Council hit with legal challenge over decision to keep open underpass to motor traffic

Judicial review proceedings have been issued against Bournemouth, Christchurch and Poole Council (BCP Council) over its decision to keep a single-lane underpass open to motor traffic.

The charity behind the claim, Cycling UK, contends the council failed to have appropriate regard for statutory guidance issued to highway authorities under the Network Management Act 2004.

If the claim is given permission to advance, it will become the second judicial review relating to the underpass that BCP Council has defended.

The council closed the Keyhole Bridge underpass in Poole in 2020 under an experimental traffic restriction order to provide safer walking and cycling facilities during the pandemic. But the thoroughfare was later reopened to motor traffic following a consultation in early 2021.

This consultation ended prematurely, however, resulting in a local group seeking a judicial review of the decision.

In November 2021, Mrs Justice Lang found that the council breached a procedural legitimate expectation when it decided to reopen the road.

She declined to quash the local authority's decision but said the council ought to conduct another consultation.

The local authority then conducted a second consultation, which ended in April 2022.

Nine months later, the council moved to reopen the road to motor vehicles. Cycling UK sent a pre-action protocol letter questioning the decision to the council early last month.

Commenting on the situation, Duncan Dollimore, head of campaigns at Cycling UK, said: "Cycling UK gave BCP Council the chance to avoid an expensive court case, but it has failed to answer the questions we and local residents have raised, and hasn't been able to explain or show how it took account of the statutory guidance."

He added: "The council has ignored the guidance all councils are required to follow, despite having already lost one judicial review on Keyhole Bridge, costing it a great deal of time, money and credibility."

Leigh Day solicitor Rowan Smith, who is assisting the charity, said: "Statutory guidance says that schemes such as the closure of Keyhole Bridge to motor vehicles should be retained unless there is substantial evidence to the contrary. However the council decision documents show that BCP Council has misunderstood this point.

"Cycling UK will argue that the statutory guidance was unlawfully interpreted when councillors made their decision. We are confident that the court will agree and allow Cycling UK's claim for judicial review."

A BCP spokesperson said: “The decision to keep Whitecliff Road open to all traffic through Keyhole Bridge was made after carefully reviewing the policy context, all consultation responses, and the likely impact on the area. 

“In making this decision Cabinet considered the views of all those who use this route for travel to work, school, or leisure, as well as the views of local Ward Councillors and all other evidence, including the assessment reports appended to the Cabinet report.

“These reports included an economic assessment which indicated that to permanently close Whitecliff Road to motor vehicles would have a negative overall economic impact, due to increased traffic and congestion on the alternative routes along with a wide range of other positive and negative outcomes 

“On balance Cabinet considered that the benefits of retaining the access as it is outweighed the benefits of closing it to vehicular traffic.”

Adam Carey