High Court rejects challenge to Hackney school streets ETOs

Hackney has successfully defended a High Court legal challenge against two experimental traffic orders (ETOs) it made under its Schools Streets programme.

A feature of Hackney's traffic policy since 2017 - under its 2015 policy document Hackney Transport Strategy 2015-2025 - the programme filters traffic by closing roads where schools are situated during certain times of the day.

The case of SM (A Child) & Anor v London Borough of Hackney [2021] EWHC 3294 (Admin) was brought by two children with disabilities through their fathers as litigation friends.

They challenged the validity of two ETOs made by Hackney on 25 September 2020, eventually taking effect from 9 November 2020, on the grounds they had been severely prejudiced by increased car journey times to and from their school - known in trial documents as S-School.

The application was made under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984. It was not a judicial review and so permission was not required.

The applicants argued there had been a failure to discharge the public sector equality duty, failure to consult and breach of article 8 or article 14 (read with article 8) of the European Convention on Human Rights (ECHR).

The two ETOs were:

(1) the Hackney (Mount Pleasant Lane Area – Mount Pleasant Lane, Southwold Road and Springfield Gardens) (Traffic Management and Parking) (Experimental) Order 2020 (the Springfield Gardens ETO); and

(2) the Hackney (Prescribed Routes and 20 mph Speed Limit) (School Streets – Harrington Hill Primary School) (School Streets – Pedestrian and Cycle) (Experimental) Order 2020 (the Harrington Hill ETO).

Hackney argued that it had 'properly discharged its duty to have 'due regard' to the matters specified in section 149 of the Equality Act 2010; that it was under no obligation to consult more widely than it did prior to making the ETOs; and that there was no interference, or alternatively a justified interference, with the applicants' article 8 rights and no violation of their rights under article 14 read with article 8'.

First ground for challenge: failure to comply with the public sector equality duty

The first argument put forward by the applicants was that Hackney did not give 'due regard' to its public sector equality duty - specifically that the 'Tameside duty' was not properly performed; consequently, the authority possessed inadequate knowledge to perform, in turn, the 'due regard' duty.

In his judgement, Mr Justice Kerr noted that: 'It is a curiosity that the Tameside duty of enquiry attracts a rationality threshold and the steps needed to perform it are therefore (subject to rationality) a matter of judgment for the decision maker; but the section 149 [of the Equality Act 2010]; duty sets an objective standard and the court, not the decision maker, must decide whether the standard has been met or not.

'I keep in mind that different standards apply to the two duties; and that in the context of a temporary experimental decision, the decision maker by definition does not know all it needs to know to make a final decision.'

He also noted the context of 'the public health emergency and the clear need for accelerated decision making' and found that Hackney was not in breach of its duty by not conferring with the families, or representatives of the families, of the class of affected pupils.

He noted wider attempts to consult with the local community, notably a video call with school representatives where increased journey times 'was not a point then drawn to Hackney's attention; the concern was the access route and that the school could be "cut off"'.

In rejecting the challenge the judge stated: 'I prefer Hackney's submission that it was adequately performed, even though it did not, at the initial stage of the experiment, include drilling down to consideration of the specific impact on a particular sub-cohort of disabled children who could be adversely affected by increased journey times. The impact on those with protected characteristics including disability was considered carefully and there was to be ongoing monitoring and assessment.'

Second ground of challenge: failure to consult

The judge noted that the scope of the duty to consult 'is now often drawn from the judgment of the court (not attributed to any particular judge) in the Richard III case (R (Plantagenet Alliance) v. Secretary of State for Justice [2015] 3 All ER 261), at [98(2)]'.

In various arguments, the applicants relied on 'a statutory duty to consult, an established practice of consultation and an exceptional case where a failure to consult would lead to conspicuous unfairness'.

In the findings, the court noted that Hackney had undertaken pre-implementation public consultation on some nine School Streets schemes from 2017 to 2019.

'That practice of general public consultation clearly went beyond what regulation 6 [Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996] required and was not restricted to the named consultees listed in regulation 6 and organisations representative of affected parties which, Hackney considered, were appropriate bodies to be consulted, the judge noted.

The question then turned to whether it was 'unfair or an abuse of power' in the context of COVID-related Department for Transport and Transport for London guidance in May 2020, for Hackney to cease its practice and adopt a different one.

The new practice was to 'to consult before implementation more narrowly within the confines of regulation 6 and leave the wider public consultation process until after implementation, through the formal written objection procedure and the "Commonplace" online facility, or by telephone or freepost for those not digitally connected'.

Mr Justice Kerr also noted Hackney's wider efforts to engage the community, including the video call which 'could be described as consultation of a kind'.

'I do not accept that the S School represents its pupils, parents and carers with regard to journey times to and from their homes to the School. The S School has no responsibility to parents to keep the roads open, and the journey to school short and swift,' the Judge said.

'Based on that reasoning, I do not accept that it would have been irrational to exclude the S School from the list of regulation 6 bodies it was thought "appropriate to consult".'

Third ground of challenge: ECHR article 8, or article 8 read with article 14

The applicants argued that the ETOs interfered with their right to respect for their private and family life; that the interference was not in accordance with the law - under the first and second grounds of challenge - and that the interference was not proportionate as it failed to strike a fair balance between the applicants' rights and the wider public interest.

They argued that the detriment to the applicants outweighed any benefit to others.

Mr Justice Kerr found the ETOs justified.

Firstly, he said: 'The degree of adverse impact by reason of disability is limited. It affects not disabled people generally or a high proportion of them (as would, for example, a lack of disabled access to a prominent public building). It affects a small sub-group of disabled children suffering from a particular kind of disability which is such that the measure affects them adversely. Further, the adverse effect of the ETOs on that sub-group comes about not directly but by the indirect route of increasing the journey time to and from the S School.'

He went on to state: 'The remaining reasons for finding the ETOs justified are those relied on by Hackney: they are experimental, subject to monitoring and review, there is an objection process and a right of challenge; they are consistent with Hackney's policy and with central government guidance and TfL's advice; they target air pollution and improved safety by inhibiting rat running; they support healthier travel and improved accessibility; they benefit others; the Harrington Hill ETO is limited to school hours in term time; and exemptions are possible.

He did express a hope that an exemption will be explored, if not for individual private vehicles, for vehicles carrying several children and identified by registration number, to be considered on a case by case basis. Hackney has already expressed willingness to consider this., he said.

In conclusion the judge highlighted: 'It is striking that if the ETOs were quashed, not just the applicants but others without special needs or any disability and having nothing to do with S School would once again be able to make rat runs through the back streets south of Mount Pleasant Lane and to drive through the barrier at the northern end of it.

'That would dilute and, indeed, partially defeat the impact of the ETOs and reduce the benefits they are expected to deliver; a consequence that would have to be endured if the ETOs were not lawfully made; but, as I have decided they were lawfully made, one that need not ensue.

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