Tchenguiz v Westminster City Council

This is a statutory challenge under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 to two traffic management orders made under sections 6 and 22C of the 1984 Act which together restrict vehicular and pedestrian access to Kensington Gore (West) adjacent to the Royal Albert Hall.

The claimant advanced three grounds: (1) failure to have due regard to the public sector equality duty (section 149 Equality Act 2010); (2) unlawful interference with Convention rights (Article 8 ECHR and Article 1 of Protocol 1) and/or disproportionate interference; and (3) improper exercise of powers under section 22C (that the ATTRO was made for improper non-terrorist purposes and to evade the protections of section 3 of the 1984 Act).

The court found that the defendant had addressed the position of Blue Badge bays and had discharged the PSED in substance so Ground 1 failed. The evidence demonstrated a contemporaneous police recommendation and legitimate counter‑terrorism purpose for the ATTRO, so Ground 3 failed. The court concluded, however, that the decision‑making failed to give adequate, Convention‑compliant consideration to the interference with the claimant’s home and private and family life under Article 8 and that the scheme as implemented was disproportionate in effect; Ground 2 succeeded. The claim was allowed on Ground 2 only.

This is a first instance judicial review claim challenging two traffic regulation orders which impose hostile vehicle mitigation and timed road closures at and around the Royal Albert Hall. The orders (TMO1 and an ATTRO) remove and relocate parking spaces, introduce waiting and loading restrictions, and authorise gates restricting vehicular access to Kensington Gore (West) between 12:00 and 00:00 daily. The ATTRO was made following an MPS recommendation under sections 6, 22C and 22D of the Road Traffic Regulation Act 1984.

Nature of relief sought: The claimant sought to challenge the validity of the orders under paragraph 35 of Schedule 9 to the 1984 Act, on the grounds they were outside power or that relevant requirements had not been complied with.

Parties and background: The claimant is the long‑standing resident and freehold owner of No. 26 Kensington Gore (West), the only residence on that arm of the road and the only access to his home. The defendant is Westminster City Council, the traffic authority. The Royal Albert Hall promoted public realm improvements that included hostile vehicle mitigation. The Metropolitan Police Service engaged with the proposals and recommended an ATTRO. Consultation responses were made, including objections from the claimant.

Issues framed: (i) Whether the defendant failed to have due regard to the public sector equality duty (section 149 Equality Act 2010); (ii) whether Article 8 and A1P1 ECHR rights were engaged and whether any interference was justified and proportionate; and (iii) whether the ATTRO was made for improper purposes or otherwise outside the powers in section 22C.

Court’s reasoning and findings:

• The PSED (ground 1): the court reviewed contemporaneous officer reports and the relocation/loss of Blue Badge spaces and found the defendant had considered disabled parking implications in substance. Although ideally the defendant should have considered those who previously stopped outside the claimant’s door, the omission did not render the PSED discharge unlawful. Ground 1 failed.
• Improper motives (ground 3): the court accepted contemporaneous evidence—including the MPS recommendation letter and delegated officer reports—establishing a genuine counter‑terrorism purpose and that the ATTRO could alternatively have been justified under the exceptions in section 3(2) of the 1984 Act. The fact the scheme originated with the RAH and was funded in part by it did not make the ATTRO unlawful. Ground 3 failed.
• Convention rights (ground 2): the court held Article 8 was engaged because the measures significantly restricted access to the claimant’s home. Although national security/public safety were legitimate aims, the court concluded the defendant’s proportionality assessment was insufficient. The move to daily closures (12:00–00:00) went beyond the earlier contingency‑style drafts and was justified in the MPS letter by operational convenience rather than a counter‑terrorist necessity applicable to the claimant. Less intrusive measures (security vetting, passes, facilitated short‑notice access) that the RAH and police already applied to contractors and authorised users had not been sufficiently considered in relation to a single residence whose sole access was via the closed road. The defendant’s report contained a materially misleading note that the claimant had appeared to support closure; however that error was not decisive. The court concluded the scheme was disproportionate in operation and allowed the claim on Ground 2 only.

Remedy/disposition: The claim was allowed on Ground 2. Grounds 1 and 3 were dismissed.

This was a first instance statutory challenge. The court allowed the claim in part: the claim is allowed on Ground 2 (Convention rights/Article 8) because the defendant’s decision‑making did not undertake a Convention‑compliant proportionality assessment and the scheme as implemented is disproportionate in its interference with the claimant’s home; Grounds 1 (PSED) and 3 (improper motive/use of s22C) were dismissed because the defendant had, in substance, addressed equality implications for Blue Badge holders and there was contemporaneous evidence of a genuine counter‑terrorism purpose and lawful exercise of power.