Montpeliers and Trevors Association, R (on the application of) v City of Westminster

Factual and Procedural Background

Montpelier and Trevor Squares are residential squares located in a conservation area within the City of Westminster near the boundary with the Royal Borough of Kensington and Chelsea ("RBKC"). These squares were subject to substantial through traffic, which residents sought to control via traffic regulation powers under the Road Traffic Regulation Act 1984. On 17 April 2002, the City exercised its powers under section 9 of the Act to implement The City of Westminster (Prescribed Routes) (No 2) Experimental Traffic Order 2002 ("the 2002 Order"), which installed barriers to prevent through traffic while allowing residents access via permits. The 2002 Order was modified on 20 September 2002 to extend permit eligibility and was to expire after 18 months unless made permanent.

RBKC formally objected on 3 January 2003 to making the 2002 Order permanent, centering its objection on the use of barriers. The City was unable to make the Order permanent without either RBKC withdrawing its objection or the Greater London Authority ("GLA") consenting, per statutory requirements. In July 2003, the City’s officers produced a Review recommending excluding options that retained the barriers from public consultation, primarily due to RBKC's objections. The City’s Cabinet Member for Economic Development and Transport, on 4 August 2003, decided to consult only on alternative options excluding barrier retention but delayed formally revoking the 2002 Order pending consultation results.

Following the consultation leaflet issued in September 2003, which excluded options retaining the barriers, the public consultation ended with a majority favoring an option removing the barriers. On 3 December 2003, the Cabinet Member made a formal decision to implement the preferred option, leading to the 2004 permanent traffic order. The claimant, an association representing residents of the two squares, commenced judicial review proceedings challenging the decisions of 4 August 2003 and 3 December 2003, asserting procedural and substantive flaws in the consultation and decision-making process.

The City’s conduct in the litigation was marked by significant procedural defaults, including failure to file acknowledgements of service and late engagement with legal representation, necessitating the court's consideration of whether to permit the City to participate in the hearing. Permission was ultimately granted despite the City’s breaches.

Legal Issues Presented

1. Whether the City failed to conduct proper consultation by excluding the option of retaining barriers from the consultation process.
2. Whether the City’s consultation and decision-making process was procedurally unfair.
3. Whether the City acted irrationally, unlawfully, or took irrelevant considerations into account by excluding barrier retention options and relying on RBKC’s objections.
4. Whether the City breached its statutory duty under section 122 of the Road Traffic Regulation Act 1984 by failing to consider relevant factors before exercising its functions.
5. Whether the City breached legitimate expectations created by prior representations to residents regarding consultation on all options.
6. Whether the City failed to have regard to its own transport policies in making the 3 December 2003 decision.
7. Whether the City erred by failing to consider the Singleton Report prepared for the claimant.
8. Whether the City acted on faulty or unsubstantiated information when making its decisions.
9. Whether the City failed to provide adequate reasons for its 3 December 2003 decision.

Arguments of the Parties

Appellant's Arguments

• The City contended that the exclusion of barrier retention options from the later consultation was lawful and fair because the earlier statutory objection process (ending March 2003) had already considered all options, including barrier retention.
• The City argued that RBKC's objections were valid and weighty and properly taken into account in deciding to exclude barrier retention options from consultation.
• The City maintained that the statutory process and subsequent consultation satisfied legal requirements, and that the later consultation was intended only to consider alternative options.
• The City asserted it complied with its statutory duties under section 122 of the Act, and that ruling out particular options did not equate to failing to consider relevant statutory factors.
• Regarding legitimate expectation, the City argued that no detriment arose because the formal objection from RBKC and changing circumstances justified adapting the consultation process.
• On the failure to give reasons, the City contended that the decision statement of 3 December 2003 was adequate and met legal requirements.

Appellee's Arguments

• The claimant argued that the City failed to consult properly by excluding the barrier retention options from the consultation, thereby predetermining the outcome and denying consultees their opportunity to express views on all options.
• The claimant submitted that the consultation process was unfair and unlawful, lacking procedural fairness required by established case law.
• It was contended that the City acted irrationally and unlawfully by taking RBKC’s objections as the determinative reason to exclude barrier retention options, amounting to unlawful predetermination and evasion of statutory dispute resolution procedures.
• The claimant argued the City breached section 122 by failing to consider relevant factors such as traffic movement, access, amenity, air quality, and public service vehicle passage when excluding options from consultation.
• The claimant relied on a legitimate expectation, based on public representations made in December 2002, that residents would be consulted on all options including barrier retention, which the City frustrated.
• It was submitted that the City failed to consider its own transport policies and the Singleton Report, which provided reasons why the proposals were unlawful or unviable.
• The claimant alleged the City acted on faulty or unsubstantiated information regarding traffic and safety impacts.
• The claimant argued that the City failed to provide adequate reasons for the 3 December 2003 decision, which was legally required given its significance.
• The claimant sought quashing orders and a mandatory order requiring proper consultation on all options.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Partingdale Lane Residents Association) v Barnet London Borough Council [2003] EWHC 947 (Admin)	Principles governing consultation: must be at formative stage, allow meaningful response, adequate time, and results conscientiously considered.	Applied to determine that the City's consultation was flawed as it excluded a central option, thus not meeting the required standards for consultation.
R (Wainwright) v Richmond upon Thames London Borough Council [2001] EWCA Civ 2062	Consultation requirements including timing, reasons, and consideration of responses.	Supported the requirement for proper consultation processes; cited to reinforce the Partingdale Lane principles.
Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin)	Consultation requirements and standards.	Referred to in support of consultation principles applicable to the case.
R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin)	Consultation requires procedural fairness; unfair to exclude significant options from consultation.	Applied by analogy to find unfairness in excluding barrier retention options from consultation.
R (LPC Group plc) v Leicester City Council [2004] All ER (D) 261	Section 122 duty requires consideration of specified factors before exercising functions.	Confirmed that the City had to consider statutory factors, which it did, and that excluding options did not equate to failing to consider those factors.
R v North and East Devon Health Authority ex p Coughlan [2001] QB 213	Legitimate expectation principle: promise to consult must be honoured unless overriding reason to resile.	Applied to hold that the City's failure to consult on all options breached legitimate expectation.
R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531	Requirement to give reasons for administrative decisions.	Considered in relation to adequacy of reasons given for the 3 December 2003 decision; court found reasons adequate.
R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242	Principles on giving reasons for decisions.	Referenced in the context of reasons for decision; reasons found sufficient.
R v Brent London Borough Council ex p Baruwa (1997) 29 HLR 915	Requirement to provide reasons in administrative decisions.	Also cited in relation to adequacy of reasons; court found City's reasons adequate.

Court's Reasoning and Analysis

The court undertook a detailed review of the consultation process and the City's decision-making. It found that the initial statutory objection process prior to July 2003 was not a general consultation meeting the standards required for meaningful public consultation, as it was limited to objections against making the 2002 Order permanent and did not canvass views on all options, including barrier retention.

The subsequent consultation following the 4 August 2003 decision was flawed because it excluded the barrier retention options, effectively predetermining the outcome and denying consultees the opportunity to express views on all relevant options. This exclusion breached established principles of consultation requiring fairness, openness, and consultation at a formative stage.

On the issue of unfairness, the court agreed that the exclusion deprived consultees of their only real chance to present views on barrier retention, analogous to the unfairness found in precedent cases where significant options were excluded from consultation.

Regarding the City's reliance on RBKC's objections to exclude barrier retention options, the court held that while the City could consider such objections in making decisions, it was unlawful to predetermine consultation outcomes based solely on these objections, particularly where the consultation process was intended to be general and inclusive.

On the statutory duty under section 122 of the Act, the court found no breach because excluding a particular option from consultation did not mean the City failed to consider relevant statutory factors in its decision-making. Both the July and October 2003 Reviews demonstrated awareness and consideration of these factors.

The court accepted that the City created a legitimate expectation to consult on all options based on representations made in December 2002. The subsequent exclusion of barrier retention options from consultation breached this expectation without any overriding justification.

Other complaints concerning failure to consider City policies, the Singleton Report, and allegations of acting on faulty information were found to be without merit or irrelevant to the judicial review.

The court held that the reasons provided by the City for the 3 December 2003 decision were adequate in law, setting out the essential basis for the decision.

Given the City's serious procedural failures in litigation, the court nevertheless allowed the City to participate in the hearing, emphasizing the importance of resolving the substantive issues.

Holding and Implications

The court's final decision was to grant relief to the claimant on the core issue of unlawful consultation and legitimate expectation. Specifically, the court made the following rulings:

The decisions of 4 August 2003 and 3 December 2003 are quashed.

A mandatory order is granted requiring the City to conduct a proper public consultation process including all options previously excluded, particularly those relating to the retention of barriers and extension of permit eligibility.

The mandatory order requires the City to:

• Conduct a public consultation in a manner and with such sections of the public as deemed appropriate, including all traffic regulation measures prescribed in the 2002 Order and any others it wishes to consult on.
• Determine, following the consultation and in accordance with the law, whether to exercise its powers to make any experimental or permanent traffic regulation order, whether substituting or supplementing the 2004 Order.

No new precedent was established beyond reaffirming established principles on consultation, procedural fairness, legitimate expectation, and statutory duties under the Road Traffic Regulation Act 1984.

Regarding costs, the court proposed ordering the City to pay the claimant's costs, excluding those related to the Singleton Report, as those costs related to factual merits not determinative in this judicial review.