Hammett v Essex County Council

The claimant brought a statutory challenge under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 to two experimental traffic regulation orders which removed on-street blue badge parking in Colchester town centre. The claimant advanced grounds that the orders breached section 29 of the Equality Act 2010 (read with sections 20 and 15), that the defendant breached the public sector equality duty in section 149, and that the decision was irrational.

The court held that it lacked jurisdiction to entertain the complaint insofar as it relied on section 29 because, read with Part 9 of the Equality Act 2010, claims under section 29 are to be brought in the county court unless pursued as a "claim for judicial review" under CPR Part 54; a statutory application under paragraph 35 Schedule 9 made under CPR Part 8 is not such a claim. The court went on to consider the public sector equality duty and concluded that the defendant had given due regard to the matters in section 149, having carried out equality impact assessments, consultation, commissioned review work, and made the orders experimental. Finally the court found the decision was not Wednesbury irrational. The application was refused.

This is a first instance statutory application under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 challenging two experimental traffic regulation orders made by Essex County Council which, inter alia, removed blue badge parking spaces from the High Street and Head Street in Colchester and provided additional disabled parking in alternative car parks.

• Nature of claim/application: statutory review under paragraph 35 Schedule 9 to the 1984 Act seeking relief on grounds that the orders were ultra vires and unlawful because they breached the Equality Act 2010, breached the public sector equality duty (section 149), and were irrational.
• Parties and facts: the claimant is a disabled blue badge holder and chair of a local campaigning group (FA2C). The orders, made 4 March 2013 and coming into force 17 March 2013, restricted private vehicle access to the High Street between 11.00 and 18.00 and removed on-street blue badge bays; the council provided 32 alternative bays in outlying car parks and made other changes including creating a taxi rank and certain timing amendments. The orders were experimental and later suspended.
• Issues framed: (i) whether the Administrative Court had jurisdiction to entertain a complaint based on section 29 of the Equality Act 2010; (ii) whether the orders breached the public sector equality duty in section 149; and (iii) whether the decision was irrational.

Court's reasoning: on jurisdiction the court reasoned that the phrase "claim for judicial review" in section 113 of the Equality Act is a term of art referring to a claim under CPR Part 54 and does not include statutory applications under paragraph 35 Schedule 9 brought under Part 8; accordingly the court did not have jurisdiction to entertain the section 29 complaint. On the public sector equality duty the court reviewed the authorities on "due regard" and concluded that the defendant had performed the procedural duty with substance: it carried out two equality impact assessments, engaged in consultations, considered alternatives, commissioned a non-motorised user review, and limited the scheme to experimental form, including making adjustments to proposals. The court accepted the decision involved balancing competing public interests in a polycentric context and that weight and policy choices were for the authority unless irrational. On irrationality the court held the decision was not irrational.

Wider context noted in the judgment: the court observed the importance of the public sector equality duty as a procedural obligation and explained why some equality claims are to be pursued in the county court to allow full factual inquiries; it also emphasised that the duty does not prescribe a substantive outcome.

This is a first instance application. The application is refused. The court refused the claim on three main grounds: (1) it does not have jurisdiction to entertain the claimant's complaint insofar as it is based on section 29 of the Equality Act 2010 because the Equality Act contemplates such claims being brought in the county court unless brought as a claim under CPR Part 54; (2) on the public sector equality duty (section 149) the defendant discharged its duty by carrying out equality impact assessments, consultation and other review measures and treating the orders as experimental; and (3) the decision to make the orders was not irrational.