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TfL refused permission to appeal High Court ruling on cycle superhighway

The Court of Appeal has refused to grant Transport for London (TfL) permission to appeal in its dispute with Westminster City Council over the construction of a proposed cycle superhighway crossing the borough.

In the High Court Westminster had said that in deciding to begin construction TfL had failed to take into account a legally relevant consideration, namely the fact that the council – the statutory highway authority and traffic authority – might not give the necessary consents.

Sir Ross Cranston, sitting as a Planning Court judge, granted Westminster’s claim for judicial review and quashed the decision.

He found that in making the decision, there was nothing to suggest that any thought was given to the risk of TfL failing to obtain the necessary consents from Westminster.

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The judge said this consideration was “one which is so obviously material to decision….that it must be taken into account by the decision maker”.

In seeking permission to appeal, TfL argued that the statutory scheme in the Greater London Authority Act 1999 meant that where a local authority had failed to prepare or implement its local plan, the mayor may exercise the powers on behalf of the local authority under s.152 of the Act.

It suggested that this made it impossible for a borough to preclude the Mayor of London’s transport strategy from being implemented and so Westminster’s refusal of consent for the cycle superhighway could not be a legally relevant consideration.

Hamblen LJ said that whether or not this was correct in law was disputed, but for present purposes this was moot. "There has never been any suggestion, either in the Decision or in TfL’s evidence, that the Mayor would in fact seek to act in the manner suggested.”

This was a point made in Sir Ross Cranston’s original judgment, which LJ Hamblen described as “clear, cogent and emphatic”.

LJ Hamblen concluded that Sir Ross’ reasoning was unassailable and that the essential issue which TfL wished to raise on the appeal did not arise on the facts of the case.

“For all these reasons, there is no real prospect of an appeal succeeding, nor is there any other compelling reason for an appeal,” the Court of Appeal judge added.

Tim Mitchell, Westminster’s cabinet member for environment and city management, said: “We’re pleased with another court decision supporting the council and residents’ right to be heard on CS11. We’re worried that CS11 in its current form will cause traffic congestion and lead to poorer air quality.

“We fully support safe cycling and are making major investments for cyclists within Westminster. We’re not anti-CS11 or cycling, but we want TfL to take the time to deliver something that works for both cyclists and residents. 

“The courts have sent a clear message, it’s time for TfL to get around a table with us and discuss the next steps.”

Westminster won an injunction in July 2018 to stop works at Swiss Cottage pending a judicial review that last September found in favour of the council, which has complained that it has not received traffic modelling data from TfL asked for more than three years ago. 

Ben Plowden, TfL director for director strategy and network development, said: “We are disappointed that the Court of Appeal has not given TfL permission to appeal against the High Court judgment.

“It is frustrating that our plans for reducing road danger at this junction have been blocked by Westminster Council’s decision to litigate rather than working collaboratively with us. We remain committed to improvements towards safer walking and cycling in the area and we will now consider next steps.”

Mark Smulian

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