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15 May 2025
In its decision issued last week (West Dulwich Action Group v London Borough of Lambeth[1] ), the High Court determined that the London Borough of Lambeth (“Council”) acted unlawfully in establishing an experimental low traffic neighbourhood (“LTN”) in Dulwich, South London.
The Court’s decision does not limit a local authority’s ability to establish LTNs. However, it contains valuable lessons for public authorities when undertaking a consultation, including – decisively in this case – the requirement to conscientiously consider consultation responses in making a decision.
In this article, we summarise the case and the main lessons for public authorities when running public consultations.
The case concerns a challenge against the Council’s decision to make two experimental traffic orders under the Road Traffic Regulation Act 1984 (“ETOs”) to establish the experimental LTN, with one ETO restricting vehicular access, and the other ETO restricting parking.
The ETOs, approved on 6 August 2024, aimed to limit through-traffic and manage parking as part of a wider “West Dulwich Street Improvements” scheme (“Scheme”).
The Council conducted its consultation (and wider engagement) on the Scheme and ETOs in several stages. In this article, we focus on the following stages which were in contention.
The non-statutory consultation
In April/May 2023, the Council conducted a non-statutory consultation on three related proposals, including the Scheme (“non-statutory consultation”). This consisted of:
Residents and businesses in the area were posted letters, which contained information on the proposals and how to make a submission.
To avoid more than one response per household for online submissions, submitters wishing to use the online submission portal were required to enter a unique reference number (“URN”), which was printed on each envelope sent to each residence / business.
6 December letter and first Council Report
On 6 December 2023, the Rosendale Road (Central) Residents’ Association (“RRCRA”) wrote a letter to the Council criticising the consultation and stating that the consultation was unlawful (“6 December letter”).
On 16 February 2024, the Council published an officer’s report (“OR1”) recommending that the Council proceed to the next stage of the Scheme and undertake statutory consultation.
OR1 listed consultation responses and other evidence considered by Council officers, however, this list did not include the 6 December letter.
The statutory consultation
In May and June 2024, the Council undertook a statutory consultation under the Local Authorities Traffic Orders (Procedure) Regulations 1996 (“Regulations”).
The Council did not consult the Claimant or the RRCRA, as it did not consider that either party was required to be consulted under the Regulations.
The 3 June meeting with the Claimant Group and OR2
On 3 June 2024, the Claimant had an online meeting with the Council, and during the meeting the Claimant presented a 53-page presentation document to the Council outlining the Claimant’s concerns (“53-page presentation”).
At the meeting’s conclusion, Council officers agreed that they would circulate the 53-page presentation to relevant Council officers, and to hold a follow-up meeting.
The Council subsequently issued a second officer’s report (“OR2”), recommending that the Council make the ETOs.
OR2 advised that it considered responses from the statutory consultees, noted these responses, and also noted and appended the 6 December letter. OR2 did not advise that the 53-page presentation had been considered.
Following consideration of OR2, the Council decided on 31 July 2024 to make the ETOs.
The Claimant advanced three grounds of challenge, two of which concerned the Council’s consultation (the third ground, regarding the unlawfulness of the decision itself was dismissed). For the purposes of this article, we focus only on the parts of the claim concerning the Council’s consultation.
The alleged procedural failures
The Claimant advanced a number of wide-ranging reasons for why the consultation process was unfair. This included the following allegations:
The Court concluded that “some of the elements of consultation could undoubtedly have been improved upon”[2].
However, the Court emphasised the high threshold that must be satisfied in order for any alleged unfairness to be unlawful.
Following the judgment in R (J L and A T Baird) v Environment Agency[3] (approved in R (Clifford) v Secretary of State for Work and Pensions[4]), the threshold required the Court to make a finding that “something has gone clearly and radically wrong with the process as a whole”. The Court noted “that hurdle is undeniably a high one”[5] and concluded that this hurdle was “clearly not” satisfied.
The alleged substantive failures
The Court then considered the Council’s substantive consideration of responses to its engagement and consultation when reaching a decision on the ETOs.
The Claimant argued that in making its decision the Council failed to consider (i) the 6 December letter (which was noted in OR2 but not OR1), and (ii) the 53-page presentation (which not noted in OR2).
The Court accepted that the following guidance in Stannard v Crown Prosecution Service applied in this case:[6]
“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 …”
The Court concluded that the 6 December letter was appropriately considered in OR2, as “it distilled from the 6th December letter 12 separate “issues” and it responded to all of them”.
However, the Court found an unlawful failure by the Council due to its failure to consider the 53-page presentation in its decision-making.
While the Council provided evidence that the 53-page presentation was shared with Council officers, none of these officers were the authors of OR2, and OR2 itself did not refer to the 53-page presentation at all.
The Court noted that the 53-page presentation was materially different to the 6 December letter; it included more detailed and up to date information and fresh information on some topics such as accident data for roads within the zone affected by the Scheme. The material was, therefore, “highly relevant” to the decision on the ETOs.
The Court accordingly concluded that the 53-page presentation was a “material consideration” and that “the failure to have regard to it was a serious failing”. The Court concluded that this failure was unreasonable in the Wednesbury sense, and accordingly unlawful.[7]
Although the Court determined that the Council acted unlawfully, it has reserved its decision on relief, which will be made following consideration of further submissions form the parties. The ETOs, which commenced in August 2024 therefore remain valid – for now.
The Court’s decision serves as a reminder that while a public consultation process has to be fair, this does not require the consultation to be free of fault.
A claimant alleging unfairness will need to establish that something has gone clearly and radically wrong, and the courts will be slow to reach such a conclusion.
The decision also provides a useful reminder for public authorities (and in particular local authorities) who frequently engage with interest groups on proposals of public interest.
Where an authority actively engages with interest groups, and receives information from them on the proposals, it will likely have to consider the information provided in its decision-making.
However, we question whether the guidance in Stannard (quoted above) should apply in every case to require decision-makers to consider all written representations that “make a reasoned case”.
For example, where an authority decides to run a targeted consultation only, and only consults certain classes of people, or people within a certain area, we do not think the Stannard guidance would necessarily apply to require the authority to consider representations made by people who were not captured by the targeted consultation.
This article is for general awareness only and does not constitute legal or professional advice. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk.
[1] [2025] EWHC 1111 (Admin) (“Judgment”).
[2] Judgment at [111].
[3] [2011] EWHC 939 (Admin).
[4] [2025] EWHC 58 (Admin).
[5] Judgment at [97] and [99] and [111].
[6] [2019] 1 WLR 3229 at [45].
[7] Judgment at [125].
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