Shamim Anwar v London Borough of Ealing Council

Under section 184(11) of the Highways Act 1980, a highway authority may construct a vehicle crossover following a request by any person. Where the authority constructs a shared crossover in the highway, the consent of a non-requesting and non-paying neighbouring occupier is not a statutory precondition.

The objection procedure in Schedule 14 is directed principally to compulsory cases under section 184(1) and (3), where the authority may recover construction costs from an owner or occupier. A local authority’s practice of seeking neighbouring consent may be good practice, but it cannot create a statutory requirement. Judicial review scrutinises legality rather than remaking the authority’s evaluative decision. A refusal to remove the crossover was therefore lawful where the authority considered the absence of consent, competing interests and practical alternatives.

The claimant lived at a property partly fronted by a shared vehicle crossover constructed by the defendant highway authority. The crossover principally served the neighbouring property but overlapped part of the claimant’s frontage. The claimant had not consented, and the authority’s own practice ordinarily sought written consent from an affected neighbouring owner.

The chief executive refused a complaint seeking removal of the crossover. He acknowledged that mistakes had been made and that consent had not been obtained, but retained the crossover and offered a bollard to prevent vehicles entering the claimant’s side.

Permission to apply for judicial review was granted on the issue whether the chief executive had failed to consider that the crossover had been unlawfully constructed. The court considered whether construction was unlawful under section 184 of the Highways Act 1980 and whether the subsequent refusal to remove it involved a public-law error.

1. Claim dismissed. The chief executive’s decision was not unlawful and was not amenable to being quashed.
2. Section 184 creates three distinct types of crossover case: section 184(1) habitual-use compulsion cases; section 184(3) planning-permission compulsion cases; and section 184(11) request cases. The present case was a section 184(11) request case.
3. In a request case, any person may request construction, the authority may approve, reject or modify the request, and the requesting person must deposit the quoted cost. Section 184(11) contains no requirement to obtain the consent of a non-requesting neighbouring occupier. The crossover is constructed in the highway, property in which is vested in the highway authority under section 263. It does not interfere with the freeholder’s subsoil rights.
4. The notice and objection procedure in Schedule 14 is associated with the compulsory cost consequences under sections 184(1), (3) and (7). It does not apply to impose a consent or objection requirement on a non-requesting neighbour in a section 184(11) case who is not charged for the works.
5. The authority’s practice of seeking neighbouring consent was courteous and sensible, but it was not a legal requirement and could not rewrite the statute. The court applied a purposive and contextual approach to statutory construction. It also held that judicial review is not granted merely for failure to follow best practice.
6. The evidence did not establish a section 184(1) habitual-use case or a section 184(3) planning case. The chief executive had expressly considered the absence of consent, the competing interests, the passage of time, parking pressures and the practical alternatives. His evaluative decision was rational and reasonable. The claim was dismissed.

The judgment was a first-instance judicial review decision. An initial application for permission was refused by Mr Peter Marquand, sitting as a Deputy High Court Judge. On renewal, HHJ Alice Robinson, sitting as a Judge of the High Court, granted permission on a single ground. The High Court then dismissed the substantive claim.