The cycle lanes had been installed in September 2020, but were removed following a petition calling for their removal which attracted over 3000 signatures. In light of the controversy around their removal, the Council’s Leadership Team reconsidered the decision to remove them on 17 March 2021. Its decision was not to install cycle lanes but to develop plans and commission research into post-Covid transport patterns.
A campaign group known as ‘Better Streets’ brought a judicial review challenging the decision. The claim was brought on the grounds that the Council had: (1) Failed to consult; (2) Failed to have regard to relevant material considerations; (3) Acted irrationally; (4) Failed to give adequate reasons; and (5) breached the public sector equality duty.
Permission was refused on the papers on all grounds, but granted on two of the grounds (consultation and rationality) on an oral hearing before Tim Smith (sitting as a Deputy Judge of the High Court).
The litigation was procedurally complex and involved an interlocutory hearing to consider whether Better Streets should be granted relief from sanctions, the Claim having been automatically struck out for failure to pay the continuation fee.
The matter was then listed for a final hearing in December 2022, shortly before which the Claimant applied to amend its grounds. Having been refused permission to do so on the papers it applied to set that order aside at the beginning of the final hearing. That application was dismissed in an ex tempore judgment, both on the basis that the parties had agreed, for the purposes of CPR 23.8, that the application should be disposed of without a hearing (such that the power to set it aside under CPR 3.3(5) did not arise) and in any event on the basis that the application had been made far too late.
In a detailed judgment handed down on 14 March 2023, Lane J dismissed both grounds.
The judgment is of particular importance on the question of consultation. Following a detailed review of the applicable authorities (paras. 36-47), Lane J held that:
(1) The Claimants had come “nowhere near” showing a promise or established practice of consultation (paras. 49-51).
(2) There was “no basis whatsoever” for the Claimants attempts to invoke the principle of conspicuous unfairness (paras.52-58)
(3) Even if – contrary to those findings – a duty to consult arose the engagement that was carried out was not carried out unfairly. There was no breach of the Sedley/ Gunning criteria. Nothing that could be said to have gone clearly and radically wrong (paras. 59-69); and
(4) The Claimants had not, in any event, identified any point they would have wished to raise had they been further consulted, such that there was no prejudice in this case (para. 70).
Given the comprehensive review of the relevant authorities and robust application, the decision provides a useful reference for public authorities faced with an allegation that they ought to have consulted in circumstances where there is no statutory duty to do so.
A copy of the judgment is available here.
Charles Streeten appeared for the successful Defendant, the Royal Borough of Kensington and Chelsea, instructed by Bi-Borough Legal Services.