High Court rejects bid by council to strike out all of statutory claim over road closure

Cambridgeshire County Council has scored only a partial success in a High Court bid to have a statutory claim struck out in a dispute over a road closure.

Pamela Wesson, chair of Friends of Mill Road Bridge,.made a statutory claim under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 challenging Cambridgeshire's decision to make the Cambridge (Mill Road) (Bus Gate) Order 2023.

James Strachan KC, sitting as a deputy judge of the High Court, heard the application by Cambridgeshire for summary judgment dismissing, or striking out, all or parts of Ms Wesson’s claim.

Mr Strachan said the order permanently prohibited vehicular use of part of Mill Road in Cambridge except for buses, taxis, bicycles and certain authorised vehicles, including at Mill Road bridge.

He said it was clear the order was controversial but said the court's function was limited to considering whether its provisions were within Cambridgeshire’s powers.

Ms Wesson identified a number of grounds of challenge. These were the Cambridgeshire: failed to provide adequate reasons for proposing and for making the order; made a mistake of fact in the operation of an exemption for ‘blue badge' holders; failed to carry out the public sector equality duty; erroneously took account the potential to attract funding; and that the decision was tainted by predetermination.

Mill Road was closed to private motor vehicles between June 2020 and early August 2021 after which it was reopened pending a public consultation on the road’s future use.

In July 2022, Cambridgeshire’s Highways and Transport Committee considered the consultation’s results and officers said these “clearly supported a re-instatement of the Mill Road filter but with important caveats such as allowing exemptions for disabled residents and taxis”.

The council agreed to pursue Mill Road’s permanent closure except to buses and “exemptions including disabled residents and taxis”.

On Ground 1, Mr Strachan gave summary judgment for Cambridgeshire, noting Ms Wesson and other objectors “do appear to have had the opportunity to have participated fully in the process without any identified hindrance arising from a potential failure in the statement of reasons.

“They have not identified what further points or objections they could or would have made had further reasoning been included in the statement of reasons itself (such as the further reasoning that appears subsequently in the officer's report for making the order.”

That though was the limit of Cambridgeshire’s  success in the case as Mr Strachan found on Ground 2 “a potential failure to provide reasons as required…may potentially have caused substantial prejudice to the claimant, and the association, in understanding how issues that were raised in consequence of those objections, and the debate that ensued, have been fully resolved. This is in circumstances where the statutory scheme entitles objectors to reasons”.

He refused to strike out Ground 3 on the basis that Cambridgeshire's case that it was not realistic to argue that funding was taken into account was unsound.

Mr Strachan said:”The issue of funding was not simply one raised in debate by members, but specifically addressed by the defendant's officer during the course of the meeting.

“In such circumstances, I consider that the claimant has a realistic prospect in contending that such a contribution to a meeting of this kind is of a different character to that of comments made during a debate. It potentially represents advice from the officer to the committee.”

Two grounds were dropped, but on the predetermination issue Mr Strachan again refused Cambridgeshire's call for it to be struck out.

He explained that this turned on contributions made by two councillors at the meeting that decided on the order and “I consider it difficult to say at this stage that the claimant has no realistic prospects of success of showing a potential appearance of bias” because of their roles in a residents’ association.

Mr Strachan concluded: "I give summary judgment in favour of the defendant against the claimant on Ground 1,..I refuse the defendant's application for summary judgment or for an order striking out the [other] grounds of claim.”

Mark Smulian