Successful challenge to Bedfordshire Traffic Regulation Order

We represented the Green Lane Association – a not-for-profit organisation dedicated to promoting inclusive countryside access for all users – in a successful challenge to an experimental traffic regulation order (ETRO) made by Central Bedfordshire Council. The Association was successful on all five grounds of challenge and, earlier in the proceedings, secured Aarhus costs protection after an application by the Council to deny costs protection to the Association. The ETRO would have prohibited all motorised vehicles on a byway called Sandy Lane.

This case concerned the Aspley Heath byway open to all traffic (BOAT) No.33, also known as Sandy Lane. Traffic authorities, in this case the Council, can decide to implement an ETRO, under section 9 of the Road Traffic Regulation Act 1984 (RTRA 1984), when they wish to trial temporary traffic changes for up to 18 months. In this instance the Council sought to implement the ETRO following claims of inappropriate usage including anti-social behaviour, fly-tipping, racing and what it said was the use of Sandy Lane by unsuitable vehicles which consequently damaged the road surface.

GLASS challenged the decision on the following grounds:

1. 1. The 2025 ETRO was not made for an experimental purpose.
   2. The Defendant breached its statutory duty to give reasons for the making of the 2025 ETRO and proceeding by way of experiment.
   3. The Defendant failed to carry out the section 122 RTRA 1984 balancing exercise.
   4. The Defendant failed to carry out a lawful consultation, causing the Claimant substantial prejudice.
   5. The Defendant failed to comply with the public sector equality duty.

Ground 1

The Court had to consider whether the Defendant had appropriately identified the ‘experiment’ and its purpose. There was inconsistency between the Council’s Statement of Reasons and the Officer’s Report which the Council had considered before making the Order. The former stated the reason was to allow the council to monitor the scheme and assess its impact on addressing the anti-social behaviour and its impact on the wider area. However, the latter stated that making the ETRO would allow the eroded section of Sandy Lane to be repaired and to protect it from further erosion. The court accepted there was an inconsistency, but also found that it was not possible to understand from the statement of reasons what the experiment actually was, nor what would be monitored to glean information about the working of the scheme in practice. Thus, ground 1 succeeded.

Ground 2

Paragraph 2(d) of Schedule 2 of the 1996 Regulations creates a statutory duty on the part of the Defendant to provide reasons both for the measures introduced by the ETRO and for proceeding by way of experiment, and requires that those reasons be set out specifically in the statement of reasons. The Association submitted the reasons given were inadequate as it was not possible to understand, amongst other things, what is meant by “anti-social behaviour” and “unsuitable vehicles”. The Court agreed the Council failed to give proper and adequate reasons for making the ETRO. This failure substantially prejudiced our client as it prevented them from being able to formulate an objection which addressed the reasons for making the ETRO.

Ground 3

S.122 of the Road Traffic Regulation Act 1984 places a duty on traffic authorities to carry out a balancing exercise when deciding to make an order. On one hand they must secure the expeditious, convenient and safe movement of vehicular and other traffic. On the other hand, regard must be had to the effect on the amenities of the locality affected and other matters appearing to the traffic authority to be relevant. The Court found the Officer’s Report failed to articulate the primary statutory duty imposed by s.122 and failed to give any explanation about how the relevant factors were balanced, meaning the Council failed, in substance, to conduct the required balancing exercise.

Ground 4

In determining if the Council carried out a lawful consultation, the Court found the Council had failed to give sufficient reasons to allow GLASS to give the proposal intelligent consideration and make a response.

Ground 5

Section 149(1) of the Equality Act 2010 creates duty on
public authorities, to consider the implications of their decisions on people with protected characteristics when making decisions. Our client submitted there was no evidence the Council had such regard to the impact of the ETRO on elderly or disabled people who rely on motorised vehicles to access the countryside. While the Officer Report set out the duty, it then only went on to consider irrelevant characteristics (for Equality Act purposes), such as the impacts on drivers versus pedestrians. Due to the lack of “specific regard by way of conscious approach to the statutory criteria”, the Court found there was a failure to comply with the section 149 duty.

The Association was successful on all grounds and so the decision to make the ETRO was quashed.

Aarhus Costs Protection Upheld

The Council applied for a declaration that the claim was not an Aarhus Convention claim and therefore should not benefit from the costs protection afforded to environmental claimants under that Convention, or alternatively that the standard £10,000 costs cap for an organisational claimant should be raised to £35,000. Although it had raised questions about Aarhus applicability in pre-action correspondence, the Council did not dispute the case was an Aarhus Convention Claim in its Acknowledgment of Service. The application was made roughly three weeks after the Acknowledgment of Service was filed. On the timing point, the Court held this delay to be a serious and significant breach of the rules governing applications to vary an Aarhus costs cap. Relief from sanctions was refused, confirming that the default Aarhus costs cap continued to apply.

In any event, though, the Judge went on to consider the Aarhus status of the claim if she were wrong on the timing point. The Judge applied the principles in HM Treasury v. Global Feedback Limited, holding that the relevant provisions of the Road Traffic Regulation Act 1984 – including those requiring regard to local amenity and the national air quality strategy – were provisions of national law relating to the environment. Accordingly, the claim fell within the Aarhus regime.

The judgment is significant in two respects. First, it clarifies the scope of “national law relating to the environment” (and specifically that the Road Traffic Regulation Act 1984 is such law). It also provides useful guidance to future litigants on how courts will analyse this issue in other contexts. Second, it confirms that the courts will adopt a strict approach to timing: late applications to dispute Aarhus status or to vary costs caps will rarely be entertained. The ruling provides valuable certainty for claimants relying on the predictability the Aarhus costs protection regime is designed to deliver.

Brendan Brett of Francis Taylor Building acted as counsel for the Green Lane Association in the High Court.