Dispute over traffic orders and equality duty set for Court of Appeal

A county council this week won a High Court battle over its decision to end blue-badge access to part of a town centre, but the case looks certain to end up in the Court of Appeal.

In Hamnett v Essex County Council [2014] EWHC 246 (Admin) the claimants – Fair Access to Colchester – sought a statutory review of two experimental traffic regulations orders made by Essex County Council under the Road Traffic Regulation Act 1984 and affecting Colchester town centre.

The two orders under challenge were made on 4 March 2013 and came into force two weeks later. They have since been suspended, although some elements relating to bus lanes remain in force. The orders are however still valid and in force for their 18-month duration.

The orders have the effect of preventing private cars from driving in to park on the High Street in Colchester and also on a neighbouring street. As a result parking spaces for disabled people with blue badges have been removed from those streets. Essex sought to provide 32 extra parking spaces for disabled people in other parts of the town.

The claimants, however, brought legal action arguing that the orders were unlawful and ultra vires. There were three grounds:

  • The orders breached s. 29 of the Equality Act 2010, read with sections 20 and 15;
  • In making the orders, Essex breached the public sector equality duty in s. 149 of the 2010 Act; and
  • The council’s decision to make the orders was irrational.

The case is thought to be the first where the High Court has been asked to consider the Equality Act duties to disabled people within the context of Traffic Regulation Orders.

Mr Justice Singh, however, rejected the challenge. He ruled that:

  • The court did not have jurisdiction to entertain the claim insofar as it was based on s. 29 of the 2010 Act. “The clear intention of Parliament was that claims under s. 29 ‘must’ be brought in the county court”.
  • The council did, in conjunction with Colchester Borough Council, have due regard to the matters required by s. 149. It had carried out two equality impact assessments – “clearly this was no cosmetic exercise, since changes were made by the defendant in its proposals between the two assessments”. An assessment done by Colchester BC, with which Essex worked closely, had regard to the interests of disabled people. Essex had also commissioned a review in December 2011 and this took account of the potential problems the orders would give blue badge holders. The council had engaged as well in consultation with affected individuals and groups.
  • It could not possibly be said that the decision was irrational.

The judge said: “The decision that the defendant had to take was a difficult one, raising a number of competing interests which had to be balanced. Furthermore, it was one in which the interests of different groups of people with ‘protected characteristics’ within the meaning of the Equality Act did not necessarily coincide and were in tension or perhaps even potential conflict. This is because the underlying aims of the defendant including creating a safer environment for pedestrians and reducing pollution.”

Mr Justice Singh added: “This was classically a polycentric decision-making context. It was one for the public authority to which Parliament has entrusted such functions, provided of course that it complied with its legal duties. Although the outcome was no doubt disappointing to the claimant and to others who support the campaign which she chairs, it is important to recall that the public sector equality duty does not require any particular outcome to be achieved by a public authority; rather it imposes a procedural duty (and an important one) to have due regard to various matters in the process by which an outcome is reached.”

The judge has, however, given the claimant permission to appeal.

Chris Fry of Unity Law, which advised Fair Access to Colchester, said: “The implication of the decision is very troubling. If the restrictions are re-introduced, access to the High Street and Northern end of Colchester will be severely restricted for people with mobility issues.

“It is difficult to rationalise how a local authority on issuing a blue badge to someone who can only walk unaided for 30 seconds can be complying with Equality Act legislation by providing parking spaces up to 450 metres away and down a steep gradient.”

A spokesman for Essex County Council said: “Essex County Council accepts the High Court’s decision and understands that the applicant is entitled to appeal. The county council will obviously respond as required should the claimant choose to appeal.”