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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Licensed Taxi Drivers Association, R (on the application of) v Transport for London [2016] EWHC 233 (Admin) (10 February 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/233.html Cite as: [2016] EWHC 233 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of THE LICENSED TAXI DRIVERS ASSOCIATION) |
Claimant |
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- and - |
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TRANSPORT FOR LONDON |
Defendant |
____________________
Timothy Straker QC and Phillip Patterson (instructed by Transport for London Legal) for the Defendant
Hearing dates: 13-14 January 2016
____________________
Crown Copyright ©
Mrs Justice Patterson:
Introduction
i) Does the construction of the EWCS constitute development under section 55 of the Town and Country Planning Act 1990 (TCPA)?ii) If it does, is construction of the EWCS permitted development under the Town and Country Planning (General Permitted Development) (England) Order 2015?
iii) Should relief be forthcoming in all the circumstances of the case?
EWCS
Factual Background
"- Traffic: Concerned that reduction in traffic capacity and the banning of turns would be extremely detrimental to taxi passengers due to increased journey time and fares. Particular concerns at roadspace reduction at Upper/Lower Thames Street, Victoria Embankment and Hyde Park Corner. Objected to all proposed traffic restrictions, saying that they would result in congestion on nearby roads, restricted access and higher fares and journey times.
- Boarding/alighting taxis: Concerned that taxi passengers' safety could be compromised as their movements would conflict with cyclists when boarding or alighting from taxis which would have to stop alongside the segregated cycle lanes.
- Taxi accessibility: Concerned passengers in wheelchairs and others with poor eyesight or other infirmities would be particularly disadvantaged. It is suggested that it would be difficult to load/unload people in wheelchairs along most of the route due to taxis having few spaces where they would be able to stop and safely put down loading ramps and asked if a safety audit had assessed these issues.
- Reallocation of roadspace: Noted that TfL's own figures show bus, taxi and freight traffic is likely to grow considerably over the next twenty years. Said it does not accept that a case has been made to take road capacity away from these modes.
- Air quality: Requested an air quality assessment covering the route itself and the wider area where displaced traffic would divert to. Said that this should have been provided as part of consultation."
"The Project is likely to lead to localised and route-wide beneficial and adverse environmental impacts; these impacts span the whole significance spectrum from significant to slight, including many areas where the Project is likely to have a neutral impact on the environment.
The environmental evaluation has concluded that the Project is unlikely to have significant environmental impacts on the following areas:
- Planning and Transport Policy
- Biodiversity
- Cultural Heritage
- Townscape
- Water Resources
- Physical Fitness
- Journey Experience
- Sustainable Design
- Environment Management
For Dust and Emissions to Air, significant impacts both adverse and beneficial are likely to occur at a localised level. Overall, substantial beneficial impacts are expected on 5.8km of the London road network (both the route and other impacted roads), moderate beneficial impacts on 9.3km of the network, substantial adverse impacts on 0.41km of the network, and moderate adverse impacts on 3.3km of the network.
For Noise and Vibration, significant beneficial impacts are likely to occur at a localised level. For example, significant beneficial impacts are expected on 3.2km of the London road network whilst significant adverse impacts are expected on 0.39km of the network.
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"
"5.13. Based on an Environmental Evaluation completed prior to public consultation, the East-West route is not expected to have a significant environmental impact on townscape, ecology, cultural heritage, water environment, or ground conditions. Based on a simple comparison of the total length of road links with moderate or major impacts on noise, the scheme is expected to bring greater beneficial impacts than adverse impacts on the basis of length of road link.
5.14. Within a study area focusing on the cycle route and affected roads surrounding the route, emissions are expected to decrease marginally. Traffic would redistribute on the existing highway network due to the CSEW but it is not expected to result in increased emissions. Overall, a much greater length of the London road network is predicted to have significant beneficial impacts than significant adverse impacts.
5.15. Many of the affected road links with increases or decreases in traffic are within the Air Quality Focus Areas. These are Areas that the GLA has identified as being priority areas for improvements in air quality due to existing concentrations within those areas and population exposure. Within the Focus Areas, a much greater length of the road network is predicted to have significant beneficial impacts than significant adverse impacts. Total emissions within the affected Focus Areas are expected to decrease with the Scheme.
5.16. Overall, having regard to both the adverse and beneficial impacts, the proposals have no significant effect on the environment."
"5.48. TfL has not produced an economic impact assessment for the East-West route, as this type of assessment is usually only completed if a project requires planning permission. Canary Wharf Group have submitted an Economic Impact Assessment of the proposals based on the traffic modelling data provided during the East-West public consultation. This report highlights the negative economic impacts of increased congestion. Many of the points arising from this assessment have been addressed following the design changes set out in the Consultation Response Report on the East-West route, notably the reduction in predicted traffic delay at the eastern end of the project."
"5.55. Whilst the benefit to cost ratio is not positive for the proposed East-West Cycle Superhighway based on the monetised benefits that can be captured, this does not mean that the project is poor value for money. This scheme is an essential part of the wider cycling network and re-allocates space from motorised modes to cycling, allowing more people to travel on the system as a whole."
"The LTDA failed to understand on what basis TfL has concluded that planning permission is not required for the EWCS. It is assumed that TfL are proceeding on the basis either that the works in question do not fall within the definition of development for the purposes of the Town and Country Planning Act 1990 such that planning permission is not required or that permission is granted by virtue of the Town and Country Planning (General Permitted Development) Order 1995 (GDPO 1995). If so LTDA consider that TfL is wrong in law and, that without the grant of express planning permission, it has no lawful basis to construct the EWCS."
The letter then proceeded to develop its arguments on the unlawfulness of the works.
Issue (i): Did the EWCS Require Planning Permission?
Legal Framework
"(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."
Claimant's Submissions
"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."
"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].
Defendant's Submissions
Discussion and Conclusions
"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.
"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.
In the event that planning permission is required should relief be forthcoming ?
"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."
"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."
Discussion and Conclusions
"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.
"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."
"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)."
"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."