Court rules council breached procedural legitimate expectations

Keyhole Bridge User Safety Group, R (On the Application Of) v Bournemouth, Christchurch and Poole Council [2021] EWHC 3082 (Admin) 

One of the challenges faced by local authorities is managing the expectations of local residents. Many people have strong opinions about local authority decisions within their community, especially where they concern road safety. In Keyhole Bridge User Safety Group, R (On the Application Of) v Bournemouth, Christchurch and Poole Council, the Administrative Court heard a Judicial Review application concerning the revocation of an experimental traffic order (ETO).

The ETO prohibited vehicle access (apart from bicycles) on Whitecliff Road, where it runs under Keyhole Bridge (so named to illustrate the narrow squeeze vehicles must navigate to get through it). The Council indicated that the ETO would be in place for six months and welcomed comments from the public, which would be considered once submitted prior to 21st February 2021. The Council decided to revoke the ETO on 27th January 2021 and refused to accept any comments after that date. 

The grounds for appeal

The Claimant, the Keyhole Bridge User Safety Group, challenged the Council’s decision on four grounds, summarised by The Hon. Ms Justice Lang: 

1. The Council acted in breach of Schedule 5 to the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 (“the 1996 Regulations”), by curtailing the statutory six month period for representations (both objections and statements in support). 
2. The Council promised that the experimental closure of the road would operate for six months and then be reviewed, that the public would be consulted on the closure, and responses received by 21st February 2021 would be taken into account in the review. This gave rise to a procedural legitimate expectation. Councillor Greene decided to revoke the Order on 27th January 2021, and the Overview and Scrutiny Board upheld the decision on 1st March 2021. The Council failed to honour its promises and curtailed the consultation period for no justifiable reason, which was so unfair that it amounted to an abuse of power.
3. When deciding whether or not to revoke the Order, the Council failed to take into account material considerations, namely, consultation responses which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed. 
4. The Council acted irrationally when deciding whether or not to revoke the Order, by relying on non-evidenced assumptions about the detrimental effect of the ETO on air quality.” 

Ms Justice Lang dealt with each ground separately and allowed the claim to succeed in part on grounds two and three. 

Deciding on each ground for appeal 

Turning first to ground one, Ms Justice Lang concluded that the Council did not breach the statutory consultation procedure. The objections procedure in Schedule 5 of the 1996 regulations did not prevent the Council from revoking the ETO before the end of six months as the Council was not seeking to implement a permanent order. If a permanent order rather than an ETO was sought, it would have been mandatory to let the six month period for objections run in full. 

Concerning ground two, which deals with legitimate expectations, Ms Justice Lang said that overall she considered the procedure which was adopted (revoking the ETO on 27th January and refusing to hear further submissions) to be “significantly less favourable to the public” in particular to supporters of the closure of Keyhole Bridge, than the promised consultation running through to 21st February 2021, followed by a review, at which the Council would consider all the consultation responses received and decide “whether the changes should be made permanent, retained ... or removed” or alternatively, whether the ETO should be extended. She added that the reasons given by the Council for changing their procedure, including that there had been a change of administration at the local authority, “did not amount to a countervailing public interest of sufficient weight to justify a departure from the requirement of fairness and good administration that public authorities should honour assurances which they have given to the public”. 

Regarding ground three, Ms Justice Lang said evidence showed that a response from a Mr and Mrs Philips, made on 30th January 2021, regarding issues the couple had raised earlier, had not been considered. She concluded: 

"In the light of my conclusions on Ground 2, it ought to have been considered as a material consideration before the decision was made. To that extent, this ground succeeds.” 

Finally, in considering the fourth ground for appeal, Ms Justice Land considered the Council’s decision to be rational. The local authority had to make an exercise of judgment in its capacity as the local traffic authority, and whichever way it decided, it was bound to disappoint some residents. An exercise of judgment was not susceptible to judicial review.  

Final words 

Ms Justice Lang declined to quash the Councils decision. Instead, she ordered that there should be a further non-statutory consultation exercise to enable the public to give their views on the changes implemented by the ETO, after which the Council should conduct a review considering all the responses received. 

Responding to the decision, Cllr Greene said:  

“We are pleased that the court has dismissed the main point of contention that the decision was ‘irrational’. Indeed, the judge made clear that the Claimant’s argument did ‘not come close’ to demonstrating that. 

“The judge was not satisfied that the announcement was made 37 days short of the six-month period originally advertised. Our argument was that it was highly unlikely any evidence or argument would have come forward in that remaining time that would be substantially different from that which had already been made and considered. 

“However, we are happy to respect its ruling that we should hold a non-statutory consultation for 40 days to rectify this in case genuinely new evidence can be presented, which is significant enough to mean the decision could be changed.” 

While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these articles.

While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these articles.

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