“Implement” in s.151 GLA Act 1999 Means Implement and Retain: London Boroughs Must Not Act Inconsistently with an Approved LIP Without a Statutory Revision

1. Introduction

Hawes, R (On the Application Of) v London Borough of Tower Hamlets concerned the legality of Tower Hamlets’ decision (20 September 2023) to revoke a Bethnal Green Low Traffic Neighbourhood (“LTN”) scheme after consultation, while retaining one closure (Canrobert Street). The claimant, Oliver Hawes, sought judicial review; the defendant was London Borough of Tower Hamlets; Transport for London (“TfL”) intervened given the strategic transport framework for London.

The Court of Appeal addressed three issues:

whether revocation breached the borough’s duty under section 151(1)(a) of the Greater London Authority Act 1999 to implement an approved Local Implementation Plan (“LIP”);
whether, even if not a breach of s.151, the borough unlawfully failed to have regard to the LIP; and
whether fairness required re-consultation on an additional “Option 3” described in an officers’ report but not adopted.

The case is significant because it clarifies the meaning of “implement” in s.151(1)(a) and, critically, recognises a negative duty not to act inconsistently with an approved LIP without using the Act’s revision mechanism (and Mayoral approval).

2. Summary of the Judgment

The Court of Appeal allowed the appeal on Issue (1) and held the revocation decision unlawful. It held that, in the statutory context of Part IV of the 1999 Act, “implement” in s.151(1)(a) means implement and retain. Therefore, once Tower Hamlets had implemented the LTN scheme (which was common ground), it could not lawfully remove it without pursuing the statutory procedure for revising the LIP and obtaining approval from the Mayor of London.

The Court rejected Issue (2) (failure to have regard to the LIP) on the facts, finding the officers’ report did take the relevant strategic matters into account (even though this became unnecessary given success on Issue (1)).

The Court rejected Issue (3) (no re-consultation on Option 3), holding the consultation process was not “so unfair as to be unlawful” and that the development of Option 3 by officers was a foreseeable product of consultation; moreover, Option 3 was not adopted.

The Court indicated a quashing order would be the appropriate remedy (subject to submissions on remedy post-hand-down).

3. Analysis

3.1 Precedents Cited

The central new point of law (the meaning of “implement” in s.151) was resolved primarily by statutory interpretation rather than by direct reliance on prior authorities. The cited precedents mattered most on the consultation/re-consultation ground and (to a lesser extent) on procedural framing.

(A) Core consultation fairness framework

R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947
The Court used Moseley as the Supreme Court authority endorsing the “Gunning principles” for lawful consultation and emphasising consultation’s democratic/public participation function. The Court of Appeal accepted these general principles but stressed the appeal turned on a narrower question: when re-consultation is required after consultation has already occurred.
R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168
Quoted via Moseley for the four consultation requirements: formative stage, sufficient reasons, adequate time, and conscientious consideration.
Ex p Baker [1995] I All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213
Cited in Moseley as Court of Appeal endorsements of the Gunning criteria; Coughlan also elaborates that consultation is not litigation and need not disclose every submission or all advice, but must tell consultees enough to respond intelligently.
R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts (2012) 126 BMLR 134
Referred to in Moseley for the characterisation of the Gunning criteria as a “prescription for fairness”.
R (Osborn) v Parole Board [2014] AC 1115
Cited in Moseley for the broader purposes of procedural fairness (better decisions; avoiding sense of injustice), used here to reinforce consultation’s underlying rationale.
R (Montpeliers and Trevors Association) v Westminster City Council [2005] EWHC 16 (Admin)
Relied upon by the appellant to argue fairness required consultation on “all the various options”. The Court of Appeal distinguished the case’s force: it states general fairness, but the key question here was the threshold for re-consultation where an additional option emerges.

(B) Re-consultation threshold and “clearly and radically wrong”

Keep Wythenshawe Special Ltd and Others v University Hospital of South Manchester NHS Foundation Trust and Others [2016] EWHC 17 (Admin)
This was treated as the most helpful authority on re-consultation. The Court adopted its approach that re-consultation depends on fairness assessed against the nature/extent of differences between what was consulted on and what is proposed/decided, with high caution against endless iterative consultation. The judgment’s “clearly and radically wrong” formulation (citing Sullivan J) was expressly endorsed as capturing the unlawfulness threshold.
Smith v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin)
Cited within Keep Wythenshawe for the proposition that only a “fundamental difference” typically warrants re-consultation, while recognising the controlling concept is fairness and the risks of consultation paralysis.
R v Shropshire Health Authority ex p Duffus [1990] Med LR 119
Cited (via Smith and Keep Wythenshawe) for the warning that overly ready judicial requirements for re-consultation can prevent decisions being taken at all.
R (on the application of Greenpeace Limited) v Secretary of State for Trade and Industry [2007] EWHC 311
Cited in Keep Wythenshawe for the point that flaws do not necessarily render consultation unlawful; the test is not “could it have been improved?” but whether it became procedurally unfair to the point of unlawfulness (“clearly and radically wrong”).
R (JL and AT Beard) v The Environment Agency [2011] EWHC 939
Cited for confirmation that the test is whether the process was “so unfair as to be unlawful”.

(C) Material prejudice (not decided)

Secretary of State for Communities and Local Government v Hopkins [2014] EWCA Civ 470; [2014] PTSR 1145
Mentioned at first instance as potentially raising a separate “material prejudice” hurdle once unfairness is established. The Court of Appeal did not need to resolve this because it found no unfairness requiring re-consultation.

3.2 Legal Reasoning

(A) The new core holding: s.151 creates an “implement and retain” obligation

The Court reframed the analysis. The Administrative Court largely approached s.151 through the lens of enforceability of a positive duty (could the Mayor of London compel implementation; did the LIP contain sufficient “timetable” detail; were the proposals contingent on later consultation/orders?). The Court of Appeal held that was the wrong question on the facts because the scheme had been implemented.

The correct question was whether, after implementation, the borough could lawfully remove the scheme without revising the LIP through the statutory process. The Court held it could not, because:

“Implement” in section 151(1)(a), read in statutory context and purpose, naturally includes retention of what has been implemented; otherwise the statutory regime could be defeated by implementing and then immediately undoing the approved proposals.
Part IV of the 1999 Act sets up a structured hierarchy and accountability mechanism: boroughs produce LIPs to implement the Mayor of London’s transport strategy (the “MTS”), the Mayor approves them, and enforcement powers exist under sections 152 and 153. That structure presupposes that approved proposals are not optional once implemented; changes must be made through the Act’s revision machinery.
The Court explicitly recognised that s.151 entails not only a positive duty to implement but also a negative duty not to act inconsistently with an approved LIP unless and until it is revised in accordance with the Act.

(B) Harmonising duties: traffic management vs LIP implementation

The borough argued an “implement and retain” reading would force a “closed mind” and conflict with ongoing duties under the Traffic Management Act 2004 (notably section 16(1)). The Court rejected this by applying a harmonious reading:

Section 16(1) is expressly qualified: network management is to be carried out “so far as may be reasonably practicable having regard to their other obligations, policies and objectives”. An approved LIP obligation under s.151 is one such “other obligation”.
The “implement and retain” obligation does not freeze policy until 2041; it requires that changes be pursued “in an orderly fashion” using the 1999 Act’s revision process and Mayoral approval, rather than unilateral reversal.

(C) Issue (2): alleged failure to have regard to the LIP

Although unnecessary given success on Issue (1), the Court agreed with the Administrative Court that the officers’ report did, in substance, engage with relevant strategic objectives (including reference to the MTS) and assessed the scheme’s performance and trade-offs. On that factual evaluation, there was no public law error of omitting a “material consideration”.

(D) Issue (3): no duty to re-consult on “Option 3”

Applying the re-consultation approach drawn from Keep Wythenshawe Special Ltd and Others v University Hospital of South Manchester NHS Foundation Trust and Others [2016] EWHC 17 (Admin), the Court held fairness did not require re-consultation because:

there were already two consultation phases and consultees could make suggestions beyond the binary options;
it was foreseeable that officers would synthesise consultation feedback into a “middle way” option;
the decision actually taken substantially mirrored a key “derivative” element (reopening 13 roads while retaining Canrobert Street); and
Option 3 was not adopted, and on these facts the process was not “so unfair as to be unlawful”.

3.3 Impact

(A) A concrete constraint on borough policy reversals

The principal impact is that London boroughs cannot treat an approved LIP as merely aspirational once implemented. If a borough implements a transport measure pursuant to an approved LIP, it may not later remove it in a way that is inconsistent with the LIP unless it:

uses the statutory route for revising the LIP under the 1999 Act framework; and
secures approval from the Mayor of London for the revised plan.

(B) Strengthening the justiciability of London’s strategic transport framework

The Court’s reasoning makes Part IV of the 1999 Act “practical and effective” in a way TfL argued was required: it reduces the risk that the statutory scheme is undermined by “implement then repeal” cycles driven by local electoral changes.

(C) Litigation and governance consequences

More judicial review risk for boroughs reversing implemented LIP measures without a formal revision pathway.
More emphasis on LIP drafting and revision discipline: boroughs may need clearer revision planning and Mayoral engagement where policies shift.
Funding and reliance: while not the ratio, the case context (TfL funding linked to LIP commitments) suggests decisions inconsistent with approved LIPs may carry both legal and practical financial consequences.

4. Complex Concepts Simplified

Local Implementation Plan (LIP): a London borough’s statutory plan for implementing the Mayor of London’s transport strategy locally (1999 Act, s.145).
Mayor of London’s transport strategy (MTS): the overarching strategic document the LIPs must help deliver (1999 Act, ss.141–142).
Section 151(1)(a) “implement” duty: after Mayoral approval of a LIP, the borough “shall implement the proposals” per the timetable. This case holds “implement” includes retaining what has been implemented unless revised lawfully.
Negative duty: not only must a public body do what a statute requires (positive duty); it must also not do things that contradict the statutory scheme (here, not undo an approved-and-implemented LIP proposal without following the statutory revision route).
Judicial review and quashing order: judicial review is the court’s mechanism for policing legality (not merits). A quashing order nullifies the unlawful decision, requiring the authority to decide again lawfully.
Re-consultation: the law does not require a new consultation whenever an additional option is explored; the question is whether proceeding without re-consultation became so unfair as to be unlawful, with courts wary of “consultation never comes to an end”.
Experimental traffic orders: temporary traffic orders under the Road Traffic Regulation Act 1984; an experimental traffic order cannot generally last more than 18 months (s.9(3)).

5. Conclusion

This decision establishes a clear and practically important principle for London governance under the 1999 Act: once a borough has implemented a proposal contained in a Mayor-approved LIP, s.151 requires the borough to retain it unless and until change is achieved through the Act’s formal LIP revision and approval mechanism. The Court simultaneously confirmed a restrained approach to consultation challenges: development of an additional, unadopted option (Option 3) did not, on these facts, require re-consultation, and the overall process did not cross the high threshold of being “so unfair as to be unlawful”.