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Traffic management orders and equalities impacts

The High Court has dismissed an equalities challenge brought by the trustees of the Central Gurdwara over the impact of a traffic management order on the Sikh Temple. Charles Streeten explains why.

In Anand & Anor v Royal Borough of Kensington And Chelsea [2019] EWHC 2964 (Admin) the High Court has dismissed a challenge by the trustees of the Central Gurdwara (British Isles) London Khalsa Jatha to the Royal Borough of Kensington and Chelsea’s (RBKC's) decision to impose additional parking restrictions in an area which includes the Central Gurdwara.

The Gurdwara challenged the decision on the grounds that: (1) RBKC had breached the public sector equality; and (2) RBKC had failed lawfully to consult, including because it had breached the legitimate expectation the Gurdwara submitted arose from an alleged assurance given by the council’s Lead Member for Streets, Planning, and Transport at a meeting.

The Gurdwara alleged in particular that RBKC had not sufficiently investigated the equalities impact of the scheme, which it said would severely impact the viability of the Gurdwara. In support of this, it produced a considerable body of ex post facto evidence, including conducting its own full consultation exercise.

Lang J dismissed the claim, accepting in full the arguments made on RBKC’s behalf. She held that:

  1. It was wrong in principle to have regard to the Gurdwara’s ex post facto evidence, which was not before the decision maker. The evidence was directed at the merits of RBKC’s decision and fell beyond the scope of a statutory review.
  2. RBKC had a wide discretion as to how to frame its consultation document, including how much information to provide to consultees about the position of the Gurdwara and other religious institutions. RBKC’s decision to summarise the position of faith groups had not been unlawful. Fairness did not require questions about alternative solutions which RBKC was not considering at the time.
  3. The Gurdwara had failed to establish that RBKC made a clear and unambiguous promise to them that it would not extent the controlled parking hours without further consulting it. The Gurdwara’s own evidence was inconsistent on the key point. To the extent that there had been reference to a “potential to consult” this fell well short of a promise to consult.
  4. It was clear from the officer’s report that RBKC had understood the nature of the PSED and applied the statutory criteria. RBKC was entitled to conclude that the information which faith groups had provided was sufficient information upon which it could properly discharge the PSED. Having recognised and assessed the impact on elderly and disabled congregants, it was not necessary to know their precise number. As a consequence the decisions in the Hillingdon and Isle of White cases were readily distinguishable and RBKC was entitled to make a reasonable judgment and then monitor the outcome with a view to making any adjustments that may seem necessary, such as further blue badge provision. The PSED does not require a particular outcome and does not enable a disappointed party to challenge the merits of a decision taken in a “classically polycentric decision-making context” which has been entrusted by Parliament to local authorities.

Charles Streeten is a barrister at Francis Taylor Building. He represented the successful defendant, the Royal Borough of Kensington and Chelsea, instructed by Heidi Titcombe, Principal Solicitor Bi-Borough Legal Services.

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