“The proposal's stated aim is to address the inappropriate usage of Sandy Lane Byway. No further information is provided on how the Council has decided the listed behaviours are inappropriate. Consequently, it is difficult for the Association to make an informed response. I would be grateful if you could provide the information and reports relied on to support the proposal. …”
“I am familiar with this lane through management of Aspley Woods. For years this lane has had an issue with unsocial behaviour but we refrained from any action to restrict vehicular access as it is also well used by motor vehicles particularly 4x4's and motor cyclists. As far as I am aware that use continues. If this was a road would the highway authority close it or would the police take appropriate action. The lane serves as a short cut to Aspley Heath from Bow Brickhil (sic) and other settlements and has been used in the past as a link to the local school. At the time we felt that the problem was more a police matter and closage (sic) was absolutely the last resort. Also, is closure to all vehicles necessary. I am sure the Off Road Fellowship will.oppose such a proposal. …”
“6. The introduction of an Experimental Traffic Regulation Order would provide the opportunity to repair the worst eroded sections of Sandy Lane, protect it from further damage by motor vehicles, and would allow the Council to monitor the level of erosion without the impact of motorised vehicles. For the period, the BOAT would operate as a traffic-free amenity route for walkers, cyclists, and horse-riders. 7. By introducing the order as an ETRO, the Council has a period of up to 18 months to assess its impact, noting that comments and objections can be raised during the first six months. Hence, after a minimum six-month period the Council will review its impact and effectiveness and whether it would be appropriate for the arrangement to continue and/or be made permanent. iii) At paragraphs 19-21 the OR considered ‘Options for Consideration’ “19. The Council considered but discounted the option of advertising the order as a permanent TRO under the powers conferred by the Road Traffic Regulations Act (1984). This was discounted on the view of officers that an experimental period would be preferable, as this would allow for a considered assessment of the impact on the Byway surface of motor vehicle use. 20. The recommended option is to introduce the ETRO as advertised. 21. There is also the option to uphold the objections and not progress with the order or make the restrictions less onerous.” iv) The following was included under the heading Equalities and Fairness Implication (at OR paragraphs 30-31) “30.The Equality Act 2010 (the “Act”) provides protection from discrimination in respect of certain protected characteristics namely: age, disability, gender re-assignment, pregnancy and maternity, race, religion or beliefs and sex and sexual orientation. It places the Council under a legal duty to have due regard to the advancement of equality in the exercise of its powers. In particular, the Council must pay due regard to the need to: • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and • foster good relations between persons who share a relevant protected characteristic and persons who do not share it Due regard must also be given to the Public Sector Equality Duty (PSED).Section 149 of the Equality Act 2010 requires the Council to consider all individuals when carrying out their functions; this includes changes to policy. The duty requires that due regard be given to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different people. Specifically, the following protected characteristics must be given due regard - age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation. The PSED also applies to marriage and civil partnership, but only in relation to the need to eliminate discrimination, harassment and discrimination 31. It is accepted that drivers of off-road vehicles will be disadvantaged by the prohibition to traffic whereas other, more vulnerable users including pedestrians, equestrians and cyclists, are likely to feel significantly less at risk. We are conducting equality screening to ensure we identify any potential equality impacts as we monitor the implementation of the proposal for closure to vehicles.” v) The following is set out at paragraphs 33 and 34: “Other Corporate Implications 33. Closing this section to motor vehicles is likely to reduce the level of anti-social behaviour including fly tipping which has previously been reported on this section of Sandy Lane. Conclusion and next steps 34. It is recommended that approval is granted to introduce an Experimental Traffic Regulation Order that prohibits traffic from using Aspley Heath BOAT No. 33 and that a report is bought back to the Traffic Management Meeting as to its impact after a period of no less than 6 months and no more than 15 months.”
“Appendix A: Public Notice Appendix B: Drawing Appendix C: Police Response Appendix D: Parish Council Response Appendix E: Ward Member Response Appendix F: Statutory Consultee and Prescribed Bodies Responses Appendix G: County Wildlife Site Designation”
“1. That the proposal for an Experimental Traffic Regulation Order (ETRO) to introduce a prohibition of Motor Vehicles be implemented as advertised on the following length of road in Aspley Heath:- - Sandy Lane (BOAT 33), from the crossroads at Aspley Heath Lodge where Bridleway No.4 meets Byway No.33 and extending in a south westerly direction for approximately 687 metres (ending at the county boundary).”
“3. Save as provided in article 4 of this Order no person shall cause any mechanically propelled vehicle to proceed in the roads specified in the schedule to this order. 4. Nothing in Article 3 of this Order shall apply to:- a) a vehicle being used for police, ambulance, fire service or special forces purposes; b) a pedal cycle which is not a motor vehicle;”
“1. — Traffic regulation orders outside Greater London. (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; or (g) for any of the purposes specified in paragraphs (a) to (c) of subsection (1) ofsection 87 of the Environment Act 1995 (air quality). …”
“9. — Experimental traffic orders. (1) The traffic authority for a road may, for the purposes of carrying out an experimental scheme of traffic control, make an order under this section (referred to in this Act as an “experimental traffic order” ) making any such provision— (a) as respects a road outside Greater London, as may be made by a traffic regulation order; … (3) An experimental traffic order shall not continue in force for longer than 18 months. …”
“23. An ETO must be genuinely experimental in nature. It cannot be in truth and substance permanent though made under the guise of an experiment: it must be "an operation designed to glean information about the workings of the scheme in practice" (per Carnwath J, as he then was, in UK Waste Management Ltd v. West Lancashire DC [1997] RTR 201 , at 208E-F). "[F]or there to be a valid experimental order there must be an experiment and the authority must be able to explain what it is" (ibid. at 108F-G).”
“122. — Exercise of functions by [ strategic highways companies or] local authorities. (1) It shall be the duty of every strategic highways company and 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 or, in Scotland, the road (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 undersection 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 strategic highways company or the local authority to be relevant. …”
“37 One must, of course, be clear what the relevant balancing exercise is. On the one hand regard must be had to the duty set out in section 122(1) so far as practicable “to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)”; as the judge points out (paras 37(i) and 44) it is significant that pedestrians are included. On the other hand, regard must be had to the effect on the amenities of the locality affected and other matters appearing to the traffic authority to be relevant (section 122(2)(b) and (d)). This is not a particularly difficult or complicated exercise for the traffic authority to conduct. …” ii) There is no requirement to make specific reference to section 122; if the order-making authority does in fact conduct the balancing exercise that is sufficient (paragraph 35). iii) In considering whether the right balancing exercise has been conducted the analysis is not to be restricted to the statement of reasons (as the balancing exercise is to be conducted after representations have been received). Regard can be had, in particular, to the officer report which informed the decision to make the order (paragraph 36). iv) There has to be actual evidence that the balancing process has been, in substance, conducted (paragraph 38). v) At paragraph 40 Longmore LJ summarised the approach to be taken by order-making authorities: “40 Before parting with this aspect of the case it may be helpful to summarise the approach which should be adopted by traffic authorities in considering whether to make a TRO: (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. As I have already said, this is not a particularly difficult or complicated exercise nor should it be.”
“35. 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 6 weeks from the date on which the order is made, make an application for the purpose to the High Court or, in Scotland, to the Court of Session. … 36. — (1) On any application under this Part of this Schedule the court— (a) may, …; and (b) 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, may quash the order or any provision of the order. …”
“16 The network management duty (1) It is the duty of a local traffic authority or a strategic highways company (“the network management 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 statement setting out the reasons why the authority proposed to make the order including, in the case of an experimental order, the reasons for proceeding by way of experiment and a statement as to whether the authority intends to consider making an order having the same effect which is not an experimental order;”
“94. — Local access forums. (1) The appointing authority for any area shall in accordance with regulations establish for that area, or for each part of it, an advisory body to be known as a local access forum. (2) … (4) It is the function of a local access forum, as respects the area for which it is established, to advise— (a) the appointing authority, (b) any body exercising functions under Part I in relation to land in that area, (c) if the appointing authority is a National Park authority, the local highway authority for any part of that area, and (d) such other bodies as may be prescribed, as to the improvement of public access to land in that area for the purposes of open-air recreation and the enjoyment of the area, and as to such other matters as may be prescribed. (5) The bodies mentioned in paragraphs (a) to (d) of subsection (4) shall have regard, in carrying out their functions, to any relevant advice given to them by a local access forum under that subsection or any other provision of this Act. …”
“149 Public sector equality duty (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. …”
“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 ;[2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 at [26 – 27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23 – 24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be “exercised in substance, with rigour, and with an open mind”
“75. As was made clear in a passage quoted in the Bracking case[2014] Eq LR 60 , para 60, the duty “must be exercised in ‘substance, with rigour, and with an open mind’”: per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)[2009] PTSR 1506 , para 92. And, as Elias LJ said in the Hurley case [2012] HRLR 13 , paras 77–78 it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been a rigorous consideration of the duty”
“92. Mr Wragg referred to the passage at paragraph 19 of the judgment given in Sarah Jane Williams v Devon County Council[2015] EWHC 568 (Admin) , which applied the well-known statement by Lord Brown in South Buckinghamshire District Council on the scope of the requirement of the duty to give reasons to a challenge to the adequacy of a statement issued under paragraph 2(d) of schedule 2 to the 1996 Regulations. However, the reasoning in that case does not appear to have recognised that the Trail Riders decision upon which the judge's view was based had been concerned instead with reasons given under regulation 17(3). In so far as the Sarah Jane Williams decision suggested that the principles in South Buckinghamshire District Council apply to a statement under paragraph 2(d) of schedule 2 to the RTRA , I would not be inclined to follow it. 93. A statement under paragraph 2(d) of schedule 2 forms part of a package of notices and documents required to be placed on deposit so as to publicise the intention to make an order under the RTRA , the measures proposed and the reasons for taking those measures. The object is to enable the public to understand the nature of the proposals so that they may consider whether they wish to object to the order and, if so, on what grounds. The 1996 Regulations do not suggest that the statement under paragraph 2(d) of schedule 2 is required to give detailed reasons or to address every relevant consideration which has been taken into account.”
“(7) Judges will usually be able to distinguish between genuine elucidation of a decision and impermissible justification or contradiction after the event, without having to rule on applications to exclude parts of the opposing party’s written evidence or documents it seeks to adduce. It follows that the best way for the court to proceed may be to receive the contentious evidence “de bene esse”, and, having heard argument on the issues in the claim, simply to disregard any of the evidence that is irrelevant or superfluous, rather than embarking on a painstaking assessment of strict admissibility.”
“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.”