Better Streets for Kensington and Chelsea & Anor., R (on the application of) v The Royal Borough of Kensington and Chelsea

There is no general common-law duty to consult. A duty may arise from a clear, unambiguous and unconditional promise or established practice, or in the exceptional case where failure to consult would cause conspicuous unfairness amounting to an abuse of power. Courts are especially cautious before inferring such a duty from decisions of democratically elected public authorities.

Where an authority voluntarily consults, it must act properly and fairly. A flawed exercise is unlawful only where it has gone clearly and radically wrong. The Gunning/Sedley criteria require proposals to remain formative, sufficient reasons, adequate time, and conscientious consideration of responses. The sufficiency of information and balance of competing considerations generally remain matters for the elected decision-maker, provided the decision has a rational evidential basis.

The claimants sought judicial review of the defendant local authority’s decision not to reinstate temporary cycle lanes on Kensington High Street. The lanes had been installed during the Covid-19 pandemic and removed after approximately seven weeks. The authority later reconsidered the issue and, following receipt of extensive representations and an officers’ report presenting four options, resolved instead to commission research into post-Covid transport patterns.

Permission was granted on grounds alleging breach of a common-law duty to consult and irrationality. The claimants argued that the authority had either promised or established a practice of consultation, had conducted an inadequate consultation, had improperly framed the decision, and had failed to act rationally in light of incomplete evidence.

1. Disposition. The application for judicial review was dismissed. Both the consultation challenge and the irrationality challenge failed.
2. There was no statutory duty to consult. The common-law principles summarised in R (Plantagenet Alliance Ltd) v The Secretary of State for Justice and others [2014] EWHC 1662 Admin and R (Bhatt Murphy) and others v the Independent Assessor [2008] EWCA Civ 755 required particular caution before imposing a duty on a democratically elected authority. No clear promise or established practice concerning consultation before removing temporary cycle lanes had been shown. Nor did the circumstances approach the exceptional level of conspicuous unfairness amounting to an abuse of power. The controversial nature of the decision did not itself create a duty.
3. The authority’s receipt and consideration of representations did not, on its own, amount to a formal consultation. The factual circumstances in R (Binder and others) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) were materially different. However, even assuming that a duty to consult existed, the exercise satisfied the Gunning/Sedley criteria. The four options remained open, adequate information was provided, there was sufficient time for responses, and the representations were conscientiously considered. The court also accepted that no technical breach of natural justice or material prejudice had been established.
4. There was no irrationality. The sufficiency of information was a judgment for the elected decision-maker, applying the approach in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014. The authority was entitled to balance safety, design, congestion, the promotion of walking and cycling, and uncertainty about future transport patterns. Choosing further research rather than immediate reinstatement was a rational option even though the evidence did not produce a firm conclusion.
5. The wording of the officers’ report did not unlawfully reframe the issue. Reading it fairly and as a whole, as required by Mansell v Tonbridge and Malling DC [2019] PTSR 1452, the Leadership Team understood that it was revisiting the earlier removal decision.

This was a first-instance judicial review. The judgment records that permission was granted on the consultation and irrationality grounds, after earlier procedural orders, but no prior merits decision or appeal is stated.