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Cite as: [2000] EWHC Admin 373

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ROYAL BOROUGH OF KENSINGTON AND CHELSEA ex parte Vahn Eminian, R v. [2000] EWHC Admin 373 (19th July, 2000)

Case No: CO/733/2000

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19th July 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY

	REGINA
	v.
	THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA ex parte Vahn Eminian

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Anthony DINKIN QC (instructed by Stone King for the Applicant)
Peter HARRISON (instructed by The Royal Borough of Kensington and Chelsea for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE MAURICE KAY:
1. The Applicant is the owner and occupier of a house the address of which is 9 Fernshaw Road, London SW 10. Fernshaw Road runs between Fulham Road and Kings Road. There are houses on both sides of the road. The Royal Borough of Kensington and Chelsea (RBKC) is the relevant highway authority. The parking of cars by residents and others in the area is a problem. Although a small minority of the houses in Fernshaw Road have off-street parking facilities within their boundaries, the majority do not. For the occupiers of those houses, there is no alternative to on-street parking. For some years all the public highways in RBKC have been within a Controlled Parking Zone (CPZ). Residents can obtain permits allowing them to park within the CPZ during the hours of control which are 08.30 - 22.00 from Monday to Friday and 08.30 - 18.30 on Saturday. At present about 41, 000 residents have permits although throughout RBKC there is kerb-side space for only about 25,500 cars. In the area around Fernshaw Road 368 permits have been issued against on on-street parking capacity of 166 car spaces.
2. On 1 September 1999 the Applicant made an application under section 184 (11) of the Highways Act 1980 which provides:
"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."
Subsection (5) is in the following terms:
"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 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."
Subsection (1) enables a highway authority to serve a notice on the owner and the occupier of adjoining premises stating that the authority propose to execute works for the construction of a vehicle crossing over a footway or verge. Subsection (3) similarly enables a highway authority to serve a notice on the owner and occupier stating that they propose to execute works when land is being or is to be developed in accordance with a planing permission.
3. The Applicant's request that the RBKC construct a vehicle crossing over the footway outside his house so as to enable him to avail himself of off-street parking within his property was considered by the appropriate officers within RBKC. A report was prepared for the Planning Services Committee. It recommended that the request be refused and in due course the Planning Services Committee refused it. Two reasons were expressed in the officers' report and in the notification of refusal, viz.
"(1) Loss of on-street residents parking.
(2) With specific regard to `space A' the proposal fails to satisfy the requirements of section 184 (5) of the Highways Act 1980, in that it does not allow safe access to and egress from the property and may have an adverse impact on the passage of vehicular traffic in the highway."
Reason (2) became immaterial because the Applicant modified his request by reducing the off-street parking facility from two spaces to one. Thus, so far as the modified request is concerned, the reason for its refusal is reason (1), "loss of on-street residents parking". The concern of RBKC is that if they were to accede to the request approximately six metres of kerb-side parking would be lost to residents' on-street parking within the CPZ. It is common ground that RBKC took the view that this loss would have an adverse effect on the operation of the CPZ.
4. In the these proceedings, the Applicant is applying for judicial review of the refusal of his request. His case is put on two grounds. First, it is said that it was unlawful for RBKC to take into account any adverse effect on the operation of the CPZ because in reaching its decision the only matters to which it could lawfully have regard were the matters set out in subsection (5). Secondly, a challenge is advanced, in the alternative, on Wednesbury grounds on the basis that it was unreasonable to conclude that the loss of one on-street residential parking space and the corresponding gain of one off-street space could have an adverse effect on the safe and efficient operation of the CPZ.
Ground 1: construction
5. On behalf of the Applicant, Mr. Dinkin QC submits that, properly construed, subsection (11) means that the only matters to which a highway authority may have regard when deciding what to do in response to a request made under subsection (11) are those set out in subsection (5). The effect on the operation of the CPZ is not one of the matters there set out. Therefore RBKC had regard to, and indeed made their decision on the basis of, an irrelevant consideration. The CPZ should not have been considered at all, except, possibly, to the extent that any adverse effects upon it overlapped with the matters set out in subsection (5).
6. The provisions of section 184 (5) and (11) substantially resemble those of section 40(5) and (11) of the Highways Act 1971 but prior to 1971 the corresponding legislation was expressed differently. By section 155 (5) of the Highways Act 1959 a highway authority could be requested to form "a carriage crossing across a grass verge or a footway in a highway maintainable at the public expense", whereupon the authority had a discretion to approve (with or without modification), to propose alternative works or to reject. However, at that time there were no specified matters to which the authority was required to have regard. Mr. Dinkin's submission is that the current provisions define and exclusively limit the matters to which an authority is required to have regard. He contends that if parking implications, whether in the form of a CPZ or otherwise, had been intended by Parliament to be matters for consideration, Parliament would have said so. CPZs have their statutory basis in section 45 of the Road Traffic Regulation Act 1984 but there is no cross-referencing between the two Acts. Moreover, section 45 of the 1984 (11) Act provides an illustration of how Parliament might have been expected to express itself if it had intended section 184 (11) of the 1980 Act to be non-exclusive. Section 45 of the 1984 Act (like its predecessor in the Road Traffic Acts 1960 (section 85) and 1967 (section 25)) requires an authority to consider
"both the interests of traffic and those of the owners and occupiers of adjoining property, and in particular the matters to which that authority shall have regard include......"
It is significant, says Mr. Dinkin, that section 184 of the 1980 Act does not include that kind of tried and tested provision in circumstances where criteria are non-exhaustive. On the contrary, the words and the grammar are clear and their literal construction does not give rise to absurd, anomalous or impossible consequences. No other technique of construction is needed but, if it were, expressio unius est exclusio alterius favours the construction in any event. Thus the implications for the CPZ were a wholly irrelevant consideration. Alternatively, their relevance is limited to the extent to which they are coextensive with the "matters" set out in section 184(5).
7. On behalf of RBKC, Mr. Harrison also submits that the wording of section 184(5) and (11) is clear but contends that its clarity is consistent only with the criteria of section 184(5) being non-exclusive. It is the Applicant who is attempting impermissibly to read words into the section, for example by reading section 184 (11) as if it said "shall have regard only to the matters mentioned in subsection (5)". He further submits that the historical development of the statutory provisions favours his construction. Section 155(5) of the 1959 Act, which was lacking in specific criteria, contained a power the parameters of which were controlled simply on Wednesbury grounds. There is no reason why Parliament, by subsequently writing in some specific criteria, should have removed relevant criteria which were suitable for consideration previously. Moreover, in general terms, when a statute requires a public authority to "have regard to" specific matters, that does not mean that consideration of relevant but unspecified criteria is excluded. For example, by section 142(1) of the Greater London Authority Act 1999 the Mayor has to publish a transport strategy and by section 144(1) a London borough council, the Common Council and anyone else exercising statutory functions in relation to Greater London "is to have regard to the transport strategy". That does not mean that they cannot or should not have regard to anything else. Mr. Harrison accepts that a formulation in one statute does not necessarily lend itself to the same construction in another statute but he refers to it as an illustration of how specified matters which are to be the subject of consideration need not preclude consideration of unspecified matters in the absence of wording such as "shall have regard only to.....".
8. In addition to these short submissions, Mr. Harrison also proffered a detailed analysis of section 184 which, if correct, points to the non-exclusive construction for which he contends. The analysis runs as follows. (I) The first of the "matters" to which a highway authority is required to have regard by subsection (5) is "the need to prevent damage to a footway or verge". This only arises where the authority itself is considering whether or not to issue a notice because the verge or footway is already being "habitually" crossed (section 184(1)) or because of new development (section 184(3)). (II) The second and third "matters", viz. those set out in subsection (5)(a) and (b) arise "in determining the works to be specified in a notice" - initially under subsection (1) or (3)(a), but also when the authority is modifying an applicant's request or proposing alternative works pursuant to subsection (11). Moreover, subsection (5)(a) and (b) have the rider "so far as practicable", which words assume that there is or will be a crossover rather than that a request for one will be refused. (III) When an authority receives a request under subsection (11), there is a menu of four options: approval with modification, approval without modification, a proposal of alternative works or rejection of the request. Since the options include both modification and the proposal of alternative works, there is no reason to include the power to reject the request unless it is possible for the authority to take into account other relevant matters. Mr. Dinkin criticised this analysis as being based on a tortuous construction which is unnecessary and inappropriate.
9. In my judgment, upon the correct construction of subsection (11) it was permissible for RBKC to reject the Applicant's case and, in doing so, to have regard to the implications for the CPZ. I do not consider that the language of subsections (5) and (11) is such that they were prohibited from having regard to matters other than those specified in subsection (5). In reaching this conclusion I consider that it is a construction which is consistent with the legislative history of the statutory provisions as well as with its wording. I find support for it in each of Mr. Harrison's submissions, both of a general nature and what I have referred to as his "detailed analysis". I do not accept that it is a contrived or tortuous construction. Accordingly, the Applicant's challenge based on the construction of section 184 fails.
Ground 2: Wednesbury
10. Mr. Dinkin's alternative submission is that even if RBKC were entitled to have regard to the implications for the CPZ, their refusal of the Applicant's request in the circumstances of the present case was irrational. In his Skeleton Argument he put it in this way:
"[RBKC] could not reasonably have reached the conclusion on the material before [them] that the loss of on-street residential parking could have any adverse effect on the safe and efficient operation of the CPZ. Crossover principles are well established around the country and are known to be safe. Moreover, since the Applicant's car was to have been parked off-road on a hardstanding there would be no significant overall loss of parking. There was no evidence before the committee to support the conclusion that the loss of 6 metres of on-street parking would prejudice the safety or efficiency of the CPZ."
In oral submissions he added a related point, namely that RBKC operate an invariable policy of refusal when section 184(11) requests relate to areas within the CPZ.
11. The evidence on behalf of RBKC is in the form of a witness statement by Mr. Thomas Mansfield of their Transportation and Highways Department who had drafted the report to the Planning Services Committee. In his statement he explains why RBKC take the view that to accede to the Applicant's request would have serious implications for the operation of the CPZ. For example,
"The off-street space is available only to the occupiers, users and visitors of the property. When not in use...it is not available for other residents.....[On] average each available on-street parking space in Fernshaw Road is used about 4 times per day. Any space becoming free.......is quickly taken up by another....the provision of an off-street parking space is not an equivalent replacement for the loss of an on-street parking space."
The occupancy rate in relation to on-street parking in Fernshaw Road is between 94 and 100%. The fewer spaces there are, the more do motorists in search of a space have to drive around in "parking search loops". I have already referred to the figures for the number of residential permit holders and the maximum number of spaces. I do not propose to rehearse all the evidence. Suffice it to say that, in my judgment, if consideration of the implications for the operation of the CPZ is a valid consideration, and I have held that it is, then there is abundant evidence pointing to the conclusion that the refusal of the Applicant's request was in no sense irrational. Nor has it been established that RBKC were operating an inflexible policy. In the last two years more requests have been granted than have been refused, although it is true that in all cases in that time where RBKC came to the conclusion that there would be a net loss of residents' on-street parking there has been a refusal. I do not consider that that points to irrationality or illegality of any sort. Moreover in Fernshaw Road itself there have been one or two instances of requests being approved since the introduction of the CPZ, for example in 1992 for a doctor who needed immediate access to his vehicle for emergency calls. Whilst a high priority is given to the implications for the CPZ this is not to say that each application is not considered on its merits. In my judgment the Wednesbury challenge in this case simply does not get off the ground.
Conclusion
12. It follows from what I have said that neither of the Applicant's grounds of challenge is made out and his application for judicial review therefore fails. I should add that in the course of submissions there was some debate about various planning policy documents but, in my judgment, they do not impact on the conclusions I have reached.