Tomkins v City of London Corporation

An experimental traffic order must involve a genuine experiment, and the traffic authority must be able to explain its nature and purpose. The authority has a broad discretion in selecting the experiment, subject to rationality and the statutory balancing duty under section 122 of the Road Traffic Regulation Act 1984.

There is no general common-law duty to consult affected persons before making an experimental order. Statutory consultation requires the authority to consider which affected organisations it is appropriate to consult, but does not require consultation with every such organisation. Failure to consider whether to hold a public inquiry is an error of law, but relief may be refused where the outcome would inevitably have been the same.

Material failures in statutory publication, inspection or reasons may justify declarations without quashing unless the claimant was substantially prejudiced.

The claimant, a Barbican resident and leaseholder, challenged an experimental traffic order made by the City of London Corporation on 2 March 2020 under the Road Traffic Regulation Act 1984. The order restricted Beech Street to zero-emission vehicles, subject to access, and closed two junctions.

He alleged failures of consultation, failure to consider a public inquiry, unlawful consideration of the statutory balancing duty, failures to make documents available for inspection, inadequate reasons, lack of a genuine experiment, and substantial prejudice to the public’s right to object. The claim also raised the effect of the Covid-19 lockdown on the operation and monitoring of the experiment.

1. Outcome. The claim was allowed on grounds 3, 5 and 6 only. No relief was granted on ground 3. Declarations were made on grounds 5 and 6. The experimental traffic order was not quashed, and there was no order for costs.
2. Consultation. The claimant had no legitimate expectation of prior non-statutory consultation. Use of the public highway was conditional upon traffic restrictions, and the order was temporary with a later statutory opportunity to object to permanence. The City’s statements and past consultation practice were insufficiently clear, unequivocal and settled to create such an expectation.
3. Under regulation 6 of the 1996 Regulations, the authority must consider whether affected organisations exist and whether it is appropriate to consult them. The discretion is subject to ordinary rationality principles. The City rationally decided not to consult individual residents’ associations.
4. The City’s failure to consider whether to hold a public inquiry under regulation 9 was an error of law. Applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041, quashing was inappropriate because the decision would inevitably have been not to hold an inquiry.
5. The City lawfully performed the balancing exercise required by section 122. That duty is qualified, includes pedestrians, and must be read with the statutory factors and the purposes of traffic regulation. A less restrictive experiment is a factor to consider, not an automatically required first stage.
6. The City significantly breached the requirements to make deposited documents available for inspection. The claimant was not substantially prejudiced, so quashing was unavailable. The breach meant that the conditions for using the truncated procedure for making the order permanent were not met.
7. The statement of reasons was inadequate. It failed sufficiently to explain the extreme restriction, the nature and purpose of the experiment, and whether a permanent order would be considered. The claimant was nevertheless not substantially prejudiced because he had independently followed the decision-making process. A declaration was therefore appropriate.
8. The order was a genuine experiment concerning the benefits and disadvantages of restricting vehicle access to improve air quality. The later effect of the pandemic concerned continuation of the order and required a separate challenge to the decision not to revoke or suspend it.

First-instance statutory challenge in the High Court. No appellate history was stated in the judgment.