We believe, based on the relevant legal principles, that a separate consultation would not be required to alter the hours of operation of the proposed Sustainable Travel Zone (STZ) so that the road charge applies 7 days a week. We set out our argument below:
There is no general legal duty on the GCP (or on the bodies that comprise the GCP) to carry out a consultation. However, as part of the Greater Cambridge City Deal Assurance Framework, the GCP has committed to “to carry out meaningful engagement and consultation with the public when making decisions” in line with the Cambridgeshire County Council consultation principles. If a consultation is carried out then it must meet the legal minimum criteria set out in the case of R v Brent LBC ex parte Gunning [1986] 84 LGR 168 (known as the Gunning principles). They were more recently confirmed by Lord Woolf MR in R (Coughlan) v North & East Devon Health Authority [1999] EWCA Civ 1871:
“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.“
The GCP has discharged its duty to consult by carrying out the Making Connections 2021 and 2022 consultations. The more recent consultation, which will inform the next steps which the GCP decides to take at its Executive Board meeting on Thursday 29 June, was a wide-ranging consultation which covered a number of issues. It was open-textured in that, while it allowed consultees to provide responses to specific questions in a consultation survey, it also allowed and encouraged consultees to provide general comments to the consultation email address (consultations@greatercambridge.org.uk).
In terms of the hours of operation of the proposed road charging scheme, the consultation set out that the currently proposed option would be for the scheme to operate between 7am and 7pm on weekdays (i.e. Monday to Friday). The consultation survey asked the following question regarding the proposed hours of operation of the charging zone: “Do you have any comments on the proposed hours of operation of the Sustainable Travel Zone?“
A reasonable member of the public would have understood that the proposed hours of operation might be subject to change depending on the outcome of the consultation, given that the whole purpose of the consultation was to understand whether the proposals consulted on were appropriate, and also given that, as per Gunning, a consultation must be carried out at a formative stage and so consultation proposals must necessarily be capable of change. If some other hours of operation were found to be better suited to meet the objectives of the consultation, which were also set out in the 2022 consultation materials, then it would be understood by members of the public that the currently proposed hours of operation might change. That would include the possibility of increasing the hours of operation of the road charging scheme if that would better meet the consulted on objectives.
In fact, it would arguably be contrary to Gunning and unlawful if the GCP were to conclude that expanded hours of operation required a separate consultation, as that might imply that expanded hours of operation were not within the scope of the 2022 consultation. However, there was nothing in the consultation materials to suggest that and, according to the consultation report (p.87), 895 consultees responded to suggest that expanded hours of operation would be more appropriate. The GCP must also ensure that it gives conscientious consideration to these 895 consultation responses, which must at the least mean that it does not dismiss out of hand an expansion of the hours of operation to seven days a week.