High Court judge dismisses legal challenges to Fox Lane LTN

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cover page bouchti vs enfield councilA High Court judge has dismissed legal challenges to the traffic orders issued by Enfield Council to implement the low-traffic neighbourhood (LTN) scheme in the Fox Lane quieter neighbourhood. The LTN has been in force since September 2020, initially on a trial basis but now on a permanent footing.

The case against Enfield Council, brought by Sophia Bouchti, a leading member of the campaign group One Community Against the Enfield LTNs, was heard by Justice Eyre on 25th October and his judgement was published on 9th November. He dismissed all the seven grounds on which the case was based; these related to procedural irregularities by the council, but also alleged that its decision to retain the LTN was "irrational" and that decision makers at the council "considered the issue with a closed mind".

The challenges and judge's assessment mainly hinge on procedural and technical arguments, as a result of which the judgement is not an easy read. However, on the Enfield Dispatch website editor James Cracknell has expertly summarised the judge's reasoning.

Links

Approved judgement by Mr Justice Eyre

Judge dismisses anti-LTN legal challenge (Enfield Dispatch 11 November 2022)

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Posts in discussion: High Court judge dismisses legal challenges to Fox Lane LTN

Basil Clarke's Avatar
Basil Clarke posted a reply #6672 16 Nov 2022 00:40
What to make of the judgement?

First, that the law is applied using common sense rather than strictly "legalistically". While Enfield Council clearly failed to follow all the procedures properly, the judge's sole interest was in assessing whether or not these failures had materially affected the claimant's ability to learn about about the proposals, experience how they affected her during the trial period, and register her views with the council. He concluded that they hadn't.

That doesn't of course excuse the council for these failures, which by the look of it arise from carelessness or sloppiness.

In my view there are a couple of key questions when dealing with controversial proposals:

1. How to balance the benefits of a scheme against its disbenefits (often, but not always, the advantages for one group of people against the disadvantages for another group of people)

2. How relevant is the proportion of supporters of a scheme versus the proportion who oppose it?

Some people take the view that the first question can be answered by collecting and analysing a large amount of data (eg traffic volumes and speeds before and during a trial) and the second by treating a consultation as a vote or referendum.

The judge clearly does not agree with this.

In Para 71 he writes:

The issue was whether it was appropriate to reduce the amount of traffic using the unclassified roads in the QN area and in particular to reduce the amount of traffic using those roads to cross the area and to act with a view to diverting that traffic to the surrounding A roads. Similarly, the advantages and disadvantages of taking that course could be readily identified in general terms. The task of balancing of those advantages (primarily to those living in the area) and disadvantages (primarily but not exclusively to those who sought to cross the area or to drive in and out of it) was a matter of broad judgement rather than of precise mathematical analysis.


And in Para 74 he says:

As already noted the relevant exercise was one of assessing arguments and not of counting heads and there is no basis for concluding that further objections to the same general effect as those already made would or should have caused the Council to exercise its discretion to hold a public inquiry.


After all, even if you had the most complete possible collection of relevant information, it's not possible to devise a mathematical way of, for instance, comparing the effect on someone's mental and physical health of noise and danger from traffic in the streets they have to walk through with the effect on a driver of their journey taking five minutes longer than before. In reality, decision makers can only make a broad judgement based on the priorities that have been set at a political level.

As for a consultation being a vote or referendum, the judge is saying that what matters isn't the number of consultation respondees putting forward a particular objection or argument but how strong or weak that particular argument is compared with other, opposing, arguments.

So, in theory at least, if 99% of respondees said they approved of a proposal, but a single respondee came out with a strong enough reason not to proceed with the proposal, then that single objection should be enough to stop a council going ahead or at the very least force them to revise it.

(There's another reason, not discussed by the judge, why a consultation shouldn't be treated as a vote or referendum, and that's because it's not an accurate way of assessing public opinion. Why this is so is clearly explained in this article by Dave Hill on his website OnLondon .)
Karl Brown's Avatar
Karl Brown posted a reply #6673 16 Nov 2022 10:04
Thanks, consolidating a very good, easy to follow set of articles. If I was to add any weight it would be to mention that in the round determining bodies will also be cognisant of policies, strategies and plans of various levels of their respective hierarchies, ie there may be an even bigger influencing picture additionally at play beyond those more immediately affected.
Darren Edgar's Avatar
Darren Edgar posted a reply #6675 17 Nov 2022 09:16
Brutal dismissal. Some people should be hanging their heads in shame (and putting their hands deeply in their pockets for cajoling Sophia in to being the named claimant now with a costs exposure).

Do people learn nothing........??!
Adrian Day's Avatar
Adrian Day posted a reply #6677 17 Nov 2022 16:20
Great news - hopefully the Council will now kick on by ending high traffic neighbourhoods throughout the borough. Every area in Enfield should benefit from the treatment given to the Fox Lane and Bowes areas.
Peter Payne's Avatar
Peter Payne posted a reply #6678 20 Nov 2022 03:08
It was always the case that the judge could not rule on the benefits of the scheme versus the negative impacts as he could never overrule elected officials on their decision. It was always a case that the LTN could only be quashed because correct procedure was not followed. Although the judge agreed there were many deficiencies exposed in the judicial review in his opinion they did not significantly prejudice Sophia. For me the legal challenge was always an aside from the real arguments as to whether LTNs work, the Statutory Review being a sort of ”get out of jail card”, although far from free. The fact that so many people were prepared to contribute to what was a large amount money in these difficult financial times I think shows that it’s not just a small bunch of people who want to drive their cars wherever they want, but many who have significant hardship from the negative impacts of the LTNs. It’s not just those dependent on their vehicles (or indeed in the case of many elderly or disabled people theirs friends/ family/neighbours vehicles) having the “effect on a driver of their journey taking five minutes longer than before” as Basil says, but many other effects. People not getting to their place of worship and social clubs. Children not getting to sports clubs since there is no longer enough time to get them there and back. People being late for appointments, work, and school as much due to bus delays as private vehicles. Health visitors not getting as many appointments done. The fear that you or your relatives will not get an emergency vehicle in time. The fear many women have spoken of when walking down deserted streets at night to get home. The list is too long to go into here but just look at any local social media site for more examples. For me the main argument (and it has not gone away with this ruling), is pollution and greenhouse gas emissions.

At the beginning of these trials we were presented with much information that traffic would settle down and evaporate after a few months and part of the reasoning for the LTNs was to reduce traffic overall and hence pollution and GHGs. This patently hasn’t happened. Recent surveys have shown traffic mileage has gone up in boroughs that have introduced LTNs compared to those who haven’t. Not only has the extra mileage produced more pollution and GHGs but this extra mileage is also often being done in congested traffic, which increases the emissions even more. Further the congestion is also slowing down bus times and since diesel buses and lorries produce emissions at 6 times the rate of a car, there is yet more net pollution produced.

Basil seems to take solace in the judge’s remarks that you cannot come up with a mathematical formula to make your judgemental decision. What the judge is not saying is that you can ignore statistical analysis to inform your decision. Otherwise you are just sticking your finger in the air and guessing, (though if you stuck your nose in the air on a boundary road you might get the right answer). So with the requirement for correct statistical analysis we come to another of the many errors Enfield Council made. They had (presumably) to spend more of our money producing a 60 page report to the judge, redoing all the traffic data and pollution models because they didn’t count the post LTN traffic correctly as they failed to count any vehicle doing less than 10kmph. Although the roadside equipment counted these vehicles the survey company used a filter when they produced the reports which removed this slow moving traffic. Enfield traffic officers claim they didn’t notice this, nor did the Fox Lane Final Report authors. Enfield Council’s defence in court was incompetence rather than deliberate deceit. The survey company that didn’t know how to use its own equipment has now been reemployed to do the surveys that are currently being undertaken this week. So not only have they costs us all a lot of money but they have been rewarded with new contracts.

What Enfield Council and the surveyors definitely now know is that the company that makes the equipment, MetroCount, only recommend its use in free flowing traffic (as this was submitted in evidence), and yet here we are again with money being spent using pneumatic tube counters to try to count traffic in congestion on the boundary roads. What they don’t seem to understand is that although they reran the figures through with the 10kmph filter removed they have only recovered a proportion of the undercounted traffic. This means the 60 page report they presented to court (which Nesil Caliskan decided overnight would not have affected her decision to make the LTN permanent) is still completely erroneous. By removing the filter they have now included the slow moving traffic that the pneumatic tubes identify as vehicles, but it has not included any traffic in stop start congestion which stops in or over the tubes which the roadside equipment doesn’t identify as a vehicle. It puts these pulses into a random hits bin, or an unidentifiable bin, neither of which are counted in the report whether a filter is applied or not. The vehicle which stops nearest the tubes has a less than 50% chance of being counted. The pollution analysis company is fully aware of this as I informed them months ago, but they still seem happy to take the money and produce what they know to be wrong data. In addition they only feed into the model the number of vehicles and assume they are all moving at the speed limit for the road, or the average daily speed for the road, so take no account of slow moving or stationary vehicles and the emissions they emit.

How all this fits in with Enfield’s stated aims for carbon neutrality I don’t know.
Karl Brown's Avatar
Karl Brown posted a reply #6679 21 Nov 2022 16:21
Congestion is absolutely an issue, but it would be wrong to view it as other than a very longstanding problem affecting numerous areas. Locally we are not some unique outlier. The opposite, traffic-light roads, will frequently lead to the alternate complaint, best summed up in Grange Park’s Cllr Day’s motion seeking help from speeding traffic, which I recently highlighted. (LTN – Is There an Alternative? 11 Nov 22)
Locally, what the Fox Lane LTN has resulted in is displaced traffic so that some streets, such as those mentioned petitioning, are experiencing traffic loads previously the preserve of several inner LTN streets. There is no “new” traffic, simply other residents now experiencing the downsides long the preserve of others. That, and increased inconvenience, particularly for some inner residents who previously had multiple entry / exit routes when choosing to drive.
And there is the balance: for decades the car has been all-mighty, its needs foremost, but no more for London is not to be a car-dominated city. That’s the agreed plan. That means for instance, locally, several streets who have quietly campaigned for over three decades (I’m told) finally have relief from through traffic. It’s been displaced, causing some issues for some immediate residents; and at certain times of day a slow down for those choosing, or required, to drive.
But things do change, for instance take Broomfield Avenue and its previous jaw dropping 6000+ daily vehicle transits. Old Park Road apparently had 50% of the street congested as cars backed up waiting to cross into Broomfield (and thereafter onto the A406 I assume). Then Broomfield Avenue and nearby became an LTN. Two decades on, and pre Fox Lane LTN, that picture of use had changed dramatically, as I assume over time will the current local position.
Finite space combined with bigger, faster, more expensive cars combined with a seeming never satisfiable desire to drive or get a “return” from the investment, gives an immense strategic dilemma where something (someone) must give. I have never seen a “perfect” solution but always wait to see. In the meantime, I was interested a press article from the states I came across last week. I’ve copied the final section and a link to it all. More generally I would suggest there will be no change without change.

When Telegadis first opened an e-bike consulting business in Pennsylvania in 2016, many customers were driven by recreation or physical rehabilitation. But he's always believed e-bikes could transform the daily commute, and says the majority of customers now see it, too. A typical first question: Which model has enough battery power to cover a trip to work and back?
The test drive usually takes care of the rest, he says.
“They come to us. They’re sitting in traffic, there’s no parking where they go, they’re miserable in the car,” Telegadis said. “They get on a bike, they ride it … and that’s the epiphany.”
Source: eu.usatoday.com/story/news/2022/11/12/electric-e-bikes-climate-change/8258994001/