The Queen (on the application of The Licensed Taxi Drivers Association) v Transport for London

JurisdictionEngland & Wales
JudgeMrs Justice Patterson
Judgment Date10 February 2016
Neutral Citation[2016] EWHC 233 (Admin)
Docket NumberCase No: CO/4036/2015
Date10 February 2016
CourtQueen's Bench Division (Administrative Court)

[2016] EWHC 233 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mrs Justice Patterson DBE

Case No: CO/4036/2015

Between:
The Queen (on the application of The Licensed Taxi Drivers Association)
Claimant
and
Transport for London
Defendant

Mark Lowe QC and Robert Williams (instructed by Michael Demidecki & Co Solicitors) for the Claimant

Timothy Straker QC and Phillip Patterson (instructed by Transport for London Legal) for the Defendant

Hearing dates: 13–14 January 2016

Approved Judgment

Mrs Justice Patterson

Introduction

1

This is a claim for judicial review which, as originally formulated, sought a declaration that the construction of the East-West Cycle Superhighway (EWCS) by the defendant without planning permission constitutes a breach of planning control. A revised declaration was sought at the end of the proceedings which I deal with at the end of this judgment.

2

The claimant is a representative body for licensed taxi drivers in London. It has over 10,000 members and has consistently opposed the EWCS on their behalf.

3

The defendant is a body corporate established under section 154 of the Greater London Authority Act 1999. It is the highway authority for all Greater London Authority (GLA) roads. It is required to report to and is subject to the scrutiny of the GLA. The Mayor of London appoints members of the defendant and may choose to be a member himself. He can give guidance and directions as to how the defendant should carry out its functions.

4

On 4 February 2015 the Board of the defendant approved the construction of four cycle superhighways including the EWCS.

5

Construction of the EWCS began in April 2015. It has an anticipated final cost of £41.3 million. At the time of the hearing some £18.4 million had been spent on its construction.

6

The issues which arise in this case are:

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

7

Before turning to the factual background it is helpful to try to define the EWCS proposal.

8

The EWCS proposal is for a continuous, largely segregated cycle route between Tower Hill and Acton. At Tower Hill it would connect with Cycle Superhighway Three. The new route then runs along Lower and Upper Thames Street, the Victoria Embankment, across Parliament Square, through St James' Park, Green Park and Hyde Park and over the Westway Flyover from Westbourne Bridge to Wood Lane. From there it will continue along the A40 Western Avenue to Horn Lane in Acton.

9

The impugned decision relates to phase one of the EWCS which is that part from Tower Hill to Westbourne Terrace.

10

The project is located in three local authority districts. They are the London Borough of Tower Hamlets, the City of London and the City of Westminster. The project runs on local authority roads, the Transport for London Road Network and through Hyde Park.

11

The route is about 9.5km in length. It provides a clear and convenient route for cyclists, physically separated from other vehicles. Space for the new cycle route will be created through the reallocation of road space and a change in the operation of some junctions. The project requires changes to the road layout to provide a wide two-way kerb segregated cycle track in the road. That means the reduction in traffic lanes on most sections of the proposed route. It involves redesigned junctions, changes to parking and loading arrangements, changes to bus and coach stops including bypasses for cyclists, advanced stop lines, improved lighting, planting, improved pedestrian facilities, way finding, cycle parking, early starts for cyclists and cycle specific stages at junctions.

Factual Background

12

By virtue of section 141 of the Greater London Authority Act the Mayor is directed to develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities to, from and within Greater London. He is required also to prepare a transport strategy which must be consulted upon and be published.

13

Within the transport strategy of 2012 there was recognition that investment was required to promote and encourage cycling. In a Cycling Vision for London 2013 a commitment was made to a £913 million investment in cycling, including proposals for the construction of cycle superhighways. They were a key element of the strategy which sought to double cycling over the following decade and transform London's streets and spaces to places where cyclists felt they belonged and were safe. The proposed routes were to deliver the backbone for the wider cycling infrastructure linking quiet ways and existing London cycle network routes to key home and workplace destinations.

14

In September 2014 public consultation commenced on proposals including the EWCS.

15

The consultation process was extensive. Emails were sent to over 2 million transport users, leaflets were sent to 230,000 addresses in relevant postcodes and letters sent to around 80,000 properties directly affected by changes to parking and loading arrangements. In addition, there were meetings with stakeholders and 22 public events as well as press release and social media activity.

16

Of the responses some 84% were in full support whilst 5% partially supported the proposals. The claimant was amongst the stakeholders who responded. It responded on the following grounds:

"— 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."

17

The defendant considered all of the responses, including that from the claimant, and made various changes to its proposals. The changes retained the proposed kerb segregated cycle track and cycle separated junctions throughout the route but reduced the most significant delays to traffic and the scheme's impact on other road users.

18

The response to the consultation was published by the defendant in January 2015.

19

In January 2015 also the Environmental Evaluation Report (EER) was published by the defendant. It had formed no part of the consultation material. Those parts relating to noise and air were prepared by independent consultants, AECOM.

20

The significance of the impacts in the EER was summarised as follows:

"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"

21

A detailed report was taken to the Board of the defendant on 4 February 2015 to decide whether the EWCS should proceed to construction as one of four new cycle superhighways and whether the defendant should upgrade four existing cycle superhighway routes. The proposals, their evolution, the consultation process and...

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