Town and country planning – Planning permission – Cycle superhighway – Claimant association applying for declaration that construction of cycle superhighway without planning permission was breach of planning control – Whether construction constituting development under section 55 of the Town and Country Planning Act 1990 – Application dismissed
The defendant was a body corporate established under section 154 of the Greater London Authority Act 1999 and was the highway authority for all Greater London Authority roads. On 4 February 2015, following an environmental evaluation report (EER), the board of the defendant approved the construction of four cycle superhighways, including the East-West Cycle Superhighway (EWCS), construction of which began in April 2015. The claimant was a representative body for licensed taxi drivers in London, with over 10,000 members, which had consistently opposed the construction of the EWCS, a continuous, largely segregated cycle route between Tower Hill and Acton in West London. The proposed route was about 9.5km in length and provided a clear and convenient route for cyclists, physically separated from other vehicles. The project required changes to the road layout to provide a wide two-way kerb segregated cycle track in the road.
The claimant applied for judicial review of the decision seeking a declaration that the construction of the EWCS by the defendant without planning permission constituted a breach of planning control. The defendant took the view that the works being carried out were improvement works within section 55(2)(b) of the Town and Country Planning Act 1990 and would not have significant adverse impact on the environment so that planning permission was not required.
By virtue of section 57(1) of the 1990 Act, planning permission was required for “the carrying out of any development of land”. Section 55(2)(b) excepted from the definition of development “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”.
Held: The application was dismissed.
(1) The works authorised by the decision of 4 February 2015 included the carrying out of operations in and on land. For the purposes of this challenge, the works were in the boundaries of a road carried out by the defendant either as highway authority or as a result of appropriate agreements with other 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) of the 1990 Act. The works being carried out were not exclusively for maintenance of the road but were for improvement; a cycle track constituted an improvement to a highway by virtue of section 65 of the 1980 Act.
(2) The words “any works” within section 55(2)(b) meant that, in considering the improvement works being carried out by the defendant in this case, the court had to have regard to the entirety of the works that constituted phase one of the EWCS. It was in respect of those works as a whole that a judgment had to be made as to whether they might have a significant adverse effect on the environment. It might be that for individual sections of the EWCS a different answer could apply but for the purposes of the present challenge the focus was on the whole phase one of the EWCS.
(3) No evidence was before the court on the environmental effect of the proposals other than that contained within the EER upon which the claimant relied. 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 had no significant effect on the environment. That conclusion was drawn directly from the EER which, when read fairly and as a whole, did not provide the evidential basis for the claimant to assert that the EWCS phase one proposal failed the proviso within section 55(2)(b). Therefore, the defendant was entitled to conclude that there was no significant adverse environmental effect. The issue of environmental effect was an issue which required an exercise of planning judgment. The issue for the court was 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. The court was satisfied that the defendant on the evidence before it at the relevant time, did not err in law and was not irrational in reaching that conclusion: R v Rochdale Metropolitan Borough Council, ex parte Milne [2001] 81 P&CR 27; [1999] PLSCS 12 considered.
Therefore, on the evidence before the court, planning permission was not required for phase one of the EWCS as a whole, although it might be required for certain minor works within the scheme or for other cycle superhighways or for parts of them in the future. Each scheme had to be judged on its own facts and circumstances.
(4) In any event, in the exercise of its discretion, the court would have refused relief. The declaration as originally sought assumed that the court can make a determination on a planning application for the EWCS. It would be highly unusual for a planning application to be described in such a way. Many of the works proposed could be dealt with under other legislative powers such as by way of Traffic Regulation Orders under the Road Traffic Regulation Act. Therefore, most, if not all of the works could be carried out lawfully without any recourse to a local planning authority. It was unlikely that a court would be able to grant a declaration in the terms sought. Moreover, whether there was any adverse environmental effect from the project as a whole was a matter for planning judgment for the relevant local planning authority. It would not be appropriate for a court to usurp the role of a local planning authority in such a way. On the evidence before the court, there was nothing that would enable the court that the works carried out so far are unlawful. Furthermore, on any view the proceedings had not been brought promptly. The claimant has known about the decision to construct the EWCS since 4 February 2015. At no time during the consultation stage had it raised the issue of legitimacy as to the way in which the defendant was proceeding: R (on the application of Hammerton) v London Underground Limited [2002] EWHC 2307; [2002] PLSCS 239 and R (on the application of Champion) v London Underground Ltd [2015] UKSC 52; [2015] EGLR 59 considered.
Mark Lowe QC and Robert Williams (instructed by Michael Demidecki & Co, Solicitors) appeared for the claimant; Timothy Straker QC and Phillip Patterson (instructed by Transport for London Legal) appeared for the defendant
Eileen O’Grady, barrister
