High Court rejects legal challenge over plan by mayor to remove low traffic neighbourhoods

Campaigners have lost a judicial review case over whether the elected mayor of the London Borough of Tower Hamlets acted correctly in removing low traffic neighbourhoods.

Measures to restrict traffic in parts of Bethnal Green had been implemented by the borough’s former Labour mayor John Biggs.

His successor Lutfur Rahman, of the local Aspire party, said in his election manifesto that he would remove these.

The dispute is between campaigners who say the low traffic neighbourhoods have improved road safety and air quality, and Mr Rahman who maintains they have displaced polluting traffic onto busy main roads.

In the High Court, Fordham J said his role was not to resolve this dispute but to see whether Mr Rahman acted properly.

Local campaigner Oliver Hawes brought the case for the Save Our Safer Streets group.

Fordham J said the agreed issues were: whether the mayor gave legally inadequate reasons for his decision; whether the consultation process was so unfair as to be unlawful; whether Mr Rahman unlawfully failed to take into account the results of the travel survey; whether he failed lawfully to apply Department for Transport statutory guidance on the monitoring and removal of low traffic neighbourhoods; whether his decision was unreasonable; whether the decision was taken in breach of the local implementation plan duty; whether the decision was taken in breach of the best value duty.

On the best value Issue, Fordham J said: “I am unable to accept these submissions. In the first place, this was a scheme-specific decision. I do not accept the analysis that, in making this decision, [Mr Rahman] was ‘deciding how to fulfil' the general duty arising under s.3(1) [Local Government Act 1999] to ‘make arrangements to secure continuous improvement’.

“Parliament did not impose a duty, whenever making any decision, to be satisfied as to best value; nor to have regard to economy, efficiency and effectiveness; nor to explain how regard had been had to economy, efficiency and effectiveness.

“In the second place, [the mayor] was in my judgment informed in a legally sufficient way, so as to be able to make a decision having regard to cost and value.”

Turning to the question of DfT guidance, Fordham J said this concerned temporary and experimental traffic orders and decisions about making them permanent.

“If there were a general freestanding presumption of retention or adjustment, it would be very easy for the drafter of the DfT statutory guidance to have said that,” he said.

The travel survey issue was also rejected, with Fordham J concluding: “I cannot accept that information was being presented only as to perception and safety, without changes in behaviour.”

He said a report on the survey provided the mayor with relevant information for his decision and had been considered properly.

Looking at the lawfulness of the consultation process, the judge said it “was not so unfair as to be unlawful”.

Fordham J explained: “Consultation is not a process where everybody gets to comment on what everybody else says; or where everybody gets a right of reply, or responds to a minded-to decision.

“The four principles of legally adequate consultation are not framed with multiple rounds. The product of consultation, for conscientious consideration by the decision-maker, can involve a new idea. Whether it is identified by a consultee, or comes from officers writing [a report], an idea which was not identified in the consultation paper can be legally adequate consultation working, evidencing a product for conscientious consideration at the final stage of legally adequate consultation.”

The judge rejected all other grounds and noted the campaigners benefited from the Aarhus cap with Mr Hawes’ costs limited to £5,000.

He declined to order any costs against Transport for London, which had led on one unsuccessful ground.

“TfL as an interested party supported the claim, full-square, on a ground which was already identified and pleaded by the claimant,” Fordham J said.

“There was then a sensible division of presentational labour, using the same court time as would have been needed anyway.”

Mark Smulian