New rules set to simplify active travel changes - Mark McMurray

With COP26 underway and the impact of climate change paramount within the public conscience, many local authorities across Scotland will be looking to roll out active travel improvements as part of their package of measures to help reduce CO2 within their communities.

Mark McMurray, partner and transport specialist at CMS

A number of active travel changes, including pop-up cycle and pedestrian ways, emerged across Scotland when Covid-19 social restrictions came into effect. Lockdowns saw many people make a switch to active travel modes, and communities saw fewer greenhouse gas emissions, improved air quality and increased health benefits for residents from the reduction in vehicles.

Efforts are now underway within several local authorities, including the City of Edinburgh, to consider keeping some of these changes in place on a longer-term basis.

While the temporary active travel changes have been popular with some residents, there are other groups who will have expected them to be removed as we return to normal and public health measures are reduced. We have already seen legal action taken to remove active travel measures in London. Temporary measures introduced during Covid-19 were later quashed because the court found, among other things, that the authorities attempted to make significant longer-term changes to the road network using Covid-19 related temporary orders which don’t have the same level of consultation and scrutiny as permanent orders.

A number of active travel changes, including pop-up cycle and pedestrian ways, emerged across Scotland when Covid-19 social restrictions came into effect.

Evidence that’s been gathered while temporary measures have been in place during the pandemic will not necessarily be helpful in supporting a permanent move because the circumstances in which they were used are likely to be very different once social restrictions were lifted. There are of course a number of these projects that were in the pipeline for some time pre-pandemic, where there was a supporting evidence base. However, these too could be affected as there’s uncertainty about future travel patterns due to the likely reduction in post-pandemic commuting due to increased home-working and other changing trends.

This current lack of evidence base is one of the reasons why councils could consider using so-called experimental orders, which allow them to retain active travel measures on a temporary basis of up to 18 months while they monitor their effectiveness. The difficulty with this approach is that this limited window rarely gives a local authority the required time to monitor, analyse the evidence and complete the statutory process for the resultant permanent order should they then decide to retain it.

As a result, experimental orders are only currently used sporadically, but that situation could be about to change. New Scottish Government legislation is about to be rolled out that would help overcome some of these existing limitations.

The new rules will introduce a simplified procedure with experimental orders, no longer requiring a period for consultation and objection prior to them being made. There will also be a simplified procedure for permanent orders which seek to continue the provisions of an experimental order which has been in continuous operation for at least six months.

Those who may wish to object to the measures being retained over the long term will now have six months from the experimental order coming into effect to do so. While this will help overcome a current barrier, it also has the potential to leave people feeling aggrieved and unable to form a robust objection, as it seems unlikely that the outcome of a local authorities’ monitoring would be known at that stage.

Part of the issue with temporary and experimental orders is that they’re not accompanied by the same level of mandatory consultation and engagement to which we have become accustomed before major changes appear within our road network.

While the new Scottish Government legislation will be a welcome step in enabling more active travel measures and helping address carbon emissions, longer-term changes of the scale we saw during lockdowns will likely require advance consultation and engagement with the public and wider stakeholders. This approach will be advisable if Scottish councils are to avoid potential acrimony with local residents and other groups.

Mark McMurray, partner and transport specialist at CMS