Judicial Review of Pre-TRO Decisions: Scottish Court of Session Establishes New Precedent

Introduction

The Petition of CAINS Trustees (Jersey) Ltd and Others against decisions made by the Highland Council marks a significant development in the realm of judicial review concerning urban planning and traffic regulation. This case centers around the Highland Council's move to redesign Academy Street in Inverness, primarily aiming to restrict vehicular traffic. The petitioners, representing the trustees of the Eastgate Unit Trust, contest the council's decisions to finalize the street redesign and proceed with a Traffic Regulation Order (TRO) without what they assert was adequate consultation and consideration of material factors.

Summary of the Judgment

Delivered by Lord Sandison on May 16, 2024, the Scottish Court of Session's Judgment [2024] CSOH 50 addressed the petition challenging the Highland Council's decisions made on August 28 and September 14, 2023. The Court examined whether the judicial review was competent and timely, ultimately determining that the petition was both incompetent and premature. The respondent, Highland Council, argued that the proper avenue for contesting a TRO is through a statutory appeal within six weeks of the order's enactment, as per the Road Traffic Regulation Act 1984. The Court agreed, emphasizing that the petitioners were attempting to challenge an intermediate decision in the TRO process, which did not yet culminate in an actual TRO, thereby rendering the judicial review inadmissible at that stage.

Analysis

Precedents Cited

The Court referenced several key precedents to frame its decision:

Strathclyde Buses Limited v Strathclyde Regional Council (1994 SLT 724): This case underscored the principle that when a statutory appeal mechanism exists, it acts as an absolute bar to judicial review. Even if a statute doesn't explicitly prevent a judicial review, the existence of an alternative remedy can render a judicial review petition incompetent.
R v Cornwall County Council, ex parte Huntington (1994) 1 All ER 694: This precedent highlighted scenarios where decisions antecedent to a statutory process could be subject to judicial review, provided they were separate and distinct from the formal process governed by statutory provisions.
The Manydown Company Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin): This case reinforced the principle that statutory ouster clauses must be interpreted strictly and that decisions affecting the parameters of a statutory process, but not part of the process itself, remain justiciable.
R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin): This case illustrated that courts should adopt a broad view of justiciability, including high-level policy decisions that have substantive legal consequences.

These precedents collectively informed the Court's stance on the limits of judicial review, especially in contexts where statutory frameworks provide alternative remedy pathways.

Legal Reasoning

The Court's legal reasoning hinged on interpreting the Road Traffic Regulation Act 1984 and the accompanying Local Authorities' Traffic Orders (Procedure) (Scotland) Regulations 1999. According to the Act, challenges to a TRO must follow a statutory appeal process, specifically within six weeks of the TRO's enactment. The Highland Council's decisions to progress with the street redesign were deemed preparatory steps toward a possible future TRO, rather than constituting a TRO themselves.

Lord Sandison articulated that the decisions in question were part of an "optioneering" process—an iterative, non-statutory phase aimed at identifying a viable TRO proposal. Since no TRO had been formally issued at the time of the petition, the appropriate legal recourse for the petitioners would be to await the TRO's enactment and then utilize the statutory appeal mechanism. The Court concluded that attempting to judicially review such preliminary decisions was inadmissible under the existing legal framework.

Moreover, the Court addressed the respondent's argument concerning the statutory ouster clause in Schedule 9 of the 1984 Act, which purportedly bars any judicial questioning of a TRO. Lord Sandison clarified that since no TRO existed at the time of the petition, the ouster clause was inapplicable. Additionally, even if a TRO were to be enacted, the appropriate challenge would remain within the statutory appeal process, not judicial review.

Impact

This Judgment sets a clear precedent regarding the boundaries of judicial review in the context of traffic regulation and urban planning. It delineates that:

Decisions that are preparatory or antecedent to the formal statutory process of enacting a TRO are not subject to judicial review.
The existence of a statutory appeal mechanism, such as that provided by the Road Traffic Regulation Act 1984, precludes the admissibility of a judicial review on the same grounds.
Urban planning decisions that have not yet culminated in a statutory order remain outside the purview of judicial review, emphasizing the primacy of statutory remedies.

Consequently, organizations and individuals seeking to challenge urban planning and traffic regulation decisions must adhere strictly to the prescribed statutory procedures, utilizing judicial review only when no alternative remedies are available.

Complex Concepts Simplified

Traffic Regulation Order (TRO)

A Traffic Regulation Order (TRO) is a legal mechanism allowing authorities to control the use of roads. This can include prohibiting, restricting, or regulating vehicular traffic to enhance safety, environmental standards, or urban aesthetics.

Judicial Review

Judicial Review is a process by which courts examine the lawfulness of decisions or actions made by public bodies. It ensures that such bodies act within their legal authority, follow fair procedures, and make reasonable decisions based on evidence.

Statutory Appeal

A Statutory Appeal refers to the right granted by statute for an individual or entity to challenge a decision made by a public body. This process is governed by specific rules and timelines outlined in the relevant legislation.

Optioneering

The term Optioneering refers to the exploratory phase in decision-making processes where various options are considered and assessed. In the context of this case, it pertains to the Highland Council's pre-TRO process of designing potential traffic regulation schemes.

Conclusion

The Scottish Court of Session's decision in CAINS Trustees (Jersey) Ltd and Others for Judicial Review of Decisions of the Highland Council establishes a pivotal precedent clarifying the limitations of judicial review in the preparatory stages of statutory processes like Traffic Regulation Orders. By affirming that only finalized TROs are subject to statutory appeals and not the antecedent administrative decisions leading up to them, the Court delineates a clear boundary for legal challenges in urban planning. This ruling underscores the importance of adhering to statutory procedures and reinforces the role of legislative frameworks in governing the interplay between public authorities and affected stakeholders. Moving forward, entities engaging in similar urban development projects must navigate the prescribed regulatory pathways meticulously, recognizing the appropriate forums for contesting decisions to ensure legal efficacy and procedural propriety.