Sophia Bouchti v London Borough of Enfield

Procedural non-compliance in making a traffic order permits quashing only where the applicant’s interests have been substantially prejudiced. The applicant’s interest in procedural compliance itself is insufficient. A failure to perform the statutory balancing exercise is different: it concerns the purpose for which the power is exercised and may make the order unlawful without proof of substantial prejudice.

The requirements for making an experimental order permanent must be interpreted contextually and purposively. Consultation fairness depends on the circumstances, and disclosure of every document is unnecessary if consultees can make an intelligent response. Elected members may have a predisposition towards a policy, provided they remain open-minded about the particular decision.

The claimant sought statutory review under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 of permanent traffic orders made by the London Borough of Enfield. The orders made permanent experimental measures creating a Quieter Neighbourhood in the Fox Lane area.

Seven grounds alleged procedural non-compliance, unfair consultation, failure to have regard to statutory duties, failure to balance competing interests, predetermination or apparent closed-mindedness, irrationality and breach of the Tameside duty. The central issues were whether the statutory procedure had been followed, whether any failures caused substantial prejudice, whether the Council had exercised its powers for the statutory purposes, and whether its information-gathering was rationally sufficient.

1. Outcome. The claim was dismissed. The Council had failed to comply with some procedural requirements, but those failures had not substantially prejudiced the claimant’s interests.
2. Regulation 23 procedure. The procedure for making an experimental traffic order permanent is truncated because it dispenses with ordinary consultation, notice and objection provisions. It nevertheless provides a six-month period for objections informed by practical experience. Its requirements are to be interpreted in context and in the light of their purpose. A failure concerning the earlier experimental order does not automatically make the later permanent order outside the relevant powers. It is a failure to comply with a relevant requirement, engaging paragraph 36(1)(b) only if substantial prejudice is shown.
3. Procedural failures and consultation. The Council breached regulation 31(5) by failing to make the statement of reasons available online for two months. It also breached the requirements by initially treating the June 2021 order as merely corrective, since that order expressly superseded the earlier order. Neither failure substantially prejudiced the claimant. The consultation remained fair despite the non-disclosure of detailed traffic data and surveys because affected persons could intelligently describe the practical effects of the experiment.
4. Statutory duties. Sections 45 and 122 govern the purposes and considerations relevant to traffic orders. The decision-maker must in substance balance the expeditious, convenient and safe movement of traffic, including pedestrians, against local amenities and other relevant matters. Express reference to section 122 is unnecessary if the required exercise was actually undertaken. The Council had considered road safety, long vehicles and adverse effects on displaced traffic, and was entitled to conclude that the benefits outweighed those effects.
5. Predetermination and rationality. Elected members may support policies and approach particular proposals with a predisposition. The decision is invalid only where there is a real risk that the member was determined to approve the particular proposal with a mind closed to contrary arguments. The evidence did not establish that risk. The Tameside duty requires reasonable steps to inform the decision-maker. The Council could rationally proceed on the available data after a substantial period of experimentation.