A&E Baines v The North Yorkshire Council [2025] EWHC 2010 (Admin)

[2025] EWHC 2010 (Admin)Case No AC-2025-LDS-000037
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court CentreDate 4 August 2025
Before
MR C M G OCKELTON, SITTING AS A JUDGE OF THE HIGH COURT
Between
A&E BAINESApplicantTHE NORTH YORKSHIRE COUNCILDefendantWEST YORKSHIRE COMBINED AUTHORITYInterested Party
Victoria Hutton (instructed by Walton & Co) for ApplicantPiers Riley-Smith (instructed by North Yorkshire Council Legal and Democratic Services) for RespondentHearing Hearing dates: 24 and 25 April 2025
JUDGMENT

Introduction

[1]In the centre of Harrogate, Station Parade runs very approximately south-south-west from Bower Road. It meets Cheltenham Parade, bends towards south south-east, and becomes the A61. It passes the bus station and the railway station; vehicular access to the latter is obtained by turning approximately eastwards along Station Bridge. It then continues southwards and eventually meets York Place at the Stray. The part south of Cheltenham Parade is a one-way street southbound. The part north of Cheltenham Parade is sometimes, generally and in this judgment, called Lower Station Parade.[2]On 10 January 2025, North Yorkshire County Council (“the defendant”) made four Traffic Regulation Orders (“TROs”) affecting the northern part of Station Parade, including Lower Station Parade. A and E Baines (“the applicant”, although the applicant’s papers sometimes call the applicant Steven Baines) is a property management company based in Harrogate. The applicant challenges the making of the TROs. West Yorkshire Combined Authority, (“the interested party”) is so designated as it is the channel by which central government funding may be available to support a current transport scheme in Harrogate. The interested party has not filed an Acknowledgment of Service, and has taken no part in the proceedings. Traffic Regulation Orders[3]The statutory authority for making a TRO is found in the Road Traffic Regulation Act 1984 (as amended). Section 1 provides as follows: 1 The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act 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(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), 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) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or(f) for preserving or improving the amenities of the area through which the road runs(g) for any of the purposes specified in paragraphs (a) to (c) of subsection (1) of section 87 of the Environment Act 1995 (air quality)[4]A TRO may prohibit a wide range of activities by road traffic, with some restrictions (ss 2-4), but may not impose a speed limit (s 3(3). The power to make a TRO is, however, subject to the general provisions of s 122 of the Act: 122(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) and the provision of suitable and adequate parking facilities on and off the highway ….(2) The matters referred to in subsection (1) above as being specified in this subsection are— (a) the desirability of securing and maintaining reasonable access to premises; (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; (bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy); (c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and (d) any other matters appearing to ... the local authority... to be relevant.[5]Contravention of TRO is a criminal offence (s 5). Once the TRO has been made, it may be revoked by the making of a further Order, under powers conferred by para 27 of Schedule 9.[6]Schedule 9 also contains, in Part VI, provisions relating to challenges to TROs. By paras 34-35, any person may, within six weeks of the making of the TRO, apply to the High Court to ‘question the validity’ of the TRO on the ground that it is not within the powers conferred by the Act, or that requirements imposed by the Act or by any instrument made under the Act have not been complied with. Paragraph 37 provides that a TRO may not be questioned in any other proceedings whatever. If there is an application to the Court, there may be interim relief; and the Court may quash the TRO if either it is not within the powers conferred by the Act or if the failure to comply with the requirements has substantially prejudiced interests of the applicant.[7]Detailed procedural requirements are contained in the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996/2489). I do not need to treat them comprehensively. There are requirements for consultation, publication and inquiry. So far as the public is concerned, there are requirements of publication, receipt of objections, and consideration of such objections before any order is made. There are further requirements for publication after the TRO is made. Further, by reg 18, the authority that makes the order must place traffic signs, so that adequate information as to the effect of the Order is made available to persons using the road, ‘before the order comes into force’. The background[8]From about 2019, no doubt spurred by the availability of central government funds mediated by the West Yorkshire Combined Authority, the defendant and its predecessor have been interested in promoting changes to transport use in a number of towns in the area, including Harrogate. There was a congestion study in Harrogate in 2019, followed by a series of plans intended to make the use of public transport, cycling and walking more attractive and car use less so. There were several rounds of consultation, leading to the consideration of a succession of draft schemes. The last one considered was less wide-ranging and less ambitious than its predecessors. It is formally called, in the defendant’s documents, the Revised Harrogate Station Gateway Scheme, and for financial and perhaps other reasons the proposals that had formed the basis of the most recent consultation were reduced, or ‘descoped’.[9]At a meeting of the Executive of the defendant on 28 November 2023, ‘descoped’ schemes for Skipton, Selby and Harrogate were considered. Amongst the comments made by members in discussion were that the Harrogate scheme as revised had ‘increased support’ and that residents overwhelmingly sought improvements in public transport and demand management (rather than a ring road or inner relief road as proposed by some business interests). The three schemes were all agreed by resolution in similar terms. For Harrogate the resolution (‘the November 2023 Resolution’) approved “the descoping options for Harrogate, the preparation and submission of a Full Business Case, with approval of the detail delegated to the Corporate Director of Environment in consultation with the Corporate Director of Resources and Executive Member for Highways and Transportation. In the event that the Full Business Case is approved by the West Yorkshire Combined Authority, to delegate the acceptance of the TCF funding to the Corporate Director Resources in consultation with the Assistant Chief Executive Legal and Democratic Services, the Executive Member for Highways and Transportation, and the Executive Member for Finance, subject to the scheme being affordable, and acceptable terms and conditions being received, and for a satisfactory TRO and public engagement outcome the scheme to be implemented”.[10]The (‘descoped’) Revised Harrogate Station Gateway Scheme I shall call ‘the Scheme’. The resolution set out above is the defendant’s decision to progress and implement the Scheme, but that decision is subject to a number of further provisos. First, a Full Business Case had to be prepared, and submitted to and approved by the interested party. Secondly, if there was approval, the acceptance of the TCF (central government) funding was delegated. Either the acceptance or the implementation of the Scheme (despite the varied submissions of the parties I do not accept that the grammar is entirely clear) is ‘subject to’ affordability, ‘acceptable terms and conditions being received’, and ‘for a satisfactory TRO and public engagement outcome’.[11]The thrust was from then a move towards implementation of the Scheme subject to those provisos. It is in my judgment of the highest importance in the context of the present application to appreciate that there has been no effective challenge to the decision of 28 November 2023, and these proceedings are not, and are not capable of being or being understood as such a challenge. The implementation of the Scheme is the background to the decision to make the TROs and any challenge to the TROs has to take the decision to progress and implement the Scheme as a starting-point. Looked at from the other end of the telescope, the TROs under challenge, and even the proposed TROs as a whole, form only a part of a wider scheme, which includes improvements to the public realm, and modest construction projects, in addition to changes to traffic movement. That means that things that may be said about the Scheme as a whole cannot be attributed, without more, to the TROs. The orders[12]The TROs made on 10 January 2025 and challenged in these proceedings have the traditional convoluted long titles which I do not need to repeat. They make the following regulations:(1) the introduction of a combined bus and cycle lane southbound for a 36-metre stretch of Lower Station Parade;(2) the conversion of the whole of Lower Station Parade to one-way traffic southbound;(3) further south, prohibition of traffic movement out of Station Bridge in any direction other than a southward turn into Station Parade;(4) prohibitions of left and right turns from other streets at the south end of Lower Station Parade that would conflict with the latter’s one-way working, and prohibition of a right turn from (Lower) Station Parade westwards into Cheltenham Parade. The defendant’s original and continuing intention includes the making of other TROs, and there was publicity and consultation on a further two at the same time as those which were made. These would have(5) made regulations and restrictions as to parking, waiting and loading in various places in Station Parade and the station access area, and(6) made prohibitions on traffic except for access in a number of locations nearby. The defendant’s position on them, which there is no reason for me to doubt as factually correct, is as follows. The former (5), is subject to modification as a result of responses to publicity. As modified it will be put out to consultation and be subject to publicity again but continues to form part of the defendant’s intentions. The consultation on the latter (6), was formally defective. It is not necessary for implementation of the Scheme, and for the moment no longer forms part of the defendant’s intentions. The other five proposals, however, were, the defendant says, the lawful (indeed the only lawful) means of delivering the changes to vehicular movement envisaged by the Scheme.[13]For the avoidance of doubt I repeat that only the four TROs, (1)-(4) were made. As prescribed in the official notification of the Orders, they came into ‘operation’ on 24 January 2025.[14]No steps have been taken to bring the attention of road users to the orders by signage in any form. As I have noted above, the 1996 Regulations require that before an order comes into ‘force’ such signage must be provided.[15]There was some discussion at the hearing about this and other differences of vocabulary in the Act, the Regulations and the TROs themselves. It is, however, absolutely clear from the authorities, including Macleod v Hamilton 1965 SLT 305, James v Cavey [1967] 2 QB 676 (DC), and R (Oxfordshire County Council) v Bus Lane Adjudicator [2010] EWHC 894 (Admin), all of which were cited with approval in R (Herron) v Parking Adjudicator [2011] EWCA Civ 905, that where the signage required by reg 18 has not been provided, no offence is committed by a person who does not comply with the TRO. I refer to the consequences of this later Grounds of challenge[16]The grounds of challenge, as set out at the time the application to the Court was made, are as follows: 1: The Defendant had no authority to proceed with the RHSGS without public consultation to gauge public support for the proposals and it was therefore unlawful to make the TROs without such consultation. Further, it was otherwise unlawful to make the TROs without consultation because it was(a) in breach of legitimate expectation and(b) the proposals represented a fundamentally altered scheme. 2: It was unlawful for the decision-maker to conclude that the cycle lane (together with other works in that area) should not be delivered and yet make the remainder of the TROs 3: The Defendant unlawfully failed to take into account the totality of the impacts of the RHSGS when considering whether it was expedient to make the TROs.

(c) was supported by inadequate reasoning

[17]Since issuing the application, the applicant has realised that there has been no decision that ‘the cycle lane (together with other works in that area) should not be delivered’. The applicant therefore seeks to amend ground 2 to: 2. It was unlawful for the decision-maker to make TROs which implemented only part of the RHSGS scheme whilst(a) taking into account the benefits of the wider scheme and(b) without any certainty that the remainder of the scheme would be delivered by further TROs’.[18]It appears to me that it is expedient to allow the amendment and I therefore grant that application. I proceed on the basis that the original ground is replaced by the amended ground. Law[19]Before setting out the general law relating to applications under para 35 of Schedule 9 to the Regulations, it is convenient to make two observations. The first is that although the application sounds in public law, it is not brought procedurally by way of judicial review. There is no permission stage, and the fact that the application is before the Court does not carry any judgment that anybody has previously regarded any part of the application as of arguable merit. That also means that an unsuccessful applicant would not appear to have the protection offered by Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346 in relation to costs, because there is no permission hearing to which it would apply.[20]The second observation relates to the terms of paragraph 37. There are two circumstances in which relief may be granted. The second is limited to cases where it is established that the requirements for making the order have not been complied with, and the applicant has been substantially prejudiced by that failure. Although the applicant says that the consultation documents, or some of them, were not available when they should have been, there is no evidence that the applicant was in any way prejudiced thereby. It follows that this application can succeed only by establishing that the TROs were not within the powers conferred by the Act.[21]It is not suggested that the TROs are in terms not authorised by the terms of the Act, but the applicant submits that the exercise of the power to make them was defective in public law terms and hence that the TROs should be quashed.[22]The relevant general principles are those relating to decision-making, to the giving of reasons, and to the level of enquiry or supervision by the court, including the analysis of officers’ reports, and consultation. As to decision-making, there is a convenient and relevant summary by Fordham J in R (Hawes) v Tower Hamlets LBC [2024] EWHC 3262 at [4], on which the applicant relies: The duty [is] to reach a decision which is reasonable(a) as to its outcome, being within the range of reasonable responses; and(b) as to its reasoning process, being free from demonstrable flaw such as material reliance on a legal irrelevancy (or material disregard of a legal relevancy) or absence of evidence to support an important step or serious logical or methodological error (see R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at [98]).[23]The duty to give reasons is the familiar one derived from the authoritative statement by Lord Brown in South Bucks DC v Porter [2004] UKHL 33 at [36]: The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.[24]The Court’s approach to officers’ reports is well-established. It is set out, for example, in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1342 at [42], and applied in a TRO context by HHJ Stephen Davies sitting as a judge of this Court in Venuscare Ltd v Cumbria County Council [2019] EWHC 3268 (Admin). I am content to accept Ms Hutton’s summary:(a) Planning officers’ reports are not to be read with undue rigour but with reasonable benevolence bearing in mind they are written for those with local knowledge;(b) ‘The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision …’ (Mansell [42] (2)); and(c) Whether or not an officer’s report is misleading in a material way is context specific. It may include an error of fact, a misdirection as to policy, or simply failing to deal with a matter which the committee ought to receive explicit advice upon (Mansell [42] (3))[25]I would however add the final sentence of the relevant paragraph in Mansell:
“But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”
[26]For TROs, there is the specific decision-making duty imposed by s 122, which also fell for consideration in Venuscare. The matter was considered by the Court of Appeal in Trail Riders Fellowship v Hampshire CC [2019] EWCA Civ 1275, in which Longmore L.J. gave the principal judgment. He agreed at [26] with the following part of the summary of the law as stated by Sir Ross Cranston at first instance: “(i) the duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians; (ii) the duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2), such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act; (iii) the issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered”.[27]For the trial judge’s fourth proposition, on whether the duty had been complied with, he substituted at [38] his view that there needed to be “actual evidence that the balancing process required by section 122 has been, in substance, conducted”.[28]In relation to officers’ reports, at [36] Longmore L.J. held that the question whether the right balancing exercise had been conducted should be considered by reference to the overall factual picture, including the reports which had been provided, as opposed to being limited to the statement of reasons given by the traffic authority. At [35] he held that “if the report submitted to and considered by [the decision maker] does in fact conduct the balancing exercise required by the statute that is sufficient”. At [37] he suggested that conducting the balancing exercise was “not a particularly difficult or complicated exercise for the traffic authority to conduct”. He noted that “it is indeed difficult to imagine that a county's Director of Economy Transport and Environment will not be acutely aware of the county’s obligations (so far as practicable) to secure the expeditious, convenient and safe movement of vehicular traffic”. Finally, he summarised the approach which should be adopted by traffic authorities in considering whether to make a TRO at [40] as follows:
“(1) the decision-maker should have in mind the duty (as set out in section 122(1) of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable; (2) the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and (3) the decision-maker should then balance the various considerations and come to the appropriate decision.”
Submissions and discussion[29]I will deal with the grounds in turn. There is, however, a measure of duplication between them, particularly between grounds 2 and 3, 3 and 4, and 4 and 5. I have tried to avoid repetition in this judgment. The reasons and conclusions on each ground will therefore need, where appropriate, to be read also as forming part of the reasons and conclusions on other grounds.[30]The first ground of challenge is based on the November 2023 Resolution. The ground is that given the terms of that resolution the defendant had no authority to make the TROs or in any other way to proceed to implement the Scheme without further public consultation and, perhaps, public approval of it.[31]In her submissions Ms Hutton pointed out that the November 2023 Resolution is the only decision to proceed with any scheme, and that the Scheme adopted was less ambitions that that on which consultation had taken place; in other words, as she submitted, there had been no consultation on the scheme that was eventually adopted. Therefore(a) in common law as a matter of fairness there arose a duty to consult further before implementation of the Scheme (R (Elphinstone) v Westminster City Council [2008] EWCA Civ 1069);(b) in any event the November 2023 resolution itself should be read as to make the implementation of the scheme subject to further consultation; and(c) the claimant and others had a legitimate expectation that there would be further consultation before the Scheme was implemented.[32]In my judgment this ground is not properly arguable. The starting-point must be the November 2023 Resolution. Its terms are set out above. As also noted above, the Scheme itself is not challenged in these proceedings, and could not be. This is an application for the limited statutory purpose of challenging the TROs. This ground of application, therefore, has to be seen as a claim that it is unlawful to proceed with the scheme by making the TROs.[33]A glance at the November 2023 Resolution shows immediately the difficulties in such an argument. First, the making of the TROs is one of the matters to which the Scheme is subject: this submission reverses that position by arguing the making of the TROs is itself subject to some (re-) authorisation of the Scheme. Secondly, following extensive consultation before November 2023, the Resolution does not say or imply that there will be further consultation before it is implemented. The phrase used is ‘a satisfactory TRO and public engagement outcome’. ‘Engagement’ is not consultation: engagement can consist solely in publicity and communication, and the word (even when associated with ‘successful’ does not to my mind imply any of the obligations arising out of consultation. In particular, the decision to require ‘engagement’ does not begin to suggest that the Scheme or its implementation are in merely provisional terms, ready for a further round of consultation in which the opponents of it will have another opportunity to repeat their points and the defendant will have a further duty to reconsider them. Thirdly, any points about incompleteness of consultation before adopting the Scheme belong, and belong only, to a challenge to the adoption of the Scheme in November 2023, and could have been made only by an application for Judicial Review, made promptly and in any event no later than three months thereafter. Fourthly, in the circumstances of this case there is no basis for the slightest suggestion that anybody had a legitimate expectation of further consultation. The decision on the Scheme had been made, and anybody who reads the Resolution can see exactly what the next steps will be.[34]The November 2023 Resolution, and the Scheme then adopted, clearly and unambiguously authorised the TROs. The first ground of challenge fails.[35]The second ground of challenge is derived from the fact that the TROs that were made are not all the TROs that are requisite for implementing the Scheme.[36]I do not regard the second ground as arguable, as amended or (for completeness) as originally pleaded. One can see that there might be circumstances in which it could be said that it was irrational and therefore unlawful to bring into operation of part or parts of an approved scheme without bringing the whole scheme into operation. That might be the case if the scheme as a whole were directed to secure some particular advantage that the effectuated parts, by themselves, did not. But the position here is a very long way from that. As I have noted above, TRO 6 was not essential for delivery of the Scheme. Its abandonment therefore is nothing to the point. So far as TROs 1-4 are concerned, as also noted above, although they have come into operation, they are not in force because the relevant signage has not been introduced. TRO 5 is in the process of being made, modified but still with the intention of delivering the Scheme. The position at the date of this application and proceedings is that there is nothing comprising merely a part of the Scheme that is in force; and there is no decision or intention that there should ever be a time when only part of the Scheme is in force. There cannot be anything remotely irrational in preparing for the implementation of a scheme bit by bit, with the intention of arriving at a point where it is ready to be brought into force as a whole. That is the position here.[37]It is for that reason also that there is nothing in the argument that it was unlawful to consider the benefits of the Scheme as a whole in the making of the individual TROs. The Scheme as a whole is the basis for making each of the TROs in order that together, when they are all made, and other works are completed, the Scheme can be implemented. That does not ignore the fact that TRO 5 is still subject to consultation and perhaps amendment. There is no basis on the facts of this case for saying that there will not, in due course, be a set of TROs that will together deliver what is needed from TROs to provide the benefits of the Scheme.[38]For these reasons the second ground fails.[39]The third ground arises from the responses made by the applicant and, it is said, others, to the consultation on the TROs. I say ‘it is said, others’, because as the report on the outcome of the consultation shows, there were duplicated or essentially duplicated responses submitted by a large number of respondents. Be that as it may, the position is that a considerable number of respondents chose to recite issues going to the desirability (as they saw it) of the scheme as a whole as distinct from matters going specifically to the TROs. The applicants assert that the consultation was, and had to be, understood as a consultation inviting responses directed to the desirability of the Scheme. On that basis, it is further said now that in deciding (nevertheless) to make the TROs, the defendant wrongly ignored material submissions in the consultation process and did not treat the consultation responses conscientiously and fairly. In particular, it ignored responses raising doubts about the Scheme as a whole, while asserting the advantages of the Scheme as a whole in rejecting responses.[40]It is again important to start in the right place. The right place for the purposes of this ground is not the responses: it is the consultation document. The applicant asserts that as the consultation document showed the Scheme as a whole and set out the features (and benefits) of the Scheme as a whole, an ordinary person would have thought that there was consultation on the Scheme as a whole, and that for that reason the defendant was obliged to consider responses dealing with the scheme as a whole. The applicant cites R (Stephenson) v SSHCLG [2019] EWHC 519 in support. I accept of course the principle that the Court needs to consider what the reasonable reader or member of the public would have understood from the consultation document, but each case must turn on its own facts, including the background of the consultation and the wording of the document.[41]I do not accept the applicant’s argument in relation to the scope of the consultation. The purpose and subject of the consultation was stated with absolute clarity in the consultation document itself (‘the SID’):
“Traffic Regulation Orders The council is consulting on the Traffic Regulation Orders (TROs) needed for the Harrogate TCF [Transforming Cities Fund] project. Information about the TROs can be found on the North Yorkshire Council website: [URL given]. Paper copies are available at Harrogate Civic Centre and the Central Library. This document accompanies the TROs and provides additional information about the scheme’s final design.”
This document accompanies the TROs and provides additional information about the scheme’s final design.”[42]No reasonable reader of the document could have thought that it implied consultation on anything other than the TROs, or that the information about the Scheme as a whole was given for any reason other than to provide context for the proposed TROs. There was no invitation, express or implied, to provide responses on the Scheme generally; and there can have been no expectation that any such responses would be considered save insofar as they were directed to, and were relevant to, the making of the TROs in the context of, and in implementation of, the Scheme. As the officer’s report shows, the parts of the wider responses that were relevant to the scheme were identified and considered. Nothing can be made of the possibility that, unannounced amongst such wider responses, there were other points that could have had a relevance to the Scheme itself: the compiler of the report was not required to trawl through responses that were not directed to the consultation subject in order to seek them.[43]When it came to consideration of the responses, it is quite wrong to suggest that the decision-maker was not entitled to consider the benefits of the Scheme as a whole while rejecting responses directed to the Scheme as a whole, or even specifically to the TROs. The Scheme was the background against which the TROs were being made and the purpose behind them, as the passage quoted above makes clear. Whatever the applicant may have hoped, the Scheme itself was not under (re-) consideration. The Scheme had been decided on, and the current question was, given the existence of the Scheme, whether these TROs should be made in order to deliver it. It was right to refer to the general benefits of the Scheme in assessing whether the TROs should be made, even if nothing in the TROs taken in isolation would provide the benefits of the Scheme. In fact, however, the points made by the applicant here are bad ones: the traffic arrangements made by the TROs would themselves provide some benefit to pedestrians, and would contribute to the balance of road user by different sorts of user.[44]The applicant insists nevertheless that some responses that were directed to matters relevant to whether the TROs should be made were ignored. What is said to be the most significant is identified as follows by Ms Hutton in her written skeleton argument:
“In particular [respondents] raised concerns with regard to the potential impact upon listed buildings and the conservation area which were not assessed and further, the lack of detail provided meant that it was extremely difficult for consultees to understand what the impacts would be. The Harrogate Civic Society raised concerns about the design of the scheme which Get Away agreed with.”
[45]The very wording of this argument indicates that the points were not directed to the TROs, but to the Scheme itself. There was certainly no lack of detail provided in relation to the TROs: indeed, when it suits it to do so (for example in relation to the fourth ground) the applicant claims that the TRO documents were too technical to understand. The ‘lack of detail’ must be a reference to the Scheme, not the TRO consultation. This interpretation is confirmed by the fact that the concerns expressed by Harrogate Civic Society, to which reference is made, were, as Mr Riley-Smith has identified, about the improvements to Station Square and not about anything to do with the TROs.[46]Heritage concerns such as the impact on listed buildings and conservation areas are not themselves specifically matters either justifying the making of a TRO or falling to be considered in the s 122 balance. I accept that the preservation of the amenities of an area is one of the reasons for which a TRO can be made, but that is not the issue here: the applicant says that for heritage reasons that are of no obvious relevance to traffic movement, the TROs should not be made. The applicant appears to argue that despite the lack of specific mention of heritage factors in s 122, they might, in a proper case, fall within the catch-all of any other matters appearing to the authority to be relevant (s122(2)(d)), but that aspect of the matter is better considered with other points going to the s 122 exercise under the fifth ground of challenge.[47]The third ground fails.[48]The fourth ground of challenge is based on the contents of the information accompanying the TRO proposals. The consultation document or SID, as indicated above, incorporated information about the scheme as a whole. The fourth ground is based on allegations that the information given about the scheme as a whole was ‘materially misleading’ and that this renders the consultation unfair or inadequate and the making of the TROs unlawful. This ground has led to a process of trawling through the material available to the defendant at various points, in an effort by the applicant to see if something could be found to show some error or default in the SID. I put it in those terms because, although the defendant does seem to have co-operated in this task so far as it was able, it is not in my judgment at all clear that in this limited statutory application the defendant has duties of candour that are identical to those in a full judicial review. There is in addition the question whether this detailed mode of attack was appropriate, given the nature of the consultation and of the SID.[49]In relation to the challenge to the accuracy of the SID, the parties have prepared a statement of matters of agreement and disagreement about the underlying facts and evidence. There is only one outstanding matter of disagreement. The evidence is derived from a number of reports and surveys prepared by and for the defendant following the decision to implement the Scheme by the November 2023 Resolution, and from the defendant’s own submissions to the interested party in the Full Business case (FBC) envisaged in that resolution and submitted in January 2024, updated by a further FBC submitted in December 2024.[50]The claimant’s argument begins by setting out the law in relation to consultation documents. If they are materially misleading the consultation may not be regarded as full and fair, but as Morris J said in R (Electric Collars Manufacturers’ Association v SSEFRA [2019] EWHC 2813 (Admin) at [142], “Whether non-disclosure made the consultation so unfair as to be unlawful will depend on the nature and potential impact of the proposal, the importance of the information to the justification of the proposal and for the decision ultimately taken, whether there was a good reason for not disclosing the information and whether the consultees were prejudiced by the non-disclosure, by depriving them of the opportunity of making representations which it would have been material for the decision-maker to take into account.”[51]The argument continues by asserting that the actual proposal to make the TROs consisted of ‘highly technical documents with a series of plans that were difficult to understand’. I do not accept that. There is no evidence that persuades me that it was the case. Those who purport by this argument not to have been able to understand them constitute the claimant, a property company with (no doubt) expertise in reading plans and technical drawings, and others with like experience (or at any rate who were capable of making identical responses to the consultation). There does not appear to be any evidence that the applicant sought any clarification of anything in the plans that was beyond the understanding of its officers or employees or that it was misled by any response to such request.[52]As a result I also do not accept that the applicant or any reasonable person would rely on the SID as the subject of consultation or as a detailed explanation of the proposals, essentially for the same reasons as given in relation to the third ground of challenge. The SID was a high-level document, which provided a summary of the scheme, its background, and the way in which its formulation had responded to the desires of many respondents to the consultations before the November 2023 Resolution. It would be obvious to any reader that it was not intended to set out all the details of the Scheme or all the considerations that went into formulating it, or were being considered in the different works implementing it. It was inappropriate to treat it in that way, and it is inappropriate to criticise it for not being what it did not purport to be and was not reasonably understood to be.[53]Looked at through the lens of the Electric Collars Manufacturers’ Association decision, the position is that the detailed information that the applicant claims was wrong in, or missing from, the SID was of negligible importance to the proposal to make the TROs, and the respondents were not prejudiced by the SID. That is because the TROs were proposed as implementation of the Scheme, not as a free-standing measure. The question was not whether the Scheme should be delivered, but whether, given that the decision had been made to deliver the Scheme, the TROs were appropriate to implement it. The information justifying the Scheme, as distinct from the general description of the Scheme in order to give context to the TRO proposals, was not relevant to objections to the TROs.[54]Putting that another way again, if a person is essentially saying ‘I object to the TROs because I object to the Scheme’, that is not a material objection in the context of a programme such as was in operation here; and the same applies if the person is saying ‘I object to the TROs because I think I have found a new reason for objecting to the Scheme’. For these reasons, what are said to be misstatements or omissions in the high-level description of the Scheme and its benefits would in my judgment not render the consultation unlawful if they were established.[55]It is, however, not easy to see that any of them is established. There were four issues identified by the applicant, but the last, related to carbon and environmental impact is, in the applicant’s most recently-restructured argument, not advanced under this head. The remaining three are or were as follows. First, the Scheme ‘provides a safe south-bound cycling option’; secondly, ‘The new bus lane will allow easier and quicker access into the bus station’; thirdly. ‘Signals … will improve movement through the network for all users, with the ability to amend timings in the future if required’. The applicant says that the material available to the defendant shows that these statements were wrong. There were concerns about the safety of the cycle lane; there would be slight disbenefits to public transport journey times in peak periods; and there would be a tendency to bottlenecks, and a general disbenefit to general traffic.[56]The problem about trying to use these factors to demonstrate that the SID was misleading is that part of the avowed purpose of the Scheme is to change transport habits. Surveys of the effect of the Scheme on traffic as it now is, are not to the point. But anyway, each of the statements identified appears to me to be accurate. The second and third reflect the material available to the defendant at the time of the SID, and neither of them implies the wider statement the applicant’s position would contradict. There are continuing discussions about the modelling of cycle access throughout the area of the Scheme. There is no basis for saying that it is wrong to describe the Scheme as providing a safe option, and it is obvious that any segregation of cyclists from some or all of other traffic is a move in that direction.[57]The SID was not misleading in any material sense. It provided an accurate context for the TRO proposals, against which any reasonable reader had a proper opportunity to make any material objection to the TROs. The fourth ground fails.[58]The fifth ground is directed not to the consultation, but to the making of the TROs following the consultation. The applicant asserts that in making the decision the defendant took into account factors on which either there was insufficient evidence, or where the evidence was contrary to the position taken by the decision-maker; that material considerations were not taken into account, so that the duty under s 122 was not performed; and that the defendant failed to give adequate reasons for the decision.[59]The decision was based on the officer’s report. In these circumstances the reasoning in the report may be taken to be the reasons for the decision. If I may take the reasons point first, it seems to me to be wholly unarguable. Ms Hutton’s submissions on it were not specific. The reasons given in the report are in my judgment entirely adequate. The reasons for reaching the view promoted are set out in detail, and meet all the points that were made by the applicant and the other objectors. There is no viable room for doubt about what the reasons were. The evident fact that the applicant does not agree with them, and does not like the fact that its arguments were not accepted, does not make the reasons inadequate in law.[60]Turning then to the other points raised under this ground, I remind myself that this application does not constitute an appeal against the decision, nor an opportunity for the applicant to repeat submissions made to the decision-maker and simply not accepted as determining or assisting in determining the issue. I remind myself also of what Fordham J said in Hawes (above) at [6]:
“The merits of evaluative judgments and policy choices are entrusted to front-line public authorities, in respect of which there is always a latitude for judgment and appreciation.”
That was in the course of a judgment on a claim for judicial review, but the same applies in other areas of public law such as this application.[61]The applicant says that in relation to highway safety, bus journey times, general traffic congestion, air quality and carbon impact there was required to be ‘expert technical assessment’. As a ground of challenge this rather loses impact in view of the fact that not only was there expert assessment on each of these topics, but the applicant accepts that there was. It is nevertheless desirable to say a little about it. The first point is that although some things under these heads may require such assessment before any claim about them can be made, that does not apply to everything. Even in relation to air quality, it would not be necessary to have an expert opinion in order to assert that the complete removal of vehicular traffic from an area would be likely to improve the air quality there. Similarly, no expert is needed in order to confirm a view that a bus will travel more freely if there is a bus lane.[62]Secondly, the question whether there was sufficient evidence before the decision-maker to enable a proper decision to be made is governed by the Tameside duty (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014), but that does not mean that it is for the Court (or the applicant) to determine what, if any, evidence should have been sought. The decision can only be attacked on this ground if the decision-maker’s view that there was sufficient evidence and information available can be shown to be one that was not open in the circumstances. The principles are those set out in Balajigari v SSHD [2019] EWHC 673 at [70]: The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at paras. 99-100. In that passage, having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.[63]I have set out the paragraph in full, although only the first four of the principles are applicable here. In terms of the material available, nothing in the applicant’s case begins to show that the defendant was not entitled to act on the material available. Simply asserting that more enquiries should have been made does not even approach the threshold.[64]The assertion that the material before the defendant did not justify the view it took is rehearsed in the applicant’s various statements of facts and grounds, the defendant’s responses, and was the subject of submissions by both sides at the hearing. Without producing a judgment of inordinate length it is not possible to set out all the various points on which the applicant took issue with the position of the decision-maker. The defendant’s response was in my judgment full and persuasive. The applicant’s submissions that the evidence did not support the defendant’s position are, as it seems to me, all based on either a partial view of that evidence, or a misreading of it, or a misunderstanding of it, or an attempt to apply to the TROs evidence about the Scheme as a whole and bearing meaning only in the context of the Scheme as a whole.[65]That is the case even with respect to the carbon impacts of the Scheme, which were the element that took most time at the hearing. The information given in the SID was accurate at the date of that document. The report took into account the more recent assessment and recognised the problem; it maintained the aspirational elements of the Scheme, which tend to render any current assessment irrelevant; and in my judgment the wording and intent of the report on this topic was balanced, fair and accurate. In the same way each of the points in the ‘matters of agreement and disagreement’ takes the applicant’s case no further. The one point of disagreement is whether the provision of a bus lane on the approach to the bus station will improve journey times for buses approaching the bus station. I have made my comment on this above. There is nothing in the applicant’s assertion that no ‘evidence’ has been provided to support this assertion. No ‘evidence’ was needed.[66]Similar observations apply to the applicant’s assertions that material matters were not taken into account, or that objections were ignored. Mr Riley-Smith took me through the officer’s report in order to show that each of the points said by the applicant to fall under this head was dealt with in the report. It is true of course that the officer, and hence the decision-maker, did not take the same view as the applicant about the weight or impact of the factors in question, but they were all addressed. I accept the defendant’s arguments on this point. Despite Miss Hutton’s detailed submissions I cannot identify any matter genuinely material to whether the TROs should be made that ought to have been addressed in the decision but were not.[67]If there is some matter on which it can still be said that the defendant’s response does not close the issue, it is certainly of minor importance and not sufficient to demonstrate unlawfulness in the ‘not particularly difficult or complicated exercise’ undertaken by the defendant.[68]Moving on to the wider point on the performance of the obligatory balancing exercise under s 122, I note that in relation to each of the TROs the task was specifically undertaken. Applying Trail Riders, that was ‘sufficient’. Nothing identified in the applicant’s submissions shows that the decision-maker undertook the balancing exercise unlawfully, or that the result was not one open to the defendant.[69]At paragraph [46] above I deferred consideration of heritage issues raised in response to consultation. They would be material only if they could affect the decision as to whether the TROs should be made. The defendant points out that heritage issues do not feature at all in the factors to be taken into account in the balance. The question is whether they could nevertheless fall to be considered as a relevant matter under s 122(2)(d). The process of striking the balance under that section is set out by Longmore LJ at paragraph [40] of Trail Riders in terms that make it clear that the heritage matters argued, rather vaguely in any case, in this application could have had no lawful weight. The task is to begin with the duty to secure expeditious (etc) traffic movement, and count against that duty the factors justifying impeding such movement by the proposed order. Only under the latter head does ‘any other matter’ appear. It follows that ‘other’ matters contribute to the balance only on the side of restricting traffic by the order. Under the statute there is no mechanism for taking them into account against the proposed TRO.[70]On the other hand, one matter that undoubtedly was relevant in favour of the TROs was the promotion of the Scheme. That was also taken into account, both expressly and implicitly. This entire application is essentially a claim that despite the decision to adopt it, it should not be implemented. This judgment therefore ends where it began: the Scheme was the background to the TROs and was essentially the reason for making them. The proposals for them, and any objections to them, fell to be considered in that context. The decision to make them was one that properly struck the balance in that context.[71]Ground five therefore fails. Decision[72]The applicant’s application is refused. The TROs stand.