The first instance decision in Trail Riders Fellowship v Hampshire County Council was noted in this Bulletin on 11 December 2018. An appeal has now been dismissed: (2019) EWCA Civ 1275. Sir Ross Cranston’s statement of the law was approved, save for the last part of proposition (iv). Longmore LJ said that there does have to be actual evidence that the balancing exercise required by Section 122 has been, in substance, conducted. It cannot be merely a matter of inference from the status of the decision-maker.
At paragraph 40, Longmore LJ summarised the approach which should be adopted by traffic authorities in considering whether to make a TRO:-
“1. the decision-maker should have in mind the duty (as set out in section 122(1)of the 1984 Act) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) so far as practicable;
2. the decision-maker should then have regard to factors which may point in favour of imposing a restriction on that movement; such factors will include the effect of such movement on the amenities of the locality and any other matters appearing to be relevant which will include all the factors mentioned in section 1 of the 1984 Act as being expedient in deciding whether a TRO should be made; and
3. the decision-maker should then balance the various considerations and come to the appropriate decision.”
Longmore LJ added:-
“This is not a particularly difficult or complicated exercise nor should it be.”
Lewison LJ said:-
“49. I agree with Longmore LJ that ground 1 fails because in substance Hampshire performed the balancing exercise required by section 122. In my judgment the statutory requirement is capable of being fulfilled whether or not the decision-maker knows that the requirement exists. …
50. Like Longmore LJ, I do not agree with the judge’s view at [37] (iv) that the fact that the decision has been taken by a specialist officer enables the court to draw the inference that he in fact knew of the statutory duty, when all the evidence points to the opposite conclusion.”
Coulson LJ also agreed.