KEYHOLE BRIDGE USER SAFETY GROUP (R on the application of) v BOURNEMOUTH, CHRISTCHURCH AND POOLE COUNCIL

A public authority may create a procedural legitimate expectation by making a clear, unambiguous and unqualified promise to consult. It must honour that promise unless an overriding legal duty or sufficiently weighty countervailing public interest justifies departure. Consultation must occur while proposals remain formative, provide adequate information and time for response, and involve conscientious consideration of the responses. The statutory objections procedure for an experimental traffic order concerns objections to making a permanent order; it does not prevent earlier revocation of the experimental order. A court may grant tailored relief without reviving the order or requiring the entire experiment to be repeated.

The claimant, an unincorporated residents’ association, challenged the Council’s decision to revoke an experimental traffic order closing a road beneath Keyhole Bridge to motor vehicles. The challenge alleged breach of the statutory objections procedure, breach of a legitimate expectation arising from published consultation promises, failure to consider material considerations, and irrationality. The Council argued that it could revoke the order before six months, that the consultation promises were not binding, and that any procedural defect could not have affected the outcome.

1. Statutory procedure. The statutory procedure under Schedule 5 to the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 was confined to objections to making a permanent order in the same terms as the experimental order. The Council erred in inviting supporting representations and in treating 21 February 2021 as the statutory closing date; the statutory six-month period ended on 14 February 2021. However, the Regulations did not impose a minimum six-month duration for the experimental order or prevent revocation before that period expired. Ground 1 failed.
2. Legitimate expectation. The Council’s information document made clear and unambiguous representations that the experiment would operate for at least six months, that the public could make representations during the trial, and that responses received by 21 February 2021 would be considered at the review. The first promise was honoured because the order remained in force until 1 March 2021. The consultation promise was not honoured: the decision to revoke had effectively been made by 27 January 2021, when the proposals were no longer formative and the public’s opportunity to respond was materially curtailed. The reasons given did not amount to a sufficiently weighty countervailing public interest. Ground 2 succeeded.
3. Material considerations and irrationality. A response never made could not be a material consideration, but the Phillips’ response, which had been received, ought to have been considered. Relief on that ground was refused because it was highly likely that the outcome would not have been substantially different. The irrationality challenge was merely a disagreement with the merits of a judgment involving competing considerations. The Council’s decision was rational.
4. Relief. The court declined to quash the revocation decision, revive the order or require the entire trial to be repeated. The Council was required to conduct a further non-statutory consultation concerning the period during which the order operated and then conduct a review taking into account the previous consultation material, the further responses, and the representations made during the revocation and call-in processes.

Permission to apply for judicial review was granted on 14 July 2021 by Neil Cameron QC, sitting as a Deputy High Court Judge. The judgment is a first-instance decision of the High Court.