Surrey County Council v Royal Borough of Windsor and Maidenhead [2016] EWHC 2901 (Admin)

Case No CO/2266/2016

[2016] EWHC 2901 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/11/2016

Before

Robin Purchas QC

Sitting as a Deputy High Court Judge

Between

Surrey County CouncilClaimant

Royal Borough of Windsor and MaidenheadDefendant

Ruth Stockley (instructed by Surrey County Council Legal Department) for Claimant

Robin Green (instructed by Royal Borough of Windsor and Maidenhead Legal Department) for Defendant

Hearing Hearing date: 27 October 2016

Judgment

Deputy Judge Robin Purchas QC:

Introduction

[1]The Claimant, who is the traffic authority for the county of Surrey, challenges the Royal Borough of Windsor and Maidenhead (Chobham Road, Sunningdale)(Weight Restriction) Order 2016 (‘the Order’) under part VI of Schedule 9 to the Road Traffic Regulation Act 1984 (‘the 1984 Act’). The Order was made on 21st March 2016 by the Defendant, who is the traffic authority for its area.

[2]The Claimant relies on four grounds of challenge: a) That the Defendant failed to comply with its obligation to consult with the Claimant pursuant to regulation 6 of the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 (‘the 1996 Regulations’); b) That the Defendant failed to take into account any technical or other sufficient evidence for making the Order; c) That the Defendant failed to consider the suitability of alternative routes and/or the traffic and amenity impacts on those routes as a result of the proposed Order; and d) The Defendant failed to provide an adequate statement of reasons.

Legal framework

[3]By section 1 of the 1984 Act, so far as relevant: “(1) The traffic authority for a road outside Greater London may make an order under this section (referred to as a “traffic regulation order”) in respect of the road where it appears to the authority making the order that it is expedient to make it a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or b) for preventing damage to the road or to any building on or near the road or … … d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or… e) for preserving or improving the amenities of the area through which the road runs…”. a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or b) for preventing damage to the road or to any building on or near the road or … … d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or… e) for preserving or improving the amenities of the area through which the road runs…”.

[4]Section 2 of the 1984 Act provides that a traffic regulation order may contain provisions ‘prohibiting or regulating the use of a road or any part of a road by vehicular traffic or by vehicular traffic of any class specified in the order’ and ‘prohibiting or restricting the use of heavy commercial vehicles … on such roads as may be so specified as they consider expedient for preserving or improving the amenities of their area or of some part or parts of their area.’

[5]By section 122 of the 1984 Act, so far as relevant:

“(1) It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) … (2) The matters referred to in subsection (1) above as being specified in this subsection are: … (b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run; and … (d) any other matters appearing to the local authority to be relevant.” … (b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run; and … (d) any other matters appearing to the local authority to be relevant.”

[6]Section 16 of the Traffic Management Act 2004 (‘the 2004 Act’) provides, so far as relevant:

“(1) It is the duty of a local traffic authority … to manage their road network with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives: (a) securing the expeditious movement of traffic on the authority’s road network; and (b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority.” (a) securing the expeditious movement of traffic on the authority’s road network; and (b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority.”

[7]In respect of procedure by regulation 6 of the 1996 Regulations the order making authority is required to consult the traffic or highway authority for any other road which appears to it likely to be affected ‘before making an order’.

[8]By regulation 7 before making an order the authority is required to publish a notice of the proposed order including the particulars in Schedule 1 and take other steps as it may consider appropriate for ensuring that adequate publicity about the order is given to persons likely to be affected by its provisions. Regulation 7(2) requires a copy of the notice to be sent to all of the bodies or persons required to be consulted under regulation 6. Regulation 7(3) and Schedule 2 require that the documents in Schedule 2, which include a statement of reasons for making the traffic regulation order, are deposited to be available for public inspection.

[9]Regulation 8 provides for objections to be made within a period specified in the notice but not being less than 21 days from the date of compliance with regulation 7(1)-(3). By regulation 13 before making an order the authority is required to consider any objections made in accordance with regulation 8 and not withdrawn.

[10]Paragraph 35 of Part VI of Schedule 9 to the 1984 Act provides:

“If any person desires to question the validity of or of any provision contained in, an order to which this part of this Schedule applies on the grounds: (a) that it is not within the relevant powers, or (b) that any of the relevant requirements has not been complied with in relation to the order he may within six weeks form the date on which the order is made make an application for the purpose to the High Court …”

By paragraph 36(1) the court may, if satisfied that the order or any provision of the order is not within the relevant powers or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, quash the order or any of its provisions. By paragraph 37 an order may not otherwise be questioned in any legal proceedings. (a) that it is not within the relevant powers, or (b) that any of the relevant requirements has not been complied with in relation to the order

Background

[11]Chobham Road is classified as the B383 and provides a link to the A30, connecting Sunningdale and Chobham. The northern section is within the Defendant’s area and the southern section is in the Claimant’s area.

[12]The Order affects a 200 metre stretch of the road within the Defendant’s area where the road crosses the railway. The road bends north and south of the bridge. There is a separate pedestrian bridge. The width of the carriageway is said to be just under 6.7 m where the road crosses the bridge.

[13]On 12th August 2014 planning permission was granted for a substantial mixed development, including 100,000 m2 commercial space, on a site (‘the DERA site’) in the Claimant’s area close to the boundary with the Defendant’s area. One of the two proposed construction routes to serve that development included the section of the B383 over the railway line affected by the Order.

[14]On 26th May 2015 the Defendant made the Royal Borough of Windsor and Maidenhead (Chobham Road, Sunningdale)(Weight Restriction) Order 2015 (‘the 2015 Order’) which placed a weight limit on the same section of road as the Order, generally prohibiting its use by vehicles in excess of 18t.

[15]The Claimant and others, including Surrey police and other authorities, had objected to the making of the 2015 Order, including the effect that it would have in diverting commercial vehicles in excess of 18t onto local roads in the Claimant’s area, which were said to be less suitable environmentally and otherwise.

[16]In September 2015 a petition was presented by the local ward member, signed by over 1,000 people, requesting further weight restriction prohibiting the use of the section of road by commercial vehicles over 7.5 tonnes.

[17]On 26th November 2015 a report was made to the Defendant’s cabinet, which recommended that consultation should be undertaken on a proposed weight limit reduction to 7.5t. The cabinet resolved that the consultation should take place and that the results should be reported back to the cabinet in February 2016.

[18]Following an exchange of emails, on 16th December 2015 the consultation documents were sent to the Claimant, comprising the regulation 7 notice, a plan and the statement of reasons. The covering email from the Defendant was headed with the title of the Order and said:

“By way of formal consultation please find attached the notice, plan and statement of reasons relating to the above traffic regulations order. Although the legal notice states 14th January 2016, I will accept comments or objections in writing until 5 pm, 22nd January 2016. As discussed, if you could please arrange for the papers to be forwarded to Surrey Police as well as to Surrey Heath and Runnymede Councils so that they have the opportunity to comment. I feel that this would ensure that they are in receipt of the notices as opposed to sending to their generic email addresses where there would opportunity for missing the information.”

[19]The regulation 7 notice stated that the Defendant in the exercise of its powers under the 1984 Act and all other enabling powers ‘and after consultation with the chief officer of police’ proposed to make the Order, which was then set out. The notice explained where the draft order, plan and statement of reasons could be inspected and that any objection should be sent to the stated address by 14th January 2016.

[20]The statement of reasons stated that the Order was to be made for the four statutory purposes under section 1 of the 1984 Act set out above. It explained that the relevant section of road over the railway was where “the road narrows so as to prevent two HGVs from passing in opposing directions without the risk of colliding with roadside obstacles or oncoming vehicles. It is proposed to prohibit HGV through traffic to significantly reduce the number of larger vehicles on the route and therefore aim to mitigate the risk of collision between vehicles.”

[21]The Claimant objected to the Order on grounds including the absence of technical evidence to support the proposal and that the proposal would be likely to displace HGVs onto the B386 through Windlesham. That road was said to have a poor alignment with bends and on street parking in the centre of the village as well as a school. The personal injury accident data indicated a significantly poorer record on the B386 including HGVs than the B383 Chobham Road. Thus the other obvious alternative routes would not be more suitable for large vehicles to use than Chobham Road. The objection pointed out that the width of vehicles was not always directly proportional to their weight. Attention was also drawn to the fact that this would prohibit the use by larger commercial vehicles of one of the two construction routes envisaged to serve the DERA site, concentrating the traffic onto the other access route with a disproportional adverse environmental impact on that route, which had a significantly poorer safety record than Chobham Road.

[22]Objections were also made by a number of other parties, including those referred to above. The objection on behalf of Crest Nicholson, the developers of the DERA site, attached a technical report by WSP, highway engineers, which provided a technical analysis of the reasons for making the Order, concluding that it was not justified. The report noted that the width of the railway bridge on Chobham Road was 6.64 m, thus exceeding the width of 5.5 m given in the Manual for Streets as required for two lorries to pass each other and 6 m typically required to allow unimpeded opposing movements of buses and HGVs. That was said to be consistent with the absence of any personal injury accidents involving HGVs on this stretch of Chobham Road.

[23]A meeting was held between councillors of the Claimant and the Defendant on 1st February 2016, at which, as reported in the subsequent cabinet report, the Claimant’s councillors outlined their concerns over the effect on roads in Surrey. The report recorded that ‘there exists a difference of opinion between (the Claimant) and (the Defendant) as to whether Chobham Road is suitable for use by HGVs and whether the possible alternative route is better suited to carrying HGV traffic and whether increases in lorry movements on that route and other routes would result in safety problems’. The Claimant’s councillors were reported as making it clear that they were primarily concerned that the Defendant followed the correct legal process and that reasonable consideration be given to all objections and concerns raised.

[24]The proposal was then reported back to the Defendant’s cabinet with the results of the consultation on 25th February 2016.

[25]The report to the cabinet recommended that the Order be made. It explained the background, including the petition in 2015. At paragraph 2.3 it noted that Chobham Road was:

“a busy road carrying both local and through traffic in the region of 10,000 vehicles a day and is currently used by heavy lorries up to 18 tonnes in weight. It is a residential road with some on street parking. At the northern end is the village centre with shops on either side of the road. This shopping area is busy 7 days a week with many elderly residents and mothers with young children regularly crossing the road….”

The report noted that there was limited parking and congestion. The paragraph ended:

“It is therefore considered that the order should be made on the grounds that it is necessary for avoiding danger to persons and other traffic using the road … and on the ground that it is necessary in order to facilitate the passage on the road of pedestrian traffic and other traffic.”

[26]At paragraph 17.4 as part of the background the report stated:

“The request to reduce the weight limit has been generated by continued use of Chobham Road by HGVs since implementation of the (18t) weight limit. A vehicle survey between 22 and 24 September 2015 showed that between 6 am and 7pm an average of 103 vehicles travelling over the Chobham road bridge exceed a maximum gross weight of 7.5t and 51 of those vehicles also exceed 18t. Many vehicles exceeding 7.5t but not breaching the existing 18t limit can be of similar dimensions to lorries in excess of 18t and the proposed Order therefore seeks to address continuing issues: with lorries being unable to cross the bridge without travelling across the centre white line into the path of oncoming vehicles, damage only collisions between lorries and cars and congestion in Chobham Road in the vicinity of the shops. The restriction would be intended to achieve a reduction in numbers of larger lorries in a congested area thereby leading to a safer environment. Photographs of Chobham Road at the railway bridge and alongside the shops are included in appendix E to illustrate width and visibility constraints.”

[27]The report also attached the tracked path of a lorry, leaving a maximum of 2.76 m for traffic coming in the other direction. The report noted that the Order would mitigate the current safety risk. It went on to comment that this was compounded by the restricted forward visibility and the fact that the road was fronted by walls, which tended to lead drivers to position their vehicles further out into the centre of the road.

[28]The report advised that the proposed Order would also lead to an improved quality of life for residents in the immediate vicinity of the bridge with the reduction in the number of lorries and consequent noise and vibration.

[29]The report addressed the results of the consultation. It noted that of the 174 responses 128 (73.6%) were in support. It referred to the objections, including the objection from the Claimant. A summary of the responses was included in the appendices. That included a summary of the technical report from WSP that the width of the road over the bridge appeared to be sufficient for two lorries to pass side by side and the low percentage of HGV as part of the overall road users. The objection letters from the Claimant and other bodies, including the report from WSP, were attached to the report.

[30]On the generation of additional lorry movements through Windlesham village the report commented at paragraph 2.9:

“It is acknowledged that without other measures being considered by Surrey County Council, this may happen. However, it is considered that the proposal is justified on the basis that making of the order is expedient in order to best address the dangers identified in the vicinity of the Chobham Road bridge. It should be noted that Surrey County Council is the relevant highway authority for Windlesham village and could consider the introduction of a weight limit in the village or positively sign a preferred lorry route in order to address concerns from some respondents including Surrey Heath Borough to the possible increase in lorry movements in Windlesham.”

Having summarised the objection from Surrey County Council, it continued:

“It should be noted that the various alternative routes available to 18t lorries are all within the jurisdiction of Surrey County Council. However the Royal Borough has considered, in so far as it is able to do so, the suitability of any alternative routes for lorries over 7.5 tonnes and considers that a suitable alternative route which does not present the same safety issues encountered on Chobham Road at the railway bridge and alongside the parade of shops exists.”

The route was then described from the B383 to the A319 and the A322 before connecting with the M3. The report continued “This route has no narrow bridges and spot checks on the B383 road width were 6.7 metres and there exist no areas where forward visibility is as constrained as at Chobham Road.” A plan of the route was attached to the report. The report noted the meeting that had been held with the Claimant’s councillors on 1st February 2016 referred to above and that a difference existed between the two councils as to whether Chobham Road or the alternative was better suited to carrying HGV traffic and any consequent safety problems.

[31]The report concluded on the reasons for making the Order at paragraph 2.15:

“Notwithstanding the objections to the making of the proposed order there is clear strong local support for introducing the 7.5t weight limit which is evidenced in the petition and in the consultation responses. There are many reported incidents of near misses and complaints regarding lorries on the wrong side of the road on the bridge, contained within the responses. The reasons for making the Order are the same as those reasons for making the original 18t weight limit in 2015. This proposed reduced weight limit is intended to help meet the objectives originally envisaged when the 18t weight limit was introduced and in doing so to address the safety and other concerns highlighted following receipt of the petition.”

[32]The report set out legal advice on the approach to determining whether or not to make the Order. It summarised the provisions of section 1 of the 1984 Act and section 16 of the 2004 Act. It then summarised the provisions of section 122 of the 1984 Act, concluding at paragraph 5.4:

“A failure to have regard to the matters set out in section 122(2) may lead to the TRO being successfully challenged. However it is clear that whilst the Council must exercise its functions under section 1 of the (1984 Act) so as to secure the objectives set out in section 122(2) and to have regard to the network management duty conferred by section 16 of the (2004 Act), this requirement cannot be intended to prevent statutory powers from being used for the purposes set out in section 1. A balance has to be achieved both between the achievement of the objectives set out in section 1 such as the avoidance of danger to traffic etc. and those matters set out in section 122(2) which include any other matter which the authority considers to be relevant. It has been decided that following the decision the case of St Helens MBC v West Lancashire DC 1997 95 LGR 484 no one factor necessarily has primacy over another. The weight to be given to each factor is a matter for the authority.”

[33]At the cabinet meeting on 25th February 2016 two of the Claimant’s councillors addressed the cabinet, along the lines of the objection summarised earlier. As part of the subsequent debate the Defendant’s lead member referred to the dangers arising from the use of the railway bridge and expressed the view that the identified alternative route was best because it was less built up and a better road. The unanimous decision of the cabinet was to approve the making of the Order.

[34]The Order was made on 21st March 2016 and came into effect on 4th April 2016. The Grounds of Challenge Ground 1 That the Defendant failed to comply with its obligation to consult with the Claimant pursuant to regulation 6 of the 1996 Regulations Submissions

The Grounds of Challenge

[35]Miss Ruth Stockley, who appears for the Claimant, submits that the obligation to consult under regulation 6 is a separate obligation and distinct from the obligation to give notice of the proposed order under regulation 7, triggering the period for objections to be made and their consideration pursuant to regulations 8 and 13. The distinct nature of the regulation 6 obligation is reflected in the separate requirement in regulation 7(2) to give copies of the notice to the regulation 6 consultees.

[36]She submits that prior consultation was particularly important in the present case, given the proximity of the Order to roads that would be immediately affected in the Claimant’s area. The intention of the legislature was plainly that there would be consultation between the consultee and the order making authority to inform the formulation of any proposed order or indeed whether such an order should be made at all. That would include the effects on roads for which the consultee authority was responsible.

[37]In this case there had been no consultation at all before the regulation 7 notice was given on 16th December 2015, including the provision of copies of the notice documents by email on the same day. That is in contrast to the evident position with the Defendant’s consultation of its police authority, where, as recorded in the regulation 7 notice, the Order had been prepared in consultation with that consultee in advance of its publication. There is no explanation why one consultee should have been treated differently from another.

[38]Moreover, even if in theory regulation 6 consultation could lawfully take place after the regulation 7 notice had been given (which Miss Stockley did not accept), in this case there was no separate regulation 6 consultation at all. The email dated 16th December 2015 did no more than enclose the statutory notice and invite objections and comments within the extended objection period. That did not meet the statutory objective of enabling consultation to take place between the two authorities at the formative stage and before the Defendant had determined the form of order that it proposed to make and to which statutory objections might be made.

[39]Miss Stockley referred to R (Moseley) v Haringey LBC

[2014] 1 WLR 3947

, where Lord Wilson said; “25 In R v Brent London Borough Council, Ex p Gunning

(1985) 84 LGR 168

Hodgson J quashed Brent’s decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said, at p 189:

“Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”

Clearly Hodgson J accepted Mr Stephen Sedley QC’s submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in Ex p Baker

[1995] 1 All ER 73

, cited above (see pp 91 and 87), and then in R v Northand East Devon Health Authority, Ex p Coughlan

[2001] QB 213

, para 108….The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts (2012) 126 BMLR 134, para 9, “a prescription for fairness”.” “Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” Clearly Hodgson J accepted Mr Stephen Sedley QC’s submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in Ex p Baker

[1995] 1 All ER 73

, cited above (see pp 91 and 87), and then in R v Northand East Devon Health Authority, Ex p Coughlan

[2001] QB 213

[40]As part of his judgment in Moseley Lord Reed said:

“36 This case … is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another: “the nature and the object of consultation must be related to the circumstances which call for it” (Port Louis Corpn v Attorney General of Mauritius [1965] AC 1111, 1124). A mechanistic approach to the requirements of consultation should therefore be avoided.”

[41]Miss Stockley submits that on the Sedley criteria it was plain that the Defendant did not consult the Claimant at the formative stage of these proposals. There is a crucial difference between being involved through consultation at the stage when the proposals are truly being formed, particularly where, as here, the implications potentially concerned traffic management measures in the Claimant’s area, and simply having the opportunity to object to a proposed order which the Defendant had decided to publish.

[42]In her submission the same applies to the meeting between councillors on 1st February 2016. In so far as that amounted to any form of consultation, that was no longer at the formative stage but was simply to discuss the objection which had already been made to the order which the Defendant was proposing to make. While at that stage the officers simply recorded the difference of view, that could well have been different if proper consultation had taken place before the decision to proceed with the Order proposals had been made. Consultation at that stage would have enabled the authorities to take a holistic view of the potential effects and what would be required to address impacts in both authority’s areas. As a result the Claimant has been substantially prejudiced by not being consulted as part of the formative stage of the proposals.

[43]Mr Robin Green, who appears for the Defendant, submits that Regulation 6 does not say when the consultation should take place so long as it is before the order is made, nor does it prescribe any particular form of consultation. It was, he submits, plainly open to the Defendant to carry out that consultation as part of the regulation 7 procedures, providing for objections to be made to the proposed Order. The Order remained at a formative stage until the decision that it should be made, having considered responses to consultation and any objections pursuant to regulations 8 and 13.

[44]In the present case the Claimant was sent the relevant documents, which were entirely adequate for the purpose of consulting the Claimant as the other traffic authority for the affected route. The objection from the Claimant covered all the matters which it wished to raise, as has been accepted in this court by Miss Stockley. Furthermore, that was followed by the meeting between councillors on 1st February 2016 to discuss the concerns openly and fairly, but, as reflected in the officer’s report, there remained a difference of opinion between the two councils as to whether Chobham Road was suitable for carrying HGV traffic and as to the alternative route that had been identified. Consultation did not require agreement but simply that there should be the opportunity for the Claimant to express its views and that they should be taken into account in determining what, if any, order should be made.

[45]That was plainly the case here, where the report to the cabinet summarised the Claimant’s objection as well as attaching the objection letter and set out the officer’s views why the Order should nevertheless be made in the form proposed. The report acknowledged that without further measures the Order would be likely to generate additional lorry movements through Windlesham on the B386, the characteristics of which had been described in the Claimant’s objection. The report noted that the Claimant was the relevant highway authority for Windlesham and could consider a weight restriction or signing a preferred lorry route to address these concerns. Moreover the report identified an alternative route to the south, which would not have the deficiencies which affected the northern section of Chobham Road. There was nothing to indicate that there was a closed mind on the part of the officers in making their recommendation that the Order be made as proposed.

[46]The cabinet had the benefit of being directly addressed at the meeting by councillors of the Claimant, who set out its concerns. There was nothing in the minutes of the meeting or otherwise which indicated that the cabinet had a closed mind or did not genuinely and openly consider the points made as part of the consultation before reaching its decision.

[47]In any event it is plain on the facts of this case that the Defendant’s decision would have remained the same, even if the consultation of the Claimant had preceded the regulation 7 notice. It is clear therefore that the Claimant had not been prejudiced by any technical breach of the regulations if that is the conclusion of the court, so that relief under paragraph 36 should not be available and this ground should fail.

Discussion

[48]Under the 1996 Regulations the obligation to consult has to be met by the time of the making of the Order. That is clear on the face of the regulation, which simply requires that the consultation is carried out before the order is made. That can be contrasted with other steps required under the regulations, such as in Schedule 9, paragraph 20, where consultation of the chief officer of police is required before an order is submitted to the Secretary of State where that applies.

[49]I accept that the consultation requirement under regulation 6 is a separate requirement from the regulatory framework for objections provided under regulations 7, 8 and 13. For the latter the initial step is publication, which under regulation 7(1) requires at least the publication of the relevant particulars in a local newspaper together with such other steps as the authority may consider appropriate to give the proposals adequate publicity. In addition there is the requirement under regulation 7(2) not later than the completion of the publicity under regulation 7(1) to send a copy of the notice of the proposal to each of the regulation 6 consultees. One can assume that that is to ensure that, whatever the position as to consultation of that body under regulation 6, the particular consultee is specifically put on notice as to the proposed order and the running of the objection period under regulation 8, which as a minimum is to be 21 days from the time when all the requirements under regulation 7(1)-(3) have been met.

[50]On that basis the central question is whether on the facts of this case the Claimant can establish that the Defendant failed to consult it prior to making the Order for the purposes of regulation 6.

[51]An appropriate starting point is the Sedley criteria as endorsed in Moseley, but in taking that starting point it is important to bear in mind Lord Reed’s cautionary note that a mechanistic approach to the requirements of consultation should be avoided. In this context it is for the order making authority to determine how and at what stage the required consultation should be carried out, subject to it being completed before the order is made and that it was in substance consultation for the purpose of the Sedley criteria.

[52]In that respect I was referred to the judgment of Green J in AA and Sons v Slough BC [2014] RTR 29, where he said:

“Before turning to consider the individual grounds of challenge I should set out some observations about the test to be applied in this case. Mr Comyn categorised it as a traditional “Wednesbury” challenge. However, this nowadays does not readily capture the essential task confronting any judge. It is now to be treated as trite that the margin of appreciation which a decision maker has is heavily fact and context dependent: see for a summary of some of the leading case law on this per Lord Mance J.S.C. in Kennedy v Charity Commission [2014] 2 W.L.R. 808 at [52]–[55]. In the present case the following considerations apply. First, as with planning cases, it is important not to read officers’ reports with an overly strict eye and it is necessary to consider them in the round setting aside drafting infelicities and errors unless they are material and likely to lead to unfairness. Secondly, in a case such as the present a wide margin of discretion must be accorded to the decision makers who are possessed of local, specialist, knowledge that the court does not have and which the court should hence be loathe to second-guess. Thirdly, this wide margin will extend to such (non exhaustive) matters as the modus operandi of the consultation exercise, the weighing of the pros and cons of the proposed scheme, and the extent to which they consider it necessary to investigate particular issues in greater or lesser depth and detail.”

[53]Against that background I turn to consider the particular steps relied upon by the Defendant as comprising the consultation of the Claimant for the purposes of regulation 6. In that respect I consider that the relevant question is whether, taking the position as a whole, the Claimant had been consulted before the Order was made as required by regulation 6.

[54]It is accepted that there was no relevant consultation before the email dated 16th December 2015 enclosing the regulation 7 notice and other documents. It is relevant to consider that email and its enclosed documents in the context of the resolution made by the Defendant’s cabinet on 26th November 2015. The cabinet then approved the undertaking of consultation in respect of a proposed order with the results to be reported back to the cabinet in February 2016. It appears from the report that the regulatory process as a whole was intended to be referred to as the statutory consultation process, including the objection procedures. The same language appears to have been used in the context of the 2015 Order. The resolution of the cabinet on 26th November 2015 was that ‘consultation be undertaken (including residents in the Royal Borough and Surrey, Parish Councils; (the Claimant); Thames Valley and Surrey police) in response to the request to reduce the weight limit of Chobham Road railway bridge, Sunningdale’ and that ‘the results of the consultation be reported back to Cabinet for further consideration in February 2016.’ It does not seem to me that those involved were distinguishing between consultation under regulation 6 and notice for the purposes of objection under regulation 7.

[55]In similar vein the email dated 11th December 2015 from the Defendant’s officer to the Claimant, stating that the councillors wished to ‘do further consultation regarding the bridge’ and asking whether the Claimant’s officer would agree ‘to being the recipient for the Surrey County Council consultation requirements’, was directed to the whole process of consultation and objection under regulations 6–8, being broadly described as consultation. Accordingly the email, enclosing the statutory notice and other documents dated 16th December 2015 and describing it as being ‘by way of formal consultation’, would have been intended to refer, and would have reasonably been understood as referring, to the whole process under regulations 6 and 7, thus both consulting the Claimant and providing the notice required by regulation 7(2). That is consistent with inviting not only objections but also comments in the extended period.

[56]The Defendant’s position was that it had resolved to propose the making of the Order to be the subject of ‘consultation’. It could of course have consulted the Claimant before publishing the proposal, as it apparently did with its chief officer of police. But in my judgement the consultation is not disqualified as being beyond a formative stage because the Defendant chose to carry out the consultation in the light of its proposed Order and at the same time as carrying out the objection process under regulations 7 and 8. There is nothing on the materials before the court that demonstrates that the consultation was not a genuine process or that the officers and councillors did not retain an open mind as to the consideration of any responses to consultation or objections.

[57]While the material provided to the Claimant was limited, it had access to the report to the cabinet on 26th November 2015 and the matters considered in conjunction with the 2015 Order. There is no evidence that the Claimant was in any way hampered in making its objection by any lack of information about the proposal to reduce the weight restriction from 18t to 7.5t. There is no suggestion that the extended period was inadequate for the Claimant to make its comments or objection.

[58]Moreover, following the making of the objections, the meeting was arranged between the councillors of the Claimant and the Defendant to enable the concerns of the Claimant to be discussed. There is nothing to indicate that that was not a bona fide attempt to explore the position of both authorities as part of the overall consultation process. The purpose of consultation is to ensure that the final decision has the benefit of the consultation response and is made in that light and at a time when it can respond to those views if that is considered appropriate. In my judgement there is no basis for rejecting this meeting as properly part of the consultation process on the ground that it followed the making of the objections and took place in that light. On the contrary the meeting was as a result able to take into account the expressed concerns of the Claimant as part of the discussions between the members, albeit ending in a position where the differences remained.

[59]Finally, the cabinet report, whose recommendations were accepted by the cabinet, explained why the objection of the Claimant was not accepted. It was in part that the officers and the cabinet were satisfied, contrary to the representations of the Claimant, that there was a safety problem arising out of the use of the railway bridge by commercial vehicles in excess of 7.5t. As against that, the problems of increased lorry traffic though Windlesham could be addressed by a traffic regulation order or signage and an alternative route existed to the south which the Defendant regarded as suitable. Moreover the Claimant’s councillors had also directly addressed the cabinet at the meeting. There is no reasonable basis in my judgement for suggesting that the final decision did not take full account of the concerns of the Claimant as expressed through this consultation process.

[60]I conclude accordingly that the Claimant has not demonstrated that the Defendant failed to consult it in accordance with regulation 6. Moreover, even if there was some technical breach of the requirement under regulation 6, which I do not accept, in my judgement the Claimant has not been prejudiced because its views were fully expressed and taken into account as part of the decision making process, which would therefore have remained unaffected. This ground accordingly fails. Ground 2 That the Defendant failed to take into account any technical or other sufficient evidence for making the order Submissions

[61]Miss Stockley starts from the submission that the only particularised basis for proposing to make the Order was the safety issue. The originating petition expressed concern that:

“the large lorries pose a safety risk due to the narrow road over the bridge. Large vehicles are forced to cross the central double white line on a bend where visibility is limited and on-coming traffic may not see them in time.”

[62]Moreover, in the statement of reasons, after the recitation of the statutory objectives, the only specific reason stated was the narrowness of the road:

“so as to prevent two HGVs from passing in opposing directions without the risk of colliding with roadside obstacles or oncoming vehicles. It is proposed to prohibit HGV through traffic to significantly reduce the number of larger vehicles on the route and therefore aim to mitigate the risk of collisions between vehicles.”

[63]She submits that the report to cabinet on 25th February 2016 contained no relevant technical evidence to support that reason for the Order. On the contrary there was technical evidence from WSP, highway consultants for Crest Nicholson, which had been submitted in support of their objection to the Order and which demonstrated that there was no technical justification. This was not considered in the report apart from a brief summary and appending the report without further comment. In particular, the WSP report demonstrated that the available width of the highway through the bridge met the recommended guidance to allow unimpeded opposing movements of buses and HGVs. That was consistent with the absence of any record of personal injury accidents on this section of the road involving HGVs. Miss Stockley submits that that technical advice was not disputed or otherwise addressed in the report.

[64]She accepts that at paragraph 2.4 the report addressed the dimensions of the bridge, including photographs and the tracked path of a HGV, which would leave a maximum of 2.76 m available space for the opposing traffic. She also accepts that the report provided the results of a survey carried out in September 2015, which showed an average of 103 vehicles over 7.5t crossing the bridge, of which some 52 would be 18t or less. However, that was consistent with the report from WSP and demonstrated the very small numbers of HGVs involved as against the overall daily flow, which was put in the report at about 10,000 vehicles. It can be seen from the report, she submits, that the Order proposal had been driven by local resident pressure only some three months after the 2015 Order came into force, which was before its effects could be properly monitored. Safety was a matter which was susceptible to technical analysis. There was no technical support for the Defendant’s decision to make the Order for the stated safety reason, which was accordingly legally flawed and should be quashed.

[65]Mr Green referred to the helpful summary of the relevant judicial review principles in Williams v Devon CC

2015 EWHC 568

(Admin) (subsequently upheld on appeal) at paragraph 129 and following, including:

“129 As a result an application such as this is not an opportunity for a review of the merits of the relevant decision. A description of the court's role when given a power to consider an appeal such as that provided under paragraph 35 was given by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport & the Regions [2001] EWHC 74 (Admin) , as follows: ” “An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.” 130 As for the principle that matters of judgment and weight are within the exclusive province of DCC as decision-maker; see generally Tesco Stores Ltd v SSE [1995] 1 WLR 759.” “An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.”

[66]Mr Green submits that the evaluation of the evidence and what evidence was required or appropriate was very much a matter for the Defendant, particularly where, as here, it involved local conditions, which could properly reflect the experience of residents and the members of the Defendant’s cabinet, as well as officers.

[67]In fact, the positive safety case for the Order was, he submits, amply supported on technical as well as other evidence. That included: a) the petition itself, which reflected local experience of conditions following the 2015 Order coming into effect; b) the characteristics of the road, as described and analysed in the report including the HGV tracked path, which confirmed residents’ concerns, particularly bearing in mind the parapet walls and the fact that the residual distance for the other direction of 2.67m could be compared to the width for a HGV including side-mirrors of 3m; while the mirrors could be withdrawn, that was unrealistic as a regular feature of lorry driving along this busy route; that was further compounded by the lack of forward visibility, again as described in the report; c) the results of consultation showed considerable support for the proposed Order, including in the summary of the responses several reported instances of damage and collisions being caused by HGVs using the bridge; these would not be included in the personal injury statistics because they were damage only; d) the survey material provided in the report gave a first-hand indication of the number of HGVs liable to be removed; that was consistent with the WSP report; e) on that basis the officer’s advice was that the Order would be supported on safety grounds; and f) members were also able to use their own knowledge of the area and local conditions.

[68]Accordingly, Mr Green submits, it is impossible realistically to contend that there was no adequate evidence for the conclusion of the cabinet as to the safety objective underpinning the Order or that it acted perversely in not requiring additional technical support or analysis beyond that which it already had before it.

Discussion

[69]I can deal with this ground shortly. In my judgement, for the reasons submitted by Mr Green, the Defendant had ample evidence on which it could base its conclusions supporting the safety objective of the Order. The extent and character of evidence which it required for its decision was a matter for it to determine against the local considerations which were involved. There is nothing to show that its conclusion to support the Order on that evidence was irrational or otherwise flawed. Indeed it is difficult to see what further technical evidence would have materially added to the quality of that decision, given that it was essentially based on the risks involved as a result of the likely response of HGV drivers in negotiating this bridge with its limited forward visibility and the risks that involved, as reflected in local experience. This ground accordingly also fails. Ground 3 That the Defendant had failed to consider the suitability of alternative routes and/or the traffic and amenity impacts on those routes as a result of the proposed order Submissions

[70]Miss Stockley submits that in considering the making of the Order and its duty under section 122(1) of the 1984 Act to secure the expeditious, convenient and safe movement of vehicular and other traffic the Defendant was under a duty to consider whether and to what extent that was practicable having regard to the matters in section 122(2), including under (b) the effect on the amenities of any locality affected and the importance of regulating and restricting the use of roads by heavy commercial vehicles so as to preserve or improve the amenities of the areas through which the roads run. That was in addition to the network duty under section 16 of the 2004 Act, which also applied.

[71]In the present case that applied directly to the consideration of the effect on the roads in the Claimant’s area, which would be affected by the weight restriction, which would inevitably displace the lorry traffic onto other less suitable roads in its area, notably the B386 Windlesham Road.

[72]In the report to cabinet at paragraph 2.9 it was acknowledged that the diversion onto the B386 Windlesham road may happen, but there was no analysis which then followed to evaluate that effect and to compare that to the suggested benefits of the proposed Order so as to make a balanced overall judgement. In the report it was simply left on the basis that the Claimant could introduce a weight limit or signage to address these concerns, but there was no examination whether that was practicable or would be effective and what, for example, would be the further implications of a weight restriction on the B386.

[73]At paragraph 2.11 the report referred to an alternative route to the south, but this was much longer and there was no consideration to what extent this would be effective or what the other implications would be. The personal injury accident statistics showed that the alternative route and the B386 had significantly worse accident records than the road subject to the Order.

[74]The treatment in the report was wholly inadequate to address a highly material consideration, which was a central concern of many objectors, including the Surrey police as well as the Claimant.

[75]In the circumstances the decision of the Defendant to make the Order was flawed, being in breach of its duty under section 122 of the 1984 Act as well as in failing to take into account a highly material consideration and to that extent being irrational in its determination of the relevant issues.

[76]Mr Green accepts that the effect of the proposed Order on other roads was a material consideration for the Defendant as part of its decision. However, he submits that the extent of inquiry and the evidence it required was a matter for its determination, subject to rationality. He drew attention to the judgement of Laws LJ in R (Khatun) v Newham LBC 2005 QB 37, where the Lord Justice, having reviewed the authorities, concluded:

“35 In my judgment the CREEDNZ Inc case (via the decision in In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309: “In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.”

This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani

(1990) 22 HLR 406

, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.”” “In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.”

This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani

(1990) 22 HLR 406

, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.””

[77]He also relies on the judgment of Green J in AA & Sons at paragraph 26, to which I have referred above.

[78]On that basis Mr Green refers to the report, where the potential effect of diversion was specifically identified. The number of potential HGVs affected was set out on the basis of the survey carried out in September 2015. The report noted the potential for the Claimant to use its traffic management powers to impose a weight restriction on the B386 Windlesham road or to use signage together with the possible alternative route to the south, which was free from the constraints which affected the Chobham Road railway bridge, a conclusion which had not been challenged on the material before the court. Moreover this issue had been expressly the subject of the discussion at the meeting between the Claimant’s and the Defendant’s councillors on 1st February 2016, as a result of which, as recorded in the report, a difference of opinion remained between the two councils. On that basis the officer had recommended that the Order be made, which was accepted by the cabinet, having heard the representations made to it orally by two of the Claimant’s councillors.

[79]It is implicit in the decision of the Defendant that it had decided that it did not need to investigate further the question of possible traffic measures within the Claimant’s area. Such further action was for the Claimant to decide. The Claimant had not said that it was not able to take steps to manage any diverted traffic. It could not be said that the Defendant was irrational in determining that the Order should be made on the evidence available to it without seeking further investigation into those matters.

Discussion

[80]The question of the diverted HGV traffic was expressly considered in the report and by the cabinet as part of its decision. It is not said that the assessment of the issues in the report was inaccurate or that the Claimant did not have the power to introduce traffic management measures, if that was appropriate. It was not part of the Claimant’s representations that such measures could not be made. The criticism was that it was unlawful on the facts of this case for the Defendant to have made the Order without making further inquiries as to those effects and how they could be addressed. While of course that could have been done, whether it needed to be done to enable a decision to be made as to making the Order to secure public safety on the Chobham Road was for the Defendant to decide on the evidence before it. In my judgement there is nothing here to demonstrate that its decision not to require those further inquiries or evidence was irrational or otherwise unfair or unlawful. This ground accordingly also fails.

Ground 4 The Defendant had failed to provide an adequate Statement of Reasons

[81]Miss Stockley described this as a supporting ground and I can deal with it shortly. I have set out the terms of the statement of reasons above. As a document it was required to be deposited at the time of the notice under regulation 7, leading to the period for objections to be made. I note at the outset that in answer to the court Miss Stockley was not able to identify any specific matter which the Claimant would have sought to put before the Defendant as part of its representations if it had had a fuller statement of reasons.

[82]In any event the requirement under Schedule 2, paragraph 2, to the 1996 Regulations was for ‘a statement setting out the reasons why the authority proposed to make the order’. A number of decisions of this court have held that a statement of reasons can be short and need only set out the reasons for proposing to make the order (see Green J in AA and Sons at paragraph 54 and Holgate J in Sarah Williams v London Borough of Waltham Forest

2015 EWHC 3907

(Admin) at paragraphs 94 and 95).

[83]In the present case the statement set out the reasons for which the Order was proposed to be made and explained the nature of the safety concern as the risk of lorries colliding, which was sought to be mitigated by the reduction in HGV through traffic on the route.

[84]I am wholly unpersuaded that that statement was inadequate in any particular or failed to meet the requirement of the 1996 Regulations. In any event in this case there is no evidence of any relevant prejudice to the Claimant arising out of any suggested inadequacy in the statement. This ground accordingly also fails.

Overall Conclusion

[85]For the above reasons the challenge to the Order is not made out on any of the stated grounds and the application is dismissed.