Alex Glassbrook 14 August 2020

Roads to recovery

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The secretary of state for transport’s recent call to local authorities 'to make significant changes to their road layouts to give more space to cyclists and pedestrians', to 'help embed altered behaviours and demonstrate the positive effects of active travel' was met by swift opposition from campaign group the Alliance for British Drivers. The Government was accused of 'turning the Nanny State into the Bully State'.

The reorganisation of road space is a fulsome source of public debate, of policy and of law. The Highways Act 1980, the Road Traffic Regulation Act 1984 and the Traffic Management Act 2004 are the main laws governing road space. Changes in our work and movement patterns, and in vehicle types and technologies, were evident even before the coronavirus pandemic. In the pandemic, those changes have accelerated.

The measures announced by the secretary of state for the reallocation of road space saw opportunity in the crisis. The changes revise the previous statutory guidance as to traffic management under the 2004 Act. You can see the revised statutory guidance and the secretary of state’s foreword to it online here.

The legal landscape behind the nannying (if that is a fair description) is well-established. The Traffic Management Act 2004 requires a local traffic authority, among other matters, to secure 'the expeditious movement of traffic' and 'the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic' (section 16). “Traffic” is not limited to vehicles, and includes pedestrians (section 31). So far as reasonably practicable, an authority must 'identify things (including future occurrences) which are causing, or which have the potential to cause, road congestion or other disruption to the movement of traffic on their road network' and 'consider any possible action' in response (section 17). The local authority shall have regard to statutory guidance published by the national authority, relating to performance of the duties imposed by sections 16 and 17 (section 18).

Consistently with those duties, the law permits changes in road layout. Recent, pandemic-related amendments to regulations have altered conditions of notice of changes, on a temporary basis, but, as the secretary of state says in his foreword to the revised statutory guidance: 'None of these measures are new – they are interventions that are a standard part of the traffic management toolkit.' And so, the menu of legal provisions allowing changes in road layout (for example, the powers to improve highways – cycle tracks, guardrails etc – under Part V of the Highways Act 1980, or to make experimental traffic orders or temporary prohibitions or restrictions on roads, under the Road Traffic Regulation Act 1984) remains open.

There is usually (as the author of the leading textbook on highway law, Stephen Sauvain QC, has noted) tension between the interests of various road-users (pedestrians, drivers, cyclists and others). That tension alone will not defeat a decision lawfully made. Such changes in road layout are permitted, even if discriminatory between those types of road user - though always subject to the public sector equality duty under section 149 of the Equality Act 2010.

On one side, the courts have recognised that the law should not impose unreasonably high standards (as, for example, in relation to the standard of care and scope applied to the duty to repair a highway under section 41 of the Highways Act 1980, and that a consultation, even if required, might not have altered a decision).

On the other, the courts have found liability in negligence for the provision of defective road furniture, and have asserted the importance of the duty of an authority to take into account factors prescribed by section 122 of the Road Traffic Regulation Act 1984 (including securing and maintaining reasonable access to premises, the effect upon local amenities, national air quality strategy and the passage of public service vehicles) when exercising functions under the Act.

In future, the Equality Act seems likely to play an even greater role in road planning, as (for example) pavements and pedestrian routes to bus stops are interrupted by cycle lanes.

The balance remains to be found in each case. The ground seems to have moved beneath us. But there is this prescient note, at paragraph 38 of the previous statutory guidance, from November 2004: 'Government and local authorities have been looking at ways of reducing the demand so as to moderate or stem traffic growth even when the economy is growing. This has resulted in changes to land use plans, the establishment of school and workplace travel plans, and the promotion of tele-working among other things.'

Alex Glassbrook is a barrister at Temple Garden Chambers and a specialist in road transport law

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