Poole active travel ETO suspension quashed

In R (Keyhole Bridge Users Safety Group) v Bournemouth, Christchurch and Poole Council, local residents successfully challenged the Council’s decision to suspend and withdraw an Experimental Traffic Order under the Road Traffic Regulation Act 1984 to reduce vehicle road traffic into Poole park in favour of cyclist and walkers.

The case involved a resident’s group challenge to the decision of the Council to suspend temporary road measures put in place under an Experimental Traffic Order (ETO) to encourage non-car users into Poole Park at Keyhole Bridge. We were instructed on referral from the Environmental Law Foundation (ELF).

The Claimant’s case identified four grounds of challenge which included (1) the Council breached the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 (the TO Regulations) by curtailing the statutory 6 month period for representations (both objections and statements in support); (2) breach of a non-statutory consultation process that gave rise to legitimate expectation that the experimental closure of the road would operate for 6 months and then be reviewed, that the public would be consulted on the closure, and responses received by 21 February 2021 would be taken into account in the review; (3) the Council failed to take into account material considerations, which might have been lodged in the remaining weeks of the consultation period if it had not been curtailed and (4) the Council acted irrationally when deciding whether or not to revoke the Order, by relying on unevidenced assumptions about the detrimental effect of the ETO on air quality.

The judge gave careful consideration of the structure of the formal consultation deployed under the TO Regulations, and the informal non-statutory consultation process deployed by the Council, which invited the public to express their views, either in support or opposition to the closure of the road to vehicles, and its objective of providing a safer environment for walking and cycling, to encourage sustainable modes of travel.

The Judge concluded that although the Council did not breach the statutory TO regulations, the Council did breach its informal commitments by early curtailment of the timeframes set out in the Information Document. The Court also agreed with ground 3 that the Council failed to consider at least one consultation response made after the unlawful early ending of the consultation period alleged in ground 3, although the Court said this would not have changed the outcome under the Senior Courts Act. The judge did not accept that the Council acted irrationally in relation to air quality concerns.

In deciding on remedy, the Court ordered that to remedy the unfairness and unlawfulness there should be further non-statutory consultation and then the Council had to conduct a review of its decision to suspend the ETO which considers. The judge also order a significant payment toward the Claimant’s legal costs.

Counsel for the Claimant was Piers Riley-Smith of Kings Chambers.