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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Anwar v London Borough of Ealing Council [2025] EWCA Civ 813 (30 June 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/813.html Cite as: [2025] EWCA Civ 813 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
DEXTER DIAS KC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWIS
and
LORD JUSTICE HOLGATE
____________________
MRS SHAMIM ANWAR |
Claimant/ Appellant |
|
- and |
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LONDON BOROUGH OF EALING COUNCIL |
Respondent |
____________________
Guy Williams KC (instructed by Legal Services, London Borough of Ealing) for the Respondent
Hearing date: 4 June 2025
____________________
Crown Copyright ©
Lady Justice Andrews:
INTRODUCTION
"The decision of the Chief Executive not to remove the crossover was unlawful because he had no, or no adequate, regard to a relevant consideration, namely that the crossover had been unlawfully constructed in the first place."
The judge on that occasion refused permission to proceed with all the other grounds for judicial review pleaded in the Statement of Facts and Grounds, many of which, though expressed as challenges to the 2021 decision, were in truth extremely belated attempts to challenge the lawfulness of the Council's original decision in around December 2015 to permit the construction of the crossover ("the 2015 decision").
FACTUAL BACKGROUND
"The reduced cost of a standard 3.6m wide shared vehicle crossover is £575, which represents a significant saving on the average cost of a one off domestic vehicle crossover. Should you wish to take up this offer, please proceed to make full payment for the construction of the vehicle crossover and provide written approval from your neighbour at [Mrs Anwar's address] for its construction."
THE RELEVANT STATUTORY PROVISIONS
" in any built-up area, there are numerous rights of access to the streets from adjoining premises they are rights derived from common law or statute, general or local, or perhaps, from a combination of the two sources. In my opinion it is well-settled law that a highway authority exercising statutory powers to improve or maintain a street or highway, such as to raise or lower its level, form a footpath, to pave or kerb or to erect omnibus shelters, is empowered to carry out its works even though by so doing it interferes with or obstructs frontagers' rights of access to the highway."
This case is about the converse situation, in which the highway authority is using its statutory powers to improve or maintain the highway to facilitate the exercise of a right of access to property.
"184. Vehicle crossings over footways and verges.
(1) Where the occupier of any premises adjoining or having access to a highway maintainable at the public expense habitually takes or permits to be taken a mechanically propelled vehicle across a kerbed footway or a verge in the highway to or from those premises, the highway authority for the highway may, subject to subsection (2) below, serve a notice on the owner and the occupier of the premises
(a) stating that they propose to execute such works for the construction of a vehicle crossing over the footway or verge as may be specified in the notice; or
(b) imposing such reasonable conditions on the use of the footway or verge as a crossing as may be so specified.
(2) A highway authority is not entitled by virtue of subsection (1) above to construct a vehicle crossing on, or on any part of, the site of a made-up vehicle crossing which has been constructed either under this section or under section 40 of the Highways Act 1971 (which this section replaces) or before the commencement of the said section 40, or to impose conditions on the use of such a crossing.
(3) Where any land is being, or is to be, developed in accordance with a planning permission granted, or deemed to have been granted, under the Town and Country Planning Act 1990, and it appears to the highway authority for a highway maintainable at the public expense that the development makes it necessary
(a) to construct a crossing over a kerbed footway or a verge in the highway so as to provide an access for mechanically propelled vehicles to or from the carriageway of the highway from or to premises adjoining or having access to the highway; or
(b) to improve or otherwise alter a made-up vehicle crossing that provides such an access as is mentioned in paragraph (a) above (whenever constructed),
that authority may serve on the owner and the occupier of the premises a notice stating that they propose to execute such works for the construction or, as the case may be, alteration of the crossing as may be specified in the notice.
(4)
(5) In determining whether to exercise their powers under subsection (1) or (3) above, a highway authority shall have regard to the need to prevent damage to a footway or verge, and in determining the works to be specified in a notice under subsection (1)(a) or (3) an authority shall have regard to that and the following other matters, namely
(a) the need to ensure, so far as practicable, safe access to and egress from premises; and
(b) the need to facilitate, so far as practicable, the passage of vehicular traffic in highways.
(6) Schedule 14 to this Act has effect with respect to the making of objections to a notice under subsection (1) or (3) above and to the date on which such a notice becomes effective.
(7) Where a notice under subsection (1)(a) or (3) above has become effective, the highway authority by whom the notice was served may execute such works as are specified in the notice, subject to such modifications (if any) as may have been made by the Minister, and may recover the expenses reasonably incurred by them in so doing from the owner or occupier of the premises in question.
(8) A notice under subsection (1) or (3) above shall inform the person on whom it is served of his right to object to the notice and (except in the case of a notice under subsection (1)(b)) shall state the effect of subsection (7) above.
(9)
(10)
(11) Any person may request the highway authority for a highway maintainable at the public expense to execute such works as are specified in the request for constructing a vehicle crossing over a footway or verge in the highway, and the authority may approve the request with or without modification, or may propose alternative works or reject the request; and in determining how to exercise their powers under this subsection an authority shall have regard to the matters mentioned in subsection (5) above.
(12) An authority to whom a request under subsection (11) above is made shall notify the person making the request of their decision and if they approve, with or without modification, the works proposed in the request or propose alternative works, they shall supply him with a quotation of the cost of the works as approved or proposed by them, and he may, on depositing with them the amount quoted, require them to execute those works.
(13) As soon as practicable after such a deposit has been made with an authority the authority shall execute the works as approved or proposed by them."
"(1) A person on whom a notice under section 184(1) or (3) of this Act is served may within 28 days from the date of his being served therewith object to the notice on any of the following grounds which are appropriate in the circumstances of the particular case:
(a) that the notice is not justified by the terms of section 184(1) or (3);
(b) that there has been some defect or error in, or in connection with, the notice;
(c) that the proposed works are unreasonable in character or extent, or are unnecessary;
(d) that the conditions imposed by the notice are unreasonable;
(e) that some other person having an interest in the premises also habitually takes or permits to be taken a mechanically propelled vehicle across the footway or verge and should be required to defray part of the expenses of executing the proposed works;
(f) that the authority are not entitled to serve the notice by reason of section 184(2);
(g) that a person carrying out or proposing to carry out such a development as is referred to in section 184(3) offers to execute the works himself.
(2) An objection under paragraph 1 above shall be made by notice to the highway authority, and the notice shall state the grounds of objection.
(3) Where objection is made to a notice given by a local highway authority under section 184(1) or (3), that authority shall send a copy of the notice and of the notice of objection to the Minister.
(4) If objection is made to such a notice and the objection is not withdrawn the notice does not become effective until it has been confirmed by the Minister, and the Minister after considering the objection may confirm the notice without modification or subject to such modifications as he thinks fit.
(5) Subject to paragraph 4 above, such a notice becomes effective at the expiration of the period during which the person served therewith may object to it."
CONSTRUCTION OF SECTION 184
THE A1P1 ARGUMENT
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
The issue is therefore whether construing section 184(11) as permitting any person to request the highway authority to construct a vehicle crossing in the public highway, and as giving the highway authority a wide discretion to approve that request with or without modifications, or to propose alternative works or to reject the request, which is the natural and ordinary meaning of the words used, would have the effect of depriving anyone of their possessions or of the peaceful enjoyment of their possessions. The answer is plainly no.
CONCLUSION
Lord Justice Lewis:
Lord Justice Holgate:
Note 1 In such event, subsections (9) and (10), which are not relevant to the issues of construction in this case, make provision for the highway authority to authorise the developer to carry out such works under plans approved by the authority, and to take over the works if the developer does not execute them satisfactorily. [Back]