QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a High Court Judge)
| Trail Riders Fellowship
|- and -
|Hampshire County Council
Stephen Whale (instructed by Hampshire Legal Services) for the Defendant
Hearing dates: 28 November 2018
Crown Copyright ©
Sir Ross Cranston :
"The order is proposed to prevent damage to the lanes by misuse of 4x4 vehicles and trail type motorcycles which make the lanes dangerous and almost impossible to use safely by other users, such as horse riders and pedestrians.
The lanes are also being used as access for trespass onto private land and public footpaths, particularly by motorcycles, which results in mud being churned up causing difficulties for access to Bere Farm track, and results in flooding down the farm access."
THE LEGAL FRAMEWORK
The statutory provisions
Traffic regulation orders outside Greater London
(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a "traffic regulation order") in respect of the road where it appears to the authority making the order that it is expedient to make it—
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
(b) for preventing damage to the road or to any building on or near the road, or
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or
(d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or
(e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or
(f) for preserving or improving the amenities of the area through which the road, or
(g) for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality).
(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway or, in Scotland, the road.
(2) The matters referred to in subsection (1) above as being specified in this subsection are—
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(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 strategic highways company or the local authority to be relevant…
"(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."
In Williams v Devon County Council  EWHC 568 (Admin) Holgate J highlighted this need for a claimant to establish "substantial prejudice".
Section 122 case law
25. Authoritative for the interpretation of section 122 are the obiter remarks of Carnwath J in UK Waste Management Ltd v West Lancashire District Council  RTR 201, at 209:
"The second main point is in relation to the duty under section 122 to have regard to the desirability of maintaining reasonable access to premises. I do not find section 122 an altogether easy section to construe. It refers to a wide range of different matters which have to be taken into account, but it is not clear precisely how the priorities between these various matters are to be ordered. The words "so far as practicable" show that some limitation is intended on the weight to be given to some of the factors. In Greater London Council v Secretary of State for Transport  J.P.L. 513 at 517, the Court of Appeal appear to have assumed that those words qualify the duty to have regard to the items in subsection (2), thus, in effect, making those matters subordinate to the matters which are referred to in subsection (1). However, there appears to have been no detailed argument on the point in that case and the comments appear to be obiter. To my mind, it seems more likely that the intention is the other way round. Had it been as the Court of Appeal suggest, one would have expected the parenthesis to read, "having regard so far as practicable to the matters specified in subsection (2) below." Furthermore, it is difficult to see the purpose of such a limitation on a duty which is simply to "have regard" to certain matters, since it is always practicable to have regard to matters, not always to give them effect. It is more likely that the limitation was intended to qualify the duty in subsection (1) to secure the expeditious, convenient and safe movement of traffic, that being a duty which would otherwise be expressed in absolute terms."
That was a case where the traffic authority had made an experimental traffic regulation order banning the use of heavy goods commercial vehicles on an access road to a landfill site. In fact there was no effective experiment and the order was quashed for that reason. The order also failed because the authority had not considered under section 122 the desirability of securing and maintaining reasonable access to the site and what that might entail. Only when it had done that, Carnwath J held, could it proceed to the balancing exercise which section 122 involved, however that section was to be interpreted: at 209 F-G.
26. Carnwath J's approach in UK Waste Management has been applied in subsequent authorities: R (on the application of LPC Group plc) v Leicester City Council  EWHC 2485 (Admin), ; Wilson v Yorkshire Dales National Park Authority  EWHC 1425 (Admin), ; Trail Riders Fellowship v Peak District National Parks Authority  EWHC 3359 (Admin), ; Trail Riders Fellowship v Devon Country Council  EWHC 2104 (Admin). In the LPC case the traffic regulation order was quashed because there was no evidence that the balancing exercise required by section 122 had been conducted: , . The same result followed in Wilson v Yorkshire Dales National Park Authority  EWHC 1425 (Admin): counsel for the park authority accepted that it had not directed itself to the effect that it was not practicable to observe the duty to secure the expeditious, convenient and safe movement of mechanically propelled vehicles on the routes in question, and although the access committee had considered a number of matters, it had not been demonstrated that the balancing exercise demanded by section 122 had occurred: , .
27. Thus the duty imposed by section 122 of the 1984 Act is a qualified duty. Against the duty to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) is to be balanced the factors in section 122(2) , such as the effect on the amenities of the area and, in the context of making a traffic regulation order, the purposes for this identified in section 1(1). As a matter of law the duty of securing the expeditious, convenient and safe movement of vehicle and other traffic (including pedestrians) is not given a primacy: Carnwath J made that clear in rejecting the assumption in Greater London Council v Secretary of State for Transport that the matters in section 122(2) were subordinate to those in section 122(1).
"the need for an authority to specifically set out its analysis of section 122 considerations in reaching any decision on any complicated question": 
"firstly, that a decision maker with specialist expertise can be taken to be aware of its statutory powers and duties; and, secondly, it is sufficient that the relevant duty is satisfied as a matter of substance, whether expressly or by implication": .
Thus in as much as there is a conflict between the authorities Williams v Devon County Council  EWHC 568 (Admin) does not represent the law.
i) The duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians;
ii) The duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2) , such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act;
iii) The issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered;
iv) In the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself, or an inference to this effect may be drawn since the decision has been taken by a specialist committee or officer who can be taken to have knowledge of the relevant statutory powers.
Reasons for a traffic regulation order
" The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds."
GROUNDS OF CHALLENGE
Ground 1: order not made for statutory purpose and/or failure to identify statutory purpose
Ground 2: breach of s. 122
Ground 3: inadequate Statement of Reasons and procedural unfairness
Ground 4: breach of 2014 Regulations and/or procedural unfairness
Ground 5: failure to consider the claimant's representations properly
Ground 5A: procedural impropriety/failure to consider results of consultation with police
Ground 6: prohibition of all motor vehicles, in particular rejection of claimant's alternative proposal, irrational and/or otherwise unlawful where Council accepted that responsible motorcycle users would probably cause minimal damage to lanes