England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		2 April 2003

Introduction
1. THE DEPUTY JUDGE: This is an application under paragraph 35 of schedule 9 to the Road Traffic Regulation Act 1984 (the 1984 Act) to quash three orders made by the defendant on 11 December 2002, namely: (1) the Barnet (Prescribed Route)(No.1)(Revocation) Traffic Order 2002; (2) the Barnet (Weight Restriction)(No.1) Traffic Order 2002; and (3) the Barnet (20mph Speed Limit) (No.7) Traffic Order 2002, which I will refer to collectively as "the Orders".
2. In the claim form an application was made on behalf of the claimant, which is an unincorporated association of local residents, for an interim order suspending the Orders under paragraph 36(1)(a) of schedule 9 to the 1984 Act. After a contested oral hearing on 20 January 2003, Hooper J made that interim order, which is in the bundle at tab 1, page 43, until the final determination of the substantive application, which came before me and was heard on 26 and 27 March 2003.

Preliminary remarks

3. Before I turn to the facts and the issues which arise before me, I should explain the role of the court in cases of this kind, not least because it was evident to me that the case is of some public interest in the area of Barnet. The court is not and cannot be concerned with political disputes, still less party political disputes. Nor can it interfere with the decisions of democratically elected local authorities to which statutory functions are entrusted by Parliament simply because others may disagree with them. At the same time, the court is charged with maintaining the rule of law and will do so without fear or favour, even if the result may not be to the liking of democratically elected politicians.
4. In a mature democracy, such as Britain, the rule of law is as important a part of our constitution as is the right of the people and their representatives to exercise political power. Not everything that politicians do is lawful. Public authorities, such as the defendant, are accountable to their electorates for the merits of their policies and their decisions; but they are accountable to the law for the legality of their actions.
5. While the court, therefore, does not sit as a court of appeal against the merits of such measures as the Orders under challenge in this case, equally it will not shrink from its task of reviewing those measures, in order to see whether the principles of public law have been complied with. Those principles are well-known and were common ground between the parties, namely that the Orders must have been made in a way which is lawful, which is in accordance with procedural requirements and which must be rational.

Factual background

6. I will first describe the nature of Partingdale Lane, which lies within the area of the defendant local authority. I can do this, first, by reference to the witness statement of Mr Simpson on behalf of the claimant, he being its chairman. At paragraph 3 of his first witness statement Mr Simpson says this:

"Partingdale Lane is a pleasant country lane, a little over half a mile long, bordered by fields and woods along part of its length. It is in the Green Belt. Along other parts of the lane there are houses. The houses are built on the edge of the lane and we step from our houses into the lane. The carriageway is approximately 4.5 metres wide. There are no footways. A number of attractive trees and bushes grow at the edge of the road. There are horse riding stables at the eastern end of the lane ... "

It is also helpful to set out what Mr Cunningham, acting chief highways manager for the defendant, says in his witness statement on this question at paragraph 14:

"Historically Partingdale Lane has been a main route, and part of the direct route, between Finchley and Mill Hill. The nature of the road is prominently [I think he may mean predominantly] rural. It has approximately 17 residential properties along its length of about 915 metres. It is therefore not a predominantly 'residential' road. In these respects Partingdale Lane is an appropriate route for vehicles travelling between the two areas and the traffic using the road could not be classed as 'rat running'. It is quite different from traffic diverting through wholly residential streets."

7. In March 1997 Partingdale Lane was closed by the defendant to through traffic, pursuant to an experimental traffic order. This was done against the advice of officers, which was certainly within the legal powers of a local authority to do. At that time, as I understand it, the defendant was controlled by a combination of Liberal Democrat and Labour councillors.
8. Between June 1997 and April 1998 seven traffic surveys were carried out by the defendant in relation to the experimental closure of Partingdale Lane. On 3 August 1998 a permanent closure order came into effect. At this point, it is helpful to quote from the witness statement of Mr Cunningham at paragraph 13 where he says:

" ... The Council's Public Works Committee Report dated 25 November 1997 indicated that some 500 vehicles in the morning peak period [that is 8 to 9am] would be diverted from Partingdale Lane by its closure with some 300 being displaced on to Frith Lane. Post closure surveys in June 1997 showed that the actual increase on Frith Lane was between 200 to 250 vehicles. However, there is no evidence to show that any of the displaced traffic ceased to exist and the remainder of the additional traffic will have diverted onto other local routes including Totteridge Lane, Nether Street and Ballards Lane which were, and remain, heavily congested in peak periods. From the information available it is not possible to assign traffic flows diverted to other local routes. However, it is evident that the displacement of traffic from Partingdale Lane is onto other heavily trafficked roads, thereby exacerbating congestion in the area."

9. In May 2001 the defendant was affected by the reorganisation of local authorities contained in the Local Government Act 2000 (the 2000 Act). The impact of the 2000 Act on the defendant is described by Mr Goddard on behalf of the defendant, he being head of committee administration in the London Borough of Barnet. He says, at paragraphs 2 to 5 of his witness statement, as follows:

"2. Barnet Council has operated Executive arrangements under the Local Government Act 2000 since May 2001. The Executive is the Leader and a Cabinet of 9 councillors appointed by the Annual Council meeting in May.

"3. Schedule 1 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 specifies the functions that are not to be the responsibility of a local authority's Executive. That Schedule does not include the closure or reopening of highways. That function is therefore the responsibility of the Executive by virtue of Section 13(2) of the Local Government Act 2000. [I should interpose that it was common ground between the parties before me that Mr Goddard was correct to describe the function in issue as an executive function]

"4. Under Section 15 of the Local Government Act 2000 Executive functions may be exercised by:

• the executive

• any members of the executive

• any Committees of the executive

• any officers of the authority.

The Leader of the Council may discharge any Executive function or may arrange for the discharge of a function by any body or person set out above. The arrangements must be submitted to the annual meeting of the Council and set out in the Council's Constitution. The Executive arrangements in Barnet Council are set out in Part 3, Section 3 of the Constitution ... [I will have need to refer to that in due course]

5. These arrangements provide for Councillor Brian Coleman to be the Cabinet Member for Environment. His responsibilities are set out in Part 3, paragraph 3.2 of the Constitution ... and are:

'to lead on budget, policy formulation and implementation on environmental and safety issues. In particular, a healthy environment, street based services, highways and parking provision, and private sector rented housing.'" [Emphasis added]

10. On 2 May 2002 local authority elections took place at which the Conservative Party took overall control of the defendant council. The relevant events are described helpfully in the witness statement of Mr Freestone at paragraphs 3 to 6:

"3. In May 2002 following the Local Elections a new political administration took control of the Authority, this included the establishment of a new Cabinet.

4. Cabinet Member portfolios were identified immediately following the election results, which included Councillor Brian Coleman as lead Cabinet Member for the Environment which included highway and traffic matters.

5. Following the appointment of the Cabinet early meetings were held with Chief Officers and Cabinet to identify the new Administration's priorities and start to establish work programmes.

6. Included within the priorities of the new Administration was a proposal to reopen Partingdale Lane."

11. In June 2002 a draft officers' report was prepared for a meeting of the planning and environment committee of the defendant, to take place on 19 June, proposing the re-opening of Partingdale Lane. However, this was withdrawn, following receipt of a report by the Royal Society for the Prevention of Accidents (ROSPA). I should refer briefly to that officers' report, which is at tab 9, page 1 of the court's bundle and which, at page 5, had included under agenda item 6, headed Partingdale Lane, the following recommendation at a box marked 2:

"Recommendation/Conclusions (for decision by the Committee)

That the Acting Head of Planning, Highways and Design be instructed to:

(i) prepare and advertise the necessary draft traffic orders for the re-opening of Partingdale Lane and the 3.5T weight limit detailed in this report and

(ii) carry out any necessary consultations for the changes, resolve any objections to the traffic orders with the Chairman of the Planning and Environment Committee and the Hendon, Chipping Barnet and Finchley and Golders Green Area Environment Sub-Committee Chairmen before implementing any resultant changes."

12. It is again helpful at this stage to refer to the witness statement of Mr Freestone at paragraphs 7 to 9, where he says this:

"7. To progress this matter a report was required seeking authority to establish appropriate traffic orders. The first draft of this report, produced in June 2002, was intended to go to the Cabinet for decision. However the committee clerks determined that this was the wrong approach under the Council's new Constitution, which came into effect in the Summer of 2001 and suggested that the Area Environment Sub-Committee or the Planning and Environment Committee would be the appropriate forum to consider the report.

8. I decided that a report to the Planning and Environment Committee was more appropriate given that I considered the traffic effects of a re-opening would have an impact on more than one of the three Area Environment Sub-Committees. The Area Environment Sub-Committees operate on strict geographical boundaries defined by a specific schedule of political wards and Partingdale Lane is very close to the boundary between the Hendon area in which it sits and the Chipping Barnet area and, in fact, is reasonably close to the Finchley and Golders Green area. The effects of the re-opening or continued closure of Partingdale Lane would go well beyond the Hendon area.

9. A further factor which swayed me to use the Planning and Environment Committee and not the Area Planning Sub-Committee was the experience I had had previously in Barnet where two identical reports were presented to two separate Area Environment Sub-Committee meetings which took place at the same time, but in different parts of the Borough, considering decisions over a traffic scheme that encompassed both Area Environment areas. This was a problematic process which produced different decisions from both meetings which then required significant work to correct and ultimately was not satisfactory. I therefore did not want the report to go to two area sub-committees."

13. On 22 July 2002 Councillor Coleman made a report, in his capacity as cabinet member responsible for the environment, on the assessment of priorities for traffic management schemes. This is in the court's bundle at tab 3, page 211. Shortly before a meeting of the planning and environment committee was due to take place on 28 August 2002, the proposals for re-opening Partingdale Lane were withdrawn from its agenda. This is explained by Mr Freestone in his witness statement at paragraphs 10 to 11 as follows:

"10. A report was drafted to present to the August meeting of the Planning and Environment Committee and was published with the agenda. About a week before the meeting was due to take place the Head of Committee Administration [that is Mr Goddard] advised that he considered this to be an incorrect route under the new Constitution. This was because he took the view that the decision in question was not a 'Council function' within the meaning of the Local Government Act 2000, and therefore could not be dealt with by the Committee. He further advised there were three potentially correct routes. These were (1) the Area Environment Sub-Committee (this, of course, was already considered inappropriate for the reasons considered above) (2) a Cabinet report or (3) a Delegated Powers Report by the Cabinet Member for the Environment. The draft report was therefore withdrawn from the Planning and Environment Committee agenda.

11. The two remaining options were discussed with Councillor Coleman and the decision was taken to proceed with a Delegated Powers Report. A new report was subsequently drafted and then approved and signed by Councillor Coleman on 29 August 2002."

As that passage makes clear, on 29 August 2002 a report was made by Councillor Coleman in his capacity as cabinet member responsible for the environment. That report is at tab 3, page 106 of the court's bundle. This is a critical document in this case, not least because it contained not merely a recommendation, but a decision at the end, which is at page 111 of the bundle and states as follows:

"5 DECISION

"5.1 That the Head of Planning, Highways and Design be instructed to:

(i) prepare and advertise the necessary draft traffic orders for the re-opening of Partingdale Lane and the 3.5 tonnes weight limit and 20 mph speed limit detailed in this report and

(ii) carry out the necessary consultations for the changes, resolve any objections to the traffic orders with the Chairman of the Hendon Area Environment Sub-committee before implementing the works detailed in this report." [Emphasis added]

Before leaving that document, it should be noted that, although it was signed quite properly only by Councillor Coleman, the authors, at paragraph 7, included not just Councillor Coleman, but also Mr Freestone, Mr Cunningham and two other officers (who appear to be described only by their initials, but nothing turns on that).

14. On 18 September 2002 the decision of 29 August was reviewed by the oversight and scrutiny committee. This is described in the witness statement of Mr Goddard at paragraphs 7 to 10:

"7. The Overview and Scrutiny Procedure Rules set out in Part 4 of the Constitution provide for Executive decisions to be 'called in' by the Cabinet Overview and Scrutiny Committee. This process is a requirement of Section 21 of the Local Government Act 2000. This Committee is appointed by the Council and consists of 11 members of the Council who are not members of the Cabinet.

8. The procedure which is set out in paragraph 16 of the Overview and Scrutiny Procedure Rules in the Constitution is as follows:

'... (d) If, having considered a decision on its agenda under (b) or (c) above, the Cabinet Overview and Scrutiny Committee is concerned about it, then it may refer it back to the decision making body or person for reconsideration, setting out the nature of its concerns, or refer it to full council if they consider the decision is contrary to the policy framework or budget.

'... (f) Where a decision is referred back, the original decision maker shall then reconsider the decision and decide whether or not to change it before adopting a final decision.'

9. The decision of the Cabinet Member was subject to this procedure and was called in for consideration by the Committee at a meeting on 18 September 2002.

The Committee met in public from 7pm until 9.55pm and reviewed this decision for about [there then appears to be an error in the drafting of the witness statement, but it is clear that what is meant is two and a half] hours. The committee considered written and oral representations ... The committee also questioned the Cabinet Member for the Environment.

10. The committee decided not to refer the matter back to the Cabinet Member for the Environment for reconsideration." [Emphasis added]

Without citing from it, I also note that the meeting is dealt with in the witness statement of Mr Freestone at paragraph 13.

15. On 26 September 2002 the proposed traffic orders were advertised. It is worth noting at this stage that I was shown, during the course of the hearing, the letter giving notice to Mr Simpson dated 1 October 2002 of the advertised orders. That letter, which was sent in the name of Maria Georgiou, who was the acting senior engineer, traffic and transportation at the defendant authority, said in the first paragraph:

"As you may be aware the council has recently decided to re-open Partingdale Lane. Draft traffic orders for this scheme are currently being advertised as part of the consultation process in the London Gazette and the Barnet Press.

As part of the proposal to re-open Partingdale Lane the council intends to implement the following measures, some of which are detailed on the double-sided plan included with this letter ... [a number of bullet points setting out detailed proposed measures are then set out in the letter, including a 3.5 tonnes weight limit and a 20mph speed limit]." [Emphasis added]

16. On 22 and 23 October 2002 respectively written objections were made by, amongst others, Mr Woyda and the claimant association, which together run to about 100 pages and are in the court's bundle at tab 3, first at pages 1 to 74 in the case of Mr Woyda, and, secondly, at pages 75 to 101 in the case of the claimant association.
17. The history of the matter can then be taken up by reference to the witness statements on behalf of the defendant. First, I will refer to Mr Cunningham's witness statement at paragraphs 6 to 10:

"6. As a result of the consultation the council received 52 letters of objection to the proposals. This compared to having received 142 letters and e-mails of support and 6 objections to the road opening in the period from when the initial proposal to re-open the lane was made public to the writing of the Delegated Powers Report. During the period up to the signing of the Delegated Powers Report the closure of the lane had received a considerable amount of local press coverage providing an opportunity for residents to write to the council on the matter ...

7. The objections to the traffic orders related to two separate areas; objections to the decision making process and objections to the proposals covered by the scope of the specific traffic management orders. I considered that the objections to the decision making process had already been dealt with elsewhere and concentrated on the objections specific to the traffic management orders. The objections that were received through the consultation process did not raise any new issues that had not previously been considered by Councillor Coleman when signing the Delegated Powers Report.

8. All of the objections were considered, commented on and a recommendation made whether they should be overruled, acceded to in full or in part. These considerations were tabulated and provided to both Councillor Offord, as Chairman of the Hendon Area Environment Sub-committee and Mike Freestone, Head of Planning Highways and Design for their consideration.

9. I met and discussed the format and content of the objections, and my views on the objections, with Councillor Offord and Mike Freestone to ensure that they were understood. I also visited Partingdale lane with Mike Freestone to discuss the safety measures that were proposed to be implemented prior to the re-opening of the lane.

10. I believe that at this point a decision could have been made that the objection could not be overruled and that accordingly this would have had to be referred back to the Cabinet Member for further consideration. The decision made was that objections could be resolved and that the implementation of the scheme could therefore proceed. This was however subject to some additional measures such as ribbed edge of carriageway markings, additional road signing and carriageway marking and zone amendments to the junction with The Ridgeway." [Emphasis added]

The matter is also dealt with in the witness statement of Mr Freestone at paragraphs 14 and 15 as follows:

"14. The draft traffic orders were published on 26 September 2002 and the consultation material was issued. Mr Cunningham deals in more detail with the consultation responses. Following the close of the consultation period my staff collated and reviewed all the responses received into a tabular presentation.

15. A meeting was held with Councillor Matthew Offord, Chairman of the Hendon Area Environment Sub-committee with his Vice-Chairman, Councillor Helena Hart and officers to examine in detail the responses received and to consider how best to resolve the objections. The Delegated Powers report recognised that I considered objections in conjunction with Councillor Offord and the Chairman of Hendon Area Environment Scrutiny Committee and a meeting seemed the best way to go through the details. Each objection was reviewed with the officer analysis by Councillor Offord [at the hearing it was agreed that I should there insert the words 'and me'] and some amendments to the scheme detail were developed to respond and resolve objections. Councillor Offord also decided that it was important for him to visit Partingdale Lane prior to him being fully confident in signing off that we had appropriately resolved objections. He subsequently wrote to me confirming his views and listing those additional items of work he thought would be helpful in resolving the concerns and objections made on 16 November 2002. Following receipt of this letter I considered all aspects of the proposal and decided that the Council could proceed with the traffic orders, subject to two additional items being included in the schedule of works."

On 21 September 2002 Mr Freestone decided, as his witness statement describes, to overrule all of the objections, although it was decided, as he mentions, to make two minor modifications.

18. On 4 December 2002 a letter before claim was sent to the defendant on behalf of the claimant. On 10 December 2002 a reply was sent on behalf of the defendant. On 11 December 2002 the Orders were made, to come into effect on 20 December. Although Partingdale Lane was re-opened on that date, it was closed again on 31 January 2003, pursuant to the interim order made by Hooper J on 20 January 2003, and has remained closed pending the outcome of these proceedings: see the witness statement of Mr Cunningham at paragraph 11. The present proceedings were issued on 17 December 2002 within the time limit laid down by the 1984 Act.

Issues

19. Having considered the written and oral submissions of the party, it seems to me that the six main issues are the following:

(1) Did the defendant fail to comply with its own arrangements as to which person or body should deal with the making of traffic schemes such as the one in issue?

(2) Did the defendant fail to follow or have regard to its own policy on reducing rat running and improving road safety?

(3) Did the defendant fail to engage in fair and adequate consultation?

(4) Was the decision to make the traffic orders vitiated by predetermination?

(5) Were the Orders made on a partial or misleading assessment of the facts?

(6) Was the decision to make the Orders perverse?

There appeared initially to be a seventh issue, namely whether, if one or more of the claimant's grounds of challenge were made out, the orders should be quashed. However, at the end of her oral submissions, Ms Lieven, who appeared for the defendant, accepted that, if the court concluded that there had been a breach of the law, the Orders should be quashed, and she did not invite me to exercise a discretion to refuse relief in that eventuality.

Material legislation

20. The following provisions of the 1984 Act are relevant. Section 6 provides as follows:

"(1) The traffic authority for a road in Greater London may make an order under this section for controlling or regulating vehicular and other traffic (including pedestrians)."

Section 121A provides as follows:

"... (2) In Greater London, the Council of the London borough ... are the traffic authority for all roads in the borough ... [which are not GLA roads and] for which the Secretary of State is not the traffic authority."

21. Schedule 1 to the 1984 Act is headed "Matters as to which Orders can be made under Section 6" and in paragraph 2 provides as follows:

"For prescribing streets which are not to be used for traffic by vehicles, or by vehicles of any specified class or classes, either generally or at specified times."

22. Schedule 9 to the 1984 Act in Part VI is concerned with the validity of certain orders and provides in paragraphs 34 to 36 as follows:

"34(1) This Part of this Schedule applies-

(a) to any order made under or by virtue of any of the following provisions of this Act, namely, sections ... 6 ...

(2) In this Part of this Schedule-

(a) 'the relevant powers', in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means the power with respect to such an order conferred by this Act ... and

(b) 'the relevant requirements' in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means any requirement of, or of any instrument made under, any provision of this Act with respect to such an order ...

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

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

(b) that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court ... 

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."

23. I turn next to the Local Government Act 2000. Section 10 of that Act provides:

"(1) In this part 'executive arrangements' means arrangements by a local authority-

(a) for and in connection with the creation and operation of an executive of the authority, and

(b) under which certain functions of the authority are the responsibility of the executive ... "

24. Section 11 provides:

"(1) The executive of a local authority must take one of the forms specified in subsections (2) to (5) ...

(3) It may consist of-

(a) a councillor of the authority (referred to in this part as the executive leader) elected as leader of the executive by the authority, and

(b) two or more councillors of the authority appointed to the executive by one of the following-

(i) the executive leader, or

ii) the authority.

Such an executive is referred to in this Part as a leader and cabinet executive ... "

25. Section 13 provides as follows:

"(1) This section has effect for the purposes of determining the functions of a local authority which are the responsibility of an executive of the authority under executive arrangements.

(2) Subject to any provision made by this Act or by any enactment which is passed or made after the day on which this Act is passed, any function of a local authority which is not specified in regulations under subsection (3) is to be the responsibility of an executive of the authority under executive arrangements ... [As I have already said, it is common ground in the case before me that the relevant function was an executive function under this provision]"

26. Section 15 provides as follows:

"(1) Subject to any provision made under section 18, 19 or 20 any functions which, under executive arrangements, are the responsibility of a leader and cabinet executive are to be discharged in accordance with this section.

(2) The executive arrangements may make provision with respect to the allocation of any functions which are the responsibility of the executive among the following persons-

(a) the executive,

(b) any members of the executive,

(c) any committees of the executive, and

(d) any officers of the authority ...

(9) Any arrangements made by virtue of this section by an executive leader, executive, member or committee for the discharge of any functions by an executive, member, committee or officer are not to prevent the executive leader, executive, member or committee by whom the arrangements are made from exercising those functions ... "

27. Section 18 of the 2000 Act provides as follows:

"(1) The Secretary of State may by regulations make provision for or in connection with enabling an executive of a local authority, or a committee or specified member of such an executive, to arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive by an area committee of that authority ... 

(3) In this section-

'area committee', in relation to a local authority, means a committee or sub-committee of the authority which satisfies the conditions in subsection (4) ... [Subsection (4) and the following provisions then set out defining conditions]"

28. Section 24 of the 2000 Act provides as follows:

"Neither-

(a) a local authority executive, nor

(b) a committee of a local authority executive,

is to be regarded as a body to which section 15 of the Local Government and Housing Act 1989 (duty to allocate seats to political groups) applies [Again it was common ground before me that the effect of this provision is to disapply the requirements in the 1989 Act as to maintenance of political balance, which does apply to ordinary council committees]."

29. The final piece of legislation to which I must refer is the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996 No 2489). Regulation 4 deals with the application of the Regulations and provides that they apply, so far as material, to orders made or proposed to be made by a local authority under section 6 of the 1984 Act. Regulation 6 reads as follows:

"(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 ... [ Column (7) includes all cases and requires consultation of, amongst others, 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]."

30. Regulation 7 provides as follows:

"(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 ... 

(2) Not later than the date on which paragraph (1) has been complied with, the order making authority shall send a copy of the notice of proposals to each body or person whom it is required to consult under regulation 6(1) or under any of the provisions referred to in regulation 6(2) ... "

31. Regulation 8 provides in paragraph (3) that an objection under paragraphs (1) or (2) of the same regulation shall be made in writing, state the grounds on which it is made and be sent to the address specified in the notice of proposals.
32. Regulation 9 permits the possibility, in paragraph (1), of a public inquiry to be held before making the order.
33. Regulation 13 provides as follows:

"Before making an order, the order making authority shall consider-

"(a) all objections duly made under regulation 8 and not withdrawn ... "

Material provisions of the defendant's internal arrangements

34. There is before the court at tab 3, page 134 a document headed "RESPONSIBILITY FOR FUNCTIONS" and it is necessary to refer to material provisions from sections 3,4 and 6 of that document. Section 3 reads as follows:

"RESPONSIBILITY FOR EXECUTIVE FUNCTIONS

General

3.1 All the Council functions that are not mentioned in the first two tables, or reserved to Council in Article 4, are executive functions. These are the responsibility of

• Individual members of the Executive (the Leader and the members of the Cabinet) ...

Cabinet members

3.2 Set out below is a table in the first column of which are listed the names, addresses and wards of Cabinet Members. The second column sets out each Cabinet member's functions and the third column summarises what has been delegated."

Councillor Coleman appears as the cabinet member responsible for the environment and the table continues as follows:

"To lead on budget, policy formulation and implementation on environmental and safety services. In particular, a healthy environment, street based services, highways and parking provision, and private sector rented housing."

Column three of the table, insofar as it relates to Councillor Coleman, reads as follows:

"The general powers delegated to Cabinet members are set out below

Certain functions are delegated to

• Area Sub-Committees as set out in Article 10 of the Constitution

• Officers, in consultation with the cabinet member, as set out in paragraph 6 of Part 3 of the Constitution ...

3.3 Cabinet Members general powers may be summarised as

1. To discharge the executive functions that fall within their portfolio, whether or not they are also delegated to officers except for matters specifically reserved to Council, Cabinet or committees ... "

35. Section 4, headed "LIMITATIONS ON DELEGATION TO COUNCIL COMMITTEES AND SUB-COMMITTEES" reads as follows:

"4.1 Committees and sub-committees of the Council are authorised to discharge all functions within their terms of reference with the exception of:

• Those matters referred to in the above tables

• Decisions reserved to the Council meeting in Article 4 of the Constitution ... 

4.3 Area environment sub-committees may take decisions within their terms of reference provided they are not matters of significance to the whole borough, contrary to Council policy or outside budget and subject to the limitation for deciding matters crossing sub-committee boundaries as set out in Article 10 of the Constitution."

Section 6, which is headed "POWERS DELEGATED TO OFFICERS" and has the subheading "General Powers", reads as follows:

"6.1 Chief Officers (ie the Chief Executive, Directors and Heads of Service as listed in Article 12) can take decisions, in consultation with the Cabinet Member concerned:

• to discharge the functions allocated to them or dealt with by them or their staff, except for matters specifically reserved to Executive Members, Cabinet meeting, Cabinet Committees, Committees or Council ... " [Emphasis added]

36. Finally, it is necessary to refer to Article 10 of the constitution, which is in the court's bundle at tab 9, page 32. This is headed "Area Committees and Forums". Paragraph 10.02, which is headed "Forum, composition and function" provides:

"(a) Table of area committees and forums. The Council will appoint the area committees and forums as set out in the first column of the table below, composed as set out in the second column of that table and with the terms of reference set out in the third column."

The table then, in relation to the Hendon Area Environment Sub-committee states in column three, which concerns terms of reference, as follows:

"(1) To discharge the council's functions, within the boundaries of their areas, in accordance with council policy and within budget that relate to:

• Highways use and regulation

• Contaminated land and control of pollution ... [Because the relevant function under consideration is not a council function, this is immaterial in the present case]

(2) To discharge the Executive's functions, within the boundaries of their areas, in accordance with policy and within budget that relates to:

• Highways use and regulation not the responsibility of the council ... [Because the relevant function is an executive function, this is material in the present case]"

Paragraph 10.02 then continues, under the heading "Delegations":

"... Area Environment Sub-committees when considering a proposal for discharging an Executive function for a location that crosses their boundaries may take decisions to approve recommendations submitted to them. When such a proposal is to be considered the Head of Committee Administration shall make arrangements for a joint meeting of the sub-committees within whose areas the proposal falls. Voting at every such meeting shall be separate among the members of the different sub-committees. If any sub-committee fail to agree the recommendations then the whole proposal shall be submitted to the Cabinet for decision."

First issue

37. Mr Green, who appeared for the claimant, submitted that the defendant failed to follow its own policy in permitting the decision to make the Orders to be delegated as it did. I understood this to mean that there was a breach of the defendant's own internal arrangements in the constitution. In my judgment, there was nothing unlawful about the fact that the issue of whether Partingdale Lane should be re-opened was withdrawn from the planning and environment committee in August 2002, or never put to the Hendon area environment sub-committee, and that the decision was, in fact, taken by a combination of Councillor Coleman in August 2002 and Mr Freestone in November 2002.
38. I accept Mr Green's submission that the constitution did not allocate the relevant decision to an executive member, but rather to the area environment sub-committee. However, that is only the starting point, not the finishing point. The clear effect of section 15(9) of the 2000 Act is that, notwithstanding what the arrangements in the constitution may provide, the relevant function may in law be exercised by one or more of the persons who are empowered to exercise it by the Act itself. That clearly included a member of the executive and an officer of the council. I did not understand Mr Green to dispute that, as a matter of law, Councillor Coleman and Mr Freestone did have the power to discharge the relevant function, which is an executive function.
39. The question which then arises, as both parties accepted before me, is whether, in the circumstances of the present case, the power which undoubtedly existed in law was exercised in a lawful manner. So far as the planning and environment committee is concerned, this is a committee of the council in the traditional sense under the Local Government Act 1972, rather than an executive committee under the 2000 Act. For the reasons which are set out in the witness statements of Mr Goddard and Mr Freestone, and which I have cited from extensively above, it was perfectly lawful to withdraw the issue from that committee because it concerned an executive function, not a council function.
40. So far as the area sub-committee is concerned, I do not accept Mr Green's contention that the decision not to assign the issue to it was irrational. I am satisfied that it was not irrational for the reasons, in substance, which are set out in the witness statement of Mr Freestone at paragraphs 8 to 10 and which I have already cited above. I therefore reject the claimant's argument on the first issue.

Second issue

41. Mr Green submitted that the defendant had unlawfully failed to follow its own policy in relation to so-called "rat running": see paragraph 8.3 of the report of 22 July 2000, which I have already cited. However, as Ms Lieven submitted, it is inevitable, in relation to issues like that relating to Partingdale Lane, that a traffic authority has a number of competing, possibly conflicting, policies, and certainly interests, to balance. To take one policy out of context, or one phrase from it, is not in my judgment to do justice to the complexity of the task facing the authority.
42. There is before the court evidence of the balancing exercise which the defendant did on the professional advice of its officers, including Mr Freestone and Mr Cunningham. I cannot regard the view to which it came as irrational. There was certainly no failure to have regard to its own policies. I therefore reject the claimant's argument in relation to the second issue.

Third and fourth issues

43. In my judgment the third and fourth issues are closely related to each other and should be dealt with together. The claimant's essential submission was that the consultation that took place came after the decision by Councillor Coleman on 29 August 2002 and that he never took the decision again. Therefore, it is said: first, there was no consultation at a stage when the proposals were still at a formative stage; and, secondly, that the decision was taken by a person who had, on the evidence, shown that the issue of principle had been predetermined.
44. There was no real dispute between the parties as to the requirements of lawful and fair consultation. They are to be found in the classic formulation by Stephen Sedley QC, as he then was, in R v Brent London Borough Council, ex parte Gunning [1985] 84 LGR 168 at 189, which has been approved by the court on many occasions since. I therefore need only cite from the recent decision of the Court of Appeal in R(on the application of Wainwright) v Richmond Upon Thames London Borough Council [2001] EWCA Civ 2062 20 December 2001, where Clarke LJ said this, at paragraphs 9 to 10:

"9. There remains an issue between the parties as to the extent of the consultation that discharge of the duty to notify and consult required. The underlying principles are not in dispute. They were identified by Mr Stephen Sedley QC in argument in ...  ex p Gunning ... and were adopted by Hodgson J in his judgment in that case at p 189. They are:

'First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.'

10. Those principles were elaborated in this way by McCullough J in ex p Cran at p 38 as follows:

'What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated.

'The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.'

So far as they go, those passages in my judgment correctly state the relevant principles."

45. Ms Lieven suggested in her submissions that the Gunning formulation had to be understood in its proper context: that is where there was no statutory duty of consultation. I am not persuaded that that is right since, as Mr Green pointed out, the case of Cran, referred to in the citation from Wainwright above, concerned a statutory duty of consultation. Indeed, it concerned the predecessor regulations to those which are applicable in the present case. It seems to me that the requirements of consultation, in particular the requirement that it must be carried out at a formative stage and that the product of consultation must be received conscientiously by a receptive mind, are equally relevant where the duty arises from statute as when it does not.
46. There is no particular significance to be attached to the fact that regulation 7 of the 1996 Regulations refers to publication of a notice of proposals. After all, reference to Gunning at page 177 shows that it too concerned a statutory requirement in the education context which used the concept of publication of proposals; although the duty of consultation in that case arose not from statute, but from legitimate expectation: see page 187. Even if there is no such express requirement, it is hardly to be countenanced that a reasonable public authority would consult on something which was not at least sufficiently advanced to be called a proposal.
47. However, that is exactly what it must be: a proposal, and not something which has already been decided. That is the point of crucial importance: that consultation must take place at a stage when a policy is still at a formative stage. To accept the contrary submission would be to accept that the consultation is a waste of everyone's time and perhaps even a facade. But it seems to me that a proposal cannot be at a formative stage if the decision maker does not have an open mind on the issue of principle involved. This is why, in my view the third and fourth issues are intimately linked.
48. I therefore turn to the question of whether there had been predetermination by Councillor Coleman. Before I turn to the facts of the present case, I should refer to the relevant authorities on the question. The first is a decision of the New Zealand Court of Appeal, Lower Hutt City Council v Bank [1974] 1 NZLR 545 where, at pages 549 to 550, McCarthy P said as follows:

"It cannot be doubted that one of the cardinal principle of natural justice, and one of very wide application, is that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. But again, the extent to which this fundamental principle applies must be governed by the relevant circumstances, including, especially, the statutory provisions relating to the function. It is a patent consequence of the rule that no man can be a judge in his own cause that where the circumstances reasonably indicate the likelihood of bias on the part of the adjudicator, he will, unless one of the exceptions stated above apply, be disqualified. It is now necessary to see, in the light of the applicable circumstances, to what extent these rules apply to a council dealing with objections to a proposed street stopping. It is obvious that before a council reaches the stage of deciding to put in motion the machinery for stopping, much investigation will have been undertaken and many decisions made. There will have been a resolution passed by the council. A fair minded and responsible person might well think that when a council have reached that stage of decision, a real likelihood of bias must be seen to be present, because the council must to a large extent have pre-determined the issue. Nevertheless, the Legislature, well-knowing this, has designedly left it to councils to determine at the next stage whether objections should be sustained. So something less than the scrupulous state of impartiality and its appearance required of Courts of justice is required of councils in these circumstances. We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals ... " [Emphasis added]

49. The second relevant authority is R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501, a decision of Woolf J, as he then was, where he said the following at pages 508 to 509:

"I fully accept, particularly having regard to the authorities to which I have referred, that there is an obligation on the district council to deal fairly with the applications by KLF for planning permission and that in that sense the principles of natural justice apply to the consideration of an application for planning permission. Furthermore, I agree that this court has the right to intervene to prevent an application being dealt with in an unfair manner or contrary to the principles of natural justice by the district council. However, I cannot accept that Webster J's test can be applied in this situation [That was a reference to Steeples v Derbyshire County Council [1984] 3 All ER 468]. It is much easier for the court to interfere on the basis of procedural unfairness than on the basis of bias of the sort alleged in this case. It is to be noted that it is not alleged here that the district council had entered into any contract which precluded them from exercising an independent judgment as was alleged against the Derbyshire County Council. Nor is it alleged that any individual district councillor has some personal financial interest. My conclusion as to what the evidence shows in this case is that it indicates that the majority of the district council can only be said to be 'biased' in the sense that they are, as the respondents' counsel contends, 'politically predisposed' in favour of the development in respect of which planning permission is sought. It has become the Labour group's policy to support the development. It is therefore likely that any Labour member of the planning committee will be more ready to grant planning permission than he would be if the Labour group had remained adverse to the development. But does this have the fact of disqualifying the Labour majority from considering the planning application? It would be a surprising result if it did since, in the case of a development of this sort, I would have thought that it was almost inevitable, now that party politics play such a large part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice.

"The rules of fairness of natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Thus in the case of highways, the department can be both the promoting authority and the determining authority. When this happens, of course any reasonable man would regard the department as being predisposed towards the outcome of the inquiry. The department is under an obligation to be fair and to carefully consider the evidence given before the inquiry but the fact that it has a policy in the matter does not entitle a court to intervene. So in this case I do not consider the fact that there is a declaration of policy by the majority group can disqualify a district council from adjudicating on a planning application. It may mean that the outcome of the planning application is likely to be favourable to an applicant and therefore unfavourable to objectors. However, Parliament has seen fit to lay down that it is the local authority which have the power to make the decision and an applicant for planning permission in the normal way are entitled to have a decision from the local authority if the Secretary of State decides not to intervene. The legislation could have given a right of appeal to the objectors in the same way as it is given to applicants but this it has not done and they are dependent on the limited powers of this court to intervene by way of judicial review.

"I do not say that the court can never intervene. Indeed I do not question Webster J's decision to do so in respect of the conduct of the county council. However in this case, while the Labour majority undoubtedly had a policy, there is no evidence before me on which it would be right to hold that they would not (despite the policy) consider the objections to the planning application on their merits. I would make it absolutely clear that they are under a duty to do so. However, in this case I have an affidavit from the leader of the majority Labour group on the district council that when the planning committee come to consider the application all material considerations will be taken into account. He furthermore indicates that the decision will be taken in light of the report prepared by the council's officers. That report is in evidence before me; it is a detailed and balanced report which has not been criticised by the applicants. In these circumstances, it seems to me that it would be quite wrong of me to infer that the planning committee would not do precisely what Mr Cook deposes that he believes that they will do, namely take into account all material considerations."

Before proceeding with citation from the authorities, it is worth noting: (1) that in that case the relevant decision had not yet been taken, because the affidavit from the leader of the majority Labour group made it clear that it would be taken in the light of all material considerations and in the light of a report prepared by the officers, which was, as Woolf J held, detailed and balanced; and (2) that there was indeed evidence from the very political decision-makers involved as to what their states of mind would be. I note that there is before me in this case no evidence filed by Councillor Coleman, who is the relevant political decision-maker in these proceedings.

50. I return to the authorities, the next of which is the well-known decision of the House of Lords in Bromley London Borough Council v Greater London Council [1983] 1 AC 768. At 853 Lord Brandon of Oakbrook said:

"It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that the policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be." [Emphasis added]

51. The final authority to which I must refer on this point is the recent decision of Ouseley J in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) 25 January 2002, where the learned judge said this at paragraphs 111 to 114:

"111. In my judgment a Council acts unlawfully where its decision-making body has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or as in effect is alleged here, by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is seen in a corporate determination to adhere to a particular view, regardless of the relevant factors or how they could be weighed. It is to be distinguished from a legitimate predisposition towards a particular point of view ...

112. There is obviously an overlap between this requirement and the commonplace requirement to have rational regard to relevant considerations. But, in my judgment, the requirement to avoid predetermination goes further. The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decision-making process will not then have proceeded from reasoning to decision, but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham ... 

114. Of course certain factors taken by themselves point away from predetermination and some can indeed be seen in a less unfavourable light. Each individual component may have some individual explanation satisfactory by itself. But it is important in examining this issue to look at the whole picture. Examining the whole picture and the crucial components of the decision, which are the officers' reports and the reasons given, and the way in which matters have been approached over the years, I have been driven reluctantly to reach the conclusion that this matter was dealt with by the Council with a closed mind." [Emphasis added]

52. It is with those authorities and the principles stated in them in mind that I will approach the facts of this case.
53. Before I do so, I should note a submission made by Ms Lieven. She submitted that the court should bear in mind the impact of the 2000 Act, insofar as it envisages, for the first time in our law, delegation of functions to a single member of the council, as distinct from council committees or officers. I readily do so; but it seems to me that, if anything, the 2000 Act makes it all the more important that the single councillor concerned should retain an open mind, if lawful and fair consultation is to take place. This is because there will not be the normal constraints of collective decision-making which tend to diminish, if not always eliminate, the impact of any one person's deeply held views.
54. I am satisfied on the evidence before me that Councillor Coleman had himself gone beyond a legitimate predisposition or even giving strong weight to his own manifesto commitment that Partingdale Lane should be re-opened, and had predetermined the issue of principle as to its re-opening before consultation ever took place.
55. I draw attention to the following factual features of the present case. The first I can take by referring to some events set out in the claimant's claim form by way of illustration, which is at tab 1 of the court's bundle, pages 17 and 18. The first event is that on 5 June 2002 Mrs Alice Simpson, a resident of Partingdale Lane, had a meeting with Councillor Coleman to discuss the lane. Councillor Coleman's repeated response on the concerns she raised was to say, "Alice, I am going to open Partingdale Lane": see tab 2, page 2 of the bundle.
56. Next, in an email sent to a resident of the lane on 7 June 2002, Councillor Coleman stated:

"The Leader of the Council has forwarded your letter to me. Partingdale lane will be reopened to traffic in line with this administration's commitment during the election campaign. All safety issues will be properly addressed. The re-opening will reduce significantly congestion and pollution in the whole Woodside area and is supported by the Woodside Park Residents Association and the Totteridge Residents Association." [Emphasis added]

57. At the council policy conference on 20 June 2002, in response to a request to explain his priorities for environmental services and community safety, Councillor Coleman stated:

"... Partingdale Lane, the main road from finchley to Mill Hill for nearly 200 years and which was closed against officers' advice to provide a private road for a small number of residents, many of whom promptly sold their houses for inflated amounts, will be reopened ... [see tab 3, page 123, emphasis added]

58. Perhaps most significantly of all, although I bear in mind Ouseley J's words that the whole picture needs to be considered, on 15 July 2002 Councillor Coleman sent an email to the then chairman of the Woodside Park Residents' Association in respect of the lane saying:

"A concerted e mail campaign I would suggest is needed to all Councillors on the Planning and Environment Ctte in the week before August 29. Best wishes and thanks for all your efforts so far [see tab 3, page 228]."

It will be recalled that at that time it was envisaged that the issue of re-opening Partingdale Lane was to go before the planning and environment committee in late August.

59. The second factual feature of this case to which I draw attention is the letter of notification sent to Mr Simpson by Miss Georgiou, dated 1 October 2002, from which I have already cited. That stated that, as of that date, the decision had already been taken by the council. That may well have been an error, perhaps an error of drafting, and I give it relatively little weight because it was written by a third party to a third party and it was put in evidence before the court only during the course of the hearing before me. However, it does reflect what at least was the understanding of one council officer and is consistent with the view to which I have, in any event, arrived, on the evidence before me, that Councillor Coleman had already predetermined the issue of principle of re-opening Partingdale Lane well before the consultation exercise took place.
60. The third factual feature I draw attention to is an email, again by Miss Georgiou, dated 14 November 2002, which is in the bundle at tab 3, page 206. Again, this is to be treated with caution because it is from a third party to a third party, but this has been in evidence in these proceedings for some time, having been exhibited to the claimant's witness statements, and has not been specifically contradicted by evidence on behalf of the defendant. The email says, so far as material:

"The decision has been made by members to re-open Partingdale Lane. Councillor Coleman is keen to achieve this with minimum delay and the work has been given an urgent top priority by the administration ... "

61. All of the evidence before me taken together, and viewing the matter, as Ouseley J recommended, as a whole, points in my judgment to the conclusion that the issue of principle had been determined, as indeed the decision at paragraph 5 of the document dated 29 August 2002 makes clear, and that what were then left open were matters of detail relating to what that document referred to as the implementation of the works. It was only in relation to matters of detail, rather than issues of principle, that, on the evidence before me, it appears to me that Councillor Coleman would have been prepared to consider the product of consultation. In relation to the issue of principle as to whether Partingdale Lane should indeed be re-opened at all, it appears to me to be clear that Councillor Coleman did not have an open mind and the consultation did not take place at a time when that proposal was still only at a formative stage.
62. Now, the question which then arises is whether subsequent events in any way cured the defect of predetermination by Councillor Coleman. The first suggested cure, although Ms Lieven did not put her submissions in this form, is the review of the decision by the scrutiny committee on 18 September. However, there are two reasons why that did not operate as an effective cure. The first is that the public were entitled to a fair consultation process which accorded with law. The review by another body did not give the public that fair consultation process. The second reason is that, in any event, the most that the committee could have done, in the circumstances of the present case at least, is to refer the decision back to the original decision-maker, ie Councillor Coleman, (that is for the reasons set out in Mr Goddard's witness statement, citing from the rules of the committee). But, for reasons I have already given, Councillor Coleman was a person whose mind was already made up as to the issue of principle, so referral back to him could not have cured the defect.
63. The second cure that has been suggested on behalf of the defendant is that after the consultation exercise had in fact taken place other people, in particular Mr Freestone, decided to press on with the making of the Orders, having considered the objections and rejected most of them, certainly the ones of principle. However, this suggestion founders on the following factual features of the present case. First, those who considered the objections of principle in November 2002 took the view that they did not raise anything new which Councillor Coleman had not already considered when he made the decision of 29 August, see in particular paragraph 7 of Mr Cunningham's statement which I have already cited above. In other words, the effect of Councillor Coleman's decision was being felt even at the later stage of the consultation process, far from being hermetically sealed from it.
64. Secondly, those who conducted the review of the objections in November 2002 felt that, while they could override objections without referral back to Councillor Coleman, they could not sustain an objection, certainly not a substantial objection, without referring back to him. This is clear from paragraph 10 of Mr Cunningham's witness statement, which I have cited above.
65. Thirdly, relatively late at the hearing before me it emerged that Councillor Coleman did play an active role even at the later stage, even if, strictly speaking, he did not take the decision to proceed with the Orders, which was made by Mr Freestone under delegated powers to him. This was because the defendant's constitution requires, at section 6.1, which is at tab 3, page 146 of the court's bundle, that such a decision which is delegated to an officer must be taken in consultation with the relevant member of the cabinet, who was of course Councillor Coleman. Without the need for a further witness statement and without objection from Mr Green, Ms Lieven informed me on instructions that:

"Mr Freestone discussed the matter of the closure of Partingdale Lane with Councillor Coleman on a number of occasions between the meeting with Councillor Offord and receipt of Councillor Offord's email in November 2002."

Far from helping the defendant's case, it seems to me that that information reinforces the view that Councillor Coleman had not left the scene after 29 August 2002 but was still an active player during the consultation part of the process in November 2002.

66. Accordingly, I find in the claimant's favour on the third and fourth issues for essentially the same reason: there was in my judgment a predetermination of the issue of principle by Councillor Coleman and the consultation process which followed the decision of 29 August was therefore not conducted with an open mind on the part of Councillor Coleman, and I stress on the part of Councillor Coleman, and while the proposal was still at a formative stage only.

Fifth and sixth issues

67. It seems to me that it would be inappropriate for me to give a concluded view on these grounds of complaint. They relate essentially to matters of fact and opinion, principally relating to questions of traffic impact and safety issues. Such issues will, in the light of my conclusion on the third and fourth issues, have to be reconsidered by the defendant and it would not be appropriate in my view for me to prejudge the outcome of any representations that others may wish to make to the defendant or the effect of the reconsideration by the defendant.

Conclusion

68. For the reasons I have given, it follows that this application will be allowed and, since Ms Lieven has not invited me to exercise a discretion to refuse relief, these three orders will be quashed. It will be a matter for the defendant to reconsider the matter in accordance with the law, but without the involvement of Councillor Coleman. I cannot prejudge the outcome of that reconsideration following a lawful and fair consultation process.
69. What I can do, however, is to remind all those involved that the law does not regard such an exercise as one of simply going through the motions. I have in mind, with some concern in this context, what is attributed to Councillor Coleman in newspaper quotations, which again have not been contradicted by evidence on behalf of the defendant, although they are exhibited to witness statements before this court. I draw attention to the court's bundle at tab 9, page 55 where there is an article in the Barnet press. The article dealt with the decision of Hooper J on 20 January and says as follows:

"Brian Coleman, the cabinet member for environment who took the decision, said judges had no authority to decide whether or not a road should be reopened.

If they rule that the order was made incorrectly, it could just go back to the committee where ... it is likely the same decision will be made."

Similarly, in an article in the Hendon Times, dated 23 January of this year (at the same page), there appears the following, again in relation to the decision of Hooper J:

"Mr Coleman said the judge's statements were 'nonsense' and vowed the lane would eventually be permanently reopened, no matter what the courts said.

'The judge doesn't understand the council constitution,' he said. 'It's a minor inconvenience. It doesn't influence our policy at all. It will just delay matters slightly.'"

70. The effect of my judgment will be that the three orders under challenge will be quashed. I will hear counsel as to any further directions that may be needed.
71. MR GREEN: My Lord, in those circumstances the claimant asks for its costs. I think my learned friend and I are in some difficulty as to any submission with relation to a summary assessment, so I would simply ask for costs to go for detailed assessment, if not agreed.
72. THE DEPUTY JUDGE: Certainly, in a hearing of this length with judgment reserved, we would not normally make an order for summary assessment; so that is fine. Is there anything you would like to say about that?
73. MR ROBB: Not on costs, my Lord.
74. THE DEPUTY JUDGE: Well, if I could just deal with that then. If we can just deal with it in turn. The three orders will be quashed. The defendant is ordered to pay the claimant's costs, to be the subject of detailed assessment, if not agreed. Now, is there anything else?
75. MR ROBB: I am instructed to ask for leave to appeal. Very simply, on issues three and four, which you have combined, in terms of the question of predetermination, you will be well aware, my Lord, that the Local Government Act 2000, which produces the executive decision of the functions for executive members, is an important change from the system of decision-making set out in the 1972 Act. So, on the question of predetermination, on which you found in this case against the council and specifically Councillor Coleman, we would like leave. Very much related to that, as you yourself set out, in terms of the Gunning test and Wainwright clearly this is an important question, we say, as to the parameters of the consultation exercise needed, as set out by the 1996 Regulations, as opposed to what is specified in those cases. So it is really on those two grounds.
76. THE DEPUTY JUDGE: Very well, is there anything you would like to say on that?
77. MR GREEN: My Lord, the law I did not understand to be significantly in dispute. Your Lordship has simply (inaydible).
78. THE DEPUTY JUDGE: Thank you. I grant permission -- with some reluctance, I have to say, because I have reached a very clear conclusion which, as Mr Green says is, on the facts of this case. Nevertheless I do think there is sufficient here which may turn on the impact of the new Act to justify the grant of permission to appeal in this case. Whether the defendant wishes to take up that permission is entirely a matter for it, but it does seem to me that I cannot say there are no real prospects of success in any appeal; and in any event the case does appear to raise some issues of general importance and it is right, therefore, that the Court of Appeal should have the opportunity to consider an appeal, if the defendant wishes to take up that permission.
79. Well, thank you both very much. Would you pass on my thanks to Ms Lieven as well.