Case No: CO/1348/2004
QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of MONTPELIERS AND TREVORS ASSOCIATION)
|- and -
|CITY OF WESTMINSTER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Thomas Cosgrove (instructed by the Director of Legal Services) for the defendant
Crown Copyright ©
Mr Justice Munby :
"if a decision is taken to remove the barriers in response to the formal objection by some local businesses, residents, taxi drivers and [RBKC]."
It sought the Cabinet Member's decision
"as to which options should be taken forward for consultation in response to the undertakings given at The Knightsbridge Association Annual General meeting held on 10 December 2002."
Those undertakings were described as follows in a letter, also dated 10 December 2002, written by the City's Director of Planning & Transportation:
"Once the Cabinet Member has made a decision he will then consult (thoroughly and fully) the residents, businesses and other stakeholders of the area."
"Option 1a is not considered viable in the view [sic] of the objections received from RKBC. These are considered strong enough to justify removal of the barriers and not consult on their retention with or without the extension of the permit qualifying area."
This was elaborated in an Appendix to the Review:
"The exclusion of option 1a might be seen as contradictory to a statement made by the Leader, Cllr Simon Milton, at The Knightsbridge Association AGM on 10 December 2002. Cllr Milton agreed to consult residents on the determination of the barrier scheme including the option of extending the permit eligibility area. However, he made that announcement before the City Council had received an objection from the RBKC. There is therefore justification for taking a different stance now, which could be explained in the consultation leaflet."
"Made a preliminary decision of an intention to revoke the experimental traffic regulation order, but delayed that formal decision pending the outcome of the public consultation on any alternative measures."
"The Cabinet Member for Economic Development and Transport has reviewed the scheme and considers that the objections received are strong enough to justify removal of the barriers. However, he has asked officers to consult on alternative traffic measures, which might be implemented."
I note in passing that although a glancing reference was made to RBKC "In addition, an objection from [RBKC] has been received" the authors of the leaflet seem to have taken the view that there was no need to share with those to whom the leaflet was addressed the fact that RBKC's objection had been instrumental in the decision to rule out the retention of the barriers. I also note that, although the leaflet was careful to record that the City had received 357 written objections and 48 letters of support, the authors of the leaflet seem to have taken the view that there was no need to share with those to whom the leaflet was addressed the fact that the adoption of option 1a would have been likely to meet a large number of those 357 objections.
"The results of the public consultation exercise revealed that the most preferred option by a simple majority was option 4."
"I make this statement for two reasons. The first is to apologise to the Court, and to the Claimant, for the Council's conduct of this litigation to date. It falls very far below the Council's own standards, let alone those which the Court is entitled to expect. The matter has simply not been dealt with appropriately or at all for several months and the overall responsibility is mine."
He then turned to deal with the merits of the claimant's case.
i) failure to consult properly;
iii) irrationality / unlawfulness / irrelevant considerations;
iv) breach of section 122 of the Act;
v) breach of legitimate expectation.
In relation to the 3 December 2003 decision Ms Carrington has four further complaints:
vi) failure to have regard to the City's policies;
vii) failure to have regard to the Singleton Report;
viii) acting on faulty information;
ix) failure to give reasons.
Issue (i) Failure to consult properly
i) If a local authority decides to embark upon a non-statutory process of consultation the applicable principles are no different from those which apply to statutory consultation: see R (Partingdale Lane Residents Association) v Barnet London Borough Council  EWHC 947 (Admin),  All ER (D) 29, at para .
ii) Consultation must be undertaken when proposals are still at a formative stage, must give sufficient reasons to permit the consultee to make a meaningful response, must allow adequate time for consideration and response, and the results of the consultation must be conscientiously taken into account in finalising any proposals: see R (Wainwright) v Richmond upon Thames London Borough Council  EWCA Civ 2062,  All ER (D) 422, at paras -, and Bovis Homes Ltd v New Forest District Council  EWHC 483 (Admin) at paras -. The crucial point, as the Deputy Judge expressed it in Partingdale at para , is that "consultation must take place at a stage when a policy is still at a formative stage a proposal cannot be at a formative stage if the decision maker does not have an open mind on the issue of principle involved".
Issue (ii) Unfairness
i) no or no effective representations could be made as to the option of retaining the barriers; the consultation document provided no or no adequate opportunity for consultees to express a view on the merits of either of those options;
ii) the City would never be in a position to know the views of the consultees on the option of retaining the barriers;
iii) while it was possible to note that there were those who favoured retention of the barriers, the City would not be in a position to weigh their views against the views of those who did not so wish;
iv) the consultation document did not permit of full and fair expression of views on the options which were included: there was no mechanism for expressing a preference between the options (consultees were asked only if they supported, did not support or had no views on any given option), additional comment was invited only on the issues covered by the consultation document (there was no provision for consultees to comment generally or on matters not canvassed in the consultation leaflet), and there was no mechanism for those with no enthusiasm for any of the four options to make their views known.
Issue (iii) Irrationality / unlawfulness / irrelevant considerations
i) in deciding to exclude from consultation the options of retaining the barriers and/or extending the permit area;
ii) in taking into account RBKC's objections as a reason for excluding from consultation the options of retaining the barriers and/or extending the permit area: there was at the relevant time, says Ms Carrington, no proposal by the City to exercise any power under the Act, only a proposal to consult on a range of options, so RBKC's objection was simply irrelevant; and
iii) in treating RBKC's objections as, in effect, the determinative reason for excluding from consultation the options of retaining the barriers and/or extending the permit area: this, says Ms Carrington, amounted to an unlawful predetermination and, moreover, constituted an unlawful evasion of the statutory process for resolving disputes set out in section 121B of the Act, and was in any event irrational.
Issue (iv) Breach of section 122 of the Act
"(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;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the local authority to be relevant."
Issue (v) Breach of legitimate expectation
" the court may decide that the promise induces a legitimate expectation of being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it . the court's task is the conventional one of determining whether the decision was procedurally fair."
Issue (vi) Failure to have regard to the City's policies
Issue (vii) Failure to have regard to the Singleton Report
Issue (viii) Acting on faulty information
Issue (ix) Failure to give reasons
"The results of the public consultation exercise revealed that the most preferred option by a simple majority was option 4. The retention of the traffic island in Montpelier Square should prevent the need for any additional measures and the introduction of the side road entry treatments should address the issue of personal injury accidents."
Read in the light of the 'Summary of Decision' set out in the same document that was, in my judgment, an adequate if brief explanation of why the decision had been made. It set out the essential reasons why the decision was being taken. There was no legal obligation on the City to set out the reasons for those reasons.
i) to conduct a public consultation in such manner and with such sections of the public as it shall think appropriate as to whether it should exercise its powers under the Act to make (whether in substitution for or in addition to the 2004 Order) an experimental or permanent traffic regulation order providing for such traffic regulation measures as it may wish to consult on but including in the consultation all those traffic regulation measures (both in relation to the area defined in the 2002 Order and in the wider area which has been referred to) which were prescribed in the 2002 Order; and
ii) to determine (having regard to the results of such consultation and in accordance with the law) whether it will take any and if so what steps prescribed by the Act to make an experimental or permanent traffic regulation order.