Cumbria County Council has defeated a statutory challenge to a traffic regulation order (“TRO”) made in respect of an unadopted highway in Carlisle city centre.
In Venuscare Ltd v Cumbria County Council  EWHC 3268 the local authority made the TRO in relation to a highway known as Barton’s Place on 20 June 2019.
The order, which came into effect on 1 July 2019, restricts access at the top of Barton's Place, leading down from Warwick Road, to pedestrian traffic only, save for some limited vehicular access exceptions, and makes the bottom of Barton's Place one way only for all vehicular traffic down to Mary Street.
In 2014 the claimant, Venuscare, acquired land to the west of Barton's Place and to the north of Mary Street which it has since used as a car park open to the public. Vehicles enter the car park from Mary Street. There is an exit onto Barton's Place which vehicles can use in order to travel south down to Mary Street and, but for any restrictions, could also have used to travel north onto Warwick Road.
The claimant has been considering redevelopment of its land and, in that context, was concerned to ensure that it maintained the public and private rights it had in relation to the use of Barton's Place, so as to ensure that the opportunities for development were not restricted in any way.
There were five separate grounds of challenge as amended:
- There were no or no sufficient traffic management reasons under s.1 of the Road Traffic Regulation Act 1984 either for making the TRO or taken into account when making the TRO.
- The reasons for making the TRO were irrational.
- The defendant local authority made a mistake of fact and had regard to irrelevant matters when making the TRO.
- The defendant failed properly to undertake the balancing exercise required by s.122 of the Act.
- The defendant had insufficient regard to the claimant's rights, especially given the impact upon them, when making the TRO.
His Honour Judge Stephen Davies, sitting as a judge of the High Court, found in relation to ground 1 that there could be no doubt from the content of the reports that the county council local committee for Carlisle were advised of the need to be satisfied that it was expedient to make the TRO for the purposes specified and identified as falling within s.1(1) [of the 1984 Act] and there could be no doubt from the content of the reasons given both for the statutory consultation and the TRO itself that the committee expressed itself satisfied that the TRO was expedient for those purposes.
The judge did not accept a submission that the reasons given in the order itself could simply be rejected as amounting to "pro-forma justifications". There was no basis for a suggestion that the TRO was being sought or made other than for genuine and substantial traffic reasons, he said.
HHJ Stephen Davies said it was obvious that the purposes behind the first restriction in the first area (no vehicular access save for limited access reasons) and for the second restriction in the second area (one way vehicular traffic only) were, as was stated in the reasons, both the sub-section 1(1)(a) purpose, namely avoiding danger to persons using the road, and the sub-section 1(1)(d) purpose, namely preventing the unsuitable use by vehicles. “In that respect is of note that there was no suggestion in the only objection received, from the claimant, that there was no justification from a traffic perspective for making the TRO.”
The judge said he also had “no hesitation” in rejecting the second ground of challenge. It could not be said to be a decision no reasonable committee acting rationally would make.
HHJ Stephen Davies concluded that there had been no mistake. In any event, even if the wrong impression had been conveyed, it could not have been a material mistake, he added.
On ground 4, the judge said there could be no “possible argument that this balancing exercise was not undertaken”.
He said that one must look at the question in a reasonable way bearing in mind, as Longmore LJ said in Trail Riders, that one looks to substance and not to form and that it was "not a particularly difficult or complicated exercise for the traffic authority to conduct".
HHJ Stephen Davies said: “The question should not be considered in a factual vacuum. As I have said, there was only one objection received and that was from the claimant. Its objections were carefully recorded and addressed in the second report and, where they raised matters relevant to the balancing exercise, they were addressed in paragraph 7.4 with specific advice to undertake that balancing exercise.
“There was no suggestion by anyone else that there were particular reasons for considering that making the TRO would conflict with the (qualified) duty in s.122(1) to secure the expeditious, convenient and safe movement of vehicular traffic along Barton's Place, so that the nature and extent of the proposed interference would conflict with the traffic safety reasons for making the TRO."
He added: “Thus there were no other particular reasons which the authors of the report needed to refer to or to advise the committee that they would need to be addressed as a part of the necessary balancing exercise between the interference and the safety benefits. I would be extremely reluctant to hold that the decision should be invalidated because of a failure to include reference in the reports or in the minutes to what would in this case have been essentially an arid and essentially theoretical exercise. I have no doubt that in substance the balancing exercise was carried out so far as necessary and appropriate to the particular facts of the case.”
On the fifth ground, the judge said the defendant council was under no statutory or other obligation to consider the commercial impact upon the claimant of making the TRO, “particularly insofar as it related to future use which was not the subject even of any application for planning permission and which had not been adverted to in the objections raised”.
HHJ Stephen Davies said that if Venuscare subsequently obtained planning permission for redevelopment and was able to demonstrate a proper basis for revocation then that would afford it a sufficient remedy.
“The practical impact of the TRO was no more akin to a closure order than was the TRO made in the Trail Riders case which prevented use of the green lanes in question by motor cars and motor cycles,” he added.
“In the circumstances there was no basis for greater justification, whatever that might mean. The balancing exercise conducted under s.122 would, when properly conducted, have given appropriate regard to all relevant factors. In my judgment that is what happened in this case.”
Ruth Stockley of Kings Chambers appeared for the council.