Two recent High Court decisions in Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) Trail Riders Fellowship v Hampshire County Council [2018] EWHC 3390 (Admin) provide helpful guidance on the common issues arising when considering whether to challenge a traffic regulation order.
Legislation
The power to make a traffic regulation orders (TRO) is contained in section 1(1) of the Road Traffic Regulation Act 1994 (“the Act”). In relation to TROs made outside Greater London, by example, it provides as follows:-
(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a "traffic regulation order") in respect of the road where it appears to the authority making the order that it is expedient to make it—
- for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
- for preventing damage to the road or to any building on or near the road, or
- for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or
- for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or
- (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or
- for preserving or improving the amenities of the area through which the road, or
- for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality).
When considering the making of a TRO the council has a statutory duty to consider the matters detailed at Section 122 of the Act. It provides as follows:-
(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway or, in Scotland, the road.
(2) The matters referred to in subsection (1) above as being specified in this subsection are—
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the strategic highways company or the local authority to be relevant…
The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 sets out the procedure for making a traffic regulation order. The Openness of Local Government Bodies Regulations 2014 provide that, in the case of a delegated decision, the decision-maker must produce a written record of any decision which affects the rights of an individual.
Importantly, Part VI of Schedule 9 provides that any person may question the validity of a TRO on the grounds that (a) it is not within the relevant powers, or (b) any of the relevant requirements has not been complied with in relation to the order. Application is to the High Court within six weeks of the date of the making of the TRO. However, the court can only quash a TRO:
"if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order."
Common issues in challenging a TRO
The facts of the Wiltshire CC and Hampshire CC cases are relatively similar and straightforward. They both involved a challenge by the Trail Riders Fellowship against TROs which prohibit the use of motor vehicles. The statutory reviews concerned challenges to the procedures and decision making of the relevant county council.
The grounds of challenge that arose in these cases are summarised below.
(A) Was the TRO made for a statutory purpose?
When considering a challenge of a TRO, one of the first issues to consider is whether the decision maker has identified a statutory purpose, within its statement of reasons, for which he is satisfied that it is expedient to make the TRO. The statutory purposes are set out in section 1 of the Act as recited above.
(B) Was there a breach of the Section 122 Duty?
The next issue to consider is whether the decision maker has complied with the statutory duty at section 122 of the Act (as recited above). In relation to such duty, the Court in the Hampshire CC case summarised the legal requirements as follows:
i) The duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians;
ii) The duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2) , such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act;
iii) The issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered; and
iv) In the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself, or an inference to this effect may be drawn since the decision has been taken by a specialist committee or officer who can be taken to have knowledge of the relevant statutory powers.
In the Hampshire CC case, although the section 122 duty was not expressly stated, the judge considered that the council had, in substance, performed the duty.
(C) Were adequate reasons for the decision to make the TRO provided?
The Court in the Hampshire CC case noted the requirements as:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds”.
Additionally, to succeed with a statutory review to quash a TRO, there must not only be inadequate reasons but such inadequacy must have substantially prejudiced the claimant.
(D) Was there adequate consultation? Was it procedurally fair?
The Act and accompanying Regulations sets out the requirements for statutory and public consultation on a proposed TRO. Such consultation will need to include a statement of reasons which must be adequate to enable a consultee to understand the statutory purpose and reasons for proposing the TRO and provide a reasoned response.
The failure to consult in accordance with the requirements of the Act and Regulations will likely be fatal to a TRO.
By example, the Regulations require consultation with ‘such other organisations (if any) representing persons likely to be affected by any provision in the order’. In the Wiltshire CC case, the TRO was quashed due to the council not consulting with the Trail Riders Fellowship who are a relevant organisation representing a segment of motor vehicle users (motorcycle users) that would be prohibited by the order.
(E) Is the decision to make the TRO irrational?
Finally, there is the general public law grounds of irrationality of the decision (or Wednesbury unreasonableness). In short, this is a question of whether the decision was so unreasonable that no reasonable authority would have made it. This is a high bar and difficult to succeed in sustaining but is one which may be worth considering
Lesson: When a TRO is made adverse to your interests, it is always worth considering the merits of any statutory review of such order. Always be mindful of the six-week limitation in bringing such claim, and the ultimate discretion of the Court and need for the result of any procedural failure (other than its unlawfulness) to cause you substantial prejudice.
