Dr Lisa Hutchinson
In an educational video by Ian Jarvis, a recent court case relating to a low traffic neighbourhood (LTN) decision is highlighted. Paragraphs mentioned within this article are from the report of the judge in the West Dulwich case. Public consultations relating to environmental and local planning issues by local governments rarely adhere to the Case Law Gunning Principles, making them all potentially invalid and unlawful. This helpful video discusses the recent court case in West Dulwich, where a LTN was quashed in the High Court by judge Tim Smith. This case was not about LTNs per se, but focused on whether the consultation process was in breach of the Gunning Principles. As concerned residents, this teaches us that the Gunning Principles and mutual engagement should be applied by every Council in all local decisions, such as a LTN and telecommunications planning, to enable better collective decisions and to prevent those involved meeting in a court.
Background to the case
This case was initiated by a group of residents who took their local London council to court about the imposition of a LTN. In this particular area of London, traffic was a problem; however, there are several ways to solve a traffic issue that do not require a LTN. The difference between traffic management and a LTN is immense; for instance, introducing one-way streets rather than a default LTN could improve traffic flow or solve the issue. The first response to a traffic problem should not be to introduce a LTN, because there are often simpler and less expensive solutions; for example, LTNs require expensive camera equipment.
Some facts about the case
It was initiated by a group of people from a Residents Association.
They put together a case or complaint file and took their local council to the High Court.
Many residents commented on social media that they thought a LTN was a good idea and disagreed with bringing the case to court as it was costly, which is a valid consideration.
This case was not a judicial review as has been written by several journalists, but was actually brought under the Road Traffic Regulation Act 1984.
As this case was not a judicial review, it went straight to the High Court, without the need to seek permission. Readers are encouraged to read the judgement to confirm these points for themselves (paragraphs 3 and 53). The case was not about whether the LTN was a good or bad idea; rather, it was brought about on the basis of poor or inadequate consultation (paragraph 28); in breach of the Gunning Principles.
What are the Gunning Principles?
The Gunning Principles (also known as Sedley Criteria) have been Case Law since 1985. They were established in the R vs Brent London Borough Council, Ex P Gunning (1985) 84 LGR 168 (para 189). The Gunning Principles have four components:
First, that consultation must be at a time when the proposals are still at a formative stage i.e. no pre-determination. Also the consultation should not wait until after a decision has been made.
Second, that the proposer must give sufficient reasons for any proposal to permit an intelligent consideration and response.
This means people should be given several ways to respond to a proposal. For example, an online-only consultation breaches the Gunning Principles. People need an equal opportunity to respond to a proposal, which cannot be so if it is online-only. Also, sufficient reasons must be given for a proposal to be considered in a consultation scenario – an unbiased description with limitations as well as advantages, plus other possible options.Third, that adequate time must be given for consideration and response, which may be open ended or allows for an extension. A common timeframe is 12 weeks, but this may be insufficient; for example, if it is initiated in the school summer holiday when people have other priorities. If the notification is not within this timeframe, additional time should be allowed for consultation.
Fourth, that the product of consultation must be conscientiously taken into account by the decision maker in finalizing any proposals. Evidence that objections and alternative suggestions were taken into account must be provided. In telecommunications proposals, for example, a 56-day timeframe is stipulated, but this timeframe is not in line with the Gunning Principles given the complexity of planning involved.
Paragraph 62 Citing Lord Brown 1953 (before the Gunning Principles were enacted):
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided the way it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.” A final report must be clearly visible or accessible and must be easy to understand what conclusions were reached in the main controversial issues. Also, it should include disclosure of how any issue(s) was resolved.
The winning argument in this case was on Ground 1: that the Council’s consultation on the Orders was unfair and/or that the Council had regard to immaterial considerations when deciding to make the orders. Grounds 2 and 3 were dismissed. All consultations must be fair, which is why Stephen Sedley QC wrote these Principles. Notably, the Residents Association that took this to the High Court did not have a victory on all grounds, but they did on Ground 1. Tim Smith’s (sitting as Deputy High Court Judge) report is here: https://tinyurl.com/mvmfsnm6
Other Aspects
The number of penalty charge notices (PCNs) issued doubled in the months the LTN was introduced in another case in Lambeth Council, showing clear evidence of potential financial incentives for Councils. Traffic Management is about improving the flow of traffic and reducing dangers. LTNs are about raising money (via fines) and preparing for a Smart City. Read elsewhere about Bristol (Liveable Neighbourhoods), Oxford, and Bath as well as the East Pye solar farm project in Norfolk.
If you are considering addressing your Council or taking out a court case (judicial review or other), Ian advises you read the full judgement and Useful Articles (see below).
Gunning Principles Summary
Any consultation to be fair, must be carried out properly: this means it must conform to the following aspects:
Consultation must be undertaken at a time when proposals are still at a formative stage.
It must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response.
Adequate time must be given for consideration and response.
Conscientious consideration for decisions must be given to responses and evidenced.
Notably, it doesn’t have to be statutory. The Gunning Principles apply to ANY consultation – anywhere in the country – even if the Council or other authority (for example, the Home Office) is not mandated to hold one. Another consideration is to look at the Localism Act 2011, which illustrates we have quite a lot of power in terms of our authorities.
Taking Action
At the end of the video, Ian provides practical examples of how we can apply the Gunning Principles. Ideally, we don’t want the end result for every council to be taken to court. However, we can take steps to make councils more cautious and ensure good consultation. Please note that none of us within ACHES are lawyers and this is not legal advice. Before taking court action, think about the following considerations:
Issuing a Formal Complaint. Even if this does not achieve the desired outcome, it does raise awareness of the issues. When writing a complaint, avoid unprofessional language; rather, the letter should be written in a formal, logical, explanatory and factual way. It is wise to include what you want to achieve within the complaint. By naming an individual, it ensures they become aware of the complaint but when actioning the complaint, include recipients such as the Head of Planning or ward councillors, for example. Avoid being aggressive as this does not achieve the aims of the objection.
Letter Before Action: The letter should be against the decision maker. If it becomes well known that action has been taken against the decision maker, this will ensure other decision makers in similar such cases are a little more cautious. The letter before action has to be written as a formal notice. Number your points as the responder has to provide a decision and explanation for each point. Thus, numbering the issues or questions in the letter allows each point you have asked to be itemized.
Legal Action Tips
If the complaint does go to the legal action stage, here are some considerations.
1. The first option is an Injunction. You have to apply to make an injunction. If you get permission to take a case to injunction, you need to give details to a single judge, in the district court or possibly the Royal Courts of Justice, in London. The minimal aim would be to stop the action taking place, and it may avoid thousands being spent on installing a LTN, for example.
2. The second option is a Judicial Review. Most planning cases go through a judicial review. As for an injunction, you have to request a judicial review. Neither approach is a certainty to enable the outcomes of the litigant, but they can achieve laudable aims.
3. The third option is to use a specific statute, such as the Traffic Regulation 1984, as was used in the West Dulwich case. This would likely work for most LTNs. You do not need to request permission to use a specific statute, as it should go straight to the court. The option to use solicitors or barristers or be a litigant-in-person is available. Steven Thomas was a litigant-in-person when he brought a case against the Cheltenham Borough Council. In this case, where he opposed a telecommunications mast, the case was successful for him, the litigant.
4. A fourth option is to use non-specific statutes, such as the Equalities Act or Localism Act. Readers who are familiar with legal systems might also wish to comment on the information provided in this Substack. ACHES will include an updated Substack if we receive additional information on legal aspects relating to consultation.
Time Limits
According to the Limitations Act 1980, for civil cases there is a 6-year time period.
The 6 years usually start from when you realise someone has wronged you. In other words, it is not necessarily when the event leading to the undesirable outcome occurred, but when the person(s) affected discovered the wrongdoing. The timeframe can be extended and there may be cases when it is different. In criminal cases, there is no limitation with regards to the Limitations Act. Ideally, we can make councils aware that they should do better consultation.
Conclusion
Please note that anyone anywhere can object to ANY planning application regardless of where they live or whether it affects them directly. This relates to any planning aspects, including telecommunications planning, solar or wind farms, Net Zero, and anything with national interests. If a Council gives you an expectation they will do something, but does not, you may have a legitimate case to take up a new case under the Gunning Principles. Finally, the Gunning Principles applies to ALL instances where there is consultation involved whether statutory or voluntary. We have more power than we realise, especially regarding local Councils and Planning.
Useful Articles
The below list provides helpful examples and background for readers:
The Local Government Association (“New Conversations 12”)
Consultation Principles 2018 (on gov.uk)
Planning Practice Guidelines
Sheldon: Consultation and Legitimate Expectations
Gowling WLG: Legal Principles on consultation
Good Government: What Constitutes Proper Consultation
Landmark Chambers: Legitimate Expectation & Fairness
Final Remarks
The latter four links above are Ian’s advised reading. Sheldon and Gowling in particular go through relevant cases where the claimant used the Gunning Principles case law and how the decision was reached, regardless of whether the claimants won or lost the case. There are several articles on the government website about consultation principles in relation to planning.
Finally, in his video, Ian has made some suggestions of routes you can take, and advises that we consider using this case law as an ‘encouragement’ to a Council to enter into proper adult-to-adult engagement rather than taking the legal route as the first option. What we want is genuine consultation NOT hundreds of court cases.
We CAN do something about it, but ONLY if we DO something about it.