Kensington High Street judicial review

The Judicial Review requested by Better Streets for Kensington and Chelsea (BetterStreet4KC) against the Royal Borough of Kensington and Chelsea (RBKC) regarding the Kensington High Street cycleway removal decision has been dismissed. This is disappointing, as many of us were hoping for this decision to be a signal to all Highways Authorities and many people, like me, made a donation to support the case even though we don’t live there, but here are my thoughts on it having read the full decision. (Click the link to see it.) I think the judgement makes interesting reading.

It is worth noting that the RBKC decision(s) in question were made prior to the issuing by the DfT of statutory guidance on consultation/decision-making in respect of active travel schemes:

The judicial review decision hinges on factors that I think have been significantly changed since the RBKC decision by the DfT guidance.

On the first ground claimed by BetterStreets4KC, the question of whether there was a duty on the council to consult was subject to much doubt and seemed to be based to a large extent on the assertion of an implied duty rather than an express one. The discussion of that ground in the judgement starts: “In the present case, there was manifestly no statutory duty to consult”. Thanks to the statutory guidance announced by the DfT, I think that statutory duty is now clearly in place.

On the second ground, regarding the irrationality of the decision, I think much of that also hinges on a lack of guidance on what should be expected of a council in justifying the decision to remove the cycle lane and the framing of that decision. This has also been changed significantly by the statutory guidance. In particular, the DfT stated in its letter to Highway Authorities on 30th July 2021 (attached): “The assumption should be that [active travel facilities] will be retained unless there is substantial evidence to the contrary”.

The most recent (April 2022) version of the statutory guidance issued by the Secretary of State for Transport under section 18 of the Traffic Management Act 2004 may be found on the DfT’s webpage. The relevant section start from the heading “Monitoring and Evaluation”, which is very clear on the requirement to consult and to gather hard evidence to support decisions, and on the degree of rigour that should be applied to such consultations and trials. This is expanded upon in the following sections headed “Other considerations” and “Engagement and consultation”.

Of course, nothing is certain in law, and the interpretation of the DfT statutory guidance itself will need to be tested. However, I personally am left in no doubt that the outcome of the Kensington High Street judicial review is likely to have been very different had the RBKC decision been made after the statutory guidance was issued. Consequently, I think we should not be too alarmed by the result.

Finally, it is worth mentioning that such a decision has absolutely no bearing on whether it is right to put in active travel infrastructure. A Judicial review like this is only looking at the process that was followed by a council to make a decision, and whether they did it properly. It makes no judgement on whether a decision was the right one to make.

(Oh and, of course, IANAL.)

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