Successful Statutory Challenge to Traffic Regulation Order

On 15 April 2025, HHJ Russen KC in the High Court quashed the decision of Devon County Council to make a Traffic Regulation Order to “Prohibit Motor Vehicles on Pitt Lane, Appledore” the stretch of road to be affected by the TRO can be seen on the map below. The case was heard 27-28 February in Bristol with Andrew Parkinson instructed by Richard Buxton Solicitors to act for the claimant, Ms Croft. This case was heard and linked with a successful judicial review challenge to a planning permission granted for 2 dwelling in the same area.

The TRO was originally resolved to approve in October 2022 by Devon County Council as highways authority to close 99m of Pitt Hill to cars. Richard Buxton Solicitors instructed highways expert, Bruce Bamber at this time and submitted objections arguing the TRO raised significant safety issues as there was a children’s play area on the road where diverted traffic would have to pass.

The TRO was then published in May 2024 and, accordingly, we raised a statutory challenge to this decision within the 6-week deadline.
In his judgment, HHJ Russen KC agreed with one of our grounds of argument which related to the officer telling members that child safety was not an issue in the making of the TRO since there had been an earlier application which envisaged the TRO coming forward along the red stretch of Pitt Hill (see plan which appears in the judgment). DCC’s case was:

“[i]n making the TRO [it] was not required to and could not properly reopen the planning process that provided the rationale for the Order.”

HHJ Russen KC’s judgment considers the Powergen case defence advanced by Devon County Council’s barrister Tim Leader:

[58] (iii) “The principle in Powergen is to the effect that, where a competent public authority has made a formal decision on a particular subject matter or issue affecting individual rights, that decision will be regarded as binding on other authorities directly involved unless and until circumstances change in such a way which can be reasonably found to undermine the basis of the original decision.”

In reaching his judgment, the Judge rejected that Powergen applied to our facts:

However, the premise for the argument based on Powergen is absent: there has been no such prior formal decision. The OR correctly informed the HATOC that the Baker Estates development is “not conditional on the TRO being approved.” Any stopping up (referring again to the language of the 21 October 2019 consultation reply) as part of the phasing plan under the outline permission was reserved to the HATOC. When the HATOC considered the making of the TRO on 31 October 2022 it was the first (and only “relevant authority” to quote again from that reply) to do so and it was doing so by reference to the circumstances existing, and objections made, as at that time. The Powergen principle might begin to have a place in this case if the claimant was challenging only the decision-making in May 2024 (when the TRO was made, apparently without any further deliberation by HATOC after 31 October 2022), and not also that of October 2022, but that is not the position.