We have seen a plethora of new legislation introduced by the Government in response to the coronavirus (COVID-19) pandemic. We are now moving gently in to the next phase of the Government's approach to easing out of lockdown and encouraging people back to work. There are, naturally, concerns about how social distancing can be achieved on public transport. In an effort to avoid the traffic congestion which would follow if we all choose to use our cars, and as part of a wider well-being initiative, we are being encouraged where possible to walk or cycle to work.
Enabling this requires some thought for those authorities who have road traffic/highways responsibilities. As part of this, on 9 May the Government issued additional statutory guidance under section 18 of the Traffic Management Act 2004 (the Act). This applies to all local traffic authorities (LTAs) in England, who shall have regard to this guidance to deliver their network management duty under the Act. It is effective from the date of publication and is to be reviewed after three months.
The new guidance supplements the original Network Management Duty Guidance published in November 2004, providing advice on how to manage roads to allow the social-distancing required to enable safe movement during the coronavirus pandemic.
Local authorities play a key role in traffic management. While the Highways Agency is responsible for the national motorways and trunk roads in England, local roads, comprising 97% of the network, are the responsibility of 116 metropolitan and shire district, unitary and county authorities, Transport for London (TfL) and the London Boroughs.
These authorities maintain and improve the network, and manage its use and the activities taking place on it. They do all this pursuant to powers and duties derived from a variety of sources including the Highways Act 1980 ('the 1980 Act') principally covering the structure of the network; the New Roads and Street Works Act 1991 ('the 1991 Act') covering utility street works; and the Road Traffic Regulation Act 1984, regulating the activities of road users.
Central to much of this is the network management duty placed on LTAs under Part 2 of the Act. Section 16 (1) states:
"It is the duty of a local traffic authority to manage their road network with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives:
(a) securing the expeditious movement of traffic on the authority’s road network; and,
(b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority."
The term 'traffic' includes pedestrians and LTAs must consider the movement of all road users: pedestrians and cyclists, as well as motorised vehicles. Importantly, they must also
consider wider responsibilities of the authority in securing the "expeditious movement of traffic" . While this aim is is sometimes taken to mean ensuring the free flow of motor traffic , that is not sufficient. An authority will also have road safety objectives and should aim to make the best use ofroad space for the benefit of all road users.
In using the road network we do not generally consider how it divided between authorities. We use the whole network, irrespective of who is responsible. The duty reflects this - an authority must consider the effects of its actions on parts of the network managed by other authorities to prevent problems simply being moved elsewhere or conflicting policies causing problems across administrative boundaries.
The Act sets out the arrangements an LTA must make to manage its own road network (in section 17). These include appointing a Traffic Manager, and establishing processes to identify and, where reasonably practicable, deal with things that could cause congestion and disruption.
Sections 18 and 19 provide for the Secretary of State (in England), or the Welsh Parliament (in Wales) to issue guidance to authorities about techniques of network management or other matters relating to the exercise of their network management duties and to obtain information from authorities connected with the performance of those duties.
The Act says that in performing its duties, an LTA shall have regard to the guidance issued under Sections 18 and 19. The dramatic nature of the changes envisaged by the new statutory guidance and the urgent tone adopted by Government in publishing it has attracted the attention of many - and raised expectations. As well as campaigning organisations/statutory consultees such as Cycling UK, Sustrans and Living Streets, the proposed changes have been welcomed by individuals who have enjoyed the freedom to explore streets with their families during lockdown - without fear of motor traffic. These raised expectations increase the risk of challenge associated with any change to transport infrastructure.
In this context, it is worth reviewing the scope of the duty to "have regard to" guidance and why it matters.
We do not propose to review the case law in detail but it is worth highlighting the need to:
- The duty must be fulfilled before and at the time when a particular policy is being considered.
- The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of 'ticking boxes' .
Judicial reviews are a common feature of significant infrastructure changes. Authorities will be accustomed to managing this risk and justifying their exercise of public law duties. In this unprecedented situation, authorities are called upon to make difficult decisions on the allocation of scarce resources. Challenges to such decisions are likely to face significant difficulties unless the LTA in question had acted in a Wednesbury unreasonable manner in assessing and reacting to the due regard obligation. However, recent high-profile instances have highlighted the role that judicial review can play in changing the course of politically charged infrastructure decisions and LTAs should ensure that they can justify the manner in which they exercise their obligations.
Generally, the guidance should be followed unless there is good reason not to, and we would strongly advise that where a decision maker concludes that the statutory guidance is either not relevant or is outweighed by other considerations, the reasons for such a conclusion should be recorded.
The guidance sets out high-level principles to help local authorities to manage the reallocation of road space. Those in areas with high levels of public transport use should take measures to reallocate road space to people walking and cycling, both to encourage active travel and to enable people to stay two metres apart where possible when outdoors. Where public transport use is low, local authorities should be considering all possible measures.
These measures "should be taken as swiftly as possible, and in any event within weeks, given the urgent need to change travel habits before the restart takes full effect."
The measures referred to are not new. They include:
These measures should be familiar to officers with responsibility for traffic management. The guidance urges authorities to use them with new energy: "a step-change in their roll-out is needed to ensure a green restart".
Achieving this step-change may involve using some or all of the above measures, separately or combined. The Government has been at pains to emphasise that some changes, such as new lightly-segregated cycle lanes, will not require Traffic Regulation Orders (TROs). In other cases, local authorities will need to consider whether to use permanent, experimental or temporary TROs, referring to the temporary guidance on making TROs from the Department where appropriate.
The emphasis of the guidance is on the urgent need to put in place temporary measures and road closures, which may be made permanent if effective. Unsurprisingly in that context, many authorities will seek to use Temporary TROs, which can be in place for up to 18 months. These involve a seven-day notice period prior to making the TRO and a 14-day notification requirement after it is made, plus publicity requirements.
Authorities will also need to consider a range of associated issues, including:
The public sector equality duty still applies, and authorities must consider the needs of disabled people and those with other protected characteristics. Accessibility requirements apply to temporary measures as they do to permanent ones. For example, where a lane is temporarily reallocated to provide pedestrian space, people will need to enter and leave them using a wheelchair or other mobility aid.
The clear intent of the guidance is that measures should be conceived "with a view to making them permanent, and embedding a long-term shift to active travel as we move from restart to recovery".
We would not usually expect the planning framework to cause delay. Existing planning powers are likely to enable LTAs to deliver supporting infrastructure and development, most often using permitted development rights pursuant to the Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended) which permits:
The carrying out by a highway authority—
(a) on land within the boundaries of a road, of any works required for the maintenance or improvement of the road, where such works involve development by virtue of section 55(2)(b) of the Act; or
(b) on land outside but adjoining the boundary of an existing highway of works required for or incidental to the maintenance or improvement of the highway.
The Act provides for intervention by the Government where an LTA is not fulfilling its duties under the Act and guidance made under it (see sections 20 to 28). Such intervention would be a high profile and contentious step. This may not be likely but these are as we are often told unprecedented circumstances and given the tone of the Government's announcements it is not possible to rule out the possibility of intervention should the Government feel the need.
In terms of challenge, as already said, the likely basis of any challenge would be around whether an LTA acted in a Wednesbury unreasonable manner in relation to its approach to the Guidance, particularly how it approached the 'due regard' obligation.
Transport Minister Grant Shapps has described this as a "once in a generation opportunity to deliver a lasting transformative change in how we make short journeys in our towns and cities". This message has been endorsed by others including the chief executives of NHS hospitals, including St. Bartholomew’s hospital in central London, as part of the Keyworkers Need StreetSpace campaign. Local authority leaders are well aware of the economic, health and wider benefits that such changes can bring. But to deliver change they need resources.
The Government has announced that it will make £2 billion available to local authorities to assist with this initiative, these monies were announced in February. There is a £250 million fund to enable local authorities to pay for 'pop-up' cycling and walking infrastructure and create space for physical distancing, but it is not yet clear how it will be allocated. However, the extent to which local authorities have the resource available to make meaningful changes will be debatable. Local authorities which are able to build on existing Transport Plans and well considered Local Cycling and Walking Infrastructure Plans will have a head start. The past week has seen a number of authorities including Birmingham, Bristol, London and Newcastle announce ambitious new plans and, in some cases, begin making changes. What is without doubt is that this period represents an opportunity for local authorities to make meaningful changes to traffic arrangements and look to imbed changes to our habits in how we move around our environment whether that be for work or leisure.
 Wales' guidance remains unchanged to date with the Deputy Minister for Economy and Transport pledging on 7 May that grant funding will be made available to support innovative local authorities in Wales seeking to transform the country's transport system in the wake of the COVID-19 crisis. The call to action reflects that of the revised English guidance promoting 'pop-up measures' that are hoped to contribute to a long-lasting modal shift.
Inviting initial expressions of interest by 21 May, the Deputy Minister envisages an opportunity to alter the way people think about travelling, and support improvement to air quality, decarbonisation and public health.
 Town and Country Planning (General Permitted Development) Order 1995 (as amended) for Wales
 section 55(2)(b): "the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment"