Oxfordshire CC Jan 20 Head of Legal 600

One Source Dec 19 Deputy Director

Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background
Slide background

Local authority defeats High Court statutory challenge over traffic regulation order

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 [2019] 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:

  1. 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.
  2. The reasons for making the TRO were irrational.
  3. The defendant local authority made a mistake of fact and had regard to irrelevant matters when making the TRO.
  4. The defendant failed properly to undertake the balancing exercise required by s.122 of the Act.
  5. 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.


Traffic lights iStock 000003944828XSmall 146 x 219
April 26, 2019

Local authorities and traffic light controlled junctions

A city council has successfully defended a claim brought by a motorcyclist over the phasing of a traffic light-controlled junction. Nicola Hyam and David Williams explain how.
blackpool 146x219
April 18, 2019

Between Blackpool rock and a highway hard place

Had a claimant who tripped on a kerb been successful in a recent case, it could have led to Blackpool Council having to consider redesigning its popular new promenade area at very considerable cost. Paul Murphy explains how the authority successfully defended the claim.
Problems with service of CIL construction 1510561 1280 146x219
April 12, 2019

Problems with service of CIL documents

Christopher Cant examines the challenges that arise when seeking to comply with the Community Infrastructure Levy regime.
Cyclist 97716316 s 146x219
March 15, 2019

Proving the size of highway defects

A recent High Court ruling in a claim against a highways authority over a pothole demonstrates why measurements of length, width and depth are crucial, writes Dominique Smith.
Bus iStock 000003775433XSmall 146x219
December 21, 2018

Transferring interests in highways

The Supreme Court has handed down a ruling in a dispute between two London councils and Transport for London on the extent of the transfer of a 'highway'. David Elvin QC explains the outcome.
Housebuilding iStock 000008203889XSmall 146x219
October 26, 2018

Enforcing s106 agreements

What can you do if in relation to s.106 agreements things don’t work out as planned? Gary Soloman explains.
Contract 2 iStock 000003466551XSmall 146x219
September 07, 2018

Contractual interpretation: the Amey dispute

Deborah Down considers how a contractor’s rigid approach to what a highways maintenance contract said, led to unintended consequences for the authority.
Potholes 14396505 s 146x219
August 24, 2018

Tripped up

A borough council in the West Midlands recently secured a finding of fundamental dishonesty in a highways tripping case. Matthew Harpin sets out how.
Road iStock 000012245935XSmall 146x219
July 20, 2018

Highways and inspection systems

A council’s annual inspection system was recently found by a court to be adequate for the purposes of S.58 of the Highways Act 1980 (the Act) when determining liability. Lucie Evans and Suzanne Milne report.
Road iStock 000012245935XSmall 146x219
May 25, 2018

Impaired lines of sight and motor accidents

Should a landowner or highways authority face liability for obstructed sightlines? John Goodman analyses a recent Court of Appeal ruling that wil be a useful case for highway authorities and other landowners.
Projects portrait1
April 20, 2018

CPO and compensation: key changes

Gary Soloman looks at a number of provisions relevant to compulsory acquisition in the Neighbourhood Planning Act 2017 and Housing and Planning Act 2016 that come into force on 6 April 2018.
Port 41440953 s 146x219
April 06, 2018

Ports and good governance

Local authorities that manage municipal ports need to consider and implement the government's new Ports Good Governance Guidance, writes Lara Moore and Ione McGregor.
Barriers 95802572 s 146x219
February 23, 2018

Installing barriers on public highways

LexisPSL Local Government, in partnership with Laura Hughes of Browne Jacobson, deals with the question of the powers available to a local authority when installing gates or barriers on public highways.
Parking meter iStock 000012484950XSmall 146x219
January 19, 2018

Dealing with icy car parks

The Court of Appeal recently rejected a claim for damages brought by a 78-year-old man who fell on ice in a council-operated car park. Claire Booth explains why.
Project iStock 000000224397XSmall 146x219
December 15, 2017

Continuing issues with CIL

Christopher Cant analyses some of the thorny issues thrown up by regime for the Community Infrastructure Levy.
Strike 146x219
August 24, 2017

Direct action and injunctions

Protestors have been stopped from preventing a tree-felling programme run by Sheffield City Council. Yaaser Vanderman sets out the judge’s reasoning for granting an injunction.
Pollution 28909383 s 146x219
August 17, 2017

Seeing through the smog

How can local authorities interpret DEFRA’s Clean Air Zone Framework in compliance with the law? Anna Heslop looks at the background and an important legal test.
Right of Way 34826038 s
August 17, 2017

Public rights over public spaces

Laura Renaudon reports on a rights of way order decision concerning a definitive map modification application over a public park owned by Durham County Council.
RCJ portrait 146x219
August 10, 2017

The scope of “highway” for GLA Roads vesting

The Court of Appeal has determined the scope of “highway” for GLA Roads vesting. David Elvin QC reports on a successful appeal by two councils.
Potholes 14396505 s 146x219
August 03, 2017

Potholes galore!

John Collins reports on a Court of Appeal ruling in a case where a jogger injured himself in a pothole.
OHSecurity is developed by Orange Hat Studios