Shamim Anwar v London Borough of Ealing Council
| Jurisdiction | England & Wales |
| Judge | Dexter Dias QC |
| Judgment Date | 01 August 2022 |
| Neutral Citation | [2022] EWHC 2464 (KB) |
| Docket Number | No. CO/1896/2021 |
| Court | Queen's Bench Division |
[2022] EWHC 2464 (KB)
Mr Dexter Dias QC
(Sitting as a Deputy High Court Judge, Section 9(4), Senior Courts Act 1981)
No. CO/1896/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
THE CLAIMANT appeared in person for judgment. At the substantive hearing, MR WILMSHURST of counsel appeared.
Miss Kimberley Ziya (instructed by London Borough of Ealing) appeared on behalf of the Defendant for judgment. At the substantive hearing, MR WILLIAMS of counsel appeared.
This is the judgment of the court. I divide it into seven sections to assist parties follow the court's reasoning.
§I. INTRODUCTION
| SECTION | CONTENTS | PARAGRAPHS |
| I. | INTRODUCTION | 2–8 |
| II. | FACTS | 9–26 |
| III. | LEGAL FRAMEWORK | 27–38 |
| IV. | ISSUES | 39–40 |
| V. | SUBMISSIONS | 41–43 |
| VI. | DISCUSSION | 44–80 |
| VII. | CONCLUSION & DISPOSAL | 81–87 |
Who owns the kerbs, verges and footways outside our homes, and how much of it do they own? Who can do what to it, and what say do we have? These are not questions we give so much as a passing thought to as we proceed with our busy lives until something dramatic happens, as happened in the case of Mrs Anwar. Shamim Anwar lives at No.65 Balfour Road, Southall, although she does not own the freehold to the property. Towards the end of 2015 or the beginning of 2016 – the precise date has now been lost in the digital ether – she watched as the kerb outside her home was “dropped”, that is, lowered. The highway authority constructed a crossover, a gentle slope on the roadway adjacent to the premises to permit vehicles to park on the forecourt of the neighbouring property, No.63. However, and this is the cause of the trouble, the crossover overlapped to some degree, not fully, but unmistakably, with the boundary to No.65 – it was a joint crossover.
Mrs Anwar, the claimant in this case, had not asked for a flattening of the kerb outside her home. She did not want it. She never gave the slightest consent. A complaint procedure was pursued with the defendant local authority, the London Borough of Ealing. This complaint was made by the freeholder of her property, a Mr Caan. The London Borough of Ealing, the defendant in this case, like many other local authorities, acts as the highway authority with responsibility for most of the roads within its domain. Therefore, this complaint was pursued right up to stage three, the highest level, when it was considered by the chief executive of the local authority. He dismissed the complaint and refused to remove the crossover. It has caused much misery to Mrs Anwar for not only is she affronted that it was laid down in part outside her home without her consent, but it has permitted a neighbour, she says, to be able to drive onto her side of the boundary, at least partially, and cause her much distress.
With the complaint procedure exhausted, and her application to the Ombudsman rejected, Mrs Anwar sought relief in this court by way of judicial review. The highway authority is, of course, a creature of statute. The decision of the chief executive in refusing to remove the crossover that Mrs Anwar says was unlawfully laid down is amenable to public law challenge. That is the issue in this case. The refusal to remove by the chief executive is the impugned decision. Therefore, should the court quash the chief executive's decision not to remove the crossover and give Mrs Anwar the relief that she has for so long sought?
The parties to this judicial review claim are as follows. The claimant is Mrs Shamim Anwar. During the substantive hearing, she was represented by Mr Wilmshurst of counsel. Today she appears in person, assisted by her daughter as McKenzie Friend. The defendant is the London Borough of Ealing. Ealing was represented at the substantive hearing by Mr Williams of counsel and today is represented by Miss Ziya of counsel. The court is grateful to everyone for their contributions.
I turn to the impugned decision in more detail. This is the decision of Mr Najsarek the chief executive of the council dated 11 February 2021 not to remove the crossover which provides vehicular access to the properties at No.63 and No.65 Balfour Road, Ealing in response to a stage three complaint. To repeat: No.65 is where Mrs Anwar lives. The claim is brought for judicial review and the quashing of Mr Najsarek's decision. It will always bear repetition that the function of judicial review that the High Court exercises is a supervisory jurisdiction. Its prime purpose is to vindicate the rule of law and it does that by scrutinising with rigour whether public authorities, that wield so much power over the life of us all, have exercised that power in accordance with law. Public authorities have an in-built latitude to make their own decisions about questions of discretion, judgment and policy. This court is not here to remake or second guess the decision of the chief executive. My duty is different. It is to consider whether that decision is lawful.
The procedural history
Mrs Anwar issued the claim on 28 May 2021. The defendant acknowledged service on 25 June 2021. On 9 July, Mr Peter Marquand, sitting as a Deputy High Court Judge, refused permission to apply for judicial review. He considered that the matter had not been issued promptly, he refused permission to extend time and, in any event, he would have refused permission as the claim, he found, disclosed no discernible error of law.
Notice of renewal was filed on 17 July 2021. The renewal hearing came before HHJ Alice Robinson, sitting as a Judge of the High Court, on 18 January 2022. She granted permission to bring a claim for judicial review on a single ground. It is:
“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.”
§II. Facts
The true status of Mrs Anwar at No.65 is unclear. She certainly lives there, and it is her home. A certain Fawad Anwar Raja owns the leasehold interest in No. 65 pursuant to a lease dated 23 July 1937 for a term of 99 years. Mr Adam Caan owns the freehold of No.65.
By a letter dated 10 December 2015, Satpal Riat, an assistant estates and development engineer for the council, wrote to the owner/occupier of No.63 – that is Mr Davinder Johal (“the neighbour”) – to offer a reduced rate for the construction of a shared crossover between No.63 and No.65. This was part of the council's infrastructure renewal programme. That included resurfacing the footway outside of both properties. The letter states:
“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 (65 Balfour Road) for its construction.”
The crossover
To understand why it was Mr Riat wrote in those terms, it is necessary to look at a photograph of the lay of the land. This is taken from p.178 of the hearing bundle.
In this photograph, you can see the two houses in Balfour Road, Southall. Number 63 is on the left and No.65 is on the right. The problem with constructing a crossover purely to serve No.63 (that is Mr Johal's property) is that there is a mature tree to the left of the photograph frame and, due to its roots and also a streetlamp, it would be necessary to lay down the crossover partly across the front of No.65, but not much, as can be seen in the photograph. Maybe 25 per cent of it fronts Mrs Anwar's home.
In this photograph what is evident is that both properties are able to use this crossover. One can see in the photograph a white car parked on the forecourt outside her home. If Mrs Anwar wished to get to that spot with a vehicle of her own, she would have to use the crossover and go across Mr Johal's land as well. That is inevitable.
These arrangements have caused tension between the neighbours. Indeed, in para.7 of her statement, Mrs Anwar states that she has been caused great distress by all this. She was sectioned under section 2 of the Mental Health Act 1983, although she maintains that was also an unlawful act. The responsible authority for her sectioning under the Mental Health Act characterised her mental illness as “persistent paranoid delusions concerning her neighbours” (see para.12 of the statement of her solicitor, Ms Sahib dated 24 February 2020).
I have been sent video clips depicting the activities of what it is claimed to be Mrs Anwar's neighbours. It is not appropriate to comment on these essentially private law matters, let alone making any findings of fact...
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