West Dulwich Action v LB Lambeth: disregarding submissions from LTN opponents

This is Blog no 101

According to GB News, “Low Traffic Neighbourhoods could be scrapped as campaigners score High Court victory .”

Well, not quite. But the case of  West Dulwich Action Group v London Borough of Lambeth

is interesting and has implications for public engagement staff responsible for consultations of all kinds.

BBC Radio 4’s TODAY programme on 9th May covered the case and broadly summarised it quite well. In essence this was about local businesses and residents objecting to a proposed Low Traffic Neighbourhood (LTN) scheme and arguing that the decision was unlawful because of failures in the consultation process.

There had been three consultations. The first, lasting two months in 2022 was general in nature but led to a second, shorter (25 days) non-statutory consultation on specific proposals for a Traffic management scheme. A third consultation – this time a statutory one -  lasted 21 days but was limited to ‘statutory consultees’. Six weeks later the Experimental Traffic Order was made, and shortly after began a further and statutorily required six month consultation whilst the scheme was in operation.

The legal challenge claimed that the second public consultation was so flawed that it was unlawful.                  It rested on several failures that affected consultees’ ability to respond. The questions were “framed in in such a way that respondents could not object to the proposals in principle”. Campaigners alleged that no baseline traffic data had been provided; neither had anticipated impacts been published. They also criticised a drop-in session which the Judge described as “not a happy event”. Officers became so upset by the hostility of some attendees that they abandoned the event at lunchtime so that some of those who came along were unable to participate!

Experienced consultation practitioners are well aware that these are some of the the inevitable pitfalls that lie in wait for the careless or inconsiderate, and they can easily destroy the credibility of public engagement exercises. But years of Judicial Reviews have established that it takes very significant failures to make a consultation unlawful. Ever since 2007 and the Greenpeace case, the accepted principle has been that a consultation is lawful unless ‘something has gone clearly and radically wrong.” On this test, Lambeth’s mistakes were not fatal.

HOWEVER, there is a twist in the story. 

When the third – and statutory consultation was undertaken, the campaigners prepared a comprehensive dossier, tabled a 53-page presentation and showed it to some officers. Remember – they were not ‘statutory consultees’, and whereas the Gunning Four principle would oblige the Council to give conscientious consideration to the output of a consultation, the presentation did not form part of the consultation output.

With such an obviously controversial proposal, Lambeth could and arguably should have made the third and statutory consultation open to the public. But It was legally permissible to restrict it to the nine identified ‘statutory consultees’. Three responded by stating they had no objections; the remaining six failed to respond. It was whilst this consultation was on-going that the presentation was submitted. Judge Tim Smith described it as ‘impressive’ and ‘highly relevant’ to the officers deciding about the Traffic Order. Sadly, there was no evidence that it had been properly considered, and the Court accordingly found for the claimants.

But on what basis? Gunning Four did not apply – as this was not consultation output. It was a separate submission – tabled simultaneously to the "statutory consultees" consultation but not part of the consultation process.

Here the Judge – Tim Smith – acting as Deputy High Court Judge - quoted a 2019 case on entirely different matters (Stannard v Crown Prosecution Service) where Lord Hickinbottom had said

             “If an affected person sends written representations to … an authorised person with a reasoned case

              …, on ordinary public law principles, the authorised person will have to consider those

              representations when considering the exercise of his discretion …”

As the 53-page presentation had not been considered, the claimants won their case.

If this judgment holds, (and one respected firm of solicitors has already cast doubt on this - see here), there are significant implications for those running consultations. It might mean that – in addition to analysing the output data emerging from a consultation, it might be necessary to monitor what else may have been submitted to the potential decision-makers around the same time … and ensure they have been considered. Maybe let's call them 'peripheral submissions'. In these days of extensive social media, this is potentially a huge open-ended commitment, and I feel sure it would be limited in some way or another.

It has been best practice for some years to carefully consider petitions submitted during the timeframe of a consultation. Representations by Members of Parliament or maybe by local authorities might also usually be included in briefings given to Councillors or other public sector decision-makers. Beyond that, it is not clear how far the West Dulwich precedent might apply.

It is also worth noting that this was a case of several years’ opposition to a controversial scheme and where the Council probably felt it had heard all the arguments. It wrongly assumed that the 53-page presentation added little to what it already knew. This was a mistake.

The real takeaway from this case is that measures such LTNs need sensitive and effective consultation and diligent steps to secure as much consensus as possible. Poor consultation practices, avoidable mistakes and an arrogant reluctance to listen to opponents only serve to antagonise communities and encourage legal challenges.

Far from being a sign that the tide is turning against LTNs, this case merely illustrates the need for good consultation. When well-designed and with community support, there is no reason to question their relevance or popularity.

GB News was well wide of the mark.

Rhion H Jones
May 2025