“151 Implementation by a London borough council (1) Where the Mayor [of London] has approved a local implementation plan, or a local implementation plan as proposed to be revised, submitted to him under section 146(1) above, the London borough council which submitted the plan— (a) shall implement the proposals contained in it in accordance with the timetable included by virtue of section 145(3)(a) above, or, as the case may be, section 149(2) above [section 149(2) relates to revised plans] …”
“A summary of the evaluation is: Option 1 scores strongest in terms of access for emergency services, residents, deliveries and vehicles associated with council operations such as highway maintenance and waste collection. It is also the strongest option in terms of network resilience and access for those reliant on vehicles such as disabled people. From the consultation, the proportion of responses disabled people were more in support of Option 1 than for Option 2. From disabled responses from within the consultation area 70.4% supported Option 1. Option 2 scores highest in terms of road safety, air quality and public realm suitable to encourage active travel. Option 3 scores highest overall by striking a balance between competing demands on streets within the scheme area. It seeks to address most of the concerns of stakeholders that support Options 1 and those that support Option 2.”
“To approve Option One (of the three options summarised in section 2 of the report). a. Subject to the retention of the closure of Canrobert Street in Bethnal Green.” a. Subject to the retention of the closure of Canrobert Street in Bethnal Green.”
“The options set out in this report seek to address several issues that have been identified by residents and key stakeholders since the implementation of the Liveable Streets scheme in Bethnal Green. Alternative options Through the public consultation, responses and feedback from the public and key stakeholders was assessed by the project team. The review, assessment and available data have contributed to the development of an additional option to the two that were originally consulted on.”
“LTNs have been one of London's most divisive issues in recent years. Boroughs have found themselves caught up in regional, national, and even international politics – making the day-to-day business of running them more challenging. LTNs have divided political parties, but most detrimentally they have divided our communities. Neighbouring boroughs, such as Brent and Ealing, have removed LTNs because of their divisiveness. In Tower Hamlets, the divisions have been considerable over recent years. … Our consultation research shows that, while LTNs improve air quality in their immediate vicinity, they push traffic down surrounding arterial roads – typically lived on by less affluent and BME residents. Tower Hamlets has the third lowest car ownership in London, but a significant portion of our local economy is dependent on car usage, particularly among lower paid workers such as taxi drivers, couriers, small businesses, and market traders. The emergency services have divided views on LTNs. The London Ambulance Service, for example, opposes hard physical closures. Our refuse service also struggles to reach all our residents in a timely way because of closures – leading to waste and cleanliness issues. Our consultation shows division among residents, too. While there is support for retaining the schemes, roughly 42% of residents want them removed. The consultation process itself has been challenging, with around 3,000 respondents in total – many of whom do not live in Tower Hamlets. For resident-only results, margins are in the low hundreds. …”
“37. Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult. But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was ‘unfair’ as that term is normally used in administrative law. In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, ‘before making a scheme’, to consult any major precepting authority, to publish a draft scheme, and, critically, to ‘consult such other persons as it considers are likely to have an interest in the operation of the scheme’. All residents of the local authority's area could reasonably be regarded as ‘likely to have an interest in the operation of the scheme’, and it is on that basis that Haringey proceeded. 38. Such wide-ranging consultation, in respect of the exercise of a local authority's exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process. 39. In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know ‘what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response’: R v North and East Devon Health Authority, Ex Coughlan[2001] QB 213 , para 112, per Lord Woolf MR.”
“… Fairness in my judgment required that there should be a process of consultation in which those being consulted could express their views on all the various options. That never took place. It is no good Mr Cosgrove saying, even if it is the case, that proponents of the retention of the barriers expressed views supportive of that contention in the course of both the statutory process and the subsequent consultation exercise. Fairness required a consultation process in which all those interested, whether pro or con, were invited to express their views on all the various options. …”
“73. One of the particular questions which arises in this case is when fairness determines that there should be re-consultation by the decision-maker. When do circumstances exist which give rise to a legal requirement that there should be a further round of consultation? This issue arose before Silber J in the case of Smith v East Kent Hospital NHS Trust[2002] EWHC 2640 (Admin) . From paragraph 43 onwards he reached the following conclusions: ‘43. A matter of crucial importance in determining whether the defendants in this case should have re-consulted on the proposals under challenge was the nature and extent of the difference between what was consulted on in the consultation paper and the proposal accepted in the March 2002 decision. Clearly, if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult, whilst at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear in mind not only the strong obligation of the defendants to consult, but also the dangers and consequences of too readily requiring re-consultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult. 44. As Schiemann J, as he then was, (with whom Lloyd LJ agreed) pointed out in explaining these dangers in R v Shropshire Health Authority ex p Duffus [1990] Med LR 119 at p223: “A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, that they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change – either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken.” 45. So I approach the issue of whether there should have been re-consultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the community. The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the health service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt." 74. During the course of the argument on this point both parties, and in particular the defendants and those defending the decision, emphasised the phrase ‘fundamental difference’ in their submissions. As the argument developed, it appeared to me that this phrase was in danger of having more rhetorical force than substantive content, and in and of itself providing limited assistance in determining when re-consultation might be required. In my view that phrase cannot be detached from the clear and undoubtedly accurate conclusion reached by Silber J that any consideration of the need to re-consult will be determined by the concept of fairness. 75. The requirements of fairness in considering whether or not to re-consult must start from an understanding of any differences between the proposal and material consulted upon and the decision that the public body in fact intends to proceed to make. This is because there will have already been consultation. The issue is, then, whether it is fair to proceed to make the decision without consultation on the differences, which will therefore be heavily influenced in this particular context by the nature and extent of the differences. Whilst it is not possible to produce any exhaustive list of the kind of matters that would need to be considered (alongside all the other legal principles set out above) to determine whether re-consultation is required, some illustrations may assist. Examples would include where it has been determined that it is necessary to reopen key decisions in a staged decision-making process which had already been settled prior to consultation occurring; or where the key criteria set out for determining the decision and against which the consultation occurred have been changed; or where a central or vital evidential premise of the proposed decision on which the consultation was based has been completely falsified. These examples serve to illustrate the very high order of the significance of any difference which would warrant re-consultation. 76. It is also important to point out that the question of a change's significance is not to be determined with the benefit of hindsight: it is significance at the point in time when the question of re-consultation is to be determined that counts. Finally, the fact that a change arises so as to reflect views produced by the consultation process does not itself require re-consultation. Once again, it is the extent of the change or difference which is the starting point. If the change arose from the original consultation that is simply evidence of the fourth Sedley criterion in operation and not in and of itself a reason for re-consultation. It is the extent of the change which requires examination. 77. Having observed all of the above in relation to the legal principles governing consultation it is important to recognise, as the courts have on several occasions, that a decision-maker will have a broad discretion as to how a consultation exercise may be structured and carried out. As Sullivan J (as he then was) observed in R (on the application of Greenpeace Limited) v Secretary of State for Trade and Industry[2007] EWHC 311 at paragraphs 62 and 63: ‘A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went “clearly and radically wrong”.’ Subsequently in the case of R (JL and AT Beard) v The Environment Agency[2011] EWHC 939 Sullivan LJ confirmed that the ‘test is whether the process was so unfair as to be unlawful.’ ” (Emphasis added)