Why we can’t challenge Southwark’s road closures in the courts

We found out this week that the legal challenge the Dulwich Alliance was hoping to bring against Southwark Council cannot go ahead. Please see the statement on the Dulwich Alliance website.

We always knew that this was a complex area of law. We also knew that a legal review of Southwark Council’s Dulwich Streetspace scheme could never be about whether the road closures were right or wrong – the courts are very unwilling to get involved in policy decided on by locally elected councillors – but about whether the correct legal procedure had been followed. The QC’s opinion is that the Council did not act unlawfully when it made the permanent traffic orders on 10 February 2022, so we have no grounds for a case.

Part of the problem is that legally councils only have to “consider” issues, or have “due regard” for them when making decisions. Take the public sector equality duty, for example (which means that councils must take the needs of groups with protected characteristics, like age or disability, into consideration). The final decision document of 8 December 2021 shows that officers did take the needs of the elderly and disabled into consideration – by deciding that the harm being done to them is outweighed by the benefit to others.

The situation is similar with consultations. Councils have to consult, and have to consider the responses. But legally there is nothing to stop them going against majority opinion.

For the past two years, One Dulwich has repeatedly said to the Council that the road closures in the Dulwich Streetspace scheme cause serious problems for large sections of the community. Traffic and pollution have been displaced on to roads like East Dulwich Grove and Croxted Road where families live and children go to school. Local businesses have suffered. The most vulnerable, and those who care for them, have to make longer and more difficult journeys on congested roads. Key workers are delayed because buses are stuck in traffic.

But the Council has decided that its policy of creating cycle routes by closing side roads is more important than any of these people’s lives or livelihoods – even though, as the December report shows, it also acknowledges that some roads, in consequence, have become more polluted.

If you have time to listen to the (very long) audio recording of the recent Overview and Scrutiny Committee’s questioning of decision-maker Cllr Catherine Rose on 21 February 2022, you will hear all these concerns being raised – particularly the issue of what, if anything, the road closures have done to help fight climate change.

It’s interesting that at one point, talking about the Dulwich Village junction, Cllr Rose says, “If I don’t use that junction to reset road prioritisation going through Dulwich, tell me where else do I put it?”

This seems to show that the decision-maker has been entirely fixated on just one issue – which might explain why she hasn’t understood quite how much harm she has caused.