Low Traffic Neighbourhoods and the Public Sector Equality Duty

On 28 June 2021 the High Court handed down judgment in R (Sofia Sheakh) v London Borough of Lambeth [2021] EWHC 1745 (Admin), which considered the validity of Low Traffic Neighbourhoods, created in response to the pandemic.

In the wake of the first wave of the pandemic, many Local Authorities created “Low Traffic Neighbourhoods”, or “LTNs”, closing residential roads to through-traffic. The London Borough of Lambeth created several such LTNs, by making “experimental” traffic orders. The LTNs are due to operate for an initial period of 18 months to two years before the Local Authority decides whether to make them permanent.

The Claimant is a disabled resident of Lambeth, who relies upon her car to make local essential journeys. She argued that the experimental traffic orders significantly impair her ability to travel around her local area and have led to an increase in noise and air pollution.

She had asked the Court to decide whether, when making the experimental traffic orders, the Local Authority had complied with s.149 of the Equality Act 2010, or “the public sector equality duty.” She argued that the Local Authority had failed to consider the impact on disabled people prior to creating the LTNs, and as such had failed to discharge this duty.

In his judgment, Mr Justice Kerr decided that it was lawful for the Local Authority to perform its public sector equality duty on a “rolling” basis, that is, by monitoring the impact on disabled people and those with other protected characteristics, during the roll-out and operation of the LTNs. However, he stressed that:

164. “…a decision maker who decides to proceed with equality impact assessment on a rolling basis, does so at their peril. The legislation and case law does not preclude rolling assessment as a matter of law; but neither do they legitimise it for all cases. The more “evolutionary” the function being exercised, the more readily a rolling assessment approach may be justified. Conversely, for a “one off” function, it is hard to see how it could be justified.
165. So that this judgment is not misunderstood, I should make it clear that I am not deciding that equality impact assessment on a rolling basis is always acceptable where the function being exercised is to initiate an experiment, as in the case of a decision to make an ETO. It may or may not be on the facts, depending in each case whether such regard (if any) that was had to the equality objectives in section 149(1) of the 2010 Act was sufficient to pass the test of being “due regard” to those objectives.
166. Here, it was acceptable because of unusual factual features: the urgency expressed in the statutory guidance, the near stasis of public transport and the need to restrain vehicle traffic in residential areas to allow walking and cycling to flourish. Those factors (all caused by the prevalence of the virus) propelled Lambeth to curtail its research and truncate the timescale, using ETOs. Had those factors been absent, Mr Dosunmu’s (the relevant decision maker’s) approach to equality assessment might well not have passed the “due regard” test.

The Claimant has been granted permission to appeal on the public sector equality ground. When granting permission to appeal, Mr Justice Kerr recognised that, given that LTNs are proliferating and there are a number of stayed cases, a decision of the Court of Appeal would provide more authoritative and higher level guidance, which could help resolve other cases.

The Court also found that the Local Authority had complied with its duty to consult in advance of making the traffic orders, that the traffic orders were genuinely experimental, and that the Local Authority had considered and struck a proper balance between the movement of traffic and the effect on local amenities when making the traffic orders.

Rook Irwin Sweeney have also acted for two disabled children in the London Borough of Hackney, who challenge the Local Authority’s decision to introduce “School Streets”, which close roads to through-traffic during the school-run. They argued that the road closures severely hamper their ability to travel to and from the special school they attend. In his judgment of 7 December 2021, Mr Justice Kerr accepted that the traffic orders are a material interference in the children’s and other pupils’ right to a private and family life under Article 8 of the European Convention of Human Rights, but found that this “regrettable” interference was justified as the traffic orders affect a small number of disabled children, they are experimental, and the benefits outweigh the detriment to these children.

Anne-Marie Irwin, Partner at Rook Irwin Sweeney and consultant at Scott-Moncrieff and Associates, acted for the Claimants in both cases. The appeal in R (Sofia Sheakh) v London Borough of Lambeth will be heard on 13 January 2022.

December 2021