that:

"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."

38. It is now common ground that paragraph (3) did not apply to the order and that there was therefore no duty to hold a public inquiry. But Decra's case is that the council erred in relation to its discretion to hold such an in inquiry. This is one of Decra's principal grievances in relation to the traffic order. It is said that given the highly controversial nature of the proposal and the matters relied on by Decra as indicating bias and unfairness on the part of the council, the matter cried out for independent and objective assessment, so that Decra would have the opportunity to put its case and to challenge and test the council's case; and Decra had requested such an inquiry in clear terms.
39. There were three elements to Mr Moys's submissions: (i) the council failed to consider whether in all the circumstances it would be appropriate to exercise its discretion to cause a public inquiry to be held; (ii) if it did consider that question, its decision was perverse; and (iii) it failed to give reasons for its decision.
40. As to the first point, there was said to be no evidence that the councillors who took the decision applied their minds to the question whether they should exercise their discretion to cause a public inquiry to be held. The question should have been the subject of anxious and careful scrutiny, yet the report before them did not draw attention to the request for an inquiry or to the factors for and against such an inquiry. Nor did it seek a decision on the issue. The recommendation was simply for a decision to confirm the draft order. There was no basis for inferring that the councillors, in accepting that recommendation, addressed their minds to the question of a discretionary inquiry and weighed up the relevant requirements. The fact that discussion of the proposed order took only a few minutes also told against their having done so. The court should treat with extreme caution the ex post evidence of one councillor, Councillor Buckley, as to his understanding that the council had a discretion whether to call an inquiry or not and the reasons why he voted to confirm the order without holding an inquiry: cf. R v. Westminster Council, ex parte Ermakov [1996] 2 All ER 302, R (on the application of LPC Group plc) v. Leicester City Council [2002] All ER (D) 261 and R v. Carrick District Council, ex p. Shelley [1996] Env LR 273.
41. The second and to some extent related element of Mr Moys's submissions under this head was that any decision not to hold an inquiry was perverse. Not only were there conflicting views to be assessed and a balance to be struck, but there was a problem of bias, or the risk of the appearance of bias, if the council reached a decision without the independent appraisal that a public inquiry would bring. All of that made it unreasonable not to decide on a public inquiry: cf. Binney v. Secretary of State for the Environment [1984] JPL 871. There was moreover no evidence that the council had evaluated such considerations before coming to a decision. Its approach appeared to be that there was no point in having an inquiry since it would not have to adopt any recommendation that an inspector might make following such an inquiry.
42. The final element of Mr Moys's submissions under this head was that, if the council did consider the matter and decided not to hold a discretionary inquiry, it acted unlawfully in failing to give reasons for that decision. The council was under a common law duty to give reasons but did not do so either at the time or in the later correspondence. Again the late witness statement of Councillor Buckley, in so far as it purported to give reasons for the decision, should be viewed with extreme caution.
43. For the council, Mr Langham submitted first that Decra's concession that the decision not to hold an inquiry was compatible with Article 6 should inform the court's assessment of the complaint made about unfairness. The fact that the council itself was affected by the decision to be taken did not make it necessary for an independent inquiry to be held before the decision was taken. The alleged unfairness of the council taking a decision in such circumstances could not avail Decra.
44. Mr Langham further submitted that what was said in Binney must be read in the light of the particular statutory context, which created a presumption in favour of an inquiry. A decision relevant to the present statutory context, albeit under predecessor legislation, was GLC v. Secretary of State [1986] JPL 513, which showed that a decision as to the holding of an inquiry can be interfered with only on Wednesbury grounds (a point that was not in dispute before me). In the present case the councillors had before them an officers' report which analysed the objections, including the call for a public inquiry. The actual letters of objection were available to them. Para 7.2 of the report made it abundantly clear that the councillors had the option of having a public inquiry and indeed suggested to them that it would be safer to have one from the point of view of compliance with the Human Rights Act (advice that was written before the outcome of Adlard was known). It was obvious that an inquiry, if held, would consider the objections that had been raised. The councillors, in deciding to confirm the order in accordance with the recommendation made in the report, must have considered and rejected the option of holding an inquiry. The court could safely reach that conclusion on the basis of the contemporaneous material.
45. Mr Langham relied on the evidence of Councillor Buckley as confirming and reinforcing that conclusion. He submitted that Ermakov, LPC and Shelley were all distinguishable and did not stand in the way of reliance on the evidence of Councillor Buckley. Nor should the timing of the evidence be held against the council, given that Councillor Buckley was responding to a specific point in the third witness statement of Mr Matthews of Decra and the alleged failure to consider an inquiry had not previously been flagged up clearly among the many points raised by Decra. Councillor Buckley was one of the decision makers and stated in terms that he had considered the question of a public inquiry. There was no duty to give reasons for deciding against an inquiry, but in any event he did give a sound reason why he had voted in favour of confirming the order without an inquiry.
46. As to the reasonableness of the decision not to hold an inquiry, Mr Langham pointed to the exhaustive consultation exercise, not limited to the statutory period but going back long before the publication of the draft order in November 2001. Objectors had been given a full opportunity to put their case, including the alternative options advanced by Decra, and councillors were well informed about the objections and the alternatives proposed. Councillors were in a position to weight the competing arguments, just as Councillor Buckley considered he could do. Even if an inquiry had been held, at the end of the day the councillors would have had to carry out that balancing exercise themselves in order to reach a decision that was vested in them. They plainly had a choice not to hold an inquiry and could not be said to have acted unreasonably in deciding against an inquiry.
47. My conclusions on those submissions are as follows. First, I reject Decra's case that the councillors failed to consider the exercise of their discretionary power to cause a public inquiry to be held. The officers' report called their clear attention to the existence of a discretion to hold an inquiry and went so far as to advise in favour of such an inquiry in order to reduce the council's exposure under the Human Rights Act (para 7.2 and appendix A, point 16). It also explained that an inquiry would be conducted by an inspector selected from a panel chosen by the Secretary of State and would enable objectors to put their points in public in adversarial proceedings, albeit that the inspector would still report to the council (point 16). The councillors must be taken to have read and considered the contents of the report upon which their decision was based. The clear inference to be drawn is that they understood that they had a discretion to cause a public inquiry to be held and considered whether there should be an inquiry, but decided against an inquiry and in favour of confirming the order forthwith.
48. It is true that the passages dealing with the discretion to hold a public inquiry and the call for such an inquiry did not summarise in terms all the arguments put forward for such an inquiry. But all such matters were covered sufficiently in the report and its appendices and it has not been shown that the councillors failed to take into account any specific consideration relevant to the decision whether to proceed to confirm the order without a public inquiry. In particular, to take the matters raised in Decra's letter of 3 December 2001 (quoted above), it must have been obvious to everyone that the proposed order was controversial and unpopular in some quarters; councillors were given details of Decra's alternative options and a detailed appraisal of them; they were reminded (at point 49 of appendix A) that the compulsory purchase order inspector had criticised the lack of consideration of alternatives; and they were told of points made on s.122 of the 1984 Act (point 36), the Human Rights Act (see above) and the existence of alternative powers (point 50) - points which in any event have either not been pursued or are rejected in this judgment.
49. The evidence of Councillor Buckley is not necessary for the purposes of the conclusion I have reached but I accept Mr Langham's submission that it goes to confirm and reinforce that conclusion. Plainly the court must view with care late evidence of this kind. As explained below, however, the authorities on the admission of subsequent evidence as to reasons do not in my view stand in the way of taking account of Councillor Buckley's evidence as to the reasons for the decision not to hold a public inquiry in this case; and that must apply a fortiori to the admission of evidence as to whether the discretion to hold a public inquiry was considered at all. On that issue it is in principle open to the council to adduce evidence in the course of a subsequent legal challenge; and in the circumstances of the case, where the council was faced with a large number of evidential points, many of them poorly focused, it is understandable that the matters covered by Councillor Buckley were not dealt with specifically until the issue was brought into focus by remarks in the third witness statement of Decra's Mr Matthews. Councillor Buckley makes clear that he fully understood that the council had a discretion whether to call a public inquiry or not. Although his is only one voice, it is that of the Chair of the Cabinet and he states that he reached his view following discussions with fellow councillors and it is his firm belief that they shared his view. That evidence is consistent with the contemporaneous material and would be sufficient to dispose of Decra's case on this issue even if the contemporaneous material did not itself do so.
50. I can deal more quickly with the argument on irrationality. I reject the submission that the decision not to hold a public inquiry was Wednesbury unreasonable. In the light of the very lengthy history, the exhaustive consultation exercise and the analysis that had been made of representations received, councillors were very well informed of the advantages and disadvantages of the proposed order as well as of the alternative options put forward by Decra. They were in a position to evaluate the competing arguments, as ultimately they would have had to do in any event since the eventual decision would be theirs whether or not there was a public inquiry. It was entirely reasonable in all the circumstances to decide not to hold a public inquiry.
51. The decision in Binney, upon which Mr Moys placed heavy reliance, does not lead me to any different conclusion. The statutory context in Binney was a duty to hold a public inquiry subject to a power to dispense with one if the minister was satisfied that in the circumstances of the case the holding of an inquiry was unnecessary (Highways Act 1980, schedule 1, para 7). The factual context was the proposed construction of a dual carriageway through an historic park, Highclere. Webster J held that ministers had misdirected themselves as to the factors which they should have taken into account in deciding whether they could be satisfied that a public inquiry was unnecessary and that no ministers properly directing themselves as to that question on the material before them could have been satisfied that no public inquiry was necessary. Mr Moys referred in particular to a passage at 873-4, where it was stated inter alia:

"In his judgment, a Minister, properly directing himself and acting reasonably, could not be satisfied that a public inquiry was unnecessary unless he was satisfied of at least two things, namely, that without a public inquiry he could properly weigh any two or more conflicting issues and, secondly, that those with the right to make representations could have their representations properly taken into account ….

Where issues which were raised by the proposals and objections were confined to issues between one individual and another, or where they only affected a few individuals without to any material extent any group of the public having any genuine public interest, it seemed very likely that the Minister concerned could be satisfied, properly directing himself, that a public inquiry was not necessary. But in this case there were two groups each with general public interests; the local residents interested in safety and protection from noise, and those members of the public interested in Highclere, both because of their interest in its historical features and because of their right of access to part of it. He did not see how any reasonable Minister could have been satisfied that he could weigh those conflicting interests without the benefit of a public inquiry at which the two groups in conflict would, in a sense, be confronted with each other and at which witnesses, including expert witnesses, would be heard and cross-examined so that an inspector who heard all the evidence and representations could marshal and weigh it all and report on it to the Ministers. Nor did he see how in this case … it would be possible reasonably to have decided that those with the right to make objections could have those objections properly taken into account without the holding of a public inquiry."

52. Strongly expressed though the judgment was, it was a judgment on a particular set of facts and in the context of what was in effect a statutory presumption in favour of an inquiry. The conclusion reached cannot be carried across automatically to the circumstances of the present case where there was no presumption in favour of an inquiry and, although the proposed traffic order had given rise to substantial controversy and there were at least two groups with conflicting interests (the residents of the Markhouse Avenue area and the businesses of Forest Business Park), the councillors could reasonably take the view that they were in a position to weigh the arguments and that objectors had been given ample opportunity to voice their objections and their objections could be taken properly taken into account without a public inquiry.
53. As to Mr Moys's arguments on unfairness and bias, to which I make further reference under ground (4), it suffices to state here that in my judgment the matters relied on by Decra did not make it unreasonable for the council to proceed to confirm the traffic order without holding a public inquiry.
54. I turn finally to the submission that the decision to confirm the order should be quashed for failure to give reasons for not holding a public inquiry. In my view the argument does not get off the ground. There is no statutory duty to give reasons for a decision under regulation 9(1) of the 1996 Regulations as to the holding of a public inquiry. That is to be contrasted with an express requirement in the same Regulations to make available for public inspection a statement of reasons for the proposed order itself (regulation 7(3) and para 2(d) of schedule 2). The existence of an express requirement to give reasons under regulation 7(3) tells against the implication of a requirement to give reasons for a decision under regulation 9(1). Further, although Mr Moys baldly asserted that there was a common law duty to give reasons, he did not cite, let alone analyse, the authorities on the duty to give reasons at common law. There is still no general duty to give reasons; and although the context will frequently be found to require the giving of reasons as a matter of fairness, it does not seem to me that that is so here.
55. I do not think it necessary to go further into that issue since the basic reason for the decision is apparent in any event from Councillor's Buckley's evidence, namely that it was considered that the competing arguments could be properly taken into account and weighed without holding an inquiry. In my judgment it is permissible and appropriate to have regard to that evidence. The context is materially different from that in R v. Westminster City Council, ex parte Ermakov, where there was an express statutory duty to give reasons at the same time as the decision was communicated and the court held that the court should be very cautious about admitting evidence to elucidate, correct or add to the reasons given: the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. In this case there is no such express statutory duty and there can be no suggestion that Councillor Buckley's evidence seeks to alter or contradict anything said at the time of the decision.
56. Much closer to the present case is the decision in R (on the application of LPC Group Ltd) v. Leicester City Council, which concerned a challenge to an order imposing waiting restrictions. The main issue was whether the council had had proper regard to the matters set out in s.122(1) and (2) of the 1984 Act, an issue considered in the present case under ground (3) below. Sir Christopher Bellamy QC, sitting as a deputy judge of the High Court, held that relevant matters had not been taken into account and that the relevant balancing exercise had not been carried out. Citing Ermakov, he held that the question whether the council took relevant considerations into account had to be ascertained primarily from the statutory statement of reasons for the proposed order, i.e. the statement under para 2(d) of schedule 2 to the 1996 Regulations (see paras 61, 71 and 73 of the judgment). Two witness statements filed in the proceedings were effectively discounted, on the grounds that they did not come from the decision maker and there was no evidence that the matters referred to in them came to the attention of, or were borne in mind by, the decision maker (para 74), they did not show that a proper balancing exercise was ever carried out (ibid.), and "[a]s a matter of law …, 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 …, 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" (para 75). In my view that decision is distinguishable first on the basis that it was concerned with the reasons for the substantive decision, where there was a statutory duty to make available a statement of reasons for the proposed order, and secondly because the later witness statements did not come from the actual decision maker and did not sufficiently cover all the relevant matters; whereas here, as stated above, there was no statutory duty to give reasons for the decision as regards a public inquiry and Councillor Buckley's evidence comes from one of the decision makers, gives his reasons for deciding against a public inquiry and refers to his discussions with other councillors and his belief that they shared his view.
57. R v. Carrick District Council, ex p. Shelley is also readily distinguishable. The court was concerned with a council resolution not to take action in relation to an alleged statutory nuisance. In construing the resolution the court had regard to the terms of the resolution itself and to a report referred to in it, but declined to take into account an affidavit served in the course of the proceedings. As Carnwath J stated at page 283, that evidence "cannot alter the effect of the resolution". That situation is far removed from the circumstances of the present case and in my judgment does not assist the claimant's case.
58. For those reasons Decra fails in respect of each of the matters advanced under ground (2).

(3) Breach of s.122 of the 1984 Act

59. Section 122 of the 1984 Act provides:

"(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 …."

60. In UK Waste Management Ltd v. West Lancashire District Council [1997] RTR 201, Carnwath J observed at 209C-D that s.122 is not 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. For the purposes of his decision, however, it was sufficient for him to proceed as follows (209F-G):

"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."

61. On the facts of the case he held that the traffic authority had paid lip service to the problem of access to the relevant site but had made no attempt to grapple with it and to resolve the serious difficulties which the order would create. He therefore quashed the order under challenge.
62. That approach was followed in LPC Group Ltd (see in particular paras 58-59 of the judgment). As already mentioned, the court held on the facts of the case that relevant matters had not been taken into account and that no balance had been struck between the statutory considerations.
63. Mr Moys contended that the council in the present case was likewise in breach of duty by failing to consider the issues arising under s.122, in particular the question of reasonable access to Decra' premises, or to carry out the balancing exercise between the statutory considerations. Decra has accepted that industrial vehicles should not pass through the residential streets, but complains about the difficulties of access for its staff. It complains here too about the council's alleged lack of even-handedness, given that the council's commercial vehicles and staff are still able to get access to the council depot through the residential area. As to the evidence, Mr Moys observed that the statutory statement of reasons accompanying the order itself did not deal with the question of access to Decra's premises. He submitted that there was nothing in the report to the council or other contemporaneous documents to show that the council gave any proper thought to the matter. Nothing was said about it at the meeting. The councillors did not ask themselves what would constitute reasonable access or whether there would be reasonable access, or strike a balance between that and other considerations; they simply confirmed the order. Nor did any different picture emerge from the council's letters to Decra after the decision was taken.
64. If, contrary to those submissions, it was found that proper consideration had been given to the issues arising under s.122, then Mr Moys accepted that he was not advancing a Wednesbury challenge in respect of the decision reached, though he submitted that the decision verged on the perverse. In that connection he placed particular emphasis not just on the closure of South Access Road but on the unsatisfactory conditions said to prevail in Argall Avenue (East).
65. In response, Mr Langham submitted that the issues arising under s.122 were clearly considered by the council. There was brief but sufficient specific reference to the section in the officers' report (see appendix A, point 36). Moreover questions of access and other considerations falling to be addressed under s.122, in particular the question of amenity in the residential area, were covered extensively in the report and, even though not expressed in terms of s.122, plainly underlay the decision. The entire report was concerned with balancing the competing considerations and the necessary balance was struck. The statement of reasons accompanying the draft order must be read with the officers' report (the situation was different from LPC, where only the statement of reasons was relevant); but in any event those reasons referred expressly to the general question of provision of access as well as to the benefits to residents.
66. As to reasonableness, Mr Langham submitted that it was obvious that the order was justified. It was also material that careful consideration had been given to the alternative proposals put forward by Decra but officers had identified sound road traffic objections to each. This meant that the council did not have a middle way before it, making the course adopted all the more obviously reasonable.
67. As to detailed points raised by Mr Moys, Mr Langham submitted that the position of the council depot was wholly irrelevant to this issue: the question was whether consideration had been given to reasonable access to Decra's premises, rather than whether the council depot had better access. Moreover, although Decra might feel aggrieved by depot management decisions to allow some vehicles to have access via South Access Road, that was not a matter before the court and did not go to the lawfulness of the order. Although complaints were made by Decra about conditions in Argall Avenue (East), there had been a technical assessment of the position, taking into account Decra's submissions, and it had been concluded that the route was acceptable once widened and made subject to waiting and loading restrictions. The fact that Decra accepted that the new access road provided reasonable access for its lorries was itself highly material. In any event the judgments made were reasonably open to the council. The council acknowledged that there was congestion on the main road network and that Decra staff would suffer delay, but it was legitimate to direct them onto the main road network and to deprive them of the opportunity to make a short cut to work through a residential area. The circumstances of this case were factually very different from those in UK Waste Management and LPC.
68. Mr Langham also relied on the observations of the Court of Appeal in Freight Transport Association v. Berkshire County Council [1981] RTR 95 on the question of reasonable access. For example, in rejecting a contention that the council had failed to have due regard to the desirability of ensuring that local traffic had access to premises inside the regulated area, Lord Denning stated (at 102K):

"Access is not forbidden altogether; it is regulated; and the weight to be given to these matters is for the council alone."

69. In similar vein, Waller LJ expressed his agreement with Lord Denning in these terms (at 106B):

"Indeed, as [counsel] pointed out in the course of the argument, there is access to all premises in the area, albeit that it may sometimes take rather longer in approaching them, but the access is there."

70. I accept Mr Langham's submissions. In particular, although express reference to s.122 in the officers' report was relatively brief, it mentioned the essential matters to be considered and the report dealt with the substance of those matters elsewhere. Thus it is clear that consideration was given to the desirability of securing and maintaining reasonable access to premises, including Decra's premises. The provision of an alternative means of access to those premises via Argall Way, Argall Avenue (East) and the New Access Road was integral to the programme of which the closure of South Access Road formed the final element. It is also clear that a balance was struck between the relevant considerations and in particular that the improvement of residential amenity was considered to outweigh the disadvantages attendant upon the alternative route. There was no breach of the duty under s.122.
71. I have referred to the officers' report because in my view it is must be permissible for the court to look at that report in determining what was or was not considered by the council in reaching its decision. Whatever may have been the position in LPC Group Ltd on its particular facts, there is no warrant for confining attention in the present case to the statutory statement of reasons that accompanied the order: it would be highly artificial to ignore the report, which was plainly a key document. It is also material to note that Councillor Buckley states in his witness statement that he read the report carefully and that he discussed it with other councillors and it was clear to him that they had read it too.
72. It is true that, as accepted in the council's letter to Decra of 11 July 2002 (responding to Decra's objections to confirmation of the traffic order), the point of objection relating to the safety of conditions in Argall Avenue (East) was not included in the report. But that concern had been considered previously by the Land Strategy Committee and had been taken into account in the decisions to widen the road and to make orders imposing waiting and loading restrictions there. The council plainly took the view that with those measures in place the road provided a safe means of access to Forest Business Park. I am satisfied that the report's omission of reference to that concern did not result in a failure to consider the question of reasonable access to Decra's premises or otherwise give rise to a breach of the council's duty under s.122.
73. Once it is found that the s.122 issues were considered by the council, this ground of challenge must fail, since Mr Moys fell short of contending that the conclusion reached was Wednesbury unreasonable. I should nonetheless indicate that I also accept Mr Langham's submissions on that question. In my judgment it cannot possibly be said that the conclusion in this case was one that no reasonable council could have reached. The fact that access to the council facilities remained possible via Markhouse Avenue and South Access Road does not support the inference that access to the industrial area via the new route is not reasonable access. The factual dispute about the extent to which council lorries continue to use South Access Road is in my view irrelevant. The assessment that it was safe to use Argall Avenue (East) has not been shown to be unreasonable. Here too I doubt whether the evidence submitted by Decra to this court about the extent of parking, loading and unloading in the carriageway after the waiting and loading restrictions took effect is strictly relevant, since the lawfulness of the council's decision must in principle be determined by reference to the material that the council had before it; but even if I do have regard to that evidence, it does not satisfy me that the route was unsafe or incapable of providing reasonable access. Further, as Mr Langham observed, Decra itself accepts that the route provides reasonable access for commercial traffic; and although there are differences between commercial traffic and private cars, they have not been shown to be such that the route can reasonably be regarded as safe for one group but unsafe for the other.
74. Finally, I would observe that the facts of the present case are far removed from those under consideration in UK Waste Management and LPC Group Ltd and that in my view the claimant is not assisted by the actual result in those cases. I have not thought it necessary to rely on the citations from Freight Transport Association, but they tend in favour of the council's position and again cannot in my view assist Decra.
75. I therefore find against Decra on this ground too.

(4) Unfairness

76. Mr Moys made clear in oral argument that the matters complained of under this head were not said to be sufficient in themselves to lead to the quashing of the decision. They were part or the context and background and were relied on as underlying or reinforcing the earlier submissions, especially in relation to the holding of a public inquiry and the question of reasonable access. The central point was that the council had adopted an order under which it retained advantages that it had denied to Decra and others. It was thereby acting as judge and jury in its own cause. Further, if the effect of the order was to give Decra reasonable access, why had the council not followed the same course for its own staff? By imposing on others a situation that it was not willing to impose on its own staff, it was acting unfairly and highlighting the point that others were not in fact being given reasonable access.
77. I have referred to those arguments in considering the previous grounds and have concluded that they do not materially assist Decra's case. It should be stressed that there is no evidence that the location of the point of closure was chosen in order to give the council any form of advantage. The evidence is that the reason for moving the location from that originally identified in 1995 was to enable residents to access the civil amenity site and the sports ground. That was a wholly unobjectionable reason for the choice of location. The fact that access to the council facilities can be obtained via the former route as well as via the new route could not vitiate the decision to confirm the order. In so far as the council has an interest in the subject matter of the order, that does not preclude it from taking a decision either under Article 6 ECHR or under ordinary principles of domestic law. Although counsel cited a number of cases on domestic law (in particular Steeples v. Derbyshire County Council [1985] 1 WLR 256 and R v. Hereford and Worcester County Council, ex parte Wellington Parish Council [1996] JPL 573), the way that Decra eventually put its case under ground (4), advancing no distinct ground of unlawfulness under this head, makes it unnecessary for me to examine them here.
78. Similarly I need do no more than briefly record a further argument that appeared in Mr Moys's skeleton argument but did not appear to be pursued orally, namely that it was a breach of legitimate expectation to proceed without an environmental impact assessment. That was based on the statement in the officers' report to the Land Strategy Committee in 1995 that any further development of the proposed scheme would involve environmental impact appraisal. I am satisfied that such a statement was incapable of giving rise to a legitimate expectation that an environmental impact assessment would be carried out, let alone one that it could be relied on as rendering the confirmation of the traffic order unlawful.

Conclusion

79. I am conscious that I have not covered every point raised. A line must be drawn somewhere. The range and detail of the evidence put in by Decra and referred to in the course of Mr Moys's submissions came perilously close to inviting the court to engage in an impermissible review of the merits of the council's decision and tended to obscure rather than to illuminate the essential legal issues.
80. In any event, for the reasons given in this judgment the claims are dismissed.