Claim for Judicial Review – information from the Authority’s solicitor

We have received a claim for judicial review brought by the Green Lanes Environmental Action Movement (“GLEAM”) against decisions made by the Authority on 8 October 2019 as to the most appropriate options for management of two unsealed sections of public roads U5001 High Tilberthwaite to Fell Foot and U5004 High Oxen Fell to Hodge Close.

Judicial review is the procedure by which the courts examine the decisions of public bodies to ensure that they act lawfully and fairly.

The claim form alleges that

  • we failed to properly advise the members of the Rights of Way Committee making the decision about their duty under section 11A of the National Park and Access to the Countryside Act 1949 (known as the “Sandford Principle”). This states that where there are conflicts between the purposes of national parks that cannot be resolved, priority should be given to the conservation of natural beauty. GLEAM are of the view that this should be interpreted so that in all circumstances where there is a conflict the conservation of natural beauty should be given priority;
  • we failed to discharge our duty under section122 of the Road Traffic Regulation Act 1984 which specifies a series of mandatory considerations that must be weighed against each other when making the decision; and
  • we misdirected members of the Rights of Way Committee as to the test for a consultation under Regulation 4 of the National Park Authorities’ Traffic Orders (Procedure)(England) Regulations 2007.

The claim form argues that these alleged failures make the decision unlawful and asks the court to find the decision unlawful; to quash, or set aside, the decision we made and to make an order requiring us to reconsider whether to commence consultation for a potential Traffic Regulation Order (TRO) on one or both routes.

It should be noted that quashing the decision will not automatically require us to make a TRO but to revisit our decision.

We do not agree with the allegations made.

  • We advised the members of the Rights of Way Committee about the approach they should take in applying the Sandford Principle. Para.7 of Defra’s 2005 guidance note Duties on relevant authorities to have regard to the purposes of National Parks, Areas of Outstanding Natural Beauty (AONBs) and the Norfolk and Suffolk Broads,which makes it clear how the principle is to be applied, states that where there is an irreconcilable conflict the conservation of natural beauty should be given priority.  
  • We were considering what steps were the most appropriate at this time for the future management of the two routes. One option could have been to consult upon making a TRO.  Consultation and publication under the 1984 Act and the National Park Authorities’ Traffic Orders (Procedure) (England) Regulations 2007 would only have been engaged if we had identified a TRO as the most appropriate management option at this stage.
  • In any event, while not formally considering whether or not to make a TRO, we did have regard in substance to all of the matters required by s.122.   

The Assessment Report carefully considered the available options and the relevant material factors.  It concluded that the evidence did not support the argument that the only means of management open to us at this stage was prohibition of mechanically propelled vehicles on the unsealed sections of road in question.

On that basis the Committee disagreed with GLEAM’s arguments. The Committee determined that it was not necessary at present to begin the process of consulting on a TRO and decided to first enter into alternative management and monitoring arrangements.     

We will file our response to the claim by 4 February 2020.

It should be noted that a claim may only be brought with the court’s permission and the court has yet to determine whether or not it will give permission.

If the court is satisfied on the basis of the paper application that there are reasonable grounds for a judicial review, it will grant permission for the claim to proceed to a substantive hearing.

If permission to proceed is granted, the defendant has no right of appeal and the matter will proceed to a full hearing of the issues.  If permission is refused, GLEAM may appeal this decision.

The granting of an order giving permission will automatically trigger the next stage of the procedure, which is the filing and service of a detailed response and evidence by the defendant and any interested parties.  We will provide an update of the timescales involved if this becomes appropriate.

Julie Wood

Authority Solicitor

15 January 2020

More on the green lanes at Tilberthwaite and High Oxen Fell