Tchenguiz v Westminster City Council

Factual and Procedural Background

This is a statutory challenge brought by the Plaintiff under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 ("the 1984 Act") against two traffic management orders ("TMOs") made by the Defendant under sections 6 and 22C of the 1984 Act. The TMOs, made on 6 September 2021 and effective from 13 September 2021, impose significant restrictions on vehicular access to the Plaintiff's family home at No. 26 Kensington Gore West ("No. 26"), located near the Royal Albert Hall ("RAH"). The Defendant is the traffic authority for the relevant area.

The TMOs include the City of Westminster (A Zone) (Amendment No. 23) Order 2021 ("TMO1"), which removes and relocates various parking bays and introduces waiting and loading restrictions, and the City of Westminster (Prescribed Routes) (No. 12) Traffic Order 2021 ("ATTRO"), an Anti-Terrorism Traffic Regulation Order made under sections 6 and 22C of the 1984 Act, which restricts vehicle and pedestrian access to KGW during specified times and grants police discretionary powers to restrict access further as necessary.

The background to these measures includes a rise in vehicle-based terrorist attacks in 2017, leading to temporary Hostile Vehicle Mitigation ("HVM") measures around the RAH. The Westminster Ceremonial Streetscape Project, led by the Metropolitan Police Service ("MPS") with contributions from the Defendant and others, aimed to install permanent HVM measures. The RAH sought to undertake a protective security and public realm improvement scheme, including permanent HVMs, following public engagement in 2019 and 2020. The Plaintiff objected to the TMOs, particularly objecting to the loss of vehicular access to No. 26 and the lack of equalities impact assessment. The Defendant proceeded with the orders after consultation and consideration of objections.

Legal Issues Presented

1. Whether the Defendant failed to comply with the public sector equality duty ("PSED") under section 149 of the Equality Act 2010 by imposing the TMOs without an equalities impact assessment.
2. Whether the Defendant failed to have regard to or proportionately interfered with the Plaintiff's rights under Article 8 and Article 1 of the First Protocol ("A1P1") of the European Convention on Human Rights ("ECHR").
3. Whether the Defendant improperly exercised powers under section 22C of the 1984 Act for purposes other than counter-terrorism, specifically to facilitate parking for the RAH and to circumvent restrictions on vehicular access under section 3 of the 1984 Act.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant acted unlawfully by failing to consider the PSED, particularly neglecting an equalities impact assessment despite the impact on disabled persons.
• The TMOs disproportionately interfere with the Plaintiff's rights under Article 8 and A1P1 of the ECHR by severely restricting vehicular access to the Plaintiff's sole residential entrance.
• The Defendant improperly used section 22C powers for non-terrorism purposes, including facilitating parking for the RAH and avoiding section 3(1) restrictions on access.
• Photographic evidence suggested improper motives, showing the RAH using KGW for parking during restricted hours.

Defendant's Arguments

• The Defendant acknowledged the engagement of protected characteristics (disability and age) and addressed impacts on Blue Badge parking bays, demonstrating due regard to the PSED.
• The TMOs serve legitimate counter-terrorism purposes, supported by MPS recommendations and statutory objectives, and any interference with rights is proportionate and justified.
• The Defendant could have relied on exceptions in section 3(2) of the 1984 Act to disapply section 3(1) and did not improperly exercise powers under section 22C.
• The alleged improper motives were unfounded; the RAH’s parking use was opportunistic and not the basis for the ATTRO.
• The Defendant justified differential treatment between KGW and Kensington Gore East due to practical security and resident impact considerations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first considered the Defendant's compliance with the public sector equality duty ("PSED"). It reviewed statutory provisions and relevant case law, concluding that although no formal equalities impact assessment was produced, the Defendant had addressed the key concerns relating to Blue Badge disabled parking bays and had demonstrated due regard to the protected characteristics of disability and age. The Court accepted that the Defendant should ideally have considered impacts on disabled persons arriving by taxi or car outside the relocated bays, but this omission did not render the PSED discharge unlawful. Accordingly, Ground 1 failed.

Regarding the allegation of improper motives under Ground 3, the Court examined contemporaneous evidence, including the MPS recommendation for the ATTRO and the collaboration between the RAH, MPS, and Defendant. It found that the ATTRO was made for legitimate counter-terrorism purposes, supported by risk assessments and statutory objectives. Although the RAH’s proposals influenced the scheme, the MPS independently assessed and recommended the measures. The Court rejected the Plaintiff's inference that the ATTRO was motivated by facilitating parking for the RAH or circumventing section 3(1) restrictions. Ground 3 was dismissed.

On Ground 2, the Court acknowledged that the TMOs interfere with the Plaintiff’s Article 8 rights to respect for private and family life and home, given the severe restrictions on vehicular access to No. 26 and the absence of a general dispensation for the Plaintiff’s household. The Court found the Defendant’s conclusion that the closure did not impinge on privacy or family life was unduly narrow.

The Court accepted that the interference pursued legitimate aims of national security and public safety. However, it scrutinised proportionality, focusing on whether less intrusive measures were available and whether a fair balance was struck. The Court noted the MPS’s recommendation letter assumed measures were already in place, which was erroneous regarding KGW. It also highlighted inconsistency in treatment between KGW and Kensington Gore East, where less restrictive security barriers operated, without adequate justification for the differential impact on the Plaintiff. The Defendant failed to conduct a Convention-compliant proportionality assessment considering these factors.

The Court further noted that the Defendant, RAH, and MPS allowed identified vehicles with legitimate business needs to access the restricted area, suggesting a similar approach could have been adopted for the Plaintiff and his household. The onerous requirement for advance notice of access and the lack of suitable arrangements for disabled visitors exacerbated the disproportionate impact.

Consequently, the Court found the Defendant's decision-making flawed in relation to proportionality and the Plaintiff’s human rights, allowing the claim on Ground 2.

Holding and Implications

The Court allowed the claim on Ground 2 only, finding that the Defendant's decision to impose the TMOs constituted a disproportionate interference with the Plaintiff's Article 8 rights under the ECHR. Grounds 1 and 3 were dismissed.

The direct effect of this decision is that the TMOs in their current form are unlawful due to their disproportionate impact on the Plaintiff’s human rights, necessitating reconsideration or amendment to address this. No broader precedent was established beyond the facts of this case.