December judgement day on Kensington cycle lane

The battleground will be the Royal Courts of Justice in London, the date 8 December and the issue whether or not London’s richest council cares a jot about the safety of people who cycle, or indeed its own environmental commitments.

The judge ruling on this David-versus-Goliath struggle will have to consider the decisions made by the Royal Borough of Kensington and Chelsea (RBKC) regarding a cycle lane along Kensington High Street.

The Royal Borough’s royal mess

The local group, Better Streets for Kensington and Chelsea (BetterStreets4KC), has published a detailed account of its arguments in favour of the route and RBKC’s opposition on its website, which my colleague Roger Geffen analysed last year.

But to summarise, RBKC removed the protected cycle lane from the High Street in December 2020 after just seven weeks, before it was fully installed.

BetterStreets4KC threatened legal action, so RBKC reviewed its decision, only to reach the same conclusion.

The group then issued a judicial review challenging RBKC, one element of which pointed out that its refusal to reinstate the lane was irrational. The council had, after all, ignored the available evidence - the limited data it had collected indicated that the cycle lane had, in fact, been beneficial.

It’s been a tortuous route to trial, as I last reported in July.

It seems, however, that RBKC aren’t prepared to compromise. Rather, the richest borough is determined to safeguard its reputation as London’s worst for protected cycling, with less than one per cent of its roads having separated lanes.

So, in a few days, the judge will hear the evidence and arguments, though the verdict might not arrive until the New Year.

And the odds, as they always have been, are stacked against the heroic local volunteer group bringing this claim.

Despite what you might hear from ministers about the need for government to "take back control" from the courts, bringing a judicial review case to court, particularly against local or national government, is incredibly difficult, time-consuming and expensive.

That’s partly because, with apologies for a layman’s summary, the judge deciding the case isn’t deciding whether he or she agrees with the decision that’s being challenged, or thinks it sensible. The hurdle for claimants is set really high, requiring them to show that there were major flaws in the decision-making process.

That’s why in 2020 the success rate for judicial review cases at trial was only 2.2% of cases issued, or 30% of those which got to trial. So, for BetterStreets4KC to even get this far shows incredible determination and resolve to make Kensington’s streets safer for all.

A win for the council would be Pyrrhic

That’s one of the reasons why Cycling UK has done all we can to support this amazing group in bringing this legal action, from highlighting the issues, to general advice and support, and latterly, financial support through our Cyclists' Defence Fund.

But whatever the outcome in terms of the court decision, in the long term I’m certain RBKC’s actions will be a huge, costly and embarrassing loss.

Have no doubt, a win in court next week will be an immediate victory for BetterStreets4KC, send shock waves through the corridors of other councils who've disregarded government guidance and policy on active travel, and leave RBKC with serious questions to answer.

Litigation, however, is uncertain. David could lose this particular battle with Goliath.

But if they do, it’s likely to be a Pyrrhic and short-lived victory, because the problems with congestion, pollution, and safety on Kensington High Street aren’t going to disappear just because a campaign group loses a judicial review case.

What will they say when a tragedy occurs?

What councillors and those advising them at RBKC need to ask themselves is this: what will they say if they’re before the coroner at a future inquest, or to a judge in a civil claim determining whether the council’s failure to take adequate measures to protect cyclists on the High Street amounts to contributory negligence, or a breach of their statutory duty under section 39 of the Road Traffic Act?

But of course, that will be after the event, after a cyclist has been killed or seriously injured because there’s no protected cycle lane.

So, if RBKC avoid defeat next week, they shouldn’t celebrate because they’re likely to find themselves back in court at some point to answer for the consequences of their inaction.

It may of course be Cycling UK who seek to do this through our Cyclists’ Defence Fund (CDF).

CDF, though, is funded entirely by donations. We can only carry on fighting significant legal cases involving cyclists and cycling, especially those which could set important precedents for the future and could affect the safety of all cyclists, if we continue to receive donations.

If you’d like us to continue supporting groups like BetterSteets4KC, and keep standing up for cyclists and would-be cyclists as we did when taking West Sussex County Council to court for their unlawful removal of a cycle lane in Shoreham, please consider donating to CDF today.

Donate to the Cyclists' Defence Fund

I’ll be in court to hear the evidence next week, and we’ll update thereafter.