Croft v Devon County Council & Ors

Factual and Procedural Background

The Plaintiff challenged the decision of the First Defendant (the Council) to make a Traffic Regulation Order (TRO) dated 8 May 2024, which prohibited motor vehicles on specified lengths of Pitt Lane, Appledore, under the Road Traffic Regulation Act 1984 (RTRA). The Council, as traffic authority, made the TRO to improve road safety and promote sustainable travel by diverting traffic from Pitt Lane to a more suitable new road, Estuary Avenue. The Plaintiff also brought a related judicial review challenge against the Second Defendant's (District Council) grant of planning permission for two dwellings adjacent to Pitt Lane; that challenge was successful.

Pitt Lane is a narrow, historic rural lane with no footways or lighting, running from Wooda Road to Appledore village. The TRO followed various housing developments in the area, including the Baker Estates development and the Bunnyhomes development, which created new access roads such as Estuary Avenue. The TRO was proposed following earlier temporary closures of Pitt Lane for construction safety, during which traffic was diverted via Estuary Avenue.

The Council advertised the TRO proposal in July 2022, inviting objections. The Plaintiff objected, supported by a technical note from highway engineers. The Council's Officer's Report (OR) recommended making the TRO, concluding it complied with section 122 of the RTRA and would improve road safety. The Highways and Traffic Orders Committee (HATOC) resolved to implement the TRO in October 2022, and the formal TRO was made on 8 May 2024, coming into force on 15 July 2024. The TRO has not been implemented due to the Plaintiff's challenge.

Legal Issues Presented

1. Whether the Council lawfully considered the safety impacts of the TRO, particularly regarding increased traffic on Estuary Avenue and the proximity of a Local Area of Play (LAP) to Estuary Avenue, in compliance with section 122 of the Road Traffic Regulation Act 1984.
2. Whether the Council failed to have regard to material considerations, including new safety issues from restricted visibility at the junction of Estuary Avenue and Pitt Lane and the removal of vehicular passing places on Pitt Lane, thus failing the balancing exercise required under section 122 of the RTRA.

Arguments of the Parties

Claimant's Arguments

• The Council unlawfully failed to consider the safety impact of increased traffic on Estuary Avenue, specifically the risk to children using the LAP adjacent to that road. The OR dismissed this as "not relevant," which was a mandatory consideration under section 122 of the RTRA.
• The Council failed to consider two additional material safety issues: (1) restricted forward visibility at the Estuary Avenue/Pitt Lane junction creating a new safety risk, and (2) the TRO's removal of vehicular passing places on Pitt Lane, adversely affecting traffic flow and residential amenity. This indicated a failure to properly carry out the balancing exercise under section 122.
• Children running from the LAP or surrounding green space onto Estuary Avenue constitute pedestrian traffic under section 122(1), engaging the Council's duty to secure safe movement of traffic.

Council's Arguments

• Section 122 concerns the safe movement of traffic on public highways, not the broader safety of the environment or developments approved through planning. The OR's statement that no design hazards were identified in relation to the LAP was based on a prior risk assessment within the planning process.
• The additional safety issues raised in the second ground were not sufficiently obvious or material to have been raised during the statutory consultation period and are subject to a high threshold of review (Wednesbury unreasonableness). The Council exercised technical judgment in assessing safety impacts, which is only reviewable on limited grounds.
• The LAP had already been approved as part of the Baker Estates development, including fencing and hedging, and the TRO was not conditional on reconsidering planning decisions.
• The Council emphasized that Councillors deciding the TRO had specialist knowledge, including involvement in planning decisions, and that the TRO decision was consistent with prior planning approvals and safety assessments.
• Only pedestrians crossing Estuary Avenue are considered "traffic" under section 122(1), so children running onto the pavement or road from the LAP do not engage the statutory duty.
• The second ground was an afterthought not raised during the consultation and did not demonstrate a failure to comply with section 122.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused primarily on the Plaintiff’s first ground of challenge concerning the safety impact of the TRO on children using the LAP adjacent to Estuary Avenue. The court found that the Council’s Officer’s Report (OR) and its response to the Plaintiff’s objection gave the clear impression that the safety concerns related to the LAP were “not relevant” to the TRO decision. This was materially misleading because the duty under section 122(1) of the RTRA requires the authority to secure the safe movement of pedestrians as traffic, including those emerging from the LAP area.

The court acknowledged the Council’s evidence and the planning process context but emphasized that the TRO decision was the first and only formal determination by the relevant authority on the TRO itself. The planning permission was not conditional on the TRO’s approval, and the TRO decision-maker could not rely solely on the planning process to discharge its statutory duties.

The court rejected the Council’s reliance on the Powergen principle, concluding that no prior formal decision had established the TRO’s necessity, and that the decision to make the TRO involved a distinct exercise of discretion requiring proper consideration of safety impacts.

Regarding the second ground, about restricted visibility and loss of passing places, the court found these issues had not been raised during the consultation period and were not sufficiently obvious or material to require consideration, and thus no failure under section 122 was established.

Overall, the court concluded that the HATOC failed to properly consider a mandatory safety consideration under section 122(1) in October 2022, which tainted the subsequent decision to make the TRO in May 2024, rendering it unlawful.

The court declined to withhold relief, noting that it was not satisfied that the TRO would have been made regardless of the error, particularly as the committee was composed of multiple members, some of whom may have been influenced by the misleading OR.

Holding and Implications

The court held that the decision to make the Traffic Regulation Order was unlawful and is hereby quashed.

The direct consequence is that the TRO cannot be implemented as made. The court invited the parties to address consequential matters including the form of order and any further proceedings. No broader precedent was established beyond the specific statutory and factual context of this case.