This is apparently the judges notes:
That the experimental traffic orders are not part of genuine experiments
I do not think there is any merit in these arguments. I am not prepared to draw the inference that the experimental nature of the LTNs and the ETOs made to maintain them, is other than genuine.
Breach of the public sector equality duty
I turn to my reasoning and conclusions on this ground of challenge. I have already accepted that the ETOs were made by way of a genuine experiment. I therefore accept that the function being exercised when the decision of 9 October 2020 was taken was the function of initiating the experiment. It was not a decision to introduce the LTNs on a permanent basis.
Next, I accept Mr Mould’s submission that the duty is not a duty to carry out an assessment. It is a duty to have due regard to what can be called the equality objectives. Assessment is the tool used to create the evidence base to show performance of the duty. It is not the performance of the duty itself. There is no necessary breach of the duty where no formal assessment has been done.
In my judgment, the evidence is clear: it was the coronavirus epidemic and the resulting statutory guidance that led to abandonment of that conventional and leisurely approach to introducing LTNs. The Secretary of State urged local authorities to take radical and almost immediate measures to enhance walking and cycling and pointed to their power to do so using TTOs and ETOs.
Lambeth responded by adopting the TSP less than a week after the statutory guidance was published. Equality issues were not overlooked; the report to which the TSP was attached noted that the TSIP had been “subject to a full E[Q]IA”; and stated that “[a]ll Traffic Orders required as part of the Response will be subject to E[Q]IA”.
In my judgment, Mr Mould is right to submit that the director incontestably had some regard to the equality objectives and the question is whether the regard he had was sufficient to qualify as due regard. He was not aware of the detailed findings made up to that point but I do not think that unawareness is sufficient to condemn his regard for equality objectives as less than what was due.
In my judgment, there was enough consideration of equality objectives in the October report to qualify as due regard to those objectives. That included, legitimately, consideration of the point that the same equality objectives would be looked at further, in much more detail and with a sharpened focus, at later stages in the statutory process.
For those brief reasons, I prefer Lambeth’s submissions to those of the claimant. She has demonstrated that her particular problem of dependence on car transport with increased journey times and stress, was not identified until after the operative decision in October 2020; but she has not demonstrated that Lambeth thereby, or at all, breached the public sector equality duty.
I therefore dismiss that ground of challenge. If I had found a breach of the duty, I would have considered making a declaration to that effect but I would not, in all the circumstances, have been willing to condemn outright and quash the relevant ETOs. They are not yet set in stone and consideration of them is, or should be, ongoing and subject to further assessment, over and above the EQIAs that have been carried out since the decision in October 2020.
Section 122 of RTRA
On this ground, I found Lambeth’s submissions compelling and unanswerable. While it is possible that an LTN could be introduced without the section 122 factors being properly weighed against each other – for example, if only the pro-neighbourhood amenity factors were considered and the pro-vehicle traffic factors ignored and left out of account – that certainly did not happen here.
There is ample evidence of the balancing exercise being performed, in the passages in the extracts to which I was taken by Mr Mould from the TSIP, the TSP and the October report, the latter two documents responding positively to the strong steer from the Secretary of State to draw the balance in a particular way owing the unusual circumstances of the coronavirus epidemic.
I agree with Mr Mould that it is difficult to have a discussion of the advantages of LTNs at all unless in the course of the discussion you measure their virtues against the interests of motor vehicle users. Thus, for example, the very act of prohibiting rat running is intended to inconvenience the rat runners by keeping them out of the LTN, thereby probably lengthening their journey.
I conclude that the claimant is wrong to say there is no evidence of the balance being struck; there is plenty of evidence of it being struck; and the unusual circumstances in which these LTNs came into being makes that not in the least surprising. I dismiss this ground of challenge.
Failure to consult properly/inadequate consultation
I agree with Lambeth that this ground of challenge is without merit. The claimant cannot fashion from a supposed legitimate expectation an obligation to consult going above and beyond the limited obligations imposed under the 1996 Regulations. The two communications from the Secretary of State do not begin to support such an expectation.
Nor do I accept that the claimant can complain of an irrational choice of organisations with which to consult. There is nothing irrational about consulting a cycling organisation about measures to encourage cycling. The omission to consult the charity dasl is not actionable; there was no obligation to consult that organisation and it was not irrational to omit it from the list; it can contribute to the debate via the objections procedure if it wishes to do so.