Aarhus cost protection in traffic order challenges

The Green Lanes Association commenced a statutory challenge to an experimental traffic order closing a certain countryside road to vehicular traffic and claimed Aarhus costs protection. Although the Defendant did not dispute that protection in its acknowledgement of service, it later (and after the decision of the Court of Appeal in HM Treasury v Global Feedback Ltd [2025] EWCA Civ 624 was handed down) applied for an extension of time to so challenge and a declaration that sections 9 and 122 of the Road Traffic Regulation Act 1980 were not “provisions of national law relating to the environment” and so cost protection couldn’t apply. 

In a carefully reasoned judgment, the deputy High Court judge, Karen Ridge, refused an extension of time, emphasising the strict nature of the rules in CPR 46 Part IX which are intended, in line with the Convention, to provide reasonable predictability at an early stage of proceedings. Applying the Denton test to an out-of-time application for an extension of time, she found that the Defendant had failed to offer any good reason for its serious and significant failure to raise the issue in its acknowledgement of service and in all the circumstances, including the need for procedural rigour, an extension of time should be refused.

She went on to carefully examine the statutory provisions relied on in the claim, namely sections 1 (traffic orders), 8 (experimental traffic orders) and 122 (general duty of highways authorities), finding that these provisions of national law provide for regulation of the highway network for a number of reasons, several of which relate to environmental protection. “It is clear that when [section] 122 is read as a whole it is directed at making decisions with environmental considerations at the forefront of the decision maker’s mind.”

This case will be of assistance to parties in understanding the practical application of the principles in Global Feedback and especially to those seeking cost protection in traffic order appeals. 

Brendan Brett is a barrister at Francis Taylor Building. He acted for the Claimant instructed by Matthew McFeeley of Richard Buxton Solicitors.

A copy of the judgment can be found here.