You will have noticed them popping up in towns and cities across the UK, the monuments to our new way of living: temporary cycle lanes, designed to funnel people safely into work and town centres without the need to crowd onto public transport or gridlock the roads with cars. Along with the improvement in air quality we have been experiencing in London, for a brief moment we could glimpse the future that we always talk about – a healthier, more climate-friendly city. It was no surprise to see Transport for London driving this agenda for green transport, but it was a welcome surprise to see less likely highway authorities following suit.
And then, as surely as night follows day, the familiar stories began to appear in the paper. Politicians demanding the removal of the temporary cycle lanes in their constituencies, residents angry about their longer driving commutes into work. The rallying cry was that the highway authority had failed to consult prior to installing the temporary cycle lanes. And in many places, the status quo ante has now been restored and it is as though the brief dalliance with cycle friendly infrastructure never happened.
Last week, the Government published “Gear Change: a bold vision for cycling and walking“, setting out the aim to double the amount of journeys that are cycled. The Government estimates that, in air quality improvement terms alone, this would save £567 million and prevent over 8,000 premature deaths per year. The Government wants thousands of safe and physically segregated cycle tracks to be constructed across the country in pursuance of this aim. The evidence shows that safe and segregated cycle tracks are the single most important way to increase cycle use (illustrated by the impressive statistic that cycling on Blackfriars Bridge increased by 55% in the six months after a segregated cycle track was installed).
But, as the Government’s vision admits, in the vast majority of cases, the power to actually consent these new cycle lanes falls to local authorities (the Government is only responsible for motorways and some strategic A roads, less likely cycling candidates). So while the Government will be providing the money and a new funding body and inspectorate, it is mostly local authorities who will be responsible for delivering this step change. And, if the past is any predictor, the Government’s bold vision may be about to run headlong into the mire of local consultation.
Now, consultation is a good and often necessary thing for four main reasons:
- Government decisions have significant impacts on peoples’ lives and livelihoods. In many cases, good decision making requires that people should have the opportunity to make representations about the impact of those decisions prior to the decision being made.
- Consultations often flush out problems or inconsistencies with the proposal. When a small team in government or a public authority design a policy or proposal, they may fail to appreciate unintended consequences. Subject matter experts or members of the public may alert them to those issues during the consultation so they can be corrected in the final version.
- Related to point 2 above, consultations will often help the decision maker to identify relevant considerations. This is a good thing because a failure to consider relevant considerations can be a public law error leading to a possible judicial review and quashing of the decision.
- Sometimes there will be a statutory duty to consult or the conduct of the authority will have been such as to create a “legitimate expectation” that it will consult on the proposals. In these circumstances, as above, a failure to consult may be a public law error and liable to quashing.
However in the case of new cycle infrastructure, in my view, the current consultation system is broken and a major barrier to achieving the objectives of greener transport infrastructure. Consultations get bogged down in endless representations and design iterations, and often are never delivered. At the heart of this is a fundamental tension which will always result in huge opposition to cycle schemes: cycle schemes will, more often than not, make it harder to drive cars. This is just a spatial reality. There is a limited amount of space in our cities, so cycle schemes by definition take up space on roads which was previously used by cars. The Government’s vision document acknowledges this spatial reality and states that the balance needs to shift in favour of cycling.
There is a similar spatial tension at the heart of planning: new development will often take up space (footprint, airspace, views) that was previously used for something different. It is understandable that those who enjoyed the benefit of that space object to it being redistributed to the new development. But the difference with the planning system is that we have a legislative and policy structure to resolve those spatial disputes. We have questions to ask to guide decision making: Is the development compliant with planning policy? Is your objection a material consideration? What are the public benefits? These structures allow those who are making planning decisions to balance and weigh the objections received against the framework that we as a society have (at least theoretically) agreed upon for how to distribute our most precious resource, space.
But there is no such framework for highways consultations. The Highways Act 1980 is a nightmarishly complex piece of legislation and (I believe most planning lawyers would agree) barely fit for purpose for the traditional business of improving roads for use by cars, let alone new cycle infrastructure. Where a statutory consultation process is provided for (such as for Traffic Regulation Orders) the legislation just provides for a 21 day consultation period. But crucially, there is no decision making framework following that. How is a highways authority to weigh a perceived harm to the town centre from loss of car traffic, against a possible benefit to health from improved air quality? Or what if the cycle scheme disrupts a bus route which provides valuable mass transport for a town or city? The decision makers are given no legal or policy framework to resolve these decisions. The result is that consultation documents for cycle schemes are often a very lengthy way of asking the question “what do you think of this cycle scheme?”. Residents then answer “we don’t like it very much”, and more often than not, that is that.
This needs reform if the Government’s cycling vision is to be achieved. To be clear – I am not arguing in favour of allowing poor cycle schemes to proceed. Cycle schemes can have serious safety issues or they can cause genuine damage to town centres or retailers, which are already suffering more than their fair share of pain in the current environment. But it is clear that we are not giving decision makers the tools they need to make these crucial decisions. So I propose a new national policy document for decisions on cycle schemes based on the following principles:
- Decision makers should seek to approve cycle schemes wherever possible, unless the harms outweigh the benefits of doing so.
- The benefits include population health and air quality improvements and great weight should be given to these.
- Harms may include safety issues or loss of vitality to town centres.
- When considering harms, it will not be sufficient that a cycle scheme may have a negative impact on travel times for car users.
My colleagues have been exploring in recent weeks what trends will shape our Future Cities. There is no doubt that cycling will form an important part of the way that we all get around, and we should ensure that the consenting regime is ready to meet the challenge.
Annika Holden is currently on maternity leave.
For more information please contact: