City of Westminster, R (On the Application Of) v Transport for London (TfL) & Ors [2018] EWHC 2402 (Admin)

[2018] EWHC 2402 (Admin)Case No CO/2370/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/09/2018
Before
SIR ROSS CRANSTON
Between
R (on the application of CITY OF WESTMINSTER)ClaimantTRANSPORT FOR LONDONDefendant(1) CS11 LONDON LIMITEDInterested Parties(2) LONDON BOROUGH OF CAMDENInterested Party(3) CROWN ESTATE PAVING COMMISSIONInterested Party(4) THE ROYAL PARKSInterested Party
Nathalie Lieven QC & Tristan Jones (instructed by Westminster City Council) for ClaimantTimothy Straker QC & Thomas Francis (instructed by Transport for London) for the DefendantAndrew Parkinson (instructed by LCS Practice Ltd) for First Interested PartyHearing Hearing date: 6 September 2018
Judgment ApprovedSir Ross Cranston:INTRODUCTION
[1]This is a challenge by way of judicial review to a decision of Transport for London (“TfL”) of 15 March 2018 to begin construction of a cycle route, cycle superhighway 11, at Swiss Cottage, where the current roundabout system is a barrier, indeed a danger to cyclists. Cycle superhighway 11 is commonly called CS11 and is designed to run on roads between Swiss Cottage and Portland Place in central London. It is part of the Mayor of London’s transport strategy. The Mayor appoints the members of TfL and can chair it: Greater London Authority Act 1999, Schedule 10, paras 2(1), 3(2).[2]Two parts of the route are on roads for which the claimant, the City of Westminster (“Westminster”), is the statutory highway authority and traffic authority. Consequently, Westminster needs to agree to those parts of the route. While Westminster states that it supports cycle superhighway 11 in principle, it has concerns about the potential disbenefits of the scheme and the associated mitigation measures. Until those matters are satisfactorily assessed it will not commit to approving the scheme or its constituent elements. Those matters can only be assessed with the use of proper traffic modelling.[3]Westminster’s case in this judicial review is that TfL’s decision to start construction on the Swiss Cottage part of the scheme did not consider the possibility that it would not agree to the scheme, which therefore might only be deliverable in part. That was a failure to take into account a legally relevant consideration and therefore the decision was unlawful.[4]At a hearing on 26 July 2018, Holgate J gave permission for this judicial review to proceed and granted an interim injunction against construction work on cycle superhighway 11 commencing.[5]This judicial review began life as a challenge by the First Interested Party, a group of local residents. Westminster then issued its own proceedings. At the hearing the first interested party was represented, but was content to endorse Westminster’s submissions. For the purposes of the judgment no distinction is made between the challenges. BACKGROUND 6. The Mayor's strategy and CS11

BACKGROUND

[6]The Mayor's Transport Strategy of 13 March 2018 states that transport is fundamental to the lives of all Londoners and that a shift away from the car will help address many of London’s health problems. Road danger, it explains, ruins lives and puts many people off walking and cycling. The Mayor’s aim, recorded in his strategy, is for deaths and serious injuries from all road collisions to be eliminated from the streets by 2041. The central aim is that by 2041, 80 percent of all trips in London will be made on foot, by cycle or by using public transport. Proposal 3 of the strategy is that the Mayor, through TfL and the boroughs, will deliver a London wide strategic cycle network with high quality, safe routes. By 2041 70 percent of Londoners should live within 400 metres of the strategic cycle network. Figure 4 in the strategy expresses in diagrammatic form the recommended London-wide strategic cycle network to 2041. Within inner London, the strategy notes that the strategic cycling network will continue to develop with cycle superhighways 4, 9 and 11.[7]In 2013 the then Mayor of London had published a strategy, “Cycling Vision for London”. That sought to double cycling over a decade and to transform London’s streets and spaces to places where cyclists felt they belonged and were safe. It contained a commitment to invest £913 million in cycling and included proposals for the construction of cycle superhighways. Cycle superhighways are intended to create safe cycle routes through measures such as the creation of segregated cycle lanes, changing traffic signalling, and redesigning road layouts. There are five cycle superhighways.[8]The proposed cycle superhighway 11 at issue in this case begins in Swiss Cottage in the London Borough of Camden (“Camden”), travels south down Avenue Road into Westminster’s district, proceeds around the Outer Circle of The Regent’s Park, and then travels south into Park Crescent and Portland Place in the West End of London. Most of the route is within Westminster’s boundaries, although Westminster does not have responsibility for many of the roads involved. It does have responsibility for part of Avenue Road, north of The Regent’s Park, and for Portland Place, which is an important thoroughfare in central London between Marylebone Road and Oxford Street. The road around The Regent’s Park, the Outer Circle, is the responsibility of the Royal Parks and Crown Estate Paving Commission.[9]Discussions between Westminster and TfL about cycle superhighway 11 began in 2014. Over the next couple of years there were workshops and stakeholders’ meetings. In 2015 Westminster contracted its service provider to produce feasibility drawings, and TfL conducted a number of road safety audits. There were discussions about details concerning such matters as design and safety. In a letter of 24 November 2015 Westminster expressed its concerns about the proposals and traffic displacement effects. TfL’s consultation, its response and discussions with Westminster[10]In February 2016 TfL published its consultation “Have your say on cycle Superhighway 11 between Swiss Cottage and the West End” (“TfL’s consultation”). That stated that cycle superhighway 11 was intended to run from Brent Cross to the West End and to connect with other proposed north-south and east-west cycle superhighways. It set out the details of the proposal between Swiss Cottage and the West End in diagrammatic form, with the other road and traffic improvements associated with the work also indicated. It sought views about the proposed scheme, as well as on certain options, including the design in Portland Place.[11]Westminster’s response to the consultation on 24 March 2016 (“Westminster’s response”) stated at the outset that it did not support the overall proposals. Its comments included that it was essential for TfL to share its strategic modelling to assist understanding of the associated traffic impacts; that no traffic modelling outputs had been provided for the two options for the Portland Place part of the scheme which made expressing a preference impossible; that there was a need for greater clarity on the displacement of traffic, in particular in St John’s Wood; that it was concerned that TfL’s modelling showed significant detriments to pedestrian amenity along Finchley Road, as well as an the impact on bus journey times; that further modelling was needed on traffic at key junctions; and that further information was needed on other matters.[12]Westminster’s response continued:
“Further and more detailed traffic modelling needs to be carried out to demonstrate that the forecast traffic reassignments can be accommodated at key junctions as expected. If the network is not capable of accommodating the reassigned flows, TfL should advise to what degree further traffic reduction is required, or how this might affect network wide journey times... TfL should show the changes in traffic flows along roads forming the sections of the CS11 route being consulted upon, within broad band widths, which is considered reasonable and allows for inevitable modelling inaccuracies. This data has not been presented as part of the consultation material… The City Council therefore objects to the proposals being implemented on behalf of its residents and businesses who have requested detailed information on the traffic modelling work undertaken on several occasions.”
[13]As to Avenue Road, Westminster’s response stated that it partially supported the proposals. While it supported mandatory cycle lanes, for Avenue Road north, it shared the community’s concerns about the impact of the proposed closure for motor vehicles at the Queen’s Grove junction. For Avenue Road south it needed further information on the traffic impacts. The response explained that it could not express a preference for Portland Place without understanding the traffic impacts of the two proposals.[14]In December 2016, TfL published its “Response to Issues Raised” (“TfL’s December response”) to explain “the decisions we have taken about the future of the scheme”. Under the heading “Next Steps”, the document stated:
“[W]e intend to proceed to the next stage, namely full engineering design (‘detailed design’) of the majority of the proposals… However, we will be doing further work on the proposals for The Regent’s Park before deciding on a way forward for this section of the route.”
[15]With respect to Swiss Cottage and Avenue Road, the document reported changes as a result of the consultation, adding that, “subject to formal Traffic Order Process, [TfL’s] internal approvals and governance processes and those of the local highway authorities”, construction at Swiss Cottage would start in autumn 2017. A way forward for The Regent’s Park part of the scheme would be announced by summer 2017. In relation to the Portland Place issue the response said:
“We consulted on two options for Portland Place. Having considered the consultation responses, we will be taking forward Option B – segregated cycle lanes on Portland Place. We will now carry out detailed traffic modelling on this option and the design will be reviewed in the light of the outcomes of this modelling.”
[16]Meanwhile, in March 2016 Westminster had obtained a report by Norman Rourke Pryme (“NRP”), its traffic and transport consultants. The report stated that due to concerns about the modelling results and the potential detrimental impacts of the scheme, it would be difficult to support the scheme at that point. It added that further and more detailed traffic modelling needed to be carried out, and that TfL should advise on what further traffic mitigation would be required.[17]Westminster raised the need for proper mitigation measures at a stakeholder engagement meeting in August 2016. Shortly afterwards, TfL confirmed that one of the agreed actions was for it to continue to seek ways to further mitigate the impacts of traffic reassignment on the affected roads. At a post-consultation report meeting in mid-December 2016, Westminster stated that it was in favour of the scheme, “subject to analysis of modelling / mitigation measures”.[18]In January 2017 TfL confirmed that it would undertake to complete the concept design and modelling for Portland Place, and that the scope, approach and methodology of the modelling would be agreed in advance with NRP, the traffic and transportation consultants to Westminster. (Westminster sometime acted through NRP in relation to matters in this case; for convenience, since they were acting as Westminster’s agents, and TfL treated them as such, the judgment does not distinguish between them but attributes their actions to Westminster.)[19]The following month Westminster suggested that TfL should provide it with a list of streets identified during the modelling process with negative impact and what TfL was recommending as to mitigation. At this point TfL’s position was that the design and modelling work on Portland Place would be examined as soon as a way forward for Regent’s Park was identified. Later in the year, in November 2017, there was a meeting between the parties with an agenda item being the need for modelling.[20]Westminster continued to press TfL for modelling results. On 19 February 2018 it stated that modelling was needed in order to understand the potential impacts of the scheme.[21]There was an email on 23 February 2018 from Westminster with the subject heading “CS11 and [Oxford Street] northern alignment modelling”. The “northern alignment” was a reference to the pedestrianisation of Oxford Street. The email explained to TfL what modelling would be necessary, stated that the cycle superhighway 11 scheme and the Oxford Street pedestrianisation proposal should be “assessed on their own merits and also as a combined scenario”, and summarised some of the concerns about Portland Place. The email added:
“Therefore journey time data for traffic and buses, degree of saturation and queue data, and traffic reassignment plots will be key outputs for assessing the acceptability of both sets of proposals.”
[22]TfL responded on 26 February that what Westminster suggested seemed to be the right approach in order to provide every opportunity to deliver both schemes, although it involved a significant amount of modelling. TfL’s 15 March 2018 documents and the 15 March Decision[23]There was a meeting of TfL’s Healthy Streets Portfolio Board (“the Healthy Streets board”) on 15 March 2018. It comprises senior officials in TfL but is not a formal committee of TfL. The Healthy Streets board had before it a number of documents. There was a report dated 15 March 2018, entitled “CS11 Authority Request”, prepared by TfL officers (“the Authority Request”), with Mr Ben Plowden named as one of the two sponsoring directors. Mr Plowden is TfL’s director of strategy and network development, surface transport. There was also an “Environmental Evaluation Report”, dated 15 March 2018, authored by a named strategy planner at TfL, which was generally positive as regards the environmental impacts of the scheme. Next, there was a “Briefing Note” (unsigned), a page in length, entitled “Cycle Superhighway 11 – Westminster approvals”. It too was dated 15 March 2018, but as explained below it did not see the light of day until 9 August 2018, well after this judicial review was underway.[24]The Authority Request, the first-mentioned document, stated at the outset in a box in the executive summary: “Decision required. The Healthy Streets Portfolio Board is asked to note the paper and: (a) endorse additional Programme and Project Authority of [redacted] for CS11 to enable: I. Construction of Swiss Cottage II.

(b) ]

[25]The summary of the report then noted that cycle superhighway 11 would provide a “continuous route for cyclists” from Swiss Cottage to Portland Place. TfL was working closely with Camden Council and Westminster on its joint delivery, in close collaboration as well as with the Royal Parks. The summary continued that an increase in Programme and Project Authority was sought for the construction of the Swiss Cottage section, and authority was also sought “for the detailed design and construction” for the rest of the route.[26]Under the heading “Strategic case”, the report stated that TfL was also committed to undergoing further design work on the proposal for The Regent’s Park, “as well as undertaking detailed traffic modelling on the proposals for Portland Place.”[27]The next part of report discussed the economic case. That included a discussion of opposition to the gate options for The Regent’s Park. It also referred to the preference of stakeholders for the segregated cycle lane option for Portland Place. That option “had therefore been developed in collaboration with [Westminster] and will imminently be subject to the traffic modelling process.”[28]The report then had a section regarding the financial case. It calculated that quantifiable costs of the scheme outweighed quantifiable benefits by two to one. What tipped the balance in favour of the scheme were various non-quantified benefits. Under the heading “risk”, the report set out a number of risks, including:
“Royal Parks and affected London boroughs (Camden, Westminster) being slow to grant approvals, respond to ongoing issues, and to sign-off design and construction works as they proceed, resulting in delays and increased costs.”
[29]The Briefing Note dated 15 March 2018 had at its outset a summary of issues. It referred to Westminster being the only stakeholder remaining unsupportive of proposals to close the four gates of The Regent’s Park, due to strong opposition from residents.[30]The Briefing Note identified four approvals required from Westminster for the current CS11:(a) section 8 agreements for both Avenue Road and Portland Place;(b) approval under the Traffic Management Act 2004 for Portland Place once traffic modelling was compete;(c) permanent traffic orders for changes proposed on Portland Place and Park Crescent junctions with Marylebone Road; and, potentially, and(d) planning permission for works in The Regent’s Park.[31]The briefing then spelt out the consequences should approvals not be secured for each of Avenue Road, The Regent’s Park, Marylebone Road and Portland Place:(a) Westminster’s part of Avenue Road would remain as at present, with advisory cycle lanes;(b) if The Regent’s Park part needed Westminster’s planning approval, that would possibly have implications, although it was thought there would have to be valid planning reasons for any refusals;(c) most of the changes to Marylebone Road could be delivered since it was a TfL road, but Traffic Orders would be needed to ban left and right turns onto it from the eastern and western of Park Crescent; and the Portland Place proposals would be dropped.[32]The decision to adopt the course set out in the “Decision required” box of the Authority Request of 15 March 2018 was taken not by the Healthy Streets board but by Mr Plowden, acting under delegated authority. As we see below, this fact only emerged after this judicial review was under way.[33]There was a delay in TfL announcing the Decision of 15 March 2018 until the local government elections were over in early May. Meanwhile there was some further discussion about modelling between Westminster and TfL. In April TfL contacted Westminster with a draft Memorandum of Understanding to progress the CS11 scheme. Westminster responded that it would not agree to any document suggesting that it had taken a final decision supporting the scheme.[34]On 7 May TfL announced that the Swiss Cottage works would commence in mid-July. On 24 May 2018 TfL released the Authority Request and the Environmental Evaluation documents both dated 15 March 2018, describing the first as “the decision paper”.[35]In its response on 13 June 2018 to a pre-action protocol letter, TfL stated that the grounds of challenge seemed to be that “the Decision of 15 March 2018” was unlawful on relevant considerations grounds. It added that the “Decision” did not authorise the construction of the Swiss Cottage section of the route as a standalone scheme. Judicial review and the Additional Reasons[36]This claim was lodged on 14 June 2018. On 23 July 2018 TfL lodged an acknowledgement of service, summary grounds of resistance and Mr Plowden’s first witness statement.[37]TfL’s summary grounds of resistance contained what Westminster termed at the hearing TfL’s “Additional Reasons” explaining its Decision. These were that:(a) it is to be expected that at the time of a decision to start work on a particular stage, not all the consents required will necessarily be in place:(b) TfL “intended and fully expected that it would in due course be in a position to deliver the whole CS11 route”;(c) an important factor in TfL’s assessment was its understanding of the position in relation to various third party consents/approvals at the time of “the Decision”;(d) as regards Westminster, TfL was in the process of completing traffic modelling for Portland Place, there were discussions about a draft Memorandum of Understanding between the two; “[w]hilst 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”; and TfL had a reasonable expectation that the Mayor’s strategy will be fulfilled across London; and(e) “In any event, as part of its decision-making TfL did consider the (unlikely, in TfL’s view) scenario that it may not have all consents in place to proceed with the phased programme of construction. As TfL will explain in its evidence, Ben Plowden was appraised of the possible implications for the delivery of the scheme in the event that any of the required consents were not obtained. Based on all of the information available, TfL was satisfied that it was appropriate to proceed.”[38]The grounds added that it was not until TfL received Westminster’s letter of 13 June 2018 threatening judicial review proceedings that it understood there to be a possibility that it might not in due course obtain Westminster’s approval to construct the parts of the CS11 route on Westminster’s highways.[39]Mr Plowden’s first witness statement referred to “the Decision… taken on 15 March 2018.” Mr Plowden deposes that as the Decision stated, before construction of The Regent’s Park part of the route the design process needed to be completed and all other relevant approvals obtained. Even if it were not possible to deliver the entirety of the route, adds Mr Plowden, TfL strongly believed that there was a great deal of merit in the Swiss Cottage element. “To be clear it is absolutely our intention to deliver the entire route…That does not mean that it is not worth implementing those parts of the infrastructure that we are able to.”[40]Following Holgate J’s decisions of 26 July 2018 on permission and the interim injunction, Westminster filed re-amended grounds on 1 August 2018.[41]TfL’s detailed grounds of resistance were lodged on 9 August 2018 with Mr Plowden’s second witness statement and the Briefing Note dated 15 March 2018. The grounds stated that the Decision was taken not by the Healthy Streets board, but by Mr Plowden acting under delegated authority in accordance with TfL’s standing orders. The detailed grounds repeated the Additional Reasons.[42]Mr Plowden’s second witness statement sets out the background to CS11 and explains decision-making in TfL. The Healthy Streets board consists of senior TfL officers who oversee the programme and review the merits of individual projects. It was “fully briefed” on the Decision and had the benefit of the Briefing Note, which referred to the possibility of CS11 proceeding without Westminster approvals. Mr Plowden states that TfL’s decision to start the construction at Swiss Cottage was consistent with the way forward outlined in TfL’s December Response. He also refers to a decision of one of the formal committees of TfL, the Programmes and Investment Committee, in March 2017, which granted approval for programme and project authority for delivery of the priority projects in the Healthy Streets Programme in 2017 and subsequent years. That covered the continuation of the Cycle Superhighway Programme, including CS11.[43]In his witness statement, Mr Plowden refers to the cooperation between TfL and Westminster over the years. He states:
“I took the Decision being fully cognisant that further approvals would be required from other parties to deliver CS11, with the potential delays to these approvals specifically referenced in the Project Risk Register as referenced in the [Authority Request].”
[44]As to the Briefing Note, Mr Plowden states that it was discussed at the meeting on 15 March 2018 by members of the Healthy Streets board and that “having considered this alongside the other information presented to the meeting and discussed with the other [Board] members I was satisfied that it was appropriate and reasonable to proceed with the Decision to approve the start of the delivery of CS11. The approach taken to the Decision, and to CS11 overall, is not unusual. It reflects the practical realities association with the delivery of a scheme such as CS11 that involves several decision-making authorities and requires numerous stages of approval over months and years…The evidence available to me when I took the Decision pointed clearly to an ongoing relationship with all parties working together on CS11…”

LEGAL FRAMEWORK

[45]Section 141(1) of the Greater London Authority Act 1999 provides that the Mayor of London must develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities to, from and within Greater London. Under section 142(1) the Mayor is required to prepare and publish a transport strategy containing his policies and proposals relevant to his section 141 duty. In exercising any function London boroughs such as Westminster are obliged to have regard to the transport strategy, and the Mayor may issue guidance to them about it: s. 144.[46]As soon as reasonably practicable after the Mayor has published the transport strategy under section 142, each London borough council must prepare a plan (a local implementation plan) containing its proposals for the implementation of the transport strategy in its area: s. 145(1). Their implementation plans have to be submitted to the Mayor for approval: s. 146. The mayor cannot give approval unless the local implementation plan is consistent with the transport strategy: s. 146(3)(a).[47]Where it appears to the Mayor that a London borough council has failed to prepare a local implementation plan or to submit one for approval, the Mayor may issue to the council a direction under section 153 requiring it to do so within such period as the Mayor shall specify: s. 147(1). The borough councils must implement local implementation plans, failing which the Mayor can act: ss. 151(1), 152(1). The Mayor may issue general or specific directions to the London boroughs as to the manner in which they are to exercise their functions under sections 145 to 151.[48]Schedule 10 of the Act deals with TfL. Under paragraph 5 it regulates its own procedures and that of its committees. Paragraph 7 provides that it can arrange for its functions to be discharged by its committees or a member or officer.[49]Section 1 of the Highways Act 1980 designates the different highway authorities. Section 8 provides for local highway authorities to enter into agreements with each other for the construction, reconstruction, alteration, improvement or maintenance of a highway. Works undertaken on highways can only be undertaken with the consent of the relevant highway authority: s.132.[50]Section 121A of the Road Traffic Regulation Act 1984 designates traffic authorities. Section 6(1) provides that for Greater London a traffic authority may make an order for controlling or regulating vehicular and other traffic, including pedestrians. In making such an order a traffic authority must exercise its powers so as to secure the expeditious, convenient and safe movement of traffic, having regard to various specified matters including the effect on the amenities of the locality and the importance of facilitation the passage of public service vehicles: s.122.[51]Under regulation 7 of the Openness of Local Government Bodies Regulations 2014, 2014 SI No 2095, where a local government committee has delegated a relevant decision to an officer, the officer must produce a written record of the decision: reg. 7(1)-(2). “(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—(a) under a specific express authorisation; or(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to— (i) grant a permission or licence; (ii) affect the rights of an individual; or (iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.” (b) under a general authorisation to officers to take such decisions and, the effect of the decision is to— (i) grant a permission or licence; (ii) affect the rights of an individual; or (iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.”[52]The regulations expressly include TfL within their ambit: r. 6. The record required must contain, inter alia, the reasons for the decision and the details of alternative options, if any, considered and rejected: reg. 7(3). The written record, together with any background papers, must as soon as reasonably practicable after the record is made be made available for inspection by members of the public at offices, on the website and by other means considered appropriate: reg. 8(1). Confidential and exempt information need not be disclosed: reg. 9. Breach of regulation 8, without reasonable excuse, constitutes a criminal offence. THE LEGAL ISSUES 54. The Additional Reasons[53]In support of its 15 March 2018 Decision to begin work on CS11, TfL invoked the Additional Reasons first set out in its summary grounds of resistance of 23 July 2018 and deposed to in Mr Plowden’s witness statements. Westminster submitted that the Additional Reasons came too late to be admissible, as did the Briefing Note.

THE LEGAL ISSUES

[54]For TfL Mr Straker QC submitted that the material was before the court to assist it in explaining what in fact occurred and enabling it to hold as a matter of law whether the Decision was legally flawed. In the absence of an obligation to produce a written record of the Decision the principles in R v Westminster City Council Ex p. Ermakov [1996] 2 All E.R. 302 had no application. Further, the admission of the Additional Reasons would be just in all the circumstances of the case in accordance with paragraph 30 of Silber J’s judgment in R (on the application of Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin).[55]In Ermakov, Hutchison LJ (with whom Thorpe and Nourse LJJ agreed) held that the court can, and in appropriate cases should, admit evidence to elucidate, or exceptionally correct or add to the reasons given in the decision letter, but it should be very cautious about doing so. As examples of cases where evidence would be admitted, Hutchison LJ referred to where an error had been made in transcription or expression, or a word or words was inadvertently omitted, or where the language used may be in some way lacking in clarity. The purpose of the affidavit evidence should be elucidation and not fundamental alteration, confirmation and not contradiction, of the reasons given in the decision letter: at 325.[56]Ermakov has been considered in a number of cases. After examining some of these, Stanley Burnton J in R (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538, identified the factors relevant to the admission of late reasons justifying a challenged decision as follows:
“[34] In my judgment, the following propositions appear from the above authorities: (i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. (ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.” (i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. (ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.”
[57]In R (on the application of Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin), Silber J adopted Stanley Burnton J’s analysis in Nash, but added two further considerations. The first was whether the decision-maker would have been expected to state in the decision document the reason that he or she is seeking to adduce later. Silber J stated the second as follows:
“30. The second additional and perhaps over-arching factor is whether it would be just in all the circumstances to refuse to admit the subsequent reasons of the decision-maker. So if there was no need for a decision to contain reasons, it might be strange if on the facts of a particular case, later reasons could not be adduced to meet a challenge on grounds of, say, a misdirection, unfairness or inconsistency. If this were not so, there might in some cases be unfairness between the parties as the decision-maker could not defend himself. Obviously the application of principles of fairness would also enable the court to reach a decision on the cogency of and weight to be given to the new reasons.”
[58]In my view, Silber J contemplated in paragraph [30] a situation where no reasons had been given and the justice of the case demanded that the public authority be able to adduce reasons to defend itself. It would be inconsistent with Stanley Burnton J’s analysis that whenever a public authority is not legally obligated to produce reasons the later reasons are admissible. Once a public authority volunteers reasons for a decision, in the absence of a legal obligation duty to produce them, all the considerations mentioned by Stanley Burnton and Silber JJ might come into play.[59]Working through such of these considerations as are relevant in this case, firstly I am of the view that the Additional Reasons are inconsistent with the original reasons in the Authority Request and, to use Hutchison LJ’s analysis, go further than simply elucidation. The Authority Request did not state that TfL had concluded that Westminster would agree to the scheme. That was first suggested and reasons given for it in the Additional Reasons. The Authority Request was a detailed document, and various risks were referred to there. I agree with the submission of Ms Lieven QC for Westminster that it might be expected that TfL’s conclusion as regards Westminster’s agreement would be referred to in the Authority Request. Similarly, with the contention that TfL considered the merits of proceeding with a partial scheme and decided it would be content with it. That had never previously been suggested. It was not part of TfL’s consultation, and it would not have been known outside TfL that it was contemplated. It would be a major departure from the scheme as promoted. It was not mentioned in the Authority Request.[60]Then there is the timing of the Additional Reasons, which appeared for the first time once judicial proceedings had commenced, not in the pre-action correspondence. Further, the Authority Request was as I have said a very full report. One might well have expected the decision-maker to have incorporated the Additional Reasons in it. Finally, the overall justice of the case does not point to the Additional Reasons being admissible. TfL released the Authority Request as the basis for the Decision in May 2018 and continued to refer to it as “the Decision”. It was only after the application for judicial review had been launched, and Mr Straker’s skill employed in preparing TfL’s defence, that the Additional Reasons appeared. In all the circumstances, the Additional Reasons are in my judgement inadmissible under Ermakov principles. Reasons for the Decision[61]Westminster’s case was that the Decision of the 15 March 2018 to begin construction of CS11, in particular the Swiss Cottage part of the scheme, was legally flawed because it did not take into account as a relevant consideration that Westminster had not agreed to the Avenue Road and Portland Place parts so that the entire scheme could not be delivered. The decision to proceed was on the false premise that Westminster would consent to the CS11 scheme, so that it wrongly took into account a cost/benefit analysis assessed by reference to the whole of the CS11 scheme.[62]In defending TfL from this challenge, Mr Straker submitted firstly, that in light of the statutory background TfL was entitled to proceed in expectation that Westminster would fall into line. Not only had TfL and Westminster worked together cooperatively for over a decade on such schemes, but the legislation gave the Mayor, and thus TfL, what he described as the strategic whip hand. Under section 141 and the following sections of the Greater London Authority Act 1999, the Mayor could implement his strategy through local implementation plans which London boroughs, such as Westminster, had to prepare for the Mayor’s approval. In support of this submission Mr Straker referred to Waddell v Kensington and Chelsea Royal London Borough Council (2000) 79 P & CR 567; (2000) 2 LGLR 105.[63]Waddell was an unsuccessful challenge by residents to two experimental traffic orders designating red routes made by the Council under the Road Traffic Regulation Act 1984. The orders were made pursuant to the Council’s local plan, which was to implement a network plan adopted by the Director of Traffic for London. Harrison J held, inter alia, that under the Road Traffic Act 1991, once the Council’s local plan was approved by the director, it had no discretion but came under a duty, pursuant to section 57 of that Act, to implement the plan as soon as reasonably practicable.[64]While there are parallels in the legislative regime under the Road Traffic Act 1991 considered in Waddell and under the Greater London Authority Act 1999, there are also differences. Under section 57 of the former, local authorities come under a duty to implement a local plan, whereas section 151 of the latter says simply that a London council must implement a local plan. There is no need to decide whether the difference in language is legally significant, since in my view the reasoning in Waddell has no application in the present case when the circumstances are different. In Waddell there was a local plan, and the Council had acted in accordance with it to make the two experimental traffic orders under challenge; in the present case there is no local plan in respect of the Mayor’s Transport Strategy, no direction by the Mayor under section 153 requiring that Westminster prepare one, and the duty on Westminster to take into account the factors set out in section 122 of the Road Traffic Regulation Act 1984 before it makes any traffic orders.[65]In short, while ultimately the Mayor in this case may have the whip hand in implementing his strategy, at present he has not even taken up the reins. Moreover, there is no reference in the Authority Request of 15 March 2018 (or for that matter in the Additional Reasons of the 23 July and 8 August 2018) to the Mayor’s powers under the Greater London Authority Act 1999 as regards forcing Westminster to implement his strategy. I fail to see how it can be said that this statutory background can be taken into account, or is the backdrop to Mr Plowden’s decision, when at this stage it has no purchase on the facts, and as far as I can see he made no reference to the exercise of the Mayor’s powers in any of his reasons.[66]Mr Straker then referred to what he characterised as earlier decisions to implement CS11. There was the public announcement to proceed with CS11 in TfL’s December 2016 response to what had emerged from the earlier TfL consultation, and the decision taken by TfL’s PIC in March 2017 to grant approval for programme and project authority for delivery of the priority projects in the Healthy Streets programme, including CS11. What in effect Mr Plowden did under delegated authority on the 15 March 2018 in making the Decision was, in Mr Straker’s words, to give formal expression to what had earlier be decided in accordance with TfL’s structured decision-making as laid down in legislation.[67]The difficulty with this submission is that TfL’s December 2016 response made clear, in the passage quoted earlier in the judgment, that the next steps were to prepare the full engineering design for the majority of the proposals and that work on, inter alia, Avenue Road, was subject to the formal Traffic Order process. It was not an announcement that work would go ahead regardless. As to the PIC decision in 2017, that was not something mentioned in the Decision of 15 March 2015. Indeed, it was never suggested until the hearing that the Decision of 15 March 2015 was anything other than the decision to implement the CS11 scheme. There is no suggestion in the Authority Request that the decision had already been made. In his first witness statement, Mr Plowden is clear that the Authority Request was the Decision.[68]Mr Straker’s next point was that there was nothing remotely unusual in an authority embarking on a scheme in circumstances when it does not have all the consents, permits or other steps necessary to conclude it. Citing Chesterfield Properties Plc v Secretary of State for the Environment, Transport and the Regions (1998) 76 P. &. C.R. 117, Mr Straker submitted that in a field where one might expect, given property rights, an insistence that an underlying purpose behind compulsion should be fulfilled, the courts have said that such is not required.[69]However, this do not grapple with the reality: although Westminster had said that it supported CS11 in principle, it had expressed the clear view that until it was satisfied with the modelling and mitigation measures it could not support the scheme. Just a few weeks before the Decision was taken, Westminster reiterated this stance in the email of 23 February 2018, with the subject heading “CS11 and [Oxford Street] northern alignment modelling”. That email contained the passage, quoted earlier in the judgment, that modelling was needed with journey time data for traffic and buses, degree of saturation and queue data, and traffic reassignment plots “for assessing the acceptability of both sets of proposals.” TfL agreed with this in its response of 26 February.[70]In my view the Decision contained in the Authority Request is flawed because it omits a legally relevant consideration. A legally relevant consideration is one which is so obviously material to a decision in light of the relevant legislation that it must be taken into account by the decision-maker: Re Findlay [1985] AC 318, 334; R (on the application of Hurst) v HM Coroner for Northern District London [2007] UKHL 13; [2007] 2 A.C. 189, [57]. Here the Authority Request contains nothing to suggest that any thought was given in implementation of the strategy under the Greater London Act 1999 to the risk of TfL failing to obtain the necessary consents from Westminster. The risk that the local authorities might be slow in granting consents was mentioned, but not that there might be a complete refusal to do so. Westminster’s opposition is absent from the document, as is its position that satisfactory modelling and mitigation measures were a prerequisite.[71]By contrast, the tenor of the Authority Request is that CS11 will be one route, not that there might be only partial implementation of, for example, the Swiss Cottage works. The cost/benefit analysis is premised on the whole scheme being implemented. Thus, one benefit of a cycle superhighway is said to be continuity for cyclists, but if neither the Avenue Road section nor the Portland Place section can be delivered, that will affect the overall benefit and the potential use of those parts which are delivered. When consulted upon, CS11 was to join other cycle superhighways, but there is nothing about the implications of that not being possible.[72]Reference to the Briefing Note of 15 March 2018 does not assist TfL. It noted Westminster’s opposition to the closure of the four gates in The Regent’s Park, but not its long-standing stance with respect to other parts of the scheme, reiterated as recently as a few weeks previously in the email of 23 February. The Briefing Note acknowledged the four approvals were needed from Westminster for CS11 in relation to Avenue Road, Portland Place and The Regent’s Park, and discussed briefly the possible consequences if they were not forthcoming. Not only was there no hint of this in the Authority Request, but the Briefing Note did not contain an assessment of the likelihood of these consents being achieved; of a phased approach being viable; or of the implications for the original proposal consulted on as a scheme which would link with other cycle superhighways.[73]Even if the Additional Reasons were admissible, I accept Ms Lieven’s submissions that they are in important respects erroneous:(a) the contention that TfL was in the process of completing traffic modelling for Portland Place does not assist since the modelling and proposed mitigation measures would have had to be to Westminster’s satisfaction;(b) reliance on the draft “Memorandum of Understanding” is hopeless when it was not given to Westminster until after the Decision was taken;(c) the assertion that TfL fully expected outstanding issues to be resolved does not accord to Westminster’s stated position;(d) the contention that TfL had a reasonable expectation that the Mayor’s transport strategy will be sought to be fulfilled across London fails to take account of the fact that Westminster is not obliged to implement CS11 and that it will need to take a view in light of its duties as a Highway Authority and Traffic Authority;(e) the explanation that TfL did not appreciate until 13 June 2018 that it might not obtain Westminster’s agreement overlooks Westminster’s repeated position on the scheme (incidentally, an explanation seemingly inconsistent with Mr Plowden’s account); and(f) the idea that TfL decided that it would be appropriate to proceed even with a partial scheme overlooks that the cost/benefit analysis covers the whole of the scheme. Openness of Local Government Bodies Regulations[74]Westminster contended that there was a failure to comply with the duty to produce written reasons for the Decision as required by regulation 7 of the Openness of Local Government Bodies Regulations 2014. The relevant decision had been delegated to Mr Plowden, and he had to produce a written record of his decision with reasons. The only published reasons are those in the Authority Request and associated documents, which omit the Additional Reasons and Briefing Note said to have been relied upon. The cost of the CS11 works seems from a redacted table 1 in the Authority Request to be in the region of £66m, which would fall under regulation 7(2)(b)(iii) as expenditure materially affecting TfL’s financial position.[75]For TfL Mr Straker submitted that the Regulations did not apply. First, given TfL’s massive budget, the expenditure involved in the Decision (in fact, he explained, £23m) did not meet the threshold required of materially affecting TfL’s financial position. In practice TfL considers that an impact would only be considered as material if it were over £100 million. Secondly, Westminster would not be regarded as member of the public under the Regulations. Thirdly, the criminal penalty in regulation 10 is a remedy and it is axiomatic that an alternative remedy precludes judicial review: Gouriet v Union of Post Office Workers [1978] AC 435. Fourthly, Westminster had not identified any prejudice from what is asserted as a breach of the Regulations, and judicial review is concerned with prejudicial errors of law.[76]At the hearing I expressed surprise at the £100m figure: it seemed to me that an expenditure of less than that might materially affect TfL’s financial position affecting its capital works programme, albeit that it might be a relatively small proportion of TfL’s total budget. However, there is no need for me to express a concluded view on this matter since at the hearing Ms Lieven accepted that the Regulations were a side issue, which she did not need to pursue. Nonetheless, I should say that I remain doubtful as well about Mr Straker’s three other submissions on the Regulations.

CONCLUSION

[77]For the reasons I have given I grant judicial review of TfL’s Decision.

Cited in 1 later judgment