R (Wainwright) v Richmond Upon Thames London Borough Council

The court restated that a local authority’s duty to give public notice of a proposed traffic scheme includes a duty to consider representations made in response. Consultation must meet the Gunning principles: it must be at a formative stage, provide sufficient reasons, allow adequate time, and be conscientiously considered.

A council’s choice of consultation method has a wide discretion and will be unlawful only if it falls outside what no reasonable authority could have adopted. Where a claimant has had effective opportunity to make representations, relief by quashing will be refused unless there is a real possibility that fairer consultation would have led to a different outcome.

The claimant challenged a council decision approving a toucan crossing by judicial review. The claim centred on alleged inadequate notification and consultation by the council under the Road Traffic Regulations Act 1984. Silber J quashed the council’s decision for defective consultation. The council appealed, arguing (i) the claimant had herself been consulted, (ii) the standard applied by the judge was too demanding, and (iii) the judge should have exercised discretion not to quash. The Court of Appeal allowed the appeal and restored the decision.

1. Outcome: Appeal allowed; order quashing the council’s decision set aside.
2. Duty to consult: Section 23 of the Road Traffic Regulations Act 1984 requires public notice and, by implication, consideration of representations received. The court accepted that a further duty to consult may arise from a legitimate expectation based on promise or established practice (see R v Camden LBC ex p Cran).
3. Standard of consultation: The court endorsed the Gunning formulation that consultation must (a) occur while proposals remain formative, (b) provide sufficient reasons to allow meaningful response, (c) allow adequate time, and (d) ensure responses are conscientiously considered. Those principles guide but do not answer the question how extensive notification must be.
4. Scope of discretion: A local authority has a comparatively wide discretion as to how it conducts consultation. A process is only unlawful if it is so narrow that no reasonable council, applying the Gunning principles, would have adopted it.
5. Application to facts: The court found defects in the council’s personal mailings to flats. The judge was right to regard the practice of sending fewer than one letter per flat as flawed. However, on the evidence the court found no real possibility that improved mailings would have produced materially different representations. The claimant had herself made full and detailed representations and had canvassed neighbours.
6. Discretion to quash: In cases where the claimant has had a genuine opportunity to make detailed representations, quashing is appropriate only if there is a real, not merely minimal, possibility that the result would have been different. Applying that test here, quashing was not justified.
7. Precedent and approach: The court applied and followed the reasoning in R v Chief Constable of Thames Valley Police ex p Cotton and related authority on when unfairness in procedure merits quashing.
8. Orders: Appeal allowed; written submissions on costs to be filed. Permission to appeal to the House of Lords refused.

• High Court (Queen's Bench Division): Silber J granted relief by quashing the council's decision (order dated 11 April 2001).
• Court of Appeal (Civil Division): Appeal heard 20 December 2001; appeal allowed and order quashing reversed; permission to appeal to the House of Lords refused.