A & E Baines v The North Yorkshire Council

LORD JUSTICE LEWIS: INTRODUCTION

1. This appeal concerns the lawfulness of four traffic regulations orders (“the Orders”) made by the respondent, the North Yorkshire Council. Those orders make provision governing traffic regulation on a road in Harrogate, known as Lower Station Parade, which runs past the bus and railway stations. The Orders, in brief, make provision for the introduction of a combined bus and cycle lane for a 36 metre stretch of the southbound carriage way, the conversion of Lower Station Parade to one-way traffic southbound, and further restrictions on traffic movement and left and right turns on to the carriageway.

2. In brief, summary, the changes are part of a revised scheme which was the subject of a report to, and a resolution of, the executive of the respondent made on 28 November 2023. Given the importance of the resolution, it is necessary to set it out in so far as material: “ Resolved – That the following be approved: ….. iii) the descoping options for Harrogate, the preparation and submission of a Full Business Case, with approval of the detail delegated to the Corporate Director of Environment in consultation with the Corporate Director of Resources and Executive Member for Highway and Transportation. In the event that the Full Business Case is approved by the West Yorkshire Combined Authority, to delegate the acceptance of the TCF funding to the Corporate Director Resources in consultation with the Assistant Chief Executive Legal and Democratic Services, the Executive Member for Highways and Transportation, and the Executive Member for Finance, subject to the scheme being affordable, and acceptable terms and conditions being received, and for a satisfactory TRO and public engagement outcome the scheme to be implemented.”

3. The appellant, A & E Baines Ltd, made an application to quash the Orders pursuant to paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (“ the Act ”). There were five grounds, three of which are material to this appeal (and it is not necessary to refer to the others). One was that the respondent had no authority to proceed with the scheme, and so make the Orders, without public consultation to gauge public support for the proposals. A second was that it was unlawful for the respondent to make the four Orders in circumstances where it had not made a fifth traffic regulation order. A third ground was that the respondent’s consideration of the purposes for making the Orders and the factors referred to in section 122 of the Act was unlawful in that it included claims which were unsupported by, or were contrary to the evidence, failed to take into account material considerations and was supported by inadequate reasoning.

4. Mr CMG Ockelton, sitting as a judge of the High Court (“the judge”) dismissed the application. The appellant has permission to appeal on three grounds. In summary, they are that the judge was wrong: (1) to hold that it was lawful to make the Orders in circumstances where additional public consultation or engagement had not occurred; (2) to conclude that it was lawful to make the Orders which implemented part of the revised scheme (a) without any certainty that the remainder of the revised scheme would be delivered by further traffic regulation orders and (b) while taking account of the benefits of the wider revised scheme which included traffic regulation orders which had not been made; and (3) to conclude that the respondent’s decision was not unlawful by virtue of the fact that it (a) relied upon conclusions unsupported by adequate evidence or contrary to available evidence (b) failed to take into account material considerations or (c) was unsupported by adequate reasoning.

5. It is important to bear in mind that the role of the court is supervisory. It is only concerned with ensuring that a public body is acting lawfully, that is, within the limits of its legal powers and in accordance with the relevant procedures and legal principles governing the exercise of its decision-making functions. It is for the relevant public body to take the decision. A decision may raise matters of legitimate public debate, but they are not matters for the court to determine. In this case, the court is only concerned with the legal issues raised by the appellant as to whether the respondent local authority has acted lawfully. It is not the role of the court to assess the underlying merits of the revised scheme. The appropriate arrangements for the regulation of traffic in Harrogate is a matter for the respondent local authority to decide. The court’s role is simply to ensure that those decisions are taken lawfully. THE LEGAL FRAMEWORK The Act

6. Section 1 of the Act provides that a traffic authority for a road outside London may make a traffic regulation order. The traffic authority in England (outside Greater London) is the county or metropolitan district council (section 121A).

7. Section 1(1) provides that: “(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a “traffic regulation order” ) in respect of the road where it appears to the authority making the order that it is expedient to make it— (a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or (b) for preventing damage to the road or to any building on or near the road, or (c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or (d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or (e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or (f) for preserving or improving the amenities of the area through which the road runs; or (g) for any of the purposes specified in paragraphs (a) to (c) of sub section (1 ) of section 87 of the Environment Act 1995 (air quality).”

8. Section 2 of the Act provides that a traffic regulation order may make any provision “prohibiting, restricting or regulating, the use of a road or any part of the width of a road, by vehicular traffic”. Section 5 provides that a person who contravenes a traffic regulation order is guilty of an offence.

9. Section 122 of the Act provides that the functions shall be exercised for particular purposes and having regard, so far as practicable, to certain matters. It provides so far as material that: “(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act , so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in sub section (2 ) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off [ the highway or, in Scotland, the road . (2) The matters referred to in sub section (1 ) above as being specified in this subsection are— (a) the desirability of securing and maintaining reasonable access to premises; (b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run; (bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy); (c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and (d) any other matters appearing to the strategic highways company or the local authority be relevant. ”

10. Section 16 of the Traffic Management Act 2004 (“ the 2004 Act ”) provides that it is the duty of a local traffic authority to manage their road network with a view to achieving, so far as reasonable having regard to other matters, certain objectives. Those include securing the expedition movement of traffic on the authority’s road network. The Regulations

11. Regulations have been made governing the making of traffic regulation orders. These are the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the Regulations”). The Regulations deal with the procedure for making an order. Before doing so, the authority must consult with specified bodies. It must publish a notice of proposals and there is provision for persons to object to the making of an order (see Regulations 7 and 8). The authority must consider all objections before making an order (Regulation 13).

12. Regulation 16 deals with the making and the bringing into force of a traffic regulation order. It provides that an order shall not be made before the last day for objections under Regulation 8 has passed and cannot be made more than two years after the date on which a notice of proposals to make the order were published (Regulation 16(1) and (2)). No provision of an order shall come into force before the date on which the authority intends to publish a notice of the making of the order (Regulation 16(3).

13. Regulation 17 deals with matters occurring after the making of the traffic regulation order. Amongst other things, the authority must within 14 days of making the order publish a notice called a “notice of making” stating that an order has been made and containing certain prescribed particulars (Regulation 17(2)). Those particulars include the “date on which the order comes into force” (see paragraph 11 of Schedule 1 to the Regulations). Regulation 20 provides for revocation and re-enactment of an order. That regulation applies where certain conditions are satisfied including that an authority failed to comply with Regulation 17(2) or was unable to do so (e.g. where it failed, or was unable, to provide particular of the date when the order was to come into force).

14. Regulation 18 provides that where a traffic regulation order relating to any road has been made, the order making authority shall take such steps as are necessary to secure “before an order comes into force, the placing on or near the road of such traffic signs” as the authority considers requisite for “securing that adequate information as to the effect of the order is made available to persons using the road”. The enforceability of a provision of a traffic regulation order, that is the prosecution of an individual for contravention of a traffic regulation order, requires that adequate notice of the restriction has been given: see R (Herron and Parking Appeals Limited v The Parking Adjudicator and others [2011] EWCA Civ 905 especially at paragraphs 35 to 36. THE FACTUAL BACKGROUND The revised scheme for Harrogate

15. The respondent has been considering changes to traffic in a number of towns including Harrogate. There have been several rounds of consultation on a number of draft schemes. For present purposes, it is necessary only to note a report (“the 2023 report”) made to the respondent’s executive on 28 November 2023 on what was described as “descoped” proposals, that is reduced proposals. They are known as the Revised Harrogate Station Gateway Scheme (and referred to in this judgment as the revised scheme).

16. The summary in section 2 of the 2023 report said that the report provided the executive with an update on the Transforming Cities Fund (referred to as TFC) projects in Skipton, Selby and Harrogate (this judgment is only concerned with Harrogate) and “seeks approval of the revised final project scopes”. It summarised the background and the position as at November 2023. At paragraph 4.13, it described the elements of the original scheme for Harrogate. Paragraph 4.14 says that officers considered amongst other things, a revised scheme. Paragraph 4.15 says: “Elements that might be included in a revised scope scheme have been discussed with local members:  Pedestrian improvements to Lower Station Parade and Station Parade, including paving, level crossing points and signal junction improvements.  The possibility of a south-bound segregated cycle on Station Parade.  Lower Station Parade bus lane.  Public realm improvements to One Arch.  Public realm improvements to Station Square southern side (retaining existing high quality paving adjacent Victoria shopping centre side).  Cycle parking facilities at Harrogate Station – if agreed with Network Rail and Northern.  Linked sequencing of the traffic signals between the Ripon Road/King’s Road and the Station Parade/Victoria Avenue junctions.”

17. Section 5 of the 2023 report then dealt with the consultation that had been undertaken and the responses received. Paragraph 5.1 noted that officers continued to “engage and consult” with the Department for Transport and the West Yorkshire Combined Authority (“the WYCA”). In view of the arguments advanced on the appeal, it is necessary to set out paragraph 5.2 which said: “5.2. The content of the revised scope scheme has been the subject of informal discussions with the ACC and, should the decision be taken to take forward a revised scheme for Harrogate it is proposed that these continue to ensure that the design is supported locally. A period of public engagement, as well as any TRO public consultation required, is also proposed to understand the level of public support. And the outcome of this would be reported to ACC.”

18. Section 8 dealt with next steps. It provided that if approved, the next step for the three projects “is to complete the detailed designs as informed by descoping options outlined above” and submit them to relevant bodies. It anticipated that a full business case, setting out the case for funding, would be submitted to WYCA for decision. Contractors would be engaged. The report then dealt with an assessment of the financial implications. It noted that the WYCA and the Department of Transport had confirmed that they would in principle provide the funding for the three projects.

19. The conclusions at section 13 noted that a “decision is required whether to progress with three reduced-scope projects or whether to commit to fewer projects and reallocate funding within the programme”. The recommendations were that the executive approve all three options, described as the descoping options, for Selby, Skipton and Harrogate. The executive resolved to accept those. The resolution, so far as it concerns Harrogate, is set out at paragraph 2 above. The making of the Orders

20. Steps were undertaken with a view to making the Orders. A report (“the 2024 report”) was provided on 13 December 2024. Its purpose was to advise on the outcome of the public consultation and statutorily required advertisement of proposals to make traffic regulation orders and to obtain a decision on “whether to proceed with the making of the Orders in view of the comments received”.

21. The 2024 report set out the background in the following terms: “2.1 North Yorkshire Council has been awarded funding from the Government’s Transforming Cities Fund (Harrogate TCF) to deliver an infrastructure project that will improve sustainable travel in Harrogate Town Centre. The proposals will: • Provide better bus access into the bus station with a new bus lane on Station Parade, • Introduce cycling infrastructure between Bower Road and Station Bridge, • Improve pedestrian accessibility with raised table crossing points, • Improve pedestrian and vehicle movements with linked signals, • Retain two motor vehicles lanes between the bus and railway stations, and • Improve the public realm at One Arch and Station Square 2.2 2.2 It is necessary to introduce new Traffic Regulation Orders (TROs) to allow for these improvements. It is common practice for the TRO process to be commenced ahead of major projects receiving full funding to ensure that necessary measures can be enabled so that the project will function appropriately. At full business case stage (January 2024) the West Yorkshire Combined Authority (WYCA) appraised the scheme and set out a condition that, prior to ‘approval to proceed’, the council must ‘provide a progress update on the TRO consultation’. Until this condition is satisfied there remains a risk of uncertainty in relation to the confirmation of the funding. It is, therefore, prudent to update on the consultations carried out in relation to the proposed TROs’ and to seek decisions where appropriate in order that reassurance can be provided to WYCA that this element is progressing in tandem with the project and funding approvals.”

22. The 2024 report set out six proposed orders. They were the four Orders that are the subject matter of this appeal. The fifth proposed order dealt with the prohibition of waiting and loading restrictions. It was proposed to modify the fifth proposed order in the light of representations received and to correct certain errors. The sixth proposed order concerned prohibiting traffic on certain streets. No decision was sought on that proposed order and the 2024 report did not deal with it further. The 2024 report then summarised the outcome of the consultation and public advertisement that had been carried out in accordance with the Regulations and set out the officers’ response.

23. Section 6 of the 2024 report dealt with the justification for the orders sought. The report noted the proposed orders had to satisfy a qualifying purpose and it had to be expedient for the respondent to make them in the light of the objections that had been received. It said that as part of this process, the respondent had to consider its duty under section 122 of the Act . It noted that the Orders “will seek to deliver a scheme which will provide improved infrastructure for those walking, cycling and for bus passengers”.

24. The 2024 report set out the purposes set out in section 1 of the Act for which orders could be made. It considered all five proposed traffic regulation orders, identifying the purposes each would serve. By way of example, the first Order, which would introduce a southbound bus lane, would separate buses and bicycles from general traffic, reducing the risk of accidents. It would improve journey times for buses travelling to the bus stations. Similar considerations applied to the second proposed order. The same exercise was undertaken for the third and further orders which imposed restrictions on turning. Finally, that exercise was done for the fifth proposed order, noting that it would amend on-street parking arrangements and revoke previous traffic regulation orders, and would prevent vehicles parking in areas and at times that could impact on the flow of traffic and potentially create a danger to other persons or traffic. It considered that all five proposed orders were for a purpose set out in section 1 of the Act .

25. The 2024 report then dealt with the question of whether it was expedient to make the orders. It concluded at paragraph 6.2 that it would be as: “The benefits of the proposals are that they will create improved infrastructure for all road users by making better use of available highway space in the interests of balancing the needs of all vehicles (including buses) pedestrians and cyclists. Currently the highway arrangements prioritise the private motor vehicle above other users – to re-balance this priority, mitigation is also required to maintain the expeditious safe and convenient movement of these private vehicles through the network and the proposals for a bus lane, cycle lane and improved pedestrian facilities seek to achieve this re-balancing.”

26. It then assessed the advantages and disadvantages at paragraph 6.4 and said: “Considering the advantages and disadvantages, Officers consider it would be expedient to make the TROs on the grounds noted above. Furthermore, Officers consider that the proposed measures and recommendations set out in this report will support local travel improvements and wider strategic aims in accordance with the aims of the Transforming Cities Fund initiative. It will enable the Council to comply with its duty under Section 122 (1) of the Road Traffic Act 1984 to exercise their functions as road traffic authority to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians), as set out in the Statements of Reasons for proposing to make the Orders attached to this report (see Appendix C). This includes consideration of all the specific factors set out at s.122 (2) including the desirability of securing and maintaining reasonable access to premises (which officers are satisfied that the TRO would). The proposed measures will also enable the Council to carry out its network management duty under Section 16 of the Traffic Management Act 2004 to secure the expeditious movement of traffic on the authority’s road network and both the more efficient use and the avoidance, elimination or reduction of road congestion or other disruption to the movement of traffic on their road network.”

27. The 2024 report then dealt with a number of other topics. Those included climate change. It noted that as “with all highway infrastructure projects, the embodied carbon impact from construction derives an overall negative impact however, in this case the council is seeking to offset that impact by encouraging a shift to more sustainable modes of travel”. It referred to an appendix to the report that contained a copy of a climate change impact assessment.

28. The recommendations were that the four Orders be approved and that the fifth proposed order be modified in accordance with the process set out in Regulation 14 of the Regulations.

29. The four Orders were then made on 10 January 2025. Article 2 of each Order provided that the Order “shall come into operation on 24 January 2025”.

30. We were told that the fifth order was subsequently modified and made. We were also told that a statutory application to quash that order had been made. The judgment

31. The judge considered first the ground that under the terms of the November 2023 resolution, the respondent had no authority to make the Orders without further public consultation. He rejected this ground saying at paragraph 33 of his judgment that: “…..First, the making of the TROs is one of the matters to which the Scheme is subject: this submission reverses that position by arguing the making of the TROs is itself subject to some (re-) authorisation of the Scheme. Secondly, following extensive consultation before November 2023, the Resolution does not say or imply that there will be further consultation before it is implemented. The phrase used is 'a satisfactory TRO and public engagement outcome'. 'Engagement' is not consultation: engagement can consist solely in publicity and communication, and the word (even when associated with 'successful' does not to my mind imply any of the obligations arising out of consultation. In particular, the decision to require 'engagement' does not begin to suggest that the Scheme or its implementation are in merely provisional terms, ready for a further round of consultation in which the opponents of it will have another opportunity to repeat their points and the defendant will have a further duty to reconsider them. Thirdly, any points about incompleteness of consultation before adopting the Scheme belong, and belong only, to a challenge to the adoption of the Scheme in November 2023, and could have been made only by an application for Judicial Review, made promptly and in any event no later than three months thereafter. Fourthly, in the circumstances of this case there is no basis for the slightest suggestion that anybody had a legitimate expectation of further consultation. The decision on the Scheme had been made, and anybody who reads the Resolution can see exactly what the next steps will be.”

32. The judge next considered the argument that the four Orders could not lawfully be made unless the other orders were made. He rejected that argument. He concluded that the sixth order was not necessary to the revised scheme. The fifth order was in the process of being made. There was nothing irrational, or unlawful, about the way in which the respondent was proceeding.

33. The judge also dealt with the ground that has become ground 3 of the appeal. He concluded that the respondent was entitled to act on the material before it. He considered that the respondent had addressed the material issues and he could not “identify any matter genuinely material to whether the TROs should have been made that ought to have been addressed in the decision but were not” (See paragraph 66 of his judgment). The judge therefore dismissed these, and the other grounds, and dismissed the application. GROUND 1 – WHETHER CONSULTATION REQUIRED Submissions

34. Ms Hutton for the appellant submitted that the November 2023 resolution properly interpreted required there to be consultation on the proposals contained in the revised scheme before the Orders were made. The Orders were unlawful as they had been made before that public consultation had been carried out. She submitted that the resolution, properly understood, required public consultation before the revised scheme was implemented. As a matter of law, the Orders implemented the revised scheme in whole or in part. The resolution required that the public consultation be undertaken before the revised scheme was implemented, i.e. before the Orders were made and came into force. She submitted that that interpretation was supported by the fact that the resolution did not approve a revised scheme, but only the development of a revised scheme. It had to be read with paragraph 4.15 of the 2023 report which described “[e]lements that might be included in a revised scheme” and noted that one of the matters referred to was the “possibility” of a south-bound cycle lane. Ms Hutton further submitted that the requirement that there be a satisfactory public engagement outcome meant that there had to be public consultation on the revised scheme otherwise it would not be possible to gauge the level of public support. That was supported by paragraph 5.2 which indicated that the purpose of public engagement was to ensure public support. She submitted that the resolution gave rise to a legitimate expectation of consultation on the proposals for a revised scheme.

35. Mr Riley-Smith for the respondent submitted that a fundamental flaw of the appellant’s approach was to consider that the Orders implemented the revised scheme. Rather, the November 2023 resolution showed that a satisfactory outcome in terms of making the Orders was one of the preconditions which had to be satisfied before the revised scheme could be implemented. Discussion Approach

36. The issue here concerns the proper meaning of the November 2023 resolution. That involves ascertaining the meaning which the resolution would convey to a reasonable person reading the resolution as a whole and in context. In the context of interpreting words in a public document, namely conditions in a planning condition, the Supreme Court observed at paragraph 34 of the judgment in Trump International Golf Club Scotland Ltd v Scottish Ministers [20216] UKSC 25 ; [2016] 1 WLR 85 that this: “is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”

37. In the present case, the resolution is a decision by a public body exercising public functions and authorising certain action. To that extent, it is different from a contract made between two or more parties, or a document such as a planning permission which is intended to give rise to rights. Nonetheless, the approach in Trump International is, in my judgment, applicable. In terms of the relevance of other documents, it may be appropriate to refer to the 2023 report. The recommendations emerged from, and were contained in, that report. Some of the terms of the resolution can only be understood by reference to that report. The meaning of the resolution

38. First, the resolution did approve what was described as the descoping options, with approval of the details being delegated to a corporate director acting in consultation with the relevant executive member. The descoping options were the elements of the revised scheme identified in paragraph 4.15 of the 2023 report. It is clear that the executive was approving the revised scheme, i.e. it was deciding that the scheme should be undertaken. It was not approving a possible set of options for further consideration, possibly following a further round of consultation. That is clear from the terms of the resolution itself read as a whole. The executive resolved that “the following be approved”. It described what it was approving – the descoping options for Harrogate (that is, the revised scheme). It provided that the approval of the details of the scheme be delegated to identified persons.

39. Secondly, the implementation, or bringing about, of the revised scheme, required funding. That is why the executive resolved also to approve the preparation and submission of a full business case. The relevance of that can be understood from the 2023 report: that was a necessary step to obtaining approval for funding from the WYCA.

40. Thirdly, in the event that the full business case was approved by the WYCA, then a number of conditions had to be satisfied for the revised scheme to be implemented. They included (1) acceptance of the funding offer (delegated to named individuals) (2) the scheme being affordable (3) acceptable terms and conditions being received (reading the 2023 report that would seem to be a reference to the terms to be agreed with contractors but it is not necessary to decide this issue) (4) there being satisfactory traffic regulation orders and (5) satisfactory public engagement outcome.

41. Each of those matters was something that had to occur before the scheme was implemented. The resolution does not lay down a sequence within which these events must occur. In particular, it does not provide that there must be a satisfactory “public engagement outcome” before traffic regulation orders are made. One may occur before another or they may occur in tandem.

42. I do not accept Ms Hutton’s submission that the revised scheme was implemented as a matter of law and so the resolution has to be interpreted as meaning the public engagement must occur before the Orders were made. The issue is the meaning of the resolution. When it refers the matters that must be dealt for “the scheme to be implemented”, it means the things that must occur before the scheme can be brought about. That will include a number of matters including, notably, approval of design details, funding, and legal authority to bring about the changes to the regulation of traffic. The resolution was not focussing on one matter only, the legal authority that would be needed to change the traffic arrangements.

43. That is sufficient to deal with the first ground of appeal. Furthermore, however, I would not interpret the resolution in any event as requiring a consultation exercise on the revised scheme of the kind that is familiar in public law, that is the publication of proposals, time for the public to make representations and consideration of those representations. The words used are “public engagement” not consultation. Public engagement may take a number of forms. Nor does paragraph 5.2 of the 2023 report assist Ms Hutton. It is clear that the report (at paragraph 5.1 and 5.2) differentiates between different forms of involvement by different people. It refers to engagement and consultation with particular bodies in paragraph 5.1. It uses the words public engagement in contrast to the consultation required for the making of traffic regulation orders. It refers to public engagement being used to understand the level of support. It is also right to bear in mind the revised scheme was itself the result of a number of rounds of consultation. That revised scheme was approved. It was not the case that the resolution read, in context, was contemplating consultation on whether the revised scheme should be approved. Furthermore, the making of the traffic regulations would themselves be subject to a requirement to consult with particular bodies and to publish proposals and receive objections. None of that indicates the reference to a satisfactory “public engagement outcome" meant there had to be a public consultation exercise on the revised scheme.

44. I would also add that the resolution could not on any reading be said to give rise to a legitimate expectation on the part of the public that there would be a further round of consultation on the revised scheme. The resolution would need to provide a promise to consult which was “clear, unambiguous and devoid of relevant qualification” (per Bingham LJ in R v Inland Revenue Commissioners ex p. MFK Unerwriting Agents Ltd. [1990] 1 WLR 1545 at 1569G-H). The resolution does not begin to provide a clear representation that there would be a consultation on the revised scheme.

45. For those reasons, I would dismiss ground 1.

46. For completeness, I note that submissions were made on possible distinctions between making a traffic regulation order, it coming into effect, and its enforceability in terms of the ability to prosecute individuals for breach. Furthermore, some submissions were made on the requirement that a notice of making the order had to include certain particulars, including the date on which the order was to come into force, whether that would be satisfied by stating that the order would come into force on the occurring of a specified event, and the consequences for the notice of making the order (and possibly, the order which had been made) of a failure to do so. Those issues do not, on analysis, arise for decision in this case. This ground of appeal turns on the meaning of the resolution not the provisions governing the making of an order, and then the publication of that fact. They are better, and more appropriately, considered in a case where they need to be decided. GROUND 2 – WHETHER THE RESPONDENT COULD MAKE THE ORDERS WHEN THE FIFTH PROPOSED TRAFFIC ORDER WAS NOT YET MADE Submissions

47. Ms Hutton submitted that it was irrational, or otherwise unlawful, for the respondent to make the Order when there was no certainty that the fifth proposed order would be made and while taking account of the benefits of a revised scheme which included the fifth proposed order when those benefits were not certain. She submitted that certain parts of the revised scheme would conflict with existing traffic regulation orders if the fifth proposed order were not made, as it was that order that was meant to repeal traffic regulation requirements which would be inconsistent with the scheme (e.g. parking bays being available on part of the highway which was to be used by buses and cycles not cars). Further, either the fifth proposed order would have to be made (in which case the matter would have been predetermined) or if it were not made, the respondent would have to undertake the process of revoking the Orders.

48. Mr Riley Smith submitted that there was nothing irrational or unlawful in the circumstances about the way in which the respondent proposed to deal with the making of the Orders. Discussion and conclusion

49. The starting point is to bear in mind the position that the respondent had reached in December 2024. It considered whether to make the five proposed traffic regulation orders. A sixth, which was not material, was not considered for decision. It decided to make the four Orders. It did so against a background where the advice from officers was that all five proposed orders were being undertaken for a purpose permitted by section 1 of the Act . It was expedient to make all five orders and doing so would satisfy the duty in section 122 of the Act and other statutory obligations. The four Orders could be made immediately. The fifth proposed order – which dealt with parking and restrictions –was to be modified following representations and to correct errors, in accordance with the procedure for modification set out in Regulation 14 of the Regulations.

50. There is no legal provision preventing the respondent making the four Orders whilst modifying the fifth proposed traffic regulation order. It was not irrational for the respondent to do so. There was a reasonable prospect of the fifth order being modified, and then made. If, for some reason, that could not happen, and circumstances arose where the fifth proposed order was not made, the respondent may need to consider the implications for the four Orders that it had made and, theoretically, it may need to consider revoking the Orders. The choice of how to proceed was, essentially, for the respondent. There was nothing irrational about the way it proceeded in deciding to make the four Orders whilst undertaking the process of modifying the fifth proposed order.

51. I would dismiss ground 2. GROUND 3 – THE LAWFULNESS OF THE DECISION

52. Ms Hutton’s principal submissions in relation to this ground was that the officer’s report did not advise the decision-maker of four expert technical reports or work which had been carried out. Those were: a traffic modelling document which she submitted found that the proposals would lead to an increase in journey times and a disbenefit to general traffic; a road safety audit which she submitted raised safety concerns about the revised scheme; and a carbon assessment which she submitted concluded that would not be offset by a shift from vehicular traffic to cycling and bus use. Ms Hutton spent considerable time at the hearing going through what were sometimes parts of the documents referred to and highlighting certain words or phrases used. It is fair to observe that it was not always clear that the entire document was before the court, nor what the purpose of the document was, nor how some of the terms used were understood by the drafters of the document (as opposed to the forensic use that it was sought to put these terms to use on behalf of the appellant).

53. Mr Riley-Smith relied upon the proper approach to the making of traffic regulation orders identified by this court in Trail Riders Fellowship v Hampshire County Council [2019] EWCA Civ 1275 . He submitted that the respondent was well able to determine whether a revised scheme such as the one in issue in this case was appropriate. He submitted that the extracts from documents relied upon by the appellant were in fact taken out of context or, when read fairly, did not undermine the officer’s report. Approach

54. The proper approach to the process of making traffic regulation orders was considered by this Court in the Trail Riders case. That concerned a traffic regulation order made by a local authority which prohibited the use of mechanically propelled vehicles on three lanes, following the receipt of complaints by members of the public about drivers using off-road motor vehicles and motor cycles on the lanes. The reasons for making the order included the prevention of damage to the lanes and that the use to be prohibited made the lanes dangerous and impossible to use safely by other users. Longmore LJ, with whom Lewison and Coulson LJJ agreed, approved the following four principles (save the last part of the fourth principle which is not relevant to this case and which I omit from the summary): “26. The judge [2018] EWHC 3390 considered a number of first instance authorities and then summarised (para 37) the position with section 122 as follows: (i) the duty in section 122(1) when exercising functions conferred by the Act to secure the expeditious, convenient and safe movement of traffic extends not only to vehicles but includes pedestrians; (ii) the duty of securing the expeditious, convenient and safe movement of traffic is not given primacy but is a qualified duty which has to be read with the factors in section 122(2) , such as the effect on the amenities of the area and, in the context of making a traffic regulation order, with the purposes for this identified in section 1(1) of the Act ; (iii) the issue is whether in substance the section 122 duty has been performed and what has been called the balancing exercise conducted, not whether section 122 is expressly mentioned or expressly considered; and (iv) in the particular circumstances of a case compliance with the section 122 duty may be evident from the decision itself, … ”

55. Longmore LJ said this in relation to the balancing exercise to be carried out: “37. One must, of course, be clear what the relevant balancing exercise is. On the one hand regard must be had to the duty set out in section 122(1) so far as practicable “to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)”; as the judge points out (paras 37(i) and 44) it is significant that pedestrians are included. On the other hand, regard must be had to the effect on the amenities of the locality affected and other matters appearing to the traffic authority to be relevant ( section 122(2) (b) and (d)). This is not a particularly difficult or complicated exercise for the traffic authority to conduct. It is indeed difficult to imagine that a county's director of economy transport and environment will not be acutely aware of the county's obligations (so far as practicable) to secure the expeditious, convenient and safe movement of vehicular traffic. Part of that duty is inevitably a duty to consider any necessary repairs and that was one of the considerations expressly referred to but rejected as impracticable in Mr Sykes's report to Mr Jarvis and in section 3 of Mr Jarvis's own decision of 26 February 2018. Appendix C of Mr Sykes's report also expressly referred to the balance which needed to be struck between the beneficial enjoyment for motor vehicle drivers and what Mr Sykes called the disbenefits to the local community and the surrounding environment. These considerations amply justify the judge's conclusion that the section 122 duty was in substance fulfilled. I would therefore reject Mr Pay's second submission.”

56. In considering the adequacy of the 2024 report, the key question is whether, on a fair reading of the report as a whole, the members of the relevant decision-making body (here the executive) were materially misled on a matter bearing on their decision (see, for example, the observations of Lindblom LJ in R ( Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 , [2019] PTSR 1452 at paragraph 42). Similar observations were made by Sir Geoffrey Vos Chancellor at paragraphs 62 to 64, where he emphasised that a challenge should be based on some distinct and material defect in the report. The 2024 report

57. The issue was whether to approve traffic regulation orders which would provide that part of a road currently used for vehicle traffic would be reserved for bicycles and buses, and associated restrictions. I doubt that that was a decision which, in reality, called for expert technical evidence as argued below and suggested in the first part of the ground of appeal. It was a matter upon which officers took appropriate steps to ensure that they were sufficiently informed about the consequences and were able to advise the corporate director for environment and the executive member for highways and transportation who would, themselves, be familiar with the traffic issues in Harrogate.

58. The 2024 report itself was a clear analysis of the legal position, and the reasons why the proposed traffic regulation orders would satisfy one of the purposes set out in section 1 of the Act , why it was expedient to make the proposed orders, and how the balancing exercise under section 122 of the Act (and other statutory duties) fell to be carried out. The report could not, read fairly and as a whole, be characterised in any way as misleading or failing to give advice on the issues that had to be considered when deciding whether to make the proposed traffic regulation orders.

59. In considering the detailed submissions made by Ms Hutton on other documents, or extracts of documents, the proper analysis is whether that material demonstrated that the advice contained in the 2024 report was significantly or seriously misleading. The submissions made by Ms Hutton fell very far short of demonstrating that the report was misleading, still less that it was significantly or seriously so.

60. It is not necessary, nor would it be proportionate or appropriate, for a judgment on the law to consider the points made in detail. It is sufficient to note the following. So far as there is reference in one document concerned with modelling traffic at junctions to an overall disbenefit to general traffic users, the extract needs to be read as a whole and in context. The document notes that all the proposals that had been modelled would work within capacity, that the introduction of cycle facilities and junction improvements at the junctions modelled “would not have a significant impact on general traffic” and overall there was a general disbenefit. In so far as that reflects the fact that one lane is to be used for buses and bicycles, not general traffic, that may be correct. But as the 2024 report notes, the aim was to rebalance use of the infrastructure giving a degree of priority to cyclists and buses. There was nothing misleading in the report. Despite Ms Hutton’s efforts, using the report, extracts from the business case, and facts agreed for the hearing below, to persuade us that the picture in relation to bus times was less rosy than the 2024 report suggested, I do not consider that this Court could begin to reach such a conclusion on the matters referred to. The report notes the safety benefits of separating cyclists and buses from general traffic. It notes that it would improve journey times for buses travelling to the station (because they will be using the bus lane). The suggestion that there might be other times of the day, or possibly other locations, when, perhaps, bus journeys might be slower does not begin to suggest that the officers’ advice was misleading.

61. So far as safety is concerned, Ms Hutton relied on a document called road safety audit. That identified an issue with one junction where cyclists could either turn left or proceed straight on, and recommended additional signs to ensure that drivers were aware that cyclists were expected to proceed straight on. Ms Hutton relied upon three pages of another document (it is not clear if this is the entire document and there appears to be no actual evidence before the court as to what that document is). That document notes the improvement in terms of safety for pedestrians, cyclists and bus users and refers to the positive impact the scheme is expected to have, but outlines what the authors consider as one critical unresolved issue. That is the fact that at one junction cyclists could proceed straight on. The document records that the officers did not consider the suggested recommendations made to address to be feasible. It is not possible to treat that information (dealing with one aspect of the revised scheme where different views exist) as justifying a conclusion that the advice given in the 2024 report on safety was in any way misleading.

62. On the fourth issue, carbon emissions, the report relied upon by Ms Hutton, which appears to relate to the whole scheme and not merely the impact of the traffic regulation orders, concludes that there would be an increase in carbon emissions mainly associated with the construction and repair. although it also recognised an adverse carbon impact from changes to general traffic flow caused by the scheme. It concluded, nevertheless, that this was justified as the scheme accomplished the overarching vision for the development, and enhanced sustainable transport options which aligned with necessary strategic outcomes to achieve decarbonisation pathways in the transport sector moving forward. That is not dissimilar from the advice contained in the 2024 report. It does not establish that the 2024 report was misleading in this respect.

63. In so far as Ms Hutton was suggesting that there were material issues that had to be addressed, including road usage, safety, and climate change, those were considered. If, as appeared on occasion to be the case, Ms Hutton was submitting that the (extracts of) documents on which she relied were mandatory material considerations and had to be drawn specifically to the attention of the decision-maker, I disagree. These documents were not so obviously material that it would be irrational for the decision-maker to reach a decision without those documents being drawn to the attention of the decision-maker, which is the appropriate test: se R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC; [2021] PTSR 190 at paragraphs 116 to 121, and Keep Chiswell Green v Secretary of State for Housing and others [2025] EWCA Civ 958 at paragraph 82. In truth, this ground of appeal is to be addressed through the prism of whether the relevant report could be said to be significantly or seriously misleading and it was not. It is not one that falls to be addressed through the principles governing the need to have regard to obviously material considerations.

64. I would dismiss ground 3. CONCLUSION

65. I would dismiss the appeal. The respondent was not obliged to carry out a consultation exercise on the elements of the revised scheme before making the Order. It was not unlawful or irrational to make the four Orders whilst modifying the fifth proposed traffic regulation. The advice to officers properly dealt with the legal issues and was not in any respect misleading, still less significantly or seriously so. LORD JUSTICE ZACAROLI

66. I agree. LORD JUSTICE DOVE

67. I also agree.