Montpeliers and Trevors Association, R (on the application of) v City of Westminster

A public authority undertaking a non-statutory consultation must apply the same standards as for statutory consultation. Consultation must occur while proposals remain formative, provide sufficient reasons and time for a meaningful response, and require conscientious consideration of the responses. Fairness generally requires consultees to be invited to comment on all materially available options. Excluding a central option before general consultation may therefore amount to unfairness and breach of a legitimate expectation. Excluding a particular solution does not of itself show that statutory decision-makers ignored the statutory factors relevant to achieving the statutory objective.

The claimant association represented residents affected by experimental traffic barriers in Montpelier Square and Trevor Square. Westminster City Council decided to consult on alternative traffic measures while excluding options retaining the barriers or extending permit eligibility. It later selected an alternative scheme and made a permanent traffic order.

The claimant challenged both decisions by judicial review, alleging defective consultation, unfairness, irrationality, breach of statutory duties, legitimate expectation, failure to consider policies and evidence, and inadequate reasons. The central issues were whether the consultation was lawful and fair, whether the City had unlawfully predetermined the outcome, and what relief remained appropriate after the permanent order had been made.

1. Participation in the hearing. Although the City had seriously failed to comply with the requirements of CPR Part 54 and an order of the court, it was permitted to participate under CPR 54.9(1). The claimant suffered no irremediable prejudice and costs could address the default.
2. Consultation. The principles in R (Partingdale Lane Residents Association) v Barnet London Borough Council, R (Wainwright) v Richmond upon Thames London Borough Council and Bovis Homes Ltd v New Forest District Council applied. The earlier statutory objection process was not general consultation. The later consultation was also defective because it excluded the central options of retaining the barriers and extending the permit area. A fair consultation required all materially available options to be presented to interested parties.
3. Fairness and legitimate expectation. Exclusion of the options deprived consultees of a fair opportunity to express views and created an appearance that those options had already been ruled out. The public representation that residents would be consulted on the determination of the barrier scheme created a legitimate expectation of proper consultation on all options. No overriding reason justified resiling from that promise. The reasoning in R v North and East Devon Health Authority ex p Coughlan was applied.
4. Statutory duties and other grounds. The City did not breach section 122 of the Road Traffic Regulation Act 1984. Excluding a particular means of pursuing the statutory objective did not itself exclude the statutory factors in section 122(2), and the reviews showed that those factors had been considered. The challenges based on transport policies, the Singleton report, allegedly faulty information and inadequate reasons failed. The reasons for the later decision, read with its summary, were brief but adequate.
5. Relief. The two decisions were quashed. A mandatory order was to require a fresh public consultation, including the traffic-regulation measures prescribed in the 2002 Order, and a lawful decision whether to take further steps under the Act. The City was proposed to pay the claimant’s costs, subject to submissions, with the costs of the Singleton report proposed to be excluded.

First-instance judicial review proceedings. The judgment quashed the decisions of 4 August 2003 and 3 December 2003 and directed a fresh consultation and lawful reconsideration.