The High Court decision in the Queen (on the application of the Licensed Taxi Drivers Association) v Transport for London [2016] EWHC 233 (Admin) highlights the issues to be considered when determining whether highway improvement works by a highway authority, pursuant to their powers under the Highways Act 1980, require planning permission. It also highlights the restricted ability of a third party (ie. a party other than the local planning authority) to successfully set aside a highway authority’s decision to proceed with the highway improvement works without planning permission.
The case concerned a judicial review of the decision of TfL to carry out highway improvement works to create a “cycle superhighway” in London without planning permission. Section 55(2)(b) of the Town and Country Planning Act 1990 provides that the following is no development for the purposes of the Act: 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.
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? Such questions for any scheme will need to be judged on its own facts and circumstances.
It was agreed by the parties that the works were improvement works pursuant to section 65 of the Highways Act 1980. Therefore, the question was whether the works would have a significant adverse effect upon the environment. TfL had relied upon for their decision an environmental evaluation report which concluded the works would not have such adverse effect. It was not an environmental impact assessment. The Court, in concluding that TfL was entitled to rely on such report, found that TfL had made no error in law and was not irrational in reaching its conclusion that there was no significant adverse environmental effect from the proposals as a whole. In particular, the Court advised that whether the proposals cause significant adverse environmental effect is not for the Court to decide, as such issue requires an exercise of planning judgment which is not for the Court but the local planning authority.
The Court also considered the scenario where planning permission was required, and stated in obiter that the Court would have exercised its discretion to refuse to grant declaratory relief. Even in such scenario much of the work would not have likely required express planning permission making a declaration that the works were unlawful inappropriate. Further, as environmental effect was a matter of planning judgement, the Court had no power to declare that the work carried out had been in breach of planning control as that power resided with the local planning authority (which took no part in the proceedings). Furthermore, the claimant had not issued proceedings until some six months after the superhighway was approved, and it had not raised the issue of lawfulness during the consultation. By the time of the hearing, construction had been ongoing for seven months. The Court found that the claimant had not therefore properly brought the judicial review in reasonable time. Such judicial review should be bought at the time of the decision to proceed with the works or at least prior to construction to garner the willingness of the Courts to exercise their discretion.
