Court hearing granted in challenge to removal of High Street Kensington cycle lane

Local campaign group Better Streets for Kensington and Chelsea (BS4KC) has this week (Wednesday 6 October) won the right to a full hearing of its legal challenge to the local council's failure to properly consider reinstating the experimental cycle lanes which it ripped out in December 2020. The lanes were removed without waiting for the scheme to be fully installed, let alone to gather data to show whether or not it was working.

The decision follows Cycling UK's own success last month in winning the right to challenge the removal of a cycle lane in Shoreham, West Sussex. A further decision is awaited on a similar challenge brought by local campaigners in Poole to their council's decision to reopen a narrow railway tunnel (the Keyhole Bridge) to motor vehicles. The Keyhole Bridge Group's full hearing took place in the High Court on Wednesday; however the judgement has been reserved.

Next steps – and how you can help

BS4KC's legal challenge will now proceed to a full High Court hearing, probably sometime next spring. In the meantime, we await the result of the Poole legal challenge, as well as the full hearing of Cycling UK's claim against West Sussex County Council (for which we are still waiting for a date).

At the same time, we have been calling for ministers themselves to act to prevent councils from making arbitrary decisions to remove cycle lanes without good justification. To be fair, the government has carried out its threat to withhold money from councils who do this, including West Sussex. However, other councils have continued to ignore that threat. There are also legal (as well as financial) mechanisms available to ministers to prevent this sort of thing – and those may well prove to be more a more effective way to ensure that Councils support the government's admirable 'Gear Change' vision, rather than undermining it.

Meanwhile, it falls to Cycling UK and groups such as BS4KC and the Keyhole Bridge Group to make sure that councils do not arbitrarily remove perfectly good cycle lanes and similar schemes, simply to appease a vocal minority whose opposition is so often magnified out of all proportion by newspapers with their own agenda. Bringing these challenges is time-consuming, not just on formulating the legal arguments but also raising the tens of thousands of pounds that these challenges require.

It shouldn't be left to community groups and charities to hold local councils to account for their failures to properly consider high-quality cycle facilities

Sarah Mitchell, chief executive, Cycling UK

As Cycling UK's chief executive, Sarah Mitchell, commented:

"Faced with a climate crisis – not to mention the crises of congestion, air pollution and inactivity-related ill-health – it shouldn't be left to community groups and charities to hold local councils to account for their failures to properly consider high-quality cycle facilities. Government ministers have much more powerful legal levers they can pull to prevent this sort of thing from happening. We urge them to use these."

So please, do consider donating to the Cyclists' Defence Fund, to enable us to go ahead with these and similar actions to support the cause of cycling and cycle users. Or here are the links if you want to donate specifically to the Poole legal challenge. It's only thanks to your support that these challenges have managed to get off the ground in the first place.

My colleague Duncan Dollimore has previously written an overview of all three legal challenges. Here, I explain the Kensington and Chelsea case more fully, and why it matters.

Background

The High Street Kensington cycle lane was one of many temporary cycle lanes installed using government funding to install 'emergency' cycle lanes during the pandemic. Their immediate aim was to facilitate social distancing and to provide people with an alternative means of travel when public transport capacity was limited. However the government was also clear that councils should monitor these schemes, with a view to making them permanent.

The Royal Borough of Kensington and Chelsea (RBKC) announced on 16 July 2020 that it would install cycle lanes on Kensington High Street in two phases. Phase one would provide temporary cycle lanes between the junctions, then phase 2 would involve redesigning the junctions. In its announcement, the Council promised to collect data on cycle use, journey times, air quality, casualties etc, to assess whether the scheme was working.

However some sections of the media were highly critical of the lane, notably the Daily Mail, whose head office is just off Kensington High Street. In response, Cllr Johnny Thallasites (transport lead for the Royal Borough of Kensington and Chelsea) wrote to local businesses on 26 November, saying that he had issued instructions to remove the cycle lane within days.

At that point, only phase one of the cycle lane had been installed. The council's own initial monitoring data showed that it was already proving to be very well used by local school pupils and others, without causing congestion for motor traffic. (Congestion had occurred at the outset of the trial, but this seems to have been due to other unrelated roadworks – once these were over, Transport for London data indicated that journey times were not adversely affected. The junction redesigns planned for phase two would also have helped) 

BS4KC and others pointed out that Cllr Thallasites couldn't simply announce a decision like this – it required properly informed consideration at a council meeting. So the matter was hastily added to a council meeting agenda on 2 December, while council officers rushed out a report (it was only published on the day of the meeting) which recommended removing the cycle lane. The councillors duly agreed.

Legal arguments: round one

Better Streets for Kensington and Chelsea was rightly aggrieved. It enlisted lawyers to write a 26-page 'pre action protocol letter' (also known as a 'letter before action' – this being the first legal step towards towards a Judicial Review) on 21 December. In this letter, BS4KC's lawyers argued that the Council had:

• Failed to consult properly (including with neighbouring boroughs etc as well as the local community);
• Failed to allow the trial to last as long as they had originally said it would (thus preventing people from responding to the formal consultation which was expected to take place at the end of the trial);
• Failed to take proper account of the (limited) monitoring data that was then available - this was already showing that the cycle lane was well used and was not delaying motor traffic; 
• Failed to properly consider the government's statutory Network Management Duty (NMD) guidance, issued in July 2020 (and since updated), which had made it a legal requirement not only for councils to consider installing temporary cycle lanes and similar measures, but also to monitor them with a view to making them permanent. The Kensington scheme had not even been completely installed, still less had monitoring data been gathered and assessed properly. BS4C also pointed out that the NMD guidance is as relevant to decisions about removing cycle lanes as it is to decisions to install them in the first place;
• Failed to consider its Public Sector Equality Duty, namely to give due consideration to the ways in which its decisions might have different effects on people with different 'protected characteristics' under the Equality Act. This includes people of different age groups and sexes, as well as different physical and mental abilities. The campaigners argued that a proper equality assessment would have highlighted the benefits of the cycle lanes to women, children and older people, as well as disabled people who use pedal cycles as mobility aids;
• 'Pre-determined' its own decision – the officers' report had been written, and an agenda item added to a formal council meeting, purely to confirm a decision that Cllr Thalassites had already taken;
• Acted irrationally, taking a decision that no reasonable decision-maker could make in the light of the information and legal considerations that it was required to take account of;
• Failed to give clear reasons for its decision.

In response, RBKC leader Cllr Elizabeth Campbell effectively agreed (on 8 January 2021) to reconsider its decision, without actually conceding that the decision had been improperly taken in the first place. It agreed to do this at a meeting on 17 March.

However, at the 17 March meeting, the councillors didn't simply reconsider whether to reinstate the original trial (as Cllr Campbell had promised they would do), thereby allowing relevant data to be gathered, as per the council's original plans. Instead, this was just one of four options put to them by council officers – which of course is a very different type of decision. The other options were to install just some parts of the original scheme, to do nothing, or to do nothing immediately but consider an alternative longer-term solution. Unsurprisingly, the councillors chose the last of these options – albeit further watered down to be a potential future generalised study about post-coronavirus travel patterns.

Unfortunately, it was by now too late for BS4KC to challenge the original 2 December decision to remove the cycle lanes – Judicial Review challenges have to be brought as soon as possible, and within a maximum of three months from the date of the decision to be challenged. Nonetheless, after taking legal advice, the campaigners felt they had a reasonable chance of challenging to RBKC's failure (on 17 March) to properly consider reinstating the original trial cycle lanes.

Round 2: A partial win is still a win!

In the High Court on Wednesday (6th October 2021), BS4KC applied for permission to bring this legal challenge. Its case was presented by barrister Amelia Walker of 1 Crown Office Row chambers, having been prepared by solicitor Emma Montlake of the Environmental Law Foundation. Admirably, both had agreed to support BS4C 'pro bono' (i.e. without being paid).

RBKC was represented by barrister Charles Streeten of Francis Taylor Buildings. He had also acted for the Licenced Taxi Drivers Association and the United Trade Action Group in their legal challenge to Transport for London's 'Streetspace' programme of measures to improve walking and cycling conditions during the pandemic, and specifically the closure of Bishopsgate to taxis. This challenge was initially successful but has since been overturned on appeal.

In response to their submissions, Deputy High Court Judge Tim Smith granted BS4KC permission for a full hearing of that challenge, on two of the five grounds they had submitted:

• Ground 1: Failure to consult. Although RBKC's barrister argued that there was no specific statutory duty to consult the public ahead of its 17th March decision, the council's statements and actions had arguably created a legitimate expectation that it would do so. 
• Ground 3: Irrationality. Given the statements the council had made about gathering data to inform its decision on whether to make the High Street Kensington cycle lane permanent, it was arguably irrational for the council not to simply consider reinstating the trial cycle lane, and instead to consider other longer-term options. The decision was arguably also irrational in the light of the limited data that had been collected, which had provided initial indications that the cycle lane had been beneficial.  

However he denied them permission to proceed with the other three grounds of their claim:

• Ground 2: Failure to take account of a 'material consideration' – namely the government’s statutory Network Management Duty guidelines (which require councils not only to consider installing cycle lanes and similar measures, but also to monitor them with a view to making them permanent). Cycling UK has been granted permission (though only by going to the Appeal Court) to proceed with a similar argument in our legal challenge against West Sussex County Council's removal of the Upper Shoreham Road cycle lanes. If we succeed in our full hearing, it may be that BS4KC will be able to appeal the refusal of this as a legitimate ground for claim in their case. 
• Ground 4: Failure to give reasons for the decision – although the judge accepted that RBKC had only given very brief reasons for its 17th March decision in the minutes of that meeting, he felt they should be read alongside the council officers' report, which had outlined more fully the basis on which the Councillors could then take the decision they took; and
• Ground 5: Failure to comply with the Public Sector Equality Duty – the judge felt that the council's assessment of the equalities impacts of the decision had been adequate.

Whilst it was disappointing not to win all all five grounds, winning on two grounds is still a win, and to win on 'irrationality' is a particular feather in the cap of BS4KC's legal team ('irrationality' challenges are notoriously hard to win).

Justin Abbott, from Better Streets for Kensington & Chelsea, said:

“Of course we are pleased to have been granted permission for a full hearing, but we’d much rather not have to spend so much time fighting a legal battle about what was the only safe protected bike lane we’ve ever had in the whole borough. Our council’s apparent determination to waste public money and officer time fighting a safety scheme just looks worse each day. They are being left behind by other local authorities who are heeding the clear government guidance that they should reallocate road space for walking and cycling. Instead, RBKC’s leadership seems concerned most with saving face on a bad decision, whilst people trying to get around by bike are daily exposed to danger in the borough. If RBKC are brave enough to realise they need to change direction, we’re here to help.”

We will keep you posted on further progress in all three cases.