Motorcyclists fail in Court of Appeal action over making of road traffic regulation order

The Court of Appeal has rejected an appeal by a motorcyclists’ group over a road traffic regulation order (TRO) made by Hampshire County Council.

Sir Ross Cranston, sitting as a High Court Judge in the Administrative Court, had dismissed the Trail Riders Fellowship’s legal challenge in December 2018.

In Trail Riders Fellowship v Hampshire County Council [2019] EWCA Civ 1275 Lord Justice Longmore said there were two main issues:

1. whether, when making the TRO, Hampshire had proper regard to, and complied with, its duty under s. 122 of the Road Traffic Regulation Act 1984. That provision imposes on a local authority when considering whether to make a TRO, a duty to "secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)" as far as practicable (s. 122(1)) having regard to factors including the maintenance of local amenities and reasonable access to premises and any other matters appearing to the local authority to be relevant (s. 122(2)); and
2. whether the report of Hampshire's consultation with the road policing unit (RPU) of Hampshire Constabulary pursuant to paragraph 20 of Schedule 9 of the 1984 Act, which was not passed to the individual decision-maker [Stuart Jarvis, Hampshire's Director of Economy Transport and Environment], was a "relevant consideration in the legal sense" and/or whether the judge correctly exercised a discretion not to quash the order notwithstanding the failure of the decision-maker to have regard to the report.

The TRO prohibits the use of three linked rural "green lanes" near Warnford in the Meon Valley of Hampshire - Bosenhill Lane, Green Lane and Dark Lane - by mechanically propelled vehicles, in other words motor vehicles and motorcycles. Together these lanes form a through-route from Warnford to Brockwood Park, joining tarmacked public vehicular highways at their three termini.

They are unclassified roads which, although appearing on the council's list of streets under section 36 of the Highways Act 1980, are not recorded on its Definitive Map and Statement.

The Trail Riders Fellowship, a national organisation which aims to preserve the full status of vehicular green lanes and the rights of motorcyclists to use them, applied to quash the TRO wholly or in part under Part VI of Schedule 9 of the 1984 Act.

Hampshire is both the traffic and highway authority for the county.

Lord Justice Longmore said he rejected a submission by counsel for the Trail Riders Fellowship that the decision-maker must have "expressly considered" section 122 and that, if he did not, the TRO must be quashed. [It was conceded by Hampshire that it had not once referred to the section in the four year period leading up the making of the TRO]

“If the report submitted to and considered by him does in fact conduct the balancing exercise required by the statute that is sufficient,” the Court of Appeal judge said.

Lord Justice Longmore said the question therefore was whether the right balancing exercise had been conducted.

“On the one hand regard must be had to the duty set out in section 122(1) so far as practicable ‘to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)’; as the judge points out (paras 37(i) and 44) it is significant that pedestrians are included,” the Court of Appeal judge said.

“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 (section 122(2)(b) and (d)). This is not a particularly difficult or complicated exercise for the traffic authority to conduct. It is indeed difficult to imagine that a county's Director of Economy Transport and Environment will not be acutely aware of the county's obligations (so far as practicable) to secure the expeditious, convenient and safe movement of vehicular traffic.”

Lord Justice Longmore said that part of that duty was inevitably a duty to consider any necessary repairs and that was one of the considerations expressly referred to but rejected as impracticable in a report from Mr Sykes [the council officer with direct responsibility for the lanes] to Mr Jarvis and in section 3 of Mr Jarvis' own decision of 26th February 2018.

“Appendix C of Mr Sykes' report also expressly referred to the balance which needed to be struck between the beneficial enjoyment for motor vehicle drivers and what the council officer called the disbenefits to the local community and the surrounding environment. These considerations amply justify the judge's conclusion that the section 122 duty was in substance fulfilled.”

Lord Justice Longmore was “somewhat more doubtful” about Sir Ross Cranston’s proposition that it was possible to infer that the section 122 duty had been complied with merely because the decision had been made by a specialist committee or a specialist officer who could be taken to have knowledge of the relevant statutory powers.

“There does, in my judgment, have to be actual evidence that the balancing process required by section 122 has been, in substance, conducted. It cannot be merely a matter of inference from the status of the decision-maker. But that requirement has been satisfied in this case,” he said.

Lord Justice Longmore went on to summarise the approach which should be adopted by traffic authorities in considering whether to make a TRO:

1) the decision-maker should have in mind the duty (as set out in section 122(1) of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable;

2) the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and

3) the decision-maker should then balance the various considerations and come to the appropriate decision.

“As I have already said, this is not a particularly difficult or complicated exercise nor should it be.”

On the failure to pass on the RPU report, which said it did not support the TRO proposal, to Mr Jarvis (meaning it was never considered by him), Lord Justice Longmore said: “It is not the case….that the RPU was not consulted; it is just that Mr Sykes did not pass its wrong and muddle-headed response to Mr Jarvis for his consideration but instead emphasised the willingness of the local constabulary in West Meon to enforce the TRO.”

The Court of Appeal judge added: “In these circumstances it would be a strong exercise of judicial power to quash a carefully considered TRO merely because the actual decision-maker was not presented with a wrong and muddled-headed response from the RPU and the judge's exercise of discretion is not, to my mind, surprising.”

Lord Justice Longmore said that in the circumstances “although the judge gave no specific reasons for the exercising of his discretion not to quash the TRO for breach of this particular requirement, those reasons can be sufficiently discerned from other parts of his judgment. I would not myself interfere with his discretion the exercise of which, in the circumstances, was an entirely understandable decision.”

Also dismissing the appeal, Lord Justice Lewison agreed with Longmore LJ that ground 1 failed because in substance Hampshire performed the balancing exercise required by section 122. He said: “In my judgment the statutory requirement is capable of being fulfilled whether or not the decision-maker knows that the requirement exists.”

However, in disagreement with Longmore LJ, he said he did not consider that Hampshire complied fully with its statutory duty as Mr Jarvis was not only unaware of the response of the RPU but that he had been positively misled that the proposal had “the full support of the local police”.

Lord Justice Lewison said: “The question that then arises is whether TRF have been ‘substantially prejudiced’ by that failure. If it were obvious that the decision would have been the same even if the decision-maker had conscientiously taken into account the response of the RPU then I would answer that question ‘No’. Although I have harboured more doubt on that question than Longmore LJ or the judge, I do not push my doubts to a dissent. Accordingly, I agree that the judge was entitled, as a matter of discretion, to refuse to quash the TRO.”

Lord Justice Coulson agreed with Longmore LJ on the point of disagreement with Lewison LJ. This was “in the circumstances of the case (and, in particular, the misconceived nature of the RPU’s response compared with the views of the local constabulary, which were known)”.

Stephen Whale of Landmark Chambers appeared for Hampshire.