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City of London defeats challenge to its refusal to revoke experimental traffic order

An experimental traffic order was not invalidated just because the experiment it was designed for had been affected by the pandemic, the High Court has ruled.

The case of Tomkins, R (On the Application Of) v City of London Corporation [2021] EWHC 2265 (Admin) was brought by Richard Tomkins, a resident of London’s Barbican complex, over an order that closed Beech Street to all but zero emission vehicles and those needing access.

Beech Street is an underpass beneath the Barbican which the City of London Corporation had found was prone to air pollution problems.

Mr Tomkins submitted that the Corporation acted unlawfully in refusing to suspend or revoke the order in circumstances where no genuine experiment had been possible because of the huge reduction in traffic volumes due to the pandemic.

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The Corporation argued that the pandemic was not reasonably foreseeable when it decided to make the order in December 2019 and no authority supported the proposition that an experiment must be “meaningful”.

It said it had still though been possible to conduct a meaningful experiment and the restrictions had not made it incapable of answering the question it was set up to test.

Mrs Justice Lang noted Mr Tomkins relied on Trail Riders Fellowship v Peak District NPA [2012] EWHC 3359 (Admin) in which the repair of a track had made it impossible to answer the question for which the experiment was created.

Lang J said: “A genuine experiment will not become unlawful merely because the court considers that its implementation is inadequate or ineffective for its intended purpose.

“The claimant must be able to demonstrate that it is irrational for the authority to conduct, or to continue to conduct, the experiment in its current form. This is a high hurdle to overcome.”

She said the Corporation’s refusal to revoke the order “cannot be characterised as irrational, in the Wednesbury sense.

“Despite the pandemic, it has been possible to gather useful data on air quality and traffic volumes, and modelling tools can be used to provide estimates based on extrapolations from the data.”

She said that with traffic levels beginning to return to normal before the order expired the usefulness of the monitoring would increase.

The Corporation had therefore been entitled to conclude that the order should continue.

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