Clean Air Justice for All! Not just those who shout the loudest.

Below is my proposed submission asking for the Bow Liveable Streets decision to be put on hold and further work and consultation to be carried out. As the decision stands, it is inherently unfair, discriminatory and legally dubious by channelling traffic onto roads that have large council estates with a large concentration of residents with protected characteristics.

Today I will be recommending for the decision, 6.3 Bow bus gateway and timed closures exemptions considerations, to be put on hold. Allowing another consultation to be carried out with the participation of all residents affected by the proposed Bow Liveable Streets plan. Second, I will be recommending that the consultation be carried out by democratically accountable council officers, with no involvement of PCL Consult and an independent Equality Impact Assessment be carried out, again with no involvement from PCL Consult.

As the decision stands, it is likely that Tower Hamlets Council is in breach of its legal duties, although it is for a court to determine that. It is legally questionable on the following four grounds:

1. Tower Hamlets Council will be in breach of its common law duty to consult.

2. Tower Hamlets Council will be in breach of its Public Sector Equalities Duty, as laid out in S.149 of the Equalities Act 2010.

3. Tower Hamlets Council will be in breach of its statutory duty under the Town and Country Planning Regulations of 2017 for not carrying out an Environmental Impact Assessment

4. Tower Hamlets Council will be in breach of its common law duty to be reasonable in its decision, as the decision is irrational

Before going into the details of each ground, I will outline a brief summary of the facts. An outline decision was taken, by the Mayor and his Cabinet, on the 25th of November 2020. With final details to the scheme along with any changes being finalised today.

In both reports, there is a reference to the fact that there will be a traffic displacement from the Bow area onto Mile End and Bow Road in excess of 16,000 car journeys on a daily basis. On the southern side of Mile End and Bow Road are large social housing estates with a disproportionately large number of residents with protected characteristics. The residents on those estates are served by six bus stops. Yet there is no due regard in any of the reports to these residents, due regard only being applied to residents on the north side of the road, majority of whom are homeowners.

The residents on the south side, have not been consulted on the proposed decision, nor has the impact of the decision on their quality of life been taken into account in the Equality Impact Assessments (EqIA) put forward to the Mayor and his cabinet on the 25th November 2020 and today, 3rd of March 2021.

GROUND FOR OBJECTIONS

Ground 1 – Tower Hamlets Council is in breach of its Common Law duty to consult.

Tower Hamlets Council gave an expressed promise to consult all those residents that were affected by the decision. Page 35 of the Bow Liveable Streets Report on the 25th November 2020, states that 14,480 letters were delivered, which included properties on the north side of Mile End and Bow Road. However, letters were not delivered to the mainly, social housing residents on the south side of Mile End and Bow Road.

This was contrary to the legitimate expectation of residents on the southside of Mile End and Bow Road to be consulted on the decision.

Further, grounds for legitimate expectations by residents on the south side of Mile End Road and Bow Road are:

The decision will have a significant impact on the quality of their daily lives
There is an inherent unfairness in their neighbour across the road being consulted while they have not.

Ground 2 – Tower Hamlets Council is in breach of its Public Sector Equalities Duty, as laid out in S.149 of the Equalities Act 2010.

Due regard under s149 of the 2010 Act has not been given to the impact on residents living to the south of Mile End and Bow Road, in either of the EqIAs, presented on the 25th November 2020 and the one presented today, 3tf of March 2021.

Section 149 of the 2010 Act provides:

“(1) A public authority must, in the exercise of its functions, have due regard to the need to—

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;…

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;…

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities…

(7) The relevant protected characteristics are—

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation…”

The concept of ‘due regard’ in the 2010 Act requires us to ensure that there has been a proper and conscientious focus on the statutory criteria, In short, the Mayor and cabinet must be clear precisely what the equality implications are when they put them in the balance, and they must recognise the desirability of achieving them, but ultimately it is for them to decide what weight they should be given in the light of all relevant factors. The duty of due regard under the statute requires public authorities to be properly informed before making a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

Due regard under the statute cannot be applied retrospectively to a decision, after the fact as a rearguard action. A summary of the duty of due regard under statute is best provided by the now Kings College London and Queen Mary University visiting professor and former Lord Justice, Sir Richard Aikens who in his judgement in R (Brown) v Secretary of State for Work and Pensions [2008] as follows:

i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;

ii) The duty must be fulfilled before and at the time when a particular policy is being considered;

iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv) The duty is non-delegable; and

v) Is a continuing one.

vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.

This has not happened in the proposed Bow Liveable Streets decision, as neither of the two EqIAs, the one produced for the 25th of November 2021 and the one produced today, take account of the impact nor provide mitigation for residents on the south side of Mile End and Bow Road, residents with protective characteristics living mainly on social housing estates.

Ground 3 – Tower Hamlets Council will be in breach of its statutory duty under the Town and Country Planning Regulations of 2017 for not carrying out an Environmental Impact Assessment

An Environmental Impact Assessment has not been carried out on the effects of increase traffic on Mile End and Bow Road. This is required as Shedule 2 of the Town and Country Planning regulation of 2017.

Ground 4 – Tower Hamlets Council will be in breach of its common law duty to be reasonable in its decision.

The proposed decision today increases health inequality in Tower Hamlets by channelling traffic onto Mile End and Bow Road, which on the southside of the road live large concentration of BAME residents. Therefore, the decision goes against the stated aims of the EqIA presented today, of reducing health inequalities amongst BAME residents. Making the proposed decision irrational.

Observations and Recommendations

As shown, there are clear concerns as to the legality of the proposed decision as well as the quality of the EqIAs. There are also concerns in regard to procedural impropriety, about a private council contractor, PCL Consult, co authoring the EqIA. Co-authoring an Equalities Audit on a decision in which they have a financial stake. An EqIA and consultation which is flawed and left out the impact of residents of protective characteristics, who already suffer from high levels of health inequality.

The following are my recommendations:

The final decision is not taken today but is put on hold on the Bow Liveable Streets scheme.
A new consultation is carried out of all residents impacted by the scheme, including the residents of social housing estates on the south side of Mile End and Bow Road. The residents of those estates are impacted not only because they live adjacent to the road but are also users of the bus stops, and other amenities on the road.
The consultation to be carried out and lead by Council officers.
Air monitoring stations should be set up along Mile End and Bow Road, so we can ascertain the current levels of air pollution, allowing council officers to provide projection as to the increase in air pollution as a result of the displaced traffic from the scheme. Allowing a detailed Environmental Impact Assessment to be carried out.
An independent EqIA to be authored which takes account of the impact on residents on the south side of Mile End and Bow Road, and also provides mitigation incorporated into the costs of the Bow Liveable Streets scheme.

FURTHER REFERENCE