In considering the claim brought by the Licensed Taxi Drivers Association against Transport for London’s operations to deliver its £40m East-West Cycle Superhighway (“EWCSH”), the High Court accepted that a scheme with local significant effects where an overall view could be taken that there were neutral effects could qualify as not requiring environmental impact assessment.
The claim in R (on the application of The Licensed Taxi Drivers Association) v Transport for London [2016] EWHC 233 (Admin); [2016] PLSCS 46 centred on the decision to deliver the EWCSH without any planning permission. The authority carried out – but did not consult on – an environmental evaluation report which identified “localised and route wide beneficial and adverse environmental impacts” which would “span the whole significance spectrum”. It concluded that “overall, having regard to both the adverse and beneficial impacts, the proposals have no significant effect on the environment”.
The judicial review claim challenged the on-going carrying out of the project, on the basis that it had been done without planning permission. Because it was not a challenge to a local planning authority’s decision not to enforce, it centred on TfL’s decision to rely on section 55(2)(b) of the Town and Country Planning Act 1990 (which excludes a highway authority’s road works where “required for the maintenance or improvement of the road” from the need for planning permission). The section 55(2)(b) carve-out excludes “any works… which may have significant adverse effects on the environment”. The defendant rejected the suggestion that it had inappropriately “salami sliced” the construction and operation stages of the works or “netted off” the overall effects to reach a scheme-wide view of the EWCSH. The claim was focused on the project as a whole, rather than individual elements.
Patterson J held that “any works” in section 55(2)(b) entitled TfL to view the project as a whole when considering adverse effects. The judgment does hold open the door for future challenges to similar city-wide projects, recognising that some works within the scheme could have given rise to significant adverse effects (and so presumably fallen foul of the section 55(2)(b) carve out had the claim been brought on that basis). Both the significance of the project and the delay in bringing the claim (6 months after TfL published its approach) would have justified exercising the discretion to refuse relief (under sections 31(2) and (6) of the Senior Courts Act 1981), she held.
The claimant struggled to formulate the declaration it sought. The initial attempt was criticised as requiring planning judgment. Another approach was rejected as being outside the basis of the claim and the evidence.
Roy Pinnock is a partner in the planning and public law team at Dentons
