COVID cycle lanes in the capital have been found to be “unlawful”, a high court has ruled – but what does this mean for Brighton and Hove?

Two groups representing black cab drivers have won a landmark legal case against the London mayor and Transport for London (TfL) over traffic schemes in response to the pandemic.

The London scheme, called Streetspace, saw roads closed and others narrowed to create new cycle lanes in the height of last year’s lockdown.

The measures were found to be “seriously flawed” by a High Court judge, who called for an end to the initiative.

The Argus: Cycle lane in Old Shoreham Road Cycle lane in Old Shoreham Road

Justice Lang ruled that Streetspace “took advantage of the pandemic” to push through “radical” and permanent changes to London’s roads.

And a lawyer in the case said the scheme – and others like it – could now be scrapped across the UK.

Brighton and Hove implemented several coronavirus response measures of its own.

These include cycle lanes on the A259 and Old Shoreham Road, and the closure of Madeira Drive.

So what does this ruling – which is set to be appealed by TfL – mean for those measures?

Was the taxi trade considered?

It is important to note that the London ruling centres around the taxi trade.

The cabbies sought legal intervention after an order banned them from a new bus-only route on the A10 in Bishopsgate.

They successfully argued the schemes were unlawful on several grounds, including that in making the plan, guidance and order, the mayor and TfL failed to distinguish taxis from “general traffic”.

In doing so, TfL “failed to have regard to relevant considerations” including the “distinct” status of taxis as a form of public transport and the role taxis play as public transport for those with mobility issues.

In Brighton and Hove, there have been no new bus-only routes introduced. Additionally, the taxi trade has not announced any intention to bring a legal case against the council.

The Argus: Madeira Drive was closed to traffic last yearMadeira Drive was closed to traffic last year

However, Labour councillors broke-ranks last summer to blast the seafront cycle lane on behalf of the industry as “ideologically driven, poorly planned and totally unnecessary”.

Some of those councillors attended a protest against the cycle lanes outside Hove Town Hall – which saw many taxi drivers beep their support.

Andy Peters, Secretary for the GMB Brighton and Hove Taxi Section, said there are differences between what happened in London and Brighton and Hove. 

This is because the capital's cabbies were specifically excluded from parts of the scheme, something which has not happened here.

However, speaking of the city's cycle lanes, he added: “My consideration is simply there has been no full consultation.

“Our first concerns are whether [schemes] cause more congestion – it could take longer to get to the customers and, more importantly, that is going to cost them more in the traffic.”

The Argus: Part of the A259 cycle lane was removed after Brighton and Hove Bus Company complained of gridlockPart of the A259 cycle lane was removed after Brighton and Hove Bus Company complained of gridlock

Last year, in bid for government cash to fund measures, including the Old Shoreham Road and A259 cycle lanes, the council told government that “specific details” of the scheme were sent to “key groups” in the city.

When pressed, the council said the specifics of the Tranche 1 bid – the current measures – were sent “some members” of the Transport Partnership and the bus company.

The council later clarified that the “some members“  referred to were representatives from Friends of the Earth and Community Works. This did not include the taxi trade, GMB’s Mr Peters said.

A spokesman for the council has previously replied: “We engaged at a high level on our interim Local Cycling and Walking Infrastructure Plan, including with disability groups, and on the specific details of the bid with some members of the Transport Partnership and the bus company.

“The Government’s extremely tight timescales (eight working days) meant that it wasn’t possible to engage more widely on this emergency and temporary response to support the city out of lockdown.”

Were equality law duties taken into account?

In the High Court case, the London taxi trade also successfully argued that the authorities failed to take into account their duties under equality laws.

Disability rights groups in Brighton and Hove have also accused the council of failing to take into account these duties.

Brighton Access for Disabled Groups Everywhere (Badge) alleged the council have contravened the Equalities Act 2010 when introducing the measures.

They pointed to the requirement to “have due regard” to the need to “remove or minimise disadvantages suffered by persons who share a protected characteristic”.

The Argus: Badge co-founder Rob Arbery with sonBadge co-founder Rob Arbery with son

Their concerns were echoed by Geraldine Desmoulins, chief executive of Possability People – the largest organisation representing disabled people in the city.

Ms Desmoulins spoke about comments made by the council, which suggested her group had been consulted, as well as the council’s claim that “key stakeholders” had been presented with plans, which was made in the Tranche 1 bid.

She said: “It is extremely disingenuous, in fact it’s not true, to say Possability People were consulted about the new cycle paths and parking measures currently subject of much discussion.

The Argus: Campaigners said disabled bays on the seafront were 'dangerous'Campaigners said disabled bays on the seafront were 'dangerous'

“We were informed by a round robin email, sent to our general email address, of decisions already made.”

A proposal to bring in the Equalities and Human Rights Commission to investigate the claims was voted down by the council in September.

When asked to respond to the allegations at the time, Green councillor Pete West, who previously co-chaired the ETS committee, said: “The Conservative government requested that councils across the country make changes to walking and cycling on a swift timescale so consultation during the design stage could never be as extensive as we would like.

“However it is our priority going forward to listen to the concerns raised and make changes where we can.”

Was the decision-making rational?

Comments made by the judge could set a precedent as to how legal challenges will be considered by the courts in the future.

The judge concluded that TfL’s plan was “seriously flawed” and “not a rational response” to the issues which arose as a result of the pandemic.  

She said: “In my judgment, the flaws identified were symptomatic of an ill-considered response which sought to take advantage of the pandemic to push through, on an emergency basis without consultation,  ‘radical changes’ and ‘plans to transform parts of central London into one of the largest car-free zones in any capital city in the world’.

The Argus: Cycling groups have praised the new lanes across the cityCycling groups have praised the new lanes across the city

“The scale and ambition of the proposals, and the manner in which they were described, strongly suggest that the Mayor and TfL intended that these schemes would become permanent, once the temporary orders expired.  

“However, there is no evidence to suggest that there will be a permanent pandemic requiring continuation of the extreme measures introduced by the Government in 2020.”

The judge noted that Government had declared the measures “a once in a generation opportunity to deliver a lasting transformation in how we make short journeys in our towns and cities”.

She added that if authorities proceeded more cautiously, monitoring the situation and “acting upon evidence rather than conjecture”, their proposals would have been “proportionate to the difficulties which needed to be addressed”.

“As it was, they far exceeded what was reasonably required to meet the temporary challenges created by the pandemic,” she added.

These comments could mean that other councils might face being held-to-task for failing to act on evidence.

In May, residents woke up to the new cycle route taking up two lanes of the A270 Old Shoreham Road, one of the main arteries into and out of Hove to the west of the city.

The Argus: Activists celebrate the lanes near Hove ParkActivists celebrate the lanes near Hove Park

A report handed to councillors revealed 66 per cent of people would not be happy if the change is made permanent.

However, of those who responded, about 35 per cent said it enabled them to maintain social distancing, about 30 per cent said it made them feel safer and about 30 per cent said it enabled them to travel more actively.

Brighton and Hove City Council also said 545 cyclists are using the Old Shoreham Road lane in Hove a day – up from 358.

Data on other schemes has not yet been published.

Ruling has ‘striking similarities in Brighton and Hove’

Councillor Lee Wares, Conservative Transport spokesman on Brighton and Hove City Council, said: “The High Court ruling appears to bear striking similarities in Brighton and Hove.

“The consultation on [Old Shoreham Road and A259 lanes] and other routes is not designed to solicit support but merely to get feedback on the schemes that will happen.

“I have long claimed that the pandemic is being used as an excuse to rail-road through extreme change without proper and democratic process.

The Argus: Councillor Lee WaresCouncillor Lee Wares

“Now we have evidence in this High Court ruling that trojans horses are not a myth.

“It is also noteworthy that the Judge criticised the lack of attention to equalities.

“We know in our city that the council failed to take account of the impact on Blue Badge holders and refused to open itself to independent scrutiny.

“Instead the council undertook a review of itself and concluded it had done nothing wrong.

“To this day, it has still failed to publish road safety audits, release data that apparently exists to justify the need for the proposals and declines to share financial data on how all the money has been spent."

A Brighton and Hove City Council spokesman said: “While we always consider rulings of this kind where they are relevant, we do not wish to speculate at this stage on a ruling that specifically relates to plans, guidance and orders that were written and issued by Transport for London and the Mayor of London.”