Trail Riders Fellowship v WILTSHIRE COUNTY COUNCIL

A local authority has a discretion under regulation 6, line 7(c), of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 whether to consult organisations representing persons likely to be affected. The discretion must be exercised rationally, by reference to relevant considerations and for the proper purpose. Consultation before an experimental order concerns whether the experiment should be made. It is distinct from later objections concerning whether the experiment should become permanent. An experimental traffic order must have a rational experimental basis, but its reasons need not be elaborate. A failure to consult required organisations, including the relevant chief officer of police, justified quashing the order.

The claimant challenged the defendant local authority’s decision to make an experimental traffic order under section 9 of the Road Traffic Regulation Act 1984. The order prohibited motor vehicles on specified byways and a footpath near the Stonehenge World Heritage site.

The claimant alleged failures to comply with consultation duties, breach of legitimate expectation, failure to consider a previous inspector’s report, and absence of a genuine experimental purpose. The central issues were whether the consultation discretion had been lawfully exercised and whether the order was supported by a rational experiment.

1. Consultation. Regulation 6, line 7(c), required the Council to consider whether relevant representative organisations existed and whether it was appropriate to consult them. The decision was subject to ordinary Wednesbury controls. There was no presumption that every potentially affected organisation had to be consulted, and the discretion was not more constrained for an experimental order.
2. The Council relied on an irrelevant consideration by treating the later opportunity to object to a possible permanent order as relevant to whether consultation should take place before the experimental order. Consultation and objection addressed different questions and different audiences. The Council also relied on reasons concerning the convenient timing of the order, which did not answer the consultation question. The failure to consult was therefore irrational. The Council had additionally failed to consult the Freight Transport Association, the Road Haulage Association and the relevant chief officer of police.
3. The legitimate-expectation claim failed. A legitimate expectation of consultation requires a clear and unambiguous representation. Statements made at a local access forum about possible changes connected with an A303 tunnel proposal did not amount to such a representation concerning the order under challenge. The forum’s advisory status created no corresponding obligation to consult it.
4. Relevant considerations. The Council was not required to address every aspect of an earlier inspector’s report concerning a different proposed order. The earlier proposal focused principally on preserving or improving local amenities, whereas the challenged order principally concerned damage to the byways and safety for other users. The earlier report was therefore only marginally material.
5. Experimental purpose. A section 9 order must be supported by a genuine experiment with a rational basis, identified in the statement of reasons. The statement here sufficiently indicated an intention to assess the causes of damage to the byways and whether reduced motorised traffic would increase use by other users. The experiment was not rendered irrational merely because agricultural access might independently decrease on some routes. The challenge on this ground failed.
6. The application under paragraph 35 of Schedule 9 to the 1984 Act succeeded on the consultation ground. The 2018 Order was quashed. The Council remained free to remake an order, subject to compliance with the statutory requirements.

First-instance judicial review in the High Court (Administrative Court). The court quashed the experimental traffic order.