Planning Court quashes experimental traffic regulation order intended to tackle anti-social behaviour

Neil Cameron KC, sitting as a deputy High Court judge, found in favour of applicants the Green Lane Association and the Trail Riders Fellowship in a case brought against Central Bedfordshire Council.

The two bodies argued partly overlapping grounds but both objected to the order to ban motor vehicles from Sandy Lane, Apsley Heath.

Central Bedfordshire said the ban was intended to prevent inappropriate use of the byway, including anti-social behaviour, fly-tipping, racing and damage to the road surface.

It said the experimental order would enable the council to monitor the scheme to assess its impact.

Mr Cameron noted the association argued five grounds of challenge the fellowship four. He grouped these together as:

• Does the order fall outside the ambit of section 9 of the Road Traffic Regulation Act 1984as it was not made for experimental purposes?
• Did the council breach its statutory duty to give reasons for the making the order and proceeding by way of experiment?
• Did the Central Bedfordshire Defendant carry out the balancing exercise required by section 122 RTRA 1984?
• Did it fail to carry out a lawful consultation under the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996?
• Did Central Bedfordshire fail to comply with the public sector equality duty and/or act irrationally and/or fail to take into account material considerations?
• Did the council act outside its statutory powers and did it have a sufficient evidence base?
• Did it fail to have regard to advice from the Local Access Forum?

Mr Cameron said: “The real issue to be determined is whether the experiment identified in the statement of reasons was a genuine experiment to determine the effect of the prohibition on the use of motorised vehicles on antisocial behaviour.”

He said Central Bedfordshire’s statement of reasons did not identify the nature of the antisocial behaviour, and gave no explanation of the experiment.

“In my judgment the statement of reasons does not explain what the experiment is,” Mr Cameron said.

He said that even if, in theory, an experiment could consider both impact on anti-social behaviour and on surface erosion, “the statement of reasons does not set out the terms of the experiment, in the sense that it does not identify an operation designed to glean information about the workings of the scheme in practice”.

This meant the order was not within the council’s powers as it did not involve a genuine experiment.

Mr Cameron went on to find the association’s interests “have been substantially prejudiced by the failure to give adequate reasons as it has been prevented from being able to formulate an objection which addresses the reasons for making the [order], and has been unable to formulate a response to the experiment”.

He further found Central Bedfordshire did not conduct the balancing exercise, as it failed to refer to securing the expeditious, convenient and safe movement of traffic and failed to balance the factors for and against imposing the restriction.

The association succeeded on all its grounds and the fellowship on two it argued.

Quashing the order, Mr Cameron said: “It cannot be said that the [council] would necessarily have still made the same decision if the errors which have led to me upholding those grounds which establish that the [council] did not act within the relevant powers had not occurred.”

Mark Smulian