CS11 London: City of Westminster v TfL

With things not going well for the Mayor and TfL on the railway front, they could have probably obtained some solace in the thought that the Mayor’s ambitious Healthy Streets policy was making good progress. Unfortunately, a first blow has been dealt by the City of Westminster with their about-turn on the planned pedestrianisation of Oxford Street.

We now look at a further potential setback following a judicial review (JR) hearing brought the City of Westminster. This challenged the Mayor’s Cycle Superhighway 11 (CS11) scheme. As a consequence of this challenge, construction has already been delayed.

Judicial Review

A judicial review takes place when the lawfulness of a decision or action of an executive or legislative body is called into question. We have covered a judicial review once before. On that occasion it was a case brought by the London Borough of Enfield against the DfT. At issue was the Invitation to Tender document for the West Anglia franchise and the failure for it to specify a requirement for 4tph at Meridian Water station – something the London Borough of Enfield was relying on and believed that the DfT had promised would happen.

Sometimes JRs can be extremely enlightening of the issues raised or of the procedures involved affecting those issues. On other occasions, they can appear extremely obscure and devoid of relevance.

JR – the joker in the pack

One of the reasons that JRs are disliked by those on the receiving end is that they are potentially extremely disruptive and divert effort away from the task in hand. Another reason is that, however confident one feels that the JR is without merit, there is always the slight risk that something new and unwelcome is brought to light during the proceedings or simply that the judgment goes against expectations.

These same reasons are why they can be seen as a weapon of choice – the ultimate weapon of legal mass destruction – by those who initiate them. Even an ultimately unsuccessful JR can thwart or delay a proposed project. For this reason, the courts tend to require an initial hearing to establish whether there is an arguable case to be made or whether it is considered that the application is largely vexatious and unlikely to succeed.

JR – the ultimate scrutiny check

Arguably, one good thing about JRs is that they make potentially affected bodies careful about doing things properly so that any potential JR will fail. This tends to lead to accountability and good quality governance at the expense of slowing the pace of decision-making and enacting those decisions.

A bit of a surprise

It must have come as a bit of a surprise for TfL when the City of Westminster decided to challenge their implementation of CS11 in the courts. Far more contentious schemes have already been introduced, including the East-West Cycle Superhighway which runs along the Embankment and is largely in the City of Westminster.

TfL must have been aware of the possibility of a JR in the case of CS11 because, apparently, the top risk in failing to complete on time was considered to be the possibility of a JR. Nevertheless, the fact that the risk was identified would suggest that TfL would have ensured that grounds for such a review were mitigated against. What we don’t know is whether TfL had any particular body in mind that would initiate such a review. It could be that they thought their primary threat came from the London Taxi Drivers Association (LTDA) who have a past record of both initiating JRs for road schemes they don’t like and of threatening to initiate such proceedings even if the threat is not carried out.

Reasons for wanting the review

One of the big questions must be: why would the City of Westminster seek a JR? This question is further complicated by the fact that there are both official reasons for this and an apparent unofficial agenda that may give insight to the real reasons for this case being brought. For the moment we will restrict ourselves to former.

It is a curiosity of this case, and certainly not the only one, that it seems far from clear why the City of Westminster brought it in the first place. Some clarity may have appeared in the case made for the initial application to have a JR, but the review itself brought to light only three reasons:

• Increased pollution levels in residential streets due to displaced or slower moving traffic
• Increased traffic in residential side streets due to the loss of (motor vehicle) road space along a major road
• Longer journey times for traffic passing through the borough

The irony of increased air pollution as an objection to a scheme designed to encourage cycling and reduce motor vehicle traffic has not been lost on many, who regard the application for the review with some incredulity.

The scheme

The scheme itself is not a particularly big one as Cycle Superhighways go, although there are plans for it to be extended northward in future. It is planned to run from Swiss Cottage to Portland Place (outside Broadcasting House just north of Regent Street). In doing so, a considerable part of the route is in Regent’s Park which is a Royal Park. The idea is not just to make a safer cycling route, but also a more pleasant one.

Swiss Cottage

Starting at the north end, the route begins at the one-way system at Swiss Cottage. This is currently one of the most cycle-unfriendly junctions in London and is quite dangerous for cyclists. TfL want to change this to a two-way system and, in doing so, include good cycle provision. This is regarded as a critical part of the scheme, as without it the route not be attractive to (or safe for) cyclists. Without the work at Swiss Cottage there would be little point in implementing the rest of the scheme.

It should be noted that the Swiss Cottage one-way system is entirely within the London Borough of Camden.

From Swiss Cottage, the plan is for CS11 to continue in a south-eastern direction along a ‘B’ road (Avenue Road) in order to reach one of the entrances to Regent’s Park. The speed limit on entering Avenue Road just south of Swiss Cottage drops to 20mph, though is not universally observed along this wide road.

Further down, Avenue Road crosses the borough boundary to leave Camden and enter the City of Westminster. The boundary is made obvious by an otherwise inexplicable change of speed limit from 20mph to 30mph.

It goes along the Westminster part of Avenue Road for about 600m which is slightly less than the distance from Swiss Cottage Tube station at the north end of Avenue Road to the borough boundary. In other words, the majority of the road, by a small margin is in the London Borough of Camden.

It should be noted that Camden is probably the most cycle-friendly London borough. The City of Westminster is not the most cycle-unfriendly, but it is known to have considerable reservations about various aspects of some cycle-schemes and its support cannot be taken for granted.

Royal Parks time

The next stage of this short cycle superhighway is planned to utilise the Outer Circle road with Regent’s Park. This would appear to be eminently sensible and logical and it makes the cyclist’s journey a more pleasant one. Notably, it also potentially keeps cyclists away from areas of low air quality. As was the case with the East-West Cycle Superhighway through St James’s Park and Hyde Park (covered in part 2 of Bike to the future) the big complication is that the Mayor is not in charge of the Royal Parks in London.

The plan is to restrict motor vehicles entering and exiting the North Gate of Regent’s Park except between 11:00 and 15:00 to make the cycle superhighway more pleasant for its users. This will mean that motor traffic will have to use streets outside the park rather than take a convenient shortcut through it. The effect of closing the gates to vehicular traffic is to divert traffic elsewhere. Most of the traffic along Avenue Road currently originates from, or continues through, the North Gate of the park, so it would be expected that during the hours of gate closure most regular motorists would no longer use Avenue Road. This would make that road more pleasant for cycling.

Note that providing a traffic shortcut is not really what the Royal Parks were intended for. There have been previous cases of traffic subsequently being banned. The most notable examples are along the Mall on Sundays and throughout Greenwich Park for part of the working day and all of the weekend.

Crossing Euston Road

Once through the park, the next major part of CS11 is the east-west running Euston Road which cyclists will need to cross in the vicinity of Regents Park or Great Portland Street Tube stations. Euston Road is a TfL road in the City of Westminster. A cycle-only phase on the traffic lights, which is considered necessary, will potentially reduce capacity along Euston Road.

Portland Place

Finally, the proposed cycleway would go along Portland Place, which is a wide street, so that it can terminate just north of Oxford Circus near the BBC headquarters. Here it would consist of two separate lanes, not physically segregated from the rest of the traffic but potentially reserved exclusively for cyclists.

Proceeding ahead…

Things started off as they would for any other cycle superhighway scheme. There was the proposal, approval in principle by the Programmes and Investments Committee, public consultation, liaison with the statutory authorities such as the City of Westminster and delegated authority for TfL to carry out the work. A press release on the 7th of May 2018 stated that construction of CS11 was due to commence in mid-July at Swiss Cottage.

…then coming to a halt

In June, the City of Westminster announced it was seeking a JR against the entire scheme and on Thursday July 26th they obtained an injunction to prevent work commencing at Swiss Cottage on the following Monday, the 30th July, which was TfL’s revised date for commencement of work.

The Day of the JR

So it was then that on Thursday 6th September 2018 in court 18 at the Royal Courts of Justice that battle commenced to determine whether or not TfL could proceed with the Mayor’s scheme. At stake was not merely CS11 but the potential for any cycle superhighway, or indeed any other of the Mayor’s schemes, to be thwarted by a London Borough. Effectively, depending on outcome, the Mayor’s policy could be approved with the full support of the courts or could be rendered impotent. In its own way, the JR could be as significant as the curtailing of Ken Livingstone’s Fares Fair policy in 1982 which was seen as something that crippled the GLC Mayor’s policy making ability.

Courtroom Non-Drama

On television, courts are portrayed as places of great tension and excitement. What they don’t tend to portray is the hours of proceedings on technical points. It is not what is said that leads to drama, but the thought of the potential consequences. JRs can be mind-numbingly dull as technical points are raised.

The case started with counsel for the City of Westminster describing the scheme in a factual way. This was an uncontentious start that put the case in context.

What, unfortunately, didn’t happen was a summary of the basic thread of the claimant’s argument that could be heard by the public. Both sides have to provide a skeleton argument in advance for the benefit of the judge and the other side. This is often referred to in court, but its contents aren’t divulged to outsiders.

City of Westminster case

Without sight of the skeleton argument, it is necessary to try and unpick the detail to try and understand what grounds the City of Westminster thought they had for a JR. The grounds appear to be:

• The City of Westminster has never agreed to the scheme and it can’t be imposed on them
• The scheme has been rushed through and not properly thought out. In particular, a lot of modelling of effects on traffic had not been carried out. This meant that the City of Westminster was unable to plan for any work necessary that impacted on them
• Air quality monitoring and predictions were inadequate and meant that the City of Westminster couldn’t form an opinion of the scheme
• TfL had only assessed the scheme as a whole. They couldn’t commence until it had all been sorted out
• The procedures carried out were utterly flawed. The scheme had never been properly authorised. One TfL official went ahead with it, without authorisation and without telling anyone of his decision

Counsel for City of Westminster asserted Westminster’s right to make traffic orders of its choosing under section 6 of the Road Traffic Regulation Act 1984 and in doing so made a point of explaining the difference between a highway authority, a traffic authority and a planning authority. Much was also made of their duties under section 122 of the act which set out the duties of a local authority when exercising functions by “strategic highways companies or local authorities”.

Not opposed in principle

It was repeatedly stated that the City of Westminster was not opposed in principle to the Cycle Superhighway. The significance of this assertion became clear later, but it was reminiscent of a scene from Yes, Minister where civil servants emphasise their agreement in principle to something whilst doing their utmost to oppose it in practice.

In another twist, counsel emphasised that the City of Westminster had no opinion on the merits, or otherwise, of the Swiss Cottage two-way scheme – the very scheme for which the City of Westminster had successfully obtained an injunction to prevent work commencing. It was the opinion of the City of Westminster that the whole of CS11 should not commence because not all details had been finalised and the scheme had only been assessed as a whole.

Alleged deficient modelling

Much then was made of modelling and emails between the City of Westminster and TfL emphasising what hadn’t been done. Also that various aspects of the scheme, such as the closing of Regent’s Park to motor traffic, had not been resolved. With such uncertainty, it was impossible for the City of Westminster to evaluate such a scheme and approve or disapprove of it. It was also impossible for them to take mitigating action.

The City of Westminster was unhappy that the impact of the decision (made by the City of Westminster) not to pedestrianise Oxford Street had not been modelled in the studies. Clearly, the City of Westminster did not regard the fact that their recent abrupt decision not to pedestrianise Oxford Street was the reason that this modelling did not exist.

The City of Westminster was also unhappy about the impact the scheme would have on traffic in the heart of London – not just in Portland Place but also in the surrounding area. They felt that CS11 should fit in with a strategic plan for that part of central London and it couldn’t do so because that strategic plan simply didn’t exist.

The final strand of the City of Westminster’s argument was based on the way the scheme was approved. The man in charge of cycling provision at TfL, Ben Plowden, allegedly decided one day to get on with implementing the scheme without any authority to do so. In a further dereliction of proper governance, the decision wasn’t recorded in writing.

The counter-attack – a history lesson

As is generally the case, when you have only heard one side of the argument, it seems pretty damning. Proceedings had lasted two hours and TfL was yet to put their case. When it came it was not a mere rebuttal of the points made but a whole history lesson of how transport is legally framed in London and why it is the way it is.

TfL’s case started with a reminder of the abolition of the GLC in 1986 and the free-for-all that followed, with each borough acting independently of each other. After a few years, the government recognised the harm this was doing to highway planning and arranged for the Secretary of State for Transport to issue directions to the relevant Highway Authority (a London borough) for the way the overall traffic plan was to be implemented on strategic roads.

Counsel for TfL gave the example of Chancery Lane. Chancery Lane is a road with a length a little over 500m but, as counsel pointed out, was managed by three different traffic authorities (City of Westminster, City of London and London Borough of Camden). He then embarked upon a history of red routes and, not surprisingly, the judge started querying why we needed to know all this. Certainly, this was a complete contrast to the legal arguments and attention to pernickety detailed facts presented by the claimant.

Red route to a bullish borough

When Red Routes were introduced the local boroughs did not initiate them. They were directed to do so by the forerunner of the Department for Transport at the time. At the time the enthusiasm of the Royal Borough of Kensington & Chelsea (RBKC) for Red Routes was equivalent to their current enthusiasm for cycle routes – ie none at all. So they decided they wouldn’t have them. The Secretary of State (SoS) had no power to implement them himself, that was down to RBKC. And RBKC decided they were having none of them.

The refusal by RBKC to implement red routes was not a wise move. As they discovered when they were taken to court, the Secretary of State at the time might not have had the power to implement them himself, but he did have the power to determine policy and it is the duty of the highway authority to implement the Secretary of State’s policy. So while a SoS can’t specify the exact location of each parking bay and crossing point they can specify that a red route be implemented and it is up to the local authority to knuckle down, sort out the details and implement it.

The Duty of the Mayor

It was not stated explicitly, but clearly when the overdue replacement for the GLC, the Greater London Authority, was being proposed there was a concern about having a loose cannon at the top of the GLA. It is probable that the fear of Ken Livingstone getting into power meant that the drafters of the GLA Act 1999 were determined to make the Mayor accountable for his actions and plan ahead properly. Those same legal drafters must have also recognised there is no point in demanding proper governance if the Mayor doesn’t have the power to implement it.

So we have the GLA Act of 1999 section 142 part of which states:

142 The Mayor’s transport strategy

(1) The Mayor shall prepare and publish a document to be known as the transport strategy containing—
(a) his policies under section 141(1) above, and
(b) his proposals for discharging the duty under section 141(2) above.

(2) In addition to containing the proposals and policies required by subsection (1) above, the transport strategy—
(a) shall contain the Mayor’s proposals for the provision of transport which is accessible to persons with mobility problems,
(b) shall specify a timetable for the implementation of the proposals contained in the transport strategy by virtue of paragraph (a) above, and
(c) may contain any other proposals which he considers appropriate.

(3) Where the Mayor revises the transport strategy he shall publish it as revised.

(4) …
(5) …

Note in particular part (2)(c) which appears to give the Mayor an absolute free-rein to include in his transport policy anything he wants. He can even change it at any time. The point being: he can’t decide policy, Trump-like, on a whim. It must be consistent with his published transport strategy.

The only practical restriction that appears to apply to the Mayor’s Transport Strategy is that it must be consistent with national transport policy. This apparent downside is not all bad for the Mayor because it emphasises the fact that policy is decided at a high level and implemented locally. So just as the Mayor has to comply with national policy, he can set his own policy within the framework of national policy and then require his subservient authorities (the boroughs) to carry out his policy at a local level.

At this point, it becomes clear why the City of Westminster repeatedly states it does not object to CS11 in principle. If it were foolish enough to do so then a judge would be pretty quick to remind them that such policy is not their decision to make and that they must broadly comply with the Mayor’s wishes – although local details could (and should) be decided by the local authority.

Velvet glove, iron fist

Counsel for TfL then went on to emphasise that, just because in its eighteen-year existence, TfL has never taken such an approach with local authorities, it does not mean that it doesn’t have the power to do so. He likened it to Bismarck’s iron fist in the velvet glove. TfL has just not had to use its iron fist. Yet.

Around this point, the judge queried TfL’s power in this. One suspects he was testing the barrister or just wanted the point made clear. The response was that TfL and the Mayor were effectively one and the same thing. TfL is there to carry out the transport policy of the Mayor.

Is it all over?

At this point, a layman might think it is game, set and match. But legal arguments aren’t like that. Every point needs to be defended and it is up to the judge to decide what weight to give various points, or even if he needs to consider them at all.

Trivialising the objections

Next followed details of the contentious work. Given that the City of Westminster had no opinion on Swiss Cottage as it was outside their jurisdiction, and couldn’t have an opinion on Regent’s Park as that too was outside their jurisdiction, then the only bit that affected them was the work on the small part of Avenue Road within their remit and Portland Place.

It was claimed that the work on Avenue Road was merely adding a segregated cycle lane and wouldn’t prevent other traffic going down the road. For Portland Place there were two alternative schemes. On had an advisory cycle lane on each side of the road not physically separated from the rest of the traffic and delineated with dashed lines. The other made the cycle lane mandatory (meaning other traffic must not enter into it – not that cyclists must use it) with unbroken lines. In the latter case, the cycle lane would have a different coloured surface.

Modelling not our problem

Further argument was presented that detailed modelling was not necessary beyond establishing the scheme was workable. Besides, the modelling was not for the benefit of the City of Westminster but for TfL. If the City of Westminster wasn’t happy with the modelling at the level of detail they wanted, then it was down to them to do it. A precedent was cited to show that it was not the duty of TfL to do it for them.

Much was made of the case of the JR brought about by the London Taxi Drivers Association against TfL concerning the East – West Superhighway. Quotes were made from the judgment emphasising that the Mayor has to consider the merits of the scheme as a whole. Applicants for a JR can’t ‘salami slice’ the scheme and emphasise the local disadvantages. This is highly pertinent when it comes to air quality. Any decrease locally in air quality would be offset by other improvements, such as that to cyclists using Regent’s Park or using a dedicated segregated cycle lane. Or pedestrians with less exposure to traffic fumes at Swiss Cottage due to shorter wait times at pedestrian crossings.

Governance was totally proper

A final point was an explanation in detail as to how projects are governed. To someone who has attended Programmes and Investments Committee meetings, it must seem extraordinary that the City of Westminster thought that something irregular was going on. But then there are probably more men that have walked on the moon than members of public who have attended Programmes and Investment Committee meetings, and we suspect most of them are residents of LR Towers.

Programmes get approved at Programmes and Investments Committee meetings by the TfL board members on that Committee. Because they only meet occasionally, they delegate authority to a TfL officer to spend the approved authority at a time of his choosing as appropriate. So the TfL officer may determine the start date and award the contract but only on the basis it has been properly approved. The total sum for CS11 is approximately £26m, which is within the level of authority available to TfL officers. Counsel pointed out that TfL is a big organisation spending large sums of money. This has to be done by delegated authority. He also pointed out it was exactly how the City of Westminster works. The only difference being that as they are smaller, financially, their officers are limited to a spend of £25m as opposed to £100m in TfL.

Whatever the rights and wrongs, judging by his comments, the judge will probably take a dim view of the failure to formally record and announce the decision to go ahead with the scheme. At the very least this would have avoided debate on when exactly the scheme finally went ahead.

Then the rebuttal

After this came an opportunity for City of Westminster’s counsel to rebut the arguments of TfL. The description of the impact on Portland Place was challenged because the cycle lanes would go up to the traffic lights necessitating cycle phases at the lights which would then impact on other traffic. It was stated that other traffic would be restricted in Avenue Road. It should be noted that the TfL consultation documents online do not support this assertion, though there were some right turns that were originally going to be banned but were subsequently allowed.

A few of the precedents cited by TfL were argued as ‘distinguished’ (ie different and therefore irrelevant) from the current situation and so should have no bearing. After that, the judge said he would make his decision later (as everyone expected) and the court arose.

Possible decisions

One can speculate on the verdict but there appeared to be four possible outcomes:

• TfL was in the wrong. The City of Westminster is vindicated. A local authority can effectively prevent this and similar schemes from happening
• TfL erred in the way they proceeded with this and this cannot easily be rectified for this or future schemes
• TfL wrong on various technicalities with the implication that if these are resolvable and if resolved then the scheme can subsequently go ahead.
• TfL vindicated

It is very hard to see how TfL was fundamentally wrong and acting beyond its powers. Such a verdict would almost certainly lead to an appeal as it renders the Mayor impotent and boroughs would be free not to implement the Mayor’s policy – clearly not the intention of Parliament at the time the legislation was made.

If the judge were to decide that TfL was far too lackadaisical about the whole thing and impose onerous conditions for a framework for TfL to operate, then that is almost as bad as losing outright and could seriously hamper future implementation of policy by the Mayor.

The judge could decide that TfL did not handle this correctly in all respects. Such a situation would be basically rectifiable and TfL could modify their approach to make their actions acceptable to the court in future.

Finally, the judge could decide that TfL were acting totally correctly. Given the LTDA challenge to the East-West Cycle Superhighway and how TfL was vindicated on every point this seems a distinct possibility.

Why bring the challenge?

One has to wonder why on earth the City of Westminster brought this challenge.

Certainly, there is an impression that the City of Westminster resented what they perceived as a level of arrogance displayed by TfL. It is what the youth of today might refer to as disrespect, and the feeling that they are being ridden over roughshod. But that wouldn’t be enough to have a council risk large sums of money, even one as rich as Westminster, on a JR.

The suspicion at LR Towers is that the City of Westminster, or rather their residents, had tasted blood with their success in stopping Oxford Street pedestrianisation. With TfL perceived as being on the run, it was time for the next blow to prevent a scheme that residents did not want due to longer journey times in their car, more rat running and worse air quality where they live. The councillors probably felt they had no choice but to bring this action otherwise they would have been seen as spineless.

The judgment

The judgment was published very promptly on the 13th September 2018. Unfortunately, it is not as easy to follow as some judgments, but the gist of it appears to be that TfL erred on going ahead with a partial scheme when the consultation was about the scheme as a whole. There does not appear to be any specific guidance as to what must be done by TfL to rectify the deficiencies in the consultation. The right of the Mayor to require the boroughs to implement his transport strategy if properly consulted on does not appear to be in doubt.

The critical paragraph in the judgment appears to be paragraph 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.

The “additional reasons” referred to appear to be arguments put forward by TfL after the JR challenge. City of Westminster and the judge regarded that as inadmissible. You can’t have a consultation and subsequently justify your actions by something not referred to in the consultation.

Where do we go from here?

It does seem that TfL’s consultation was flawed in that it only considered the whole scheme. Or rather, it went ahead before parts that were supposed to have been resolved had been resolved. Had unimplemented parts of the scheme been flagged in the consultation as something that would be resolved later then, presumably, that would have been acceptable. That may be a correct verdict from a legal standpoint but, looking at the scheme, it does seem to be a bit harsh when it appears to be blindingly obvious that, for cyclists, even a partial implementation would be extremely beneficial – but that was not what was consulted on.

Quite how this legal battle benefits Londoners is hard to see. In all probability, TfL will re-consult and make sure it is a compliant consultation. If, for example, they proposed the one-way system at Swiss Cottage as a free-standing project it is hard to see how it would get rejected. The City of Westminster would probably struggle to produce an argument as to why they should be considered a legitimate objector – especially as they have stated they have no opinion on the scheme as it is outside their borough boundary.

TfL’s coffers will need to be raided to pay for this JR (unless they appeal against the decision and win). After that, probably, further money will need to be found for another consultation. Other cycle schemes in the queue will probably be delayed. Meanwhile, Swiss Cottage will continue to be a very dangerous place for cyclists and one hopes that there are no fatalities before the issues concerning this traffic junction are finally resolved.

What the City of Westminster achieved with this victory, we leave for readers to decide.