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Low traffic neighbourhoods (LTNs) have become a familiar feature of London’s road network in the year since the COVID-19 pandemic took hold in the United Kingdom in early 2020. For some, LTNs offer a welcome respite from “rat running” through traffic which blights their local streets, discourages cycling and brings traffic fumes and noise to their local communities. For others, LTNs are a crude and misguided initiative which in fact serve only to increase traffic congestion on London’s streets and add to air pollution, as well as worsening driver behaviour and thereby risking rather than improving road safety. These issues are for traffic authorities to resolve in the decisions they make about the use of their traffic management powers under the Road Traffic Regulation Act 1984. They are not for the Courts. However, where the impact of traffic orders made for the purpose of introducing LTNs affect the interests of persons with protected characteristics under the Equality Act 2010, then the Court may need to consider whether the order making traffic authority has properly discharged its duty under section 149 of the 2010 Act. On 28 June 2021 the High Court (Kerr J) handed down judgment in Sofia Sheakh v London Borough of Lambeth [2021] EWHC 1745 (Admin), dismissing challenges to the validity of experimental traffic orders made by Lambeth London Borough Council for the purpose of establishing LTN schemes in Brixton, Oval and Streatham. The Claimant is a disabled Lambeth resident, who relies heavily on her car to make essential local journeys and complains that her particular interests were overlooked when the decision to proceed with the traffic experiment was made. She raised the question whether Lambeth had fulfilled the public sector equality duty under section 149 of the Equality Act 2010. Kerr J held that in the particular circumstances of the case, it was lawful for the decision maker to discharge the equality duty on a “rolling” basis, by developing its assessment of and response to the impacts of the traffic orders on persons with protected characteristics as the results of the traffic management experiment became known, during the period of operation of the orders –
163. There is nothing in section 149 of the 2010 Act which prevents, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a “rolling” basis. A decision to do that is not, as a matter of law, contrary to the pre-requisites of performance identified in McCombe LJ’s judgment in Bracking at [26].
164. However, a decision maker who decides to proceed with equality impact assessment on a rolling basis, does so at their peril. The legislation and case law does not preclude rolling assessment as a matter of law; but neither do they legitimise it for all cases. The more “evolutionary” the function being exercised, the more readily a rolling assessment approach may be justified. Conversely, for a “one off” function, it is hard to see how it could be justified.
165. So that this judgment is not misunderstood, I should make it clear that I am not deciding that equality impact assessment on a rolling basis is always acceptable where the function being exercised is to initiate an experiment, as in the case of a decision to make an ETO. It may or may not be on the facts, depending in each case whether such regard (if any) that was had to the equality objectives in section 149(1) of the 2010 Act was sufficient to pass the test of being “due regard” to those objectives.
166. Here, it was acceptable because of unusual factual features: the urgency expressed in the statutory guidance, the near stasis of public transport and the need to restrain vehicle traffic in residential areas to allow walking and cycling to flourish. Those factors (all caused by the prevalence of the virus) propelled Lambeth to curtail its research and truncate the timescale, using ETOs. Had those factors been absent, Mr Dosunmu’s approach to equality assessment might well not have passed the “due regard” test.
The Court held that the traffic orders were genuinely experimental and properly reflected the balance which Lambeth as traffic authority is obliged to strike between maintaining the free flow of traffic on its roads and the interests of local communities and local amenity. The Court also rejected the complaint that Lambeth had failed to undertake proper public consultation prior to making the traffic orders. The Court has given the Claimant permission to appeal on the equalities issue. Tim Buley QC appeared for the Claimant, Sofia Sheakh. Tim Mould QC appeared for the Defendant, Lambeth London Borough Council. Click here for the judgment.