Court of Appeal justices criticise judge over ‘seriously flawed’ low-traffic scheme ruling

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The Streetspace scheme in Bishopsgate (Getty)
The Streetspace scheme in Bishopsgate (Getty)

A judge was wrong to describe a scheme that created extra space for cyclists and pedestrians at the start of the pandemic as “extreme” and declare it illegal, the Court of Appeal has ruled.

Three appeal justices said Mrs Justice Lang’s ruling that Transport for London’s Bishopsgate scheme was “seriously flawed” was “misconceived” and must be overturned.

In a thumping victory, they also ordered the two organisations representing the black cab trade that brought the initial case to pay TfL’s legal costs in full, with an initial £50,000 due within a fortnight.

The Court of Appeal awarded victory to TfL and Mayor Sadiq Khan last month after they appealed against the High Court defeat handed down by Mrs Justice Lang in January.

Now their full 34-page judgement has been published – and it delivers a comprehensive demolition of the arguments accepted by the judge to initially find in favour of the cab trade.

The Licensed Taxi Drivers’ Association and United Trade Action Group had sought judicial review of the Bishopsgate scheme, and the wider “Streetspace” plan and guidance issued by TfL to the 33 boroughs, which included policies on low traffic neighbourhoods and school streets.

The three appeal justices, led by Lord Justice Bean, said it was “extraordinary and not right” to condemn the measures as “extreme or ill considered” and said there was “no proper basis” to consider the scheme as “irrational”.

They said: “Each was in accordance with the policy not only of the Mayor and TfL but also of the Secretary of State for Transport of encouraging walking and cycling rather than other means of travel.

“They were not universally popular, but we think it would be extraordinary and not right for a court to condemn them as extreme or ill-considered, especially during the pandemic.”

They said Mrs Justice Lang “seems to have given no or almost no weight” to the fact that TfL’s plans were being made eight weeks after the start of lockdown, at a time when the duration of the pandemic was “wholly unpredictable”.

The Bishopsgate scheme was introduced in July last year to only allow buses and cyclists to use two key sections of Bishopsgate on weekdays, though access to the Liverpool Street station taxi rank was maintained.

Pre-covid, black cabs accounted for 43 per cent of vehicles on Bishopsgate once buses were excluded.

About 6,000 cyclists used Bishopsgate in the daytime and TfL wanted to improve safety by using “bus gates” to prevent the road becoming more of a haven for black cabs.

At the time, with no vaccines available and thousands dead, TfL hoped this would encourage more Londoners to walk or cycle and minimise the spread of covid – including reducing the risk to bus passengers by minimising the time they were stuck in traffic.

Sadiq Khan described the victory as a vindication of TfL’s “bold policies” (AP)
Sadiq Khan described the victory as a vindication of TfL’s “bold policies” (AP)

The Court of Appeal judgement said: “The policy-makers at TfL had to decide what weight to give to the mobility of the disabled and frail elderly against what they saw as the imperative demands of maintaining a regular but socially distanced bus service, and the danger to the health of bus users caused by their being exposed to a risk of infection during journeys prolonged by congested traffic.”

It said TfL had taken a “sensible approach, and indeed a sufficient and lawful approach” and noted that taxis were permitted to use 93 per cent of all bus lanes in London.

The judges refused LTDA and UTAG, who claimed TfL had neglected the role of taxis in providing accessible transport for disabled people, permission to appeal to the Supreme Court.

Mr Khan, who described the victory as a vindication of TfL’s “bold policies”, plans to spend £135m this financial year on “healthy streets” initiatives such as more cycle routes and bus priority schemes.

A spokeswoman for Mr Khan said: “Sadiq is determined to do everything he can to enable more Londoners to walk and cycle and schemes like Bishopsgate are central to this.

“The Court of Appeal judgement is a vindication of his bold green policies which are protecting Londoners’ health and making it safer and easier to get around by bike and on foot.

“Sadiq will continue to work with councils across the capital to ensure a green recovery for our city, and take action to address the air quality and climate change crisis.”

Recent data from TfL shows an average of 700 cyclists an hour ride through the Bishopsgate area at peak times.

Steve McNamara, general secretary of the LTDA, said: “We are currently in the process of reviewing the Court of Appeal’s full judgement with our lawyers and considering next steps. We will keep the trade and other interested parties updated.”

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