City of Westminster, R (On the Application Of) v Transport for London (TfL) & Ors

A public authority may not justify a decision by relying on material reasons formulated only after judicial review proceedings have begun. Where reasons were voluntarily given, later reasons are admissible only cautiously and principally to elucidate, not fundamentally alter, the original reasons.

A decision-maker must take into account a consideration which is obviously material in light of the governing legislation. For a project dependent on third-party consents, that may include the real possibility that consent will be refused, the consequences for partial implementation, and the effect on any cost-benefit assessment. A general statutory strategy does not remove the need to assess those immediate practical risks.

The claimant sought judicial review of Transport for London’s decision of 15 March 2018 to begin construction of Cycle Superhighway 11 at Swiss Cottage. The proposed route required further approvals and consents, including from Westminster for works on Avenue Road and Portland Place.

Westminster supported the scheme in principle but had repeatedly stated that it required satisfactory traffic modelling and mitigation proposals before agreeing to the relevant works. TfL relied on its contemporaneous authority request and, after proceedings began, on additional reasons and a briefing note. The central issues were whether the additional reasons were admissible and whether TfL had failed to consider the possibility that Westminster would not consent to the complete scheme.

1. Late reasons. The additional reasons first advanced in TfL’s summary grounds of resistance were inadmissible under the principles in R v Westminster City Council Ex p. Ermakov [1996] 2 All E.R. 302. They did more than elucidate the authority request. They introduced new contentions that TfL expected Westminster to agree and that TfL had decided it would proceed with a partial scheme. They appeared only after proceedings had begun, although the authority request was a full report which could have included them.
2. The approach in R (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538, as supplemented in R (on the application of Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin), required the court to consider consistency with the original reasons, whether the later reasons were genuinely those of the decision-maker, the risk of retrospective justification, delay, the circumstances in which the reasons were advanced, and overall justice. Those considerations pointed against admission.
3. A legally relevant consideration is one so obviously material to the decision, in light of the governing legislation, that it must be taken into account: Re Findlay [1985] AC 318 and R (on the application of Hurst) v HM Coroner for Northern District London [2007] UKHL 13; [2007] 2 A.C. 189. TfL’s authority request failed to consider the risk that Westminster might refuse the necessary consents. It also failed to address Westminster’s position that satisfactory modelling and mitigation were prerequisites.
4. The statutory powers relating to the Mayor’s transport strategy did not justify assuming that Westminster would consent. No relevant local implementation plan or direction had been identified, and Westminster remained subject to its statutory highway and traffic authority duties. Waddell v Kensington and Chelsea Royal London Borough Council (2000) 79 P & CR 567; (2000) 2 LGLR 105 was distinguishable.
5. The authority request assessed the costs and benefits of the complete route. The possibility that only part of the route might be delivered could materially affect continuity, benefits and the scheme’s connection with other cycle routes. The briefing note did not cure those omissions.
6. The decision of 15 March 2018 was unlawful. Judicial review was granted.

First-instance judicial review proceedings. Permission was granted and an interim injunction was issued by Holgate J on 26 July 2018. Sir Ross Cranston subsequently granted judicial review of TfL’s decision.