The Licensed Taxi Drivers Association, R (on the application of) v Transport for London

By virtue of section 57(1) of the TCPA, subject to a number of exceptions which are not relevant to these proceedings, planning permission is required for “the carrying out of any development of land.”

Section 55(1) defines development as “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”

Section 55(2)(b) excepts certain operations from the definition of development. It provides:

“(2)

The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

…

(b)

the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment.”

The claimant’s case is that the whole of phase one of the EWCS requires planning permission. The claimant submits that the works for the EWCS are of maintenance and/or improvement to a highway but, because the works have significant adverse effects upon the environment, they are not exempt from development and require planning permission. Based upon information contained within the EER there is evidence of significant adverse effect of the proposals on the environment. The exception to section 55 was enacted to comply with the EU Directive on environmental impact and should be construed accordingly.

The claimant does not contend that the EER is an Environmental Impact Assessment (EIA). It has not been an assessment submitted to a competent authority because it was prepared for the defendant’s own purposes. However, the introduction to the EER describes its purpose:

“This document presents the outcomes of the environmental evaluation of the EWCS phase 1… It includes a brief description of the Project, the evaluation methodology that has been used, the likely environmental impacts of the Project and measures to protect the built and natural environment.”

The information within the EER only came into the public arena after the consultation on the EWCS had occurred. There is no record of consultation by the defendant with other competent authorities such as local planning authorities or the Environment Agency. There is no assessment within the EER of reasonable alternatives. But the claimant contends that it provides an evidential base to enable a decision maker to conclude that the works proposed do cause significant adverse environmental effect. It is unarguable that that is not the case.

The report of 4 February 2015 to the defendant’s board refers to the biggest single challenge in delivering the wider cycling program as reduced road capacity. Traffic models were used to assess the impact on other road users of the EWCS proposals but there is no reference within the models to the dis-benefits in terms of noise or air quality. The claimant’s case is concerned with the effect of the segregated cycleway.

The claimant takes issue with the stances adopted by the defendant over time.

First, the defendant contended that there would be no significant adverse effect on the environment. An approach which seeks to divorce the construction works to create the EWCS from the use and operation of the EWCS is a misdirection of law: see Abraham v Wallonia [2008] Env LR 32 and, in particular,[43] which reads:

“It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works.”

Similar points are made in Ecologistas en Accion-CODA v Ayuntamiento de Madrid [2009] Env LR D4 and, in the domestic forum R (Worley) v Wealden District Council [2011] EWHC 2083 (Admin) at [74].

Secondly, the defendant has contended that the significant adverse effects are attributable to the traffic management rather than the operation of EWCS. On that, the claimant contends that there is no evidence base to support such a contention. There is nothing in the EER. It is the changes to the road layout which cause the problem as a result of the lack of road capacity.

Third, the defendant has said that the likely significant adverse effects are not that significant. If it is argued that the number of significant beneficial effects exceeds the significant adverse effects, that is an error of law. If the defendant purported to come to a conclusion as to the net environmental effect that was dismissed in British Telecoms v Gloucester City Council [2001] EWHC 1001 (Admin) at [71]. In the context of environmental assessment “development” should be given a broad interpretation: see R (Save Woolley Valley Action Group) v Bath and North East Somerset [2012] EWHC 2161 (Admin) at [113].

Thus, the claimant submits, it would be contrary to the rationale of including the proviso within section 55(2)(b) TCPA to conclude that because identified likely significant adverse effects were not great in number, extensive in geographical extent or severe in degree that they should be ignored for the purposes of section 55(2)(b). In any event, as the clear and unequivocal conclusion of the EER is that the EWCS would be likely to give rise to significant adverse environmental effects the claimant does not need to rely on the precautionary principle.

The defendant submits that the trigger for whether planning permission is required is always dependant upon a factual evaluation. Its position is that no planning permission is required for the EWCS as a whole. There is no evidence that the relevant planning authorities take a different view. The starting point is whether the works amount to development. That depends upon whether what is being carried out and/or is proposed falls within s 55(2)(b) TCPA.

Two questions arise. First, is the construction process exclusively works of maintenance? Second, would the construction process have a significant adverse effect upon the environment?

Whether operations may have a significant adverse effect upon the environment is a qualitative judgment to be applied in the context of Central London.

The defendant agrees with the claimant on what the European authorities that it cites say. They are not relevant here.

The question here, under section 55(2)(b), is to be considered, as the claimant suggests, in the context of the works required for the project as a whole. The phrase “any works” is referable to the entire project. When the entire project is considered it includes physical works and the management of traffic movement including timing and phasing of traffic signals. The traffic management is part of the proposals whether or not physical works are done within the roads.

If the works are not exclusively for maintenance then the sole question is whether they have significant adverse environmental effect. An important part of the works is the alteration of the timing and phasing of traffic signals. The management of traffic, including signals and bus priority programmes, derives from those measures and not from physical works.

The EER looked at a wide range of factors. For those in contention, namely, noise and vibration and dust and emissions into the air a substantial exercise was undertaken. When the results were analysed it was only dust and emissions to air that was shown to have a significant adverse effect and then that effect was local in scale only. That effect would be affected by management, traffic signals and vehicle movements. The study showed that changes in traffic would redistribute emissions across the study area but would not increase overall emission levels.

There is no evidence of the defendant trying to slice the project into small parts to reduce the overall effect.

It is no part of the defendant’s case that the adverse effects identified in the EER should be netted off. As such the claimant’s reliance on British Telecommunications v Gloucester City Council [2001] EWHC 1001 is misplaced.

The works required to construct the EWCS vary considerably along the route as do the environmental impacts. It is no part of the claimant’s case to argue that those sections of the EWCS in respect of which the EER has identified significant environmental impact constitute development. Instead, the claimant has sought to challenge the entire construction project as having a significant adverse effect on the environment which is not justified on the basis of the EER. The only evidence is that the defendant concluded quite legitimately that no planning permission was required.

The works authorised by the decision of 4 February 2015 include the carrying out of operations in and on land. The claimant accepted, for the purposes of this challenge, that the works were in the boundaries of a road and that the works were carried out by the defendant either as highway authority or as a result of appropriate agreements with other local highway authorities under section 8 of the Highways Act 1980 where required. Therefore, at all times, the defendant was acting as highway authority and so was within the words of section 55(2)(b) TCPA.

It became common ground that the works being carried out were not exclusively for maintenance of the road but were for improvement; a cycle track constitutes an improvement to a highway by virtue of section 65 of the Highways Act 1980.

The question then arises as to the meaning of “any works” within section 55(2)(b). The phrase is used in two places in the subsection and, in my judgment, is intended to mean the same on each occasion. That means that, in considering the improvement works being carried out by the defendant, in this case, the court must have regard to the entirety of the works that constitute phase one of the EWCS. It is in respect of those works as a whole that a judgment has to be made as to whether they may have a significant adverse effect on the environment. The claimant has not sought to isolate any particular work within the whole scheme as having a significant adverse effect on the environment but, rather, has focused its attack on the entire EWCS. Indeed, part of their argument is that the project cannot be split up. It may be that for individual sections of the EWCS a different answer could apply but for the purposes of this challenge the focus is on the whole phase one of the EWCS.

No evidence is before the court on the environmental effect of the proposals other than that contained within the EER. The claimant has confirmed that it served the proceedings upon the relevant local planning authorities but they have not sought to play any part in these proceedings. The claimant relies upon the EER and its contents to establish its case. It puts forward no evidence of its own on environmental impact.

The obvious point has to be made, namely, that the EER is not an Environmental Impact Assessment considering a project under the criteria of the EIA Regulations. That said, in relation to the two areas of impact upon which the claimant relies for its submissions – air quality and noise – the EER is a document supported by detailed modelling work. Under ‘noise calculations’ some 284 calculations are made as to the effect of phase one of the proposal. Under ‘air quality and emissions’ some 564 calculations are made. On the basis of those calculations the EER concluded:

“Air quality and noise impacts are driven by the redistribution of traffic on and around the route. Traffic redistribution in turn redistributes air and noise emissions across the study area. Overall the project will not increase dust and air emissions or noise and vibration.”

Within that overall conclusion there were localised areas where there were significant impacts, both beneficial and adverse, which were highlighted within the EER. Those, however, were localised impacts.

In the report to the Board of the defendant for consideration on 4 February 2015, in considering the environmental impact of the EWCS the officer concluded, having regard to the adverse and beneficial effects that “the proposals have no significant effect on the environment” [516]. That was a conclusion drawn directly from the EER. The EER, when read fairly and as a whole, does not provide the evidential basis for the claimant to assert that the EWCS phase one proposal fails the proviso within section 55(2)(b).

The claimant has contended that the approach of the defendant has been to “net off” the various environmental impacts.

The EER had been completed prior to public consultation. As set out, changes were made to the proposals after consultation to reduce traffic delay and the scheme’s impact on other road users. The response to consultation in January 2015 outlined the changes and said:

“The expected delays to many journeys are now reduced with the previously predicted 16 minute delay on journeys from Lime House Link to Hyde Park Corner reduced to around 6 minutes.”

The traffic assessment was based on:

“The change in traffic flows, distribution and speeds expected due to the implementation of schemes compared with the DN [do nothing] scenario in 2016. The traffic data used in the assessments covered a large part of London (16,800 links) so that the effect of traffic diverting onto alternative routes could be considered.”

The evidence base was, therefore, available for the defendant to conclude that there was no significant adverse environmental effect.

But whether the proposals cause significant adverse environmental effect is not for the court to decide. As Sullivan J (as he then was) said in R v Rochdale Metropolitan Borough Council ex parte Milne [2001] 81 P&CR 27 at [106] to [108] the issue of environmental effect is an issue which requires an exercise of planning judgment which is not for the court. The issue for the court is whether the defendant erred in its contention or was irrational in reaching the conclusion that the works for the EWCS did not cause significant adverse environmental effect and did not require planning permission. For reasons that I have set out I am satisfied that the defendant on the evidence before it at the relevant time, did not err in law and was not irrational in reaching its conclusion that there was no significant adverse environmental effect from the proposals as a whole.

I conclude, therefore, that on the evidence before the court, planning permission is not required for phase one of the EWCS as a whole. That is not to say that it may not be required for certain minor works within the scheme (that information is not before the court) or that it may not be required for other cycle superhighways or for parts of them in the future. Each scheme will need to be judged on its own facts and circumstances.

That being the case I do not need to deal with issue (ii) which only arises if the EWCS requires planning permission.

Strictly, also, there is no need to go further, for the first finding disposes of the challenge. However, in case I am wrong and for the sake of completeness I deal with issue (iii) next.

The claimant seeks a declaration that, as originally worded, the continued construction of the EWCS without planning permission constituted a breach of planning control. As the claimant accepted during argument it would be impossible for the court to grant a declaration in such terms. As a result an alternative declaration was submitted at the end of the proceedings.

The claimant relies upon the case of R (Hunt) v North Somerset Council [2015] UK SC 51. In that Lord Toulson dealt with circumstances where a public body had acted unlawfully and the nature of the relief that it was appropriate to grant. He said:

“12.

I would reject the appellant’s complaint that the Court of Appeal was wrong not to make a declaration of its own initiative. The complaint is redolent of hindsight. It is no doubt triggered by the court’s decision on costs, but they are separate matters. The judgment of the Court of Appeal itself ruled that the respondent acted unlawfully, and the authority of the judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect. However, in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the court’s finding. In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice. That said, there is no “must” about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.”

The ratio of Hunt has been applied in the planning context: see R (Nicholson) v Allerdale Borough Council [2015] EWHC 2510 at [103].

The claimant contends that ordinarily it would be appropriate to grant a form declaratory relief to reflect the finding that the defendant has (and is continuing to act) unlawfully by constructing the EWCS without planning permission.

The defendant contends, first, that a declaration is a discretionary remedy and that it would not be just and convenient for a declaration to be made applying section 31(2) of the Senior Courts Act 1981. Second, the defendant contends that there has been undue delay in making the application so that the court should refuse to grant the relief sought on the application on the basis that it would be likely to be detrimental to good administration on the basis of section 31(6) of the Senior Courts Act 1981.

Of particular concern to the defendant is the fact that Parliament had provided a comprehensive code of planning control which is found within the TCPA. The claimant through the declarations that it is seeking is inviting the court to usurp the function properly granted and reserved to local planning authorities. It relies on the speech of Lord Scarman in Pioneer Aggregates v Secretary of State for the Environment [1985] 1 AC 132 at [140]:

“Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. The planning law, though a comprehensive code imposed in the public interest, is, of course, based on the land law. Where the code is silent or ambiguous, resort to the principles of the private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.”

Under part 7 of the TCPA Parliament provided a comprehensive code within the act for the enforcement of town planning rules. That contains four major powers by which town planning rules may be enforced, namely enforcement notices, stop notices, breach of condition notices and injunctions. Parliament, therefore, envisaged the enforcement of town planning rules as a function of the planning authority and the Secretary of State. It would be quite wrong in those circumstances for the court to step into the shoes of the local planning authority and assume its powers and duties of enforcement.

That planning permission is not required is set out clearly in the report to the Board of the defendant for their meeting of 4 February 2015. That was published on 27 January 2015. The claimant has, therefore, been aware of the approach of the defendant since that date.

Further, the EWCS project went out for full consultation between September and November 2014. The claimant made representations upon the proposals including what is said now, and was confirmed in the hearing, to be one of its main concerns, namely the problem of being able to pull up to the kerbside to collect fares. At no time until the letter of 17 April 2015 was anything raised about the requirement for planning permission.

Further, a declaration is sought which involves others who are not before the court, namely, the relevant local planning authorities and it requires them to make a judgment as to whether planning permission is required. Because that is a qualitative judgment it may be that they would take a different view from the court. Although the court’s jurisdiction is unlimited it has to be exercised in accordance with authority. In the circumstances it cannot be used if the purpose is to usurp the power of those entrusted by Parliament to deal with the very issue of planning permission.

Further, the EWCS is a very large undertaking and has been the subject of a vast consultation exercise. Statutory undertakers are involved in the relocation of their infrastructure, the construction project has to be co-ordinated with events and ceremonies taking place within the City of London, much of the works have been undertaken and are proposed to be undertaken through the making of Traffic Regulation Orders under the Road Traffic Regulation Act. Yet further, there are third party construction projects in London which are also affected by the construction of the EWCS. All of that work is in jeopardy if the current construction program is affected. It all demonstrates that it would not be just or convenient to grant a declaration.

There is a six week period within which planning decisions can be challenged because of the importance of certainty for a developer to be able to proceed with a project. Here, although one is not dealing with an actual planning permission, the claimant has been aware of the defendant’s stance since the end of January and yet waited until August 2015 to bring any legal challenge.

Were it relevant, in the exercise of my discretion, I would have refused relief. I say that for the following reasons.

First, the declaration as originally sought assumes that the court can make a determination on a planning application for the EWCS as described in the consultation documents. It would be highly unusual for a planning application to be described in such a way. Many of the works proposed can be dealt with under other legislative powers such as by way of Traffic Regulation Orders under the Road Traffic Regulation Act. Most, if not all of the works, therefore, can be carried out quite lawfully without any recourse to a local planning authority. In my judgment, putting aside other concerns about the wording of such a declaration it is unlikely that a court would be able to grant a declaration in such terms.

Second, assuming that the works are as described as in the consultation document whether there is any adverse environmental effect from the project as a whole is a matter for planning judgment for the relevant local planning authority: see Milne (supra) at [105] and [106]. It would not be appropriate for a court to usurp the role of a local planning authority in such a way. But, on the evidence before the court, there is nothing that would enable the court that the works carried out so far are unlawful.

Third, on any view the proceedings have not been brought promptly. The claimant has known about the decision to construct the EWCS since 4 February 2015. It participated in the consultation on the project but at no time during the consultation stage did it raise the issue of legitimacy as to the way in which the defendant was proceeding.

The claimant relies on R (Hammerton) v London Underground Limited [2002] EWHC 2307 at [197]. That says:

“A declaration that works would be unlawful can be sought both in advance of their commencement and as they proceed; thereafter they would be continuing breaches of planning control. If judicial review lies at all against LUL in this way at the suit of Mr Hammerton, grounds continue to arise each day upon which LUL propose to do a further unlawful act. The start of demolition could itself be seen as a reviewable decision. Whether the courts would grant relief, the greater the lapse of time between the start of work and the bringing of judicial proceedings, would then be a matter of discretion depending on the circumstances. The same applies to the declaration which I am prepared to grant as to the breach of condition. It underlies any allegation of unlawfulness and it is a continuing state of affairs which affects the subsequent actions of the developer.”

That makes it clear that any grant of relief is a matter of discretion, depending on the circumstances, including the passage of time. Here, the project is some seven months into construction and some £18.4 million of public money had been spent at the date of the hearing. The issue of legitimacy was not raised until 17 April 2015 and proceedings not commenced until August 2015. That more than six months after the decision to proceed was made.

In planning decisions there is a procedural bar of six weeks within which to bring a challenge. Although the decision of 4 February to proceed with the construction is not a planning decision as such the rationale for that time limit, namely, that there must be certainty about a development project is of application here. Even when dealing with a breach of EIA Regulations Lord Carnworth made it clear in R (Champion) v North Norfolk District Council [2015] UKSC 52 that the court retained discretion to refuse relief. He said:

“54.

Having found a legal defect in the procedure leading to the grant of permission, it is necessary to consider the consequences in terms of any remedy. Following the decision of this court in Walton v Scottish Ministers[2012] UKSC 44, [2013] PTSR 51, it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice (para 139 per Lord Carnwath, para 155 per Lord Hope).

55.

Those statements need now to be read in the light of the subsequent judgment of the CJEU in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12)[2014] PTSR 311. That concerned a challenge to proposals for a flood retention scheme, on the grounds of irregularities in the assessment under the EIA Directive. A question arose under article 10a of the Directive 85/337 (article 11 of the 2011 EIA Directive), which requires provision for those having a sufficient interest to have access to a court to challenge the “substantive or procedural” legality of decisions under the Directive. One question, as reformulated by the court (para 39), was whether article 10a was to be interpreted as precluding decisions of national courts that make the admissibility of actions subject to conditions requiring the person bringing the action –

“… to prove that the procedural defect invoked is such that, in the light of the circumstances of the case, there is a possibility that the contested decision would have been different were it not for the defect and that a substantive legal position is affected thereby.”

56.

In answering that question, the court reaffirmed the well-established principle that, while it is for each member state to lay down the detailed procedural rules governing such actions, those rules—

“in accordance with the principle of equivalence, must not be less favourable than those governing similar domestic actions and, in accordance with the principle of effectiveness, must not make it in practice impossible or excessively difficult to exercise rights conferred by Union law” (para 45)

Since one of the objectives of the Directive was to put in place procedural guarantees to ensure better public information and participation in relation to projects likely to have a significant effect on the environment, rights of access to the courts must extend to procedural defects (para 48).

…

58.

Allowing for the differences in the issues raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage inconsistent with the approach of this court in Walton. It leaves it open to the court to take the view, by relying “on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court” that the contested decision “would not have been different without the procedural defect invoked by that applicant”. In making that assessment it should take account of “the seriousness of the defect invoked” and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive.”

That is the position where there has been a breach of EU law. Here there has been no breach but had there been the public, including the claimant, had been involved in an extensive consultation process on the EWCS before the decision to proceed with its construction was taken. As part of that exercise, the claimant had made clear its main concern, namely, the difficulty in collecting fares from the kerbside with the segregated lane upon the highway as it confirmed to me during the proceedings. The local planning authorities have chosen not to participate in the proceedings and none have taken action against works which have been undertaken within their administrative boundaries. Although the claimant submits that the declaration sought does not offend against the statutory scheme established by the TCPA, in my judgment, it may well. It involves or may involve an evaluative judgment on environmental impact which, in the first instance, is within the remit of the local planning authority. In any event, as set out, the proceedings are significantly out of time, a considerable amount of public money has already been expended on the scheme and it would not be appropriate in the exercise of my discretion, for the reasons that I have set out, to grant any relief.

On the amended declarations submitted after the hearing the first is worded as follows:

“The works which have been undertaken by Transport for London to roads in order to establish the East West Cycle Superhighway are development (within the meaning of section 55 of the Town and Country Planning Act 1990) and, therefore, without planning permission having being granted for such works by the relevant local planning authorities, constitute a breach of planning control (within the meaning of section 171A(1) of the Town and Country Planning Act 1990).”

That would require the court to declare that the work carried out had been in breach of planning control. It is no part of the court’s power to make such a judgment; that resides with the local planning authority. It would not be appropriate in the circumstances to grant a declaration in such terms.

The second proposed declaration is worded as follows:

“In light of the conclusions within Transport for London’s Environmental Evaluation Report (January 2015) that the construction and use of the East West Cycle Superhighway would be likely to give rise to significant environmental impacts, both beneficial and adverse, the failure of TfL to request a screening opinion from the relevant local planning authorities pursuant to Regulation 5 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, or in the alternative, to make planning applications to the relevant local planning authorities together with an environmental statement (as identified by Regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011) was unlawful.”

That requires the court to make a declaration as to lawfulness of the actions of the defendant but it also raises the issue of a screening opinion which formed no part of the case before me and upon which full argument, as a consequence, has not been heard. It raises, in addition, the issue of an environmental statement upon which again argument has not been heard. It would be entirely inappropriate in the circumstances, even if a case for their grant were made out to grant a declaration in such terms.

In all of those circumstances, if it was necessary to consider the issue of a declaration, I would conclude that it would be inequitable to grant the declaration sought. That applies to whichever of the two versions that were submitted by the claimant to the court was the preferred declaration.

Accordingly, this claim is dismissed.