Hackney LBC has successfully defended a judicial review claim over its low traffic neighbourhood plans.
The claimant in HHRC Ltd v Hackney Borough Council brought an application for judicial review specifically regarding Hackney's cabinet decision on 29th September 2020 to adopt an emergency transport plan entitled Rebuilding a Green Hackney – Emergency Transport Plan: responding to the impacts of COVID-19 on the transport network ("the ETP").
'In particular the claimant is concerned about the proposals within the ETP to introduce Low Traffic Neighbourhoods ("LTNs"),' the judgement highlighted.
The claimant brought the application on four grounds.
Grounds 1&3
Ground 1 - that the defendant 'failed to discharge its duty under section 16 of the Traffic Management Act 2004 in approving the ETP proposals'.
Section 16 of the 2004 Act, creates the network management duty and it was contended that the defendant failed to properly examine the impact of the ETP proposals upon the movement of traffic not simply on neighbourhood road networks, but also on the busier and more strategic highways surrounding the areas affected by the proposed LTNs.
Ground 3 - which was connected to these considerations, was the contention that 'the approval of the ETP failed to properly investigate or have regard to the impact on air quality of the LTN proposals'.
These arguments were defeated with particular refrence to the fact the decision was made in the context of the COVID pandemic and specific government guidance called on councils in areas of high traffic volumes to take urgent action to support active travel and social distancing.
Mr Justice Dove found that: 'In the absence of the global pandemic and the bespoke guidance provided by the Secretary of State for Transport to address it, the earlier 2004 guidance might in some instances have supported deploying the time and resources necessary to undertake detailed surveys and traffic modelling to attempt to predict the operation of the proposals. However, that was not the situation with which the ETP was seeking to grapple.'
The importance of the plans being experimental and Hackney committing to ongoing monitoring of their impact was also stressed.
Ground 2 was the submission that the defendant 'breached its public sector equality duty ("PSED") under section 149 of the Equality Act 2010 by failing to have due regard in approving the ETP to the impact which its LTN proposals would have upon groups with protected characteristics'.
This argument was again dismissed with reference to Hackney's ongoing monitoring and to the fact that the ETP 'was designed to provide an overall strategy to provide an overview and assist streamlining progress without by-passing future LTN scheme preparation or the statutory requirements for creating ETOs'.
Mr Justice Dove noted: 'I share the view of Kerr J set out in his judgment in the case of Sheakh that it is possible in some circumstances for a form of iterative, or progressive, assessment of equalities impacts to properly discharge the PSED, and whether that is the case is, of course, sensitive to the facts of individual cases (see paragraphs 163 -165).
In Ground 4, the claimant submitted that there was 'a failure to undertake any proper consultation on the ETP before it was promulgated in breach of the consultation requirements of the common law'.
The ruling found that it was in effect 'an agreed position that the specific terms of section 16 of the [Traffic Management Act] 2004 Act do not provide for an express duty to consult in relation to proposals related to the discharge of the network management duty.'
The related 2004 guidance on the Network Management Duty, does 'expects that an authority would seek out the views of residents, local businesses and road users when deciding on policies'. However the judge suggested any responsibility the authority might have had under this guidance was superseded by the Government's COVID specific guidance, which called for swift action.
'It is clear that specific guidance in relation to the approach to be taken to the traffic management duty under the conditions imposed by the COVID-19 pandemic were provided in the COVID-19 Guidance. Whilst the COVID-19 Guidance did not replace the 2004 Guidance, it "provides additional advice on techniques for managing roads to deal with COVID-19 response related issues".
'The approach taken by the defendant reflected the COVID-19 Guidance which had been specifically produced to deal with the conditions created by the pandemic which envisaged that in relation to these COVID-19 related traffic management initiatives consultation would accompany their experimental implementation.
Mr Justice Dove was not satisfied that there was merit in the claim and said it must be dismissed.
In his findings, he said: 'Having considered the claimant's case in respect of all four grounds upon which this application for judicial review is advanced, I am not satisfied that there is merit in the substance of the claim.
'It is therefore not necessary to proceed to evaluate the defendant's contentions in relation to alternative remedy, delay or discretion as, in the result, they do not arise as I am not satisfied that there is any basis upon which the claimant could be entitled to relief.'
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