ROBERT TCHENGUIZ v WESTMINSTER CITY COUNCIL

A traffic authority exercising counter-terrorism traffic-order powers must identify and pursue the statutory security purpose, comply substantively with the public sector equality duty, and assess any interference with Convention rights proportionately.

The public sector equality duty is procedural. It does not require a formal equality impact assessment, provided the decision-maker has conscientiously considered the relevant equality objectives before deciding. Article 8 protection of the home may be engaged by substantial restrictions on vehicular, taxi and delivery access, even where pedestrian access remains.

Proportionality requires examination of less intrusive measures and whether a fair balance has been struck. Differential treatment of comparable properties and the availability of less restrictive security arrangements are material considerations.

The claimant challenged two traffic management orders made by Westminster City Council under the Road Traffic Regulation Act 1984. The orders removed or relocated parking facilities and restricted vehicular access to Kensington Gore (West), where the claimant’s sole residential access was situated beside the Royal Albert Hall.

He alleged failures to comply with the public sector equality duty, disproportionate interference with Article 8 and A1P1 rights, and improper reliance on counter-terrorism powers for design or parking purposes. The central issues were whether the orders were lawfully made for counter-terrorism purposes, whether the equality duty was discharged, and whether the access restrictions were proportionate.

1. Ground 1 dismissed. The public sector equality duty under section 149 of the Equality Act 2010 is a procedural duty requiring due regard to the statutory equality objectives. It does not prescribe a particular outcome and does not require a formal equality impact assessment. The court examines substance rather than form. The Council’s reports identified the relocation and net loss of Blue Badge bays and weighed the loss against the public security benefits. Although it would have been preferable to consider disabled persons arriving by taxi or car at the claimant’s home, the omission did not make the assessment unlawful.
2. Ground 3 dismissed. The evidence established that the Anti-Terrorism Traffic Regulation Order was made for the statutory purpose of avoiding or reducing danger or damage connected with terrorism under section 22C of the Road Traffic Regulation Act 1984. The fact that the proposal originated with the Royal Albert Hall did not make it unlawful, provided the police recommendation was based on an independent assessment. The evidence did not establish that the true purpose was to create a parking or loading area, or to evade section 3(1).
3. Ground 2 allowed. The restrictions substantially interfered with the claimant’s Article 8 rights to respect for private and family life and the home. The Council had adopted an unduly narrow approach by treating pedestrian access as sufficient. Applying the proportionality test in Bank Mellat v HM Treasury [2013] UKSC 39, the Council failed adequately to examine less intrusive measures and whether a fair balance had been struck.
4. The Council had not sufficiently justified treating the claimant’s home more restrictively than the Royal Albert Hall’s visitors and contractors, or residents on Kensington Gore (East), who benefited from less intrusive arrangements. It should have considered vetted access, passes and gate-opening arrangements for the claimant’s household and visitors. The decision-making was therefore flawed and the scheme operated disproportionately.
5. The claim was allowed on Ground 2 only. Grounds 1 and 3 were dismissed.