England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice
		26 July 2018

MR JUSTICE HOLGATE:

1. Transport for London ("TfL") has decided to create a further cycle superhighway running from Swiss Cottage to Portland Place. The route would run south from Swiss Cottage along Avenue Road to North Gate on the perimeter of Regent's Park. It would cross over Prince Albert Road and then run around the whole of the Outer Circle within the park, before crossing over the Marylebone Road to continue along Park Crescent and Portland Place, as far as New Cavendish Street. The route is known as CS11.
2. Westminster City Council ("WCC") is the highway authority under the Highways Act 1980 for two sections of the route, (1) Adelaide Road, south of Norfolk Road and (2) Park Crescent and Portland Place. In relation to those sections, any necessary traffic regulation orders under the Road Traffic Regulation Act 1984 would have to be made by WCC. More pertinently, it is common ground that the cycleway works cannot take place on those sections for which WCC is the highway authority without its consent (see, for example, s.132 of the 1980 Act).
3. WCC seeks permission to apply for judicial review to challenge the decision of TfL's Healthy Streets Portfolio Board, taken on 15 March 2018, which gave "Programme and Project Authority" to enable the construction of the Swiss Cottage section of CS11, the design and construction of the Outer Circle section, and the expenditure therefor. Thus, TfL has not authorised any construction on those sections of CS11 on roads for which WCC are responsible and which form integral parts of the project. One section would link the Swiss Cottage section with the Outer Circle and the section at the southern end of the scheme, Park Crescent and Portland Place, would link into other parts of TfL's cycle highway network.
4. Work on the Swiss Cottage section is due to start imminently, on 30 July, and, therefore, the claimant also seeks an interim injunction to prevent those works from taking place, if permission should be granted to apply for judicial review, until the determination of the claim.
5. In this application, the submissions which have been made on WCC's behalf by Mr Tristan Jones have been supported by Mr Andrew Parkinson, who appears on behalf of the first interested party, CS11 London Limited, a company which has been set up to represent the views of significant numbers of local residents living in neighbouring streets. The first interested party itself had issued a claim seeking judicial review in relation to the same decision on grounds substantially overlapping those which are relied upon by WCC. But when the latter issued its own claim for judicial review, very responsibly, if I may say so, CS11 London Limited decided that there was no separate point in pursuing its own claim for judicial review and withdrew the application.
6. It is necessary to set out briefly something of the factual background. TfL carried out a consultation exercise between February and March 2016. In its consultation document, TfL described the various elements of the proposal. In relation to Park Crescent and Portland Place they said that the results of the consultation would enable them to decide which of two options, A and B, to proceed with. They also stated that their proposals were subject to further discussions with WCC. In its response, on 24 March 2016, WCC answered question 1: "Do you support our overall proposals for Cycle Superhighway 11?", "No". They gave a number of reasons for taking that stance. Although WCC supports the Mayor of London's Vision for Cycling in London, published in March 2013, they considered it essential that TfL shared its strategic traffic modelling in a meaningful way to enable all stakeholders to understand properly the traffic impacts associated with the proposal. They also supported strong local representations that TfL should adopt a holistic approach by considering the combined impacts of the scheme and other major redevelopments in the area. They stated that they could not sensibly respond on the two options presented for the Portland Place element of the proposal in the absence of traffic modelling outputs. They asked TfL to review generally traffic modelling data presented thus far and to ensure greater clarity on such matters as the reassignment of traffic onto alternative routes, notably local roads in the St John's Wood area, and potential air quality issues arising therefrom.
7. They expressed a particular concern that TfL's modelling data demonstrated a likely significant detriment to pedestrian amenity at important crossing locations on the Finchley Road and adverse consequences for the efficient running of bus services. They concluded that part of their response by objecting to the proposals being implemented on behalf of their residents and businesses, whom they said had requested detailed information on traffic modelling.
8. In relation to question 17, which asked for comments about proposals for Regent's Park, WCC stated:

"Due to a lack of clarity of the traffic impacts of the proposals, the City Council objects to the proposed closure of the four gates in Regent's Park … The City Council has been consistent in its advice to TfL and the Royal Parks Agency to take notice to slow traffic on the Outer Circle for this scheme rather than adopt gate closures."

9. They then responded to a series of questions, 18 to 21, dealing with the section running from Park Crescent to Portland Place, by stating that they could not indicate a preference as between options A and B without being able to understand the traffic impact of each option, that relating back to their comments on the adequacy of traffic modelling information.
10. The City Council's response to TfL followed a report to the Cabinet Member for Sustainability and Parking, dated 23 March 2016; a document in the public domain and which it is reasonable to assume is well-known to TfL. In para.5.3 of that report, the author stated:

"It is unfortunate that the traffic modelling undertaken by TfL has not been shared fully with the public and stakeholders through the consultation process. TfL has limited the release of data to the table supplied in Appendix 2, which sets out general traffic and cycle journey time impacts along the Cycle Superhighway 11 route … This level of traffic modelling data is not sufficient to enable affected parties to quantify the traffic impacts associated with the proposals, and to understand how TfL intends managing the traffic passing through the area."

At para.5.6 the officer stated that the proposals could not be supported by WCC at that stage because of the unknown scope and extent of their likely traffic impact and, therefore, the City Council would object to the proposals being implemented. At para.8.1 it was also pointed out that if the scheme were to proceed, TfL and the City Council would have to undertake statutory consultation on associated TROs for their respective highways. More relevantly, the City Council would need to agree to enter into legal agreements with TfL under ss.8 and 278 of the Highways Act 1980 so that the works needed to implement the scheme to be carried out, adding these important words:

"… if the results of the additional traffic modelling indicate that the scheme impact can be appropriately mitigated, following consideration by Cabinet Members and a further Cabinet Member Report."

11. In December 2016, TfL published its response on the consultation exercise. At p.4 they said that the document would explain the decisions which they had taken about the scheme after having considered the consultation responses. Under the heading "Next steps", the authors stated that TfL intended to proceed to the next stage, namely full engineering design of the majority of the proposals outlined in the CS11 consultation, but they would be doing further work on the proposals for Regent's Park before deciding on a way forward for that section of the route. At that stage, the document contemplated that, subject to the approval of formal traffic orders, internal approvals and Government processes, and those of the local highway authorities, they aimed to start construction at Swiss Cottage in autumn 2017 with completion planned for 2018. One might infer from the reference in that passage on p.5 of the document to "local highway authorities", in the plural, that they were contemplating obtaining the necessary consents from each of the relevant local highway authorities, which would also include Camden LBC, prior to any part of the scheme commencing.
12. Page 5 also referred to TfL's then position on the Regent's Park element of the proposal and explained the respects in which it was considering alternative measures. From the submissions that were made to the court this morning, I understand that that part of the proposals attracted some degree of controversy.
13. As regards Portland Place, TfL stated:

"Having considered the consultation responses, we will be taking forward Option B … We will now carry out detailed traffic modelling on this option. The design will be reviewed in the light of the outcomes of this modelling."

14. As one might expect, there have been fairly regular communications between TfL and WCC. On 27 January 2017, TfL sent an email to WCC summarising key points from a recent meeting between the two authorities. The email referred to Westminster's stance that a robust set of mitigation measures would have to be identified. The email also referred to the design and modelling work which would need to be undertaken, including for Portland Place. In summary, the email appears to have initiated a process for these issues to be taken forward.
15. The court was also shown an email from TfL towards the end of 2017. On 30 November an email was sent to WCC setting out an agenda for a meeting which was to take place. At that stage it is apparent that a range of traffic modelling outputs were yet to be provided, both of a local nature and, indeed, of a strategic wider nature using the Saturn model, including the assessment of impacts, for example, on Baker Street. The agenda was also to discuss the procurement of consultants to undertake design and further traffic modelling review. So it is plain that the work that was set in train at the beginning of 2017 was still ongoing.
16. The question as to what has, in fact, been happening from the beginning of 2017 until the date of the decision which WCC seeks to challenge has been dealt with in two or three primary sources, first Mr Sabato's witness statement. He explains in para.23 that the two authorities have held meetings at approximately monthly intervals. He refers to a document circulated by TfL in around July 2017 which sought approval for proposals for the Swiss Cottage section of CS11 on the understanding that proposals for the Regent's Park element would have to be agreed before construction started. He notes that those proposals had not yet been agreed. At para.33 he refers to the concerns which WCC have been raising about potential traffic displacement effects of the scheme and the need for further modelling since before the consultation began. He says that the council has received relatively little in the way of modelling and there remain important gaps. Therefore, the claimant is not currently in a position to take a view on the overall merits of the proposal for this reason. In para.34 he identifies material which he says TfL has yet to provide to WCC. In para.35, dealing with strategic modelling, he says that the results from the earlier modelling, carried out in February 2016 at a strategic level, shows the impacts that may be expected on local roads. This resulted in WCC feeding back various comments about the model to TfL and the ensuing dialogue between the parties. He says that WCC have raised several issues, some of which were dealt with by TfL and some of which have not yet been adequately addressed.
17. In relation to a meeting with TfL on 31 November 2017, Mr Sabato says that the Council asked for up-to-date modelling outputs at all three levels of the modelling exercise (see para.38). In para.39 he says that WCC did not receive any further modelling output.
18. Moving to March 2018, he relies upon an email from an officer of TfL indicating that a further revised draft of the Portland Place designs would be issued which would then be used for traffic modelling of that aspect. That provoked a response from WCC in April 2018 that the City Council would be instructing consultants to look at the entire modelling of CS11, including Portland Place and the area north of Regent's Park. A theme of the City Council's representations is that the Portland Place issues cannot be looked at in isolation. There are interactions between the assessment of that part of the proposal and other sections of the proposal and the wider area. In para.40 he re-emphasised the importance of the modelling for the purposes of identifying mitigation measures. In short, the City Council says that all this information, including identification of mitigation measures, are essential pieces of information to enable the City Council to take a formal view on whether it will or will not give consent for that part of CS11 to be carried out on roads for which WCC is responsible.
19. It is convenient to summarise at this point the overall stance that the City Council is taking. They recognise the benefits of Cycle Superhighways but they add that the potential "costs" (or detriments) of such schemes do include less space being available on the road for other road users, the effects on timings at signal junctions for vehicular traffic, and the possible displacement of traffic onto other roads. They also refer to bus journey times increasing and possible impacts for pedestrians. So the position remains that WCC supports in principle CS11, provided that the benefits of the proposal can be shown to outweigh the disbenefits. But the information supplied to the Council has not yet enabled it to be satisfied of that position.
20. It is important to stress that although much information has been placed before the court on the relative merits and demerits of this proposal, about which strong opinions are held, both for and against, these are not matters with which the court is in the slightest concerned. The court is only concerned with issues of law.
21. TfL have responded to the points made by WCC about data primarily in two documents. First, in the summary grounds contesting the claim at para.26.4 it is said that:-

"TfL was in the process of completing traffic modelling for Portland Place. The parties were in discussions about a draft Memorandum of Understanding which would set out the proposed approach and working arrangements between WCC and TfL in advance of formal decision making. Whilst TfL was aware that there were some outstanding issues, at the time of the decision TfL fully expected that these issues were capable of resolution and would be resolved in time for construction of the relevant parts of the route to start."

The document then went on to refer to a strategic matter which is of no real relevance to the issues the court has to deal with.

22. Mr Ben Plowden has provided a witness statement on behalf of TfL and he deals with these aspects at paras.12 and 13. Suffice to say that, in my judgment, TfL has not refuted in any relevant detail the factual allegations which are made by WCC and I proceed on that basis today purely for the purpose of deciding whether the claim is or is not arguable.
23. The decision which is challenged flowed from a report dated 15 March 2018 to the Healthy Streets Portfolio Board. The sponsoring directors are said to have been Mr Plowden and also a Mr Nick Fairholme, two senior officers. The document seeks authority request. It asks the Board to sanction additional programme and project authority for CSL to enable the two elements, to which I have already referred, to go forward. On p.2 of the report, the authors state:-

"TfL was working closely with Camden Council and Westminster City Council on the joint delivery of CS11 in close collaboration with the Royal Parks and Crown Estates Paving Commission for the section of the route on the Regent's Park Outer Circle."

In relation to Regent's Park the document stated that TfL was committed to undertaking further design work and would also undertake detailed traffic modelling on the proposals for Portland Place. Page 6 of the document states that the latter would "imminently be subject to the traffic modelling process". There does not appear to be a minute of the formal decision, a matter to which I will return.

24. A cost benefit analysis was carried out and advice was given that the overall outcome produced a BCR of 0.53:1. Finally, at p.13, dealing with risks to the project, the report referred to those authorities with whom TfL needs to cooperate, namely Royal Parks and Camden and Westminster, as being "slow to grant approvals". The impression given by the document is that approvals would nonetheless be forthcoming.
25. In relation to the Memorandum of Understanding, Mr Sabato has dealt with this in his witness statement at para.26. He exhibited a copy of the draft document, which was sent by TfL in April 2018, after the decision in March which the claim seeks to impugn. He states unequivocally that as matters currently stand WCC is not prepared to enter into this memorandum until its outstanding concerns have been resolved so that it is able to take a final decision on whether or not to support CS11.
26. The grounds of challenge allege irrationality but, more particularly, the claim is put on the basis that it is said that TfL has failed to take into account certain material considerations which are said to have been "obviously material" or has taken into account other considerations which are immaterial.
27. First, it is said that the report of 15 March 2018 wrongly assumed that WCC will consent to the works taking place on its sections despite serious unresolved concerns and despite the formal objection to the proposal as a whole. Secondly, it is said that the officer's report fails to assess the traffic implications of the Swiss Cottage section of the scheme proceeding in isolation. In effect, it is said that there has been a failure to assess the effects of that element on a permanent basis if, for example, WCC should refuse its consent to those elements which fall within its remit. This is a matter of particular concern for local residents (see, for example, the views expressed in witness statements produced by the first interested party). There is a clear apprehension that traffic will be displaced from, for example, Avenue Road and will rat-run through local residential streets running east/west. Thirdly, it is said that the officer's report fails to consider the cost benefits of the Swiss Cottage element in isolation. It is pointed out that this part of the scheme involves some very costly works. Instead, the cost benefit analysis has been carried out solely in relation to the project as a whole. In this context, the court notes a further report, which appears to have accompanied the one dated 15 March, from the Independent Investment Programme Advisory Group, pointing out that, in financial terms, the business case for the project was poor and that the matter needed to be appraised carefully.
28. For its part, TfL has accepted today that the officer's report document, as I might call it, did assess the project as a whole and only the project as a whole. In response, TfL submits that its decision has proceeded on a judgment that there is no significant risk to the completion of the project as a whole and that any outstanding consents will be forthcoming. TfL relies upon its experience of projects of this nature, in that they often proceed in stages without all the necessary consents being in place at the outset. Secondly, they rely upon their own past experience of dealing with Westminster City Council over many years on many road schemes and improvements without substantial difficulty. As matters currently stand today, this has been TfL's primary response to the challenge.
29. The claimant says that the reason advanced by TfL in its submissions, namely that an assessment has been made that there is no significant risk to the completion of the project and that outstanding consents are likely to be forthcoming, is reasoning which is not contained in the report drafted for the Board. It is merely a matter which is alluded to, for example, in Mr Plowden's witness statement. The claimant says that this would, therefore, amount to ex post facto reasoning which, applying authorities such as Ermakov and Ex parte Nash, the court might refuse to take into account, if and when it is eventually produced or, alternatively, would be very cautious about accepting.
30. In fact, this line of argument potentially goes further, because under the Openness of Local Government Bodies Regulations 2014, SI 2014 No.2095, it is arguable that this was a decision giving rise to a statutory obligation to produce a written record under Regulation 7. On the face of it, it would appear that this regulation would apply to TfL as a local government body (see Regulation 6). The obligation in Regulation 7 applies inter alia to decisions taken under delegated authority by an officer which award a contract or incur expenditure which, in either case, materially affects the relevant local government body's financial position. TfL may wish to contend that the Regulation is not engaged but, at least on the face of it, it seems to me arguably to be applicable.
31. The conclusion that I have reached, having reviewed the material carefully on both sides, is that the defendant has not managed to deliver what is sometimes colloquially referred to as a "knock-out blow" and that the proposed grounds of challenge cross the threshold of arguability.
32. In his helpful skeleton argument, Mr Timothy Straker QC, on behalf of TfL, did raise a lack of promptitude argument. He submitted, I suspect by analogy with decisions such as Finn-Kelcey, that the issue as to whether under Part 54 WCC had moved promptly to apply for judicial review should be examined by analogy with the time limit in planning cases of six weeks. TfL has accepted that, although technically time for this challenge runs from the date when the decision was taken, namely 15 March, the decision was not communicated, at least to Westminster, until 4 May 2018 and no public notice was given of the decision until two or three days later. No criticism is made of this. The explanation that is given is that this was due, in effect, to a purdah arrangement because of local government elections around this period.
33. Applying the principle stated in, for example, R v DTI, ex p. Presvac, any argument on delay would have regard to the earliest date at which the claimant had knowledge of the decision to be impugned. This has been accepted by TfL in para.8 of its summary grounds of defence. On that basis, in practical terms, the challenge made was issued on, I believe, 14 June, just inside this notional six week period. Not surprisingly, and I hope without doing him any injustice, Mr Straker did not advance this part of his argument in his oral submissions this morning. When asked about this, he explains that the matter was primarily put forward in order to support TfL's position resisting the application for an interim injunction. On that basis, he does not ask me to reserve to the trial judge any question of "promptitude" under CPR 54 when granting permission to apply for judicial review. That would simply, therefore, leave in play any issues of delay arising in the normal way under s.31 of the Senior Courts Act 1981.
34. The next issue to which I turn is whether an interim injunction should be granted. The relevant principles have been conveniently summarised by Cranston J in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), and, in particular, at paras.6 and 7. In summary, I should apply a modified Cyanamid approach to take into account of the fact that an injunction is being sought against a public body discharging its functions in the public interest, a matter to which I attach significant weight. Otherwise, I consider that I should be satisfied that there is at least a real prospect of the claim succeeding at trial and not merely that it is arguable. For the reasons that I have previously given, I am so satisfied.
35. I therefore turn to the balance of convenience. Taking into account that it is possible for this matter to be heard substantively on 6 September, and I do, in fact, propose to fix the hearing for that date, this accords with the wishes expressed by all parties that expedition should be ordered. I accept the claimant's submission that if interim relief were to be denied at this stage for this relatively short period of time, the judicial review would lose at least part of its purpose, that is to prevent the risk of a situation developing in which the Swiss Cottage section alone is built and becomes a standalone permanent feature with adverse consequences.
36. In para.27 of its skeleton, WCC also raised a concern about whether, if I were to refuse the application for an interim injunction, there might be resistance by TfL at the substantive hearing to any relief being granted by the court, if WCC should be successful, in order to requiring the removal of any works carried out in the interim.
37. TfL's position on this, as set out in para.19 of Mr Plowden's witness statement, no doubt after careful consideration, was at best ambivalent and, although this fairly obvious point has been previously raised, TfL were not able to give me an assurance that there might not be an issue about this aspect at the final trial. It is a point that they may not pursue but, for reasons best known to themselves, they will not commit themselves at this point to that stance.
38. I accept the submission made on behalf of the claimant, and also by the first interested party, that there are loss of amenity issues raised which, on this basis, might remain a permanent feature and that harm of that nature is not compensatable in damages.
39. I turn to the other side of the balance. TfL have been on notice of the possibility of an injunction being sought from at least 14 June. The first aspect that they raise concerns financial loss if an injunction were to be granted, put at around £70,000 a week, of which about £56,000 a week would represent a contractual payment to the contractor, the Kier Group. A framework contract has been issued to the Kier Group covering a range of works, not limited to the CS11 project. TfL decided on 15 May to commission Kier Group to carry out the works on the Swiss Cottage component. This was a decision they took after they had notified WCC on 4 May about their decision in March of this year and before any notice from WCC that they would resist the construction of the carrying out of these works. In addition, they point to other potential losses, as set out briefly in Mr Plowden's witness statement.
40. I accept that these are matters which are capable of being compensated for by a cross-undertaking in damages. The contrary is not suggested. Plainly there is no doubt as to the adequacy of any cross-undertaking which WCC might be required to give. I do not consider, in relation to this aspect, that there would be any proper basis for me not to require WCC to give such an undertaking. This claim is not based on law enforcement or regulatory action and, applying the wider principle properly drawn to my attention by Mr Jones, as laid down in FSA v Sinaloa Gold Plc [2013] 2 AC 28, I do not consider that there would be any unfairness or any other justification for not requiring that cross-undertaking to be given if the injunction is granted.
41. Turning to other factors, these have been helpfully dealt with by Mr Plowden in his witness statement at pp.54-55 of the second hearing bundle. He refers to the fact that the works have been publicly announced and there is very significant public support for the proposals. I see no reason not to accept what he says about that. He, secondly, refers to the cooperation which has taken place with the developers of a major scheme at 100 Avenue Road to ensure efficient working and coordination between the implementation of TfL's works and that development. He says it would be hugely beneficial to both parties if TfL were able to start its works as planned at the end of this month. Thirdly, he says that if the project does not start on 30 July TfL will miss the summer school holiday period when traffic flows are typically lower, thus potentially increasing congestion and disruption to the area. Fourthly, he refers to works which Thames Water also need to undertake urgently, which TfL had intended to accommodate within their programme. If the Swiss Cottage TfL works are delayed, Thames Water may need to issue an emergency opening notice which could then further delay the start of TfL's scheme. However, although all parties have been dealing with the hearing today on the basis that expedition would be sought if permission were to be granted, no further detail has been given and no critical path or timeline has been identified so as to indicate the point at which these detriments would arise.
42. I accept the submission made on behalf of WCC that each of these additional factors has not been deployed in any detail sufficient to enable the court to give material weight to them. They have been put forward in very generic terms and, without elaborating. I broadly accept the submissions which have been made on this aspect as set out in the claimant's skeleton.
43. Looking at all these factors as a whole, in my judgment, the balance of convenience comes down firmly in favour of granting an interim injunction until judgment on the judicial review but only if a cross-undertaking as to damages is given by WCC.
44. So the upshot is that permission to apply for judicial review is granted. The hearing of the claim will take place on 6 September. It will be limited to a one day hearing and, if necessary, the hearing can begin at 10 a.m. If the parties need to agree a timetable in order to ensure that each party has adequate time to make their submissions then that is something that I would encourage. In order to make good use of the hearing time that day, I would also encourage the production of highly focused skeleton arguments which will enable the judge hearing the claim to make good use of reading time and be, as it were, up to speed when the legal submissions start. To that end, specific essential reading is, in this case, essential, not just simply broad references to documents but to particular paragraphs and passages or pages, so that the judge can speed read into the case. It would be helpful if the parties could agree a common list of essential reading and the order in which it should be approached.
45. May I thank all counsel for their helpful submissions, both in writing and orally, for this hearing.

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