Unlawful decisions on removing cycle lanes – what does it all mean?
Of course, I expected the council to present the facts in the most favourable or least damaging way it could, but even I was surprised to see its spokesman claiming that it only “settled the case so as to avoid further costs to the public purse”, that it had “no further implications for other proposals or schemes”, that somehow this was of “no significance other than to resolve litigation”, and it merely reflected an omission to “include in a council report a clearer account of government guidance and its effect before taking the decision”.
Mandy Rice-Davies Applies
Well, he would say that wouldn’t he, and it seems that ‘Mandy Rice-Davies Applies’ - the litmus test to assess whether people in particular circumstances will deny the facts to avoid immediate difficulties .
Perhaps I’d better go through some facts, starting with the actual court order.
Ignoring the statutory guidance
As the order shows, Cycling UK’s claim was upheld because the council failed to have regard to statutory guidance issued under section 18(1) of the Traffic Management Act 2004, did not act in accordance with it, or give clear and cogent reasons for departing from it. Highway authorities have a ‘network management duty’ under that Act, which also obliges them to comply with statutory guidance when performing their network management duties.
The ‘reasons for decision’ section of the order also specifically states that when making the decision to remove the cycle lane, the council unlawfully failed to take the statutory guidance into account. That's not pointing to some technical omission to mention it in a report, as the spokesman claims - but to the fact that the council just didn’t take it into account at all.
Protecting the public purse
The council’s claim that it settled this case to avoid further costs and protect the public purse also needs to be considered with an eye to the gloss it's putting on its own unlawful actions.
Cycling UK commenced legal proceedings against the council back in February 2021. The council then spent over 11 months defending the claim, incurring costs, and maintaining that it acted lawfully, before finally admitting it hadn't, just days before a two-day final hearing was due to begin.
That’s cost it all of its own legal costs, £25,000 towards our costs, plus all of the management and administrative time and costs involved in year-long litigation, when it could have accepted its mistake before proceedings were even issued, avoiding all of those costs.
The tax-payers of West Sussex can decide whether that’s protecting the public purse.
Nothing to see here
As for the assertion that all of this has “no further implications for other proposals or schemes”, well that’s simply untrue because it already has.
The spokesperson has clearly forgotten that the removal of the cycle lane led to the council being barred from the next round of active travel funding.
Last July, Transport Minister Chris Heaton-Harris wrote to the council explaining that it would not be eligible to apply for government funding for active travel schemes during 2021/22, because “the schemes delivered under tranche 1 of the Emergency Active Travel Fund were not allowed to be fully tested and/or optimised before the schemes were removed” and that “this was not a good use of public money and means that your authority will not be invited to bid for any new capital funding this year.”
So, an order that the council acted unlawfully, serious costs consequences, and implications for future government funding for all transport schemes (not merely active travel schemes) means there's nothing to see here because, as the spokesman added, there’s “no prospect of the cycleway being restored”.
Restoring a temporary lane – or a permanent lane
But if the temporary cycle lane isn’t being restored, what was the point of our litigation?
Well, I’ll come to that, but the first thing to mention is that the spokesman’s comment is carefully worded. Some will read this as an indication that no cycleway will be implemented on Upper Shoreham Road, when what he actually means is that the temporary cycle lane, with plastic cones and bollards, won’t be restored in the interim.
With apologies for a short bit of legalese, but the court proceedings Cycling UK issued involved a judicial review of the council’s decision to remove the lane, in which we asked the court to make a declaration that the council acted unlawfully. If a court makes a declaration of unlawfulness, it then has a discretion to order some form of remedy, which in this case could have included the re-instatement of the temporary cycle lane.
Whilst the outcome of any litigation is uncertain, we were always reasonably confident that we’d secure either a declaration or, however belatedly, an admission from the council that it had acted unlawfully. Getting a discretionary remedy - the re-instatement on the temporary lane - was, however always going to be harder, and a 12-month delay from removal in January 2021 to the final hearing made securing that discretionary remedy less likely.
Increasing space for active travel on Upper Shoreham Road
In the interim, the council had of course repeatedly claimed that it was committed to active travel, and indeed to a long-term scheme on the Upper Shoreham Road. It's published a Transport Plan for West Sussex which states (para 7.16) that the council’s strategy “is to enable local living by making active travel increasingly realistic and attractive for short distance east-west journeys by increasing space for active travel on the important Upper Shoreham Road, A270 and A259 corridors.”
So, twelve months after the lane was removed, and now with the council having admitted that it failed to take into account the guidance, it's committed publicly to increasing space for cycling on the important A270 Upper Shoreham Road. Also, it confirmed within court proceedings that it would have proper regard to the network management duty and any relevant statutory guidance in finalising and implementing a permanent cycleway along that route. Consequently, an order to re-instate the temporary lane was becoming an unlikely outcome.
Of course, what the people who used the cycle lane and the local campaign group Shoreham-By-Cycle really want is a permanent cycle lane. The question for the council is this: when are they going to start delivering on their transport strategy commitments?
Active travel league table
I said I’d come back to the question about why we issued these proceedings if we might not secure the re-instatement of the lane.
Firstly, and dealing purely with the local issue in West Sussex, the practical reality is that however the spokesman tries to spin this, the council has been caught out. It acted unlawfully, that’s cost a chunk of tax-payers' money, and the DfT effectively barred it from the next funding round.
It’s a council on the naughty step now, and the only way off that step is to be bold, stop trying to paint a gloss on what’s happened, and set a timescale for delivery of a permanent cycle lane on Upper Shoreham Road.
Put bluntly, it needs to show that it’s serious about cycling and walking schemes, or it will go straight to the bottom of Active Travel England’s league table, which is likely to impact on wider transport funding from government in future.
Sending a message to other councils
Secondly, this case was never just about West Sussex and one cycle lane.
We don’t have the capacity to challenge every decision councils make which we don’t agree with. But, in the last 18 months, too many councils have removed cycle lanes and other active travel schemes without allowing them time to bed in, without adequate evaluation, and with scant regard to the relevant statutory guidance. The decision in Shoreham was a classic example of this, so we took this case to court to shine a light on this issue, and to send a message to other councils.
Whilst this case has been winding its way through the legal process, it’s gathered significant interest amongst local government lawyers – the people who advise those making the decisions within councils about the potential consequences of failing to follow legal advice or statutory guidance!
In West Sussex, the decision to remove this lane was made by one person. That decision was called into a scrutiny committee, which noted that the scheme had exceeded expectations and that it was questionable why a successful scheme should be removed. They asked the Cabinet Lead to think again, but he ploughed on regardless.
The consequences for the West Sussex Council are a lesson for others to heed when making decisions on active travel schemes – if you ignore the guidance, don’t gather the evidence, and panic the moment anyone complains about a scheme, there are consequences.
Cyclists Defence Fund
Cycling UK can only put matters like this before the courts, and stand up for people who cycle, or might cycle if they felt safer doing so, because we have designated funds in our Cyclists’ Defence Fund (or CDF). We use this to help fight significant legal cases involving cyclists and cycling, and we drew on it to pursue this case.
Although we have recovered £25,000 from the council towards our legal costs, we also need to be in a position to pursue the next important case, and be ready to stand up for cycling and cyclists in the future. Please help us to be ready, by donating to Cycling UK’s Cyclists’ Defence Fund. Your donation will go towards our designated legal fund, set aside as a ‘fighting fund’ for legal action and cases.