Shamim Anwar v London Borough of Ealing Council

This appeal concerns the construction and meaning of section 184 and Schedule 14 of the Highways Act 1980 in the context of a vehicle "crossover" formed by lowering a kerb on the public highway. The Court of Appeal held that:

• the words "any person" in section 184(11) bear their ordinary meaning and are not confined to an owner or occupier of adjoining premises;
• a highway authority has a wide discretion under section 184(11) to approve, modify, propose alternatives to, or refuse a request to construct a vehicle crossing; there is no statutory requirement to obtain the consent of neighbouring owners or occupiers before constructing a crossover in response to such a request;
• by contrast, subsections (1) and (3) identify the limited classes of persons (owners and occupiers of the premises affected) who may be served with a compulsory notice and who have a statutory right under Schedule 14 to object on specified grounds;
• the Chief Executive’s 2021 decision refusing to remove the crossover could not be undermined on the premise that the original 2015 works were unlawful where the time for challenging the 2015 decision had long passed; the crossover was therefore to be treated as lawfully constructed; and
• the statutory construction adopted does not give rise to a breach of Article 1 of Protocol 1 or require a different reading under section 3 of the Human Rights Act 1998.

Background and parties. The claimant/appellant, Mrs Shamim Anwar, is a long leaseholder of a property in Southall. Her neighbour, Mr Johal, applied to the London Borough of Ealing (the highway authority) for a vehicle crossover which was constructed by the Council’s contractors in late 2015 or early 2016. The crossover overlapped to some extent the frontage of Mrs Anwar’s property and allowed vehicles to access the forecourts of both neighbouring houses. Tension between the neighbours followed; Mrs Anwar sought removal of the crossover and reinstatement of the kerb.

Procedural history. Following the Council Chief Executive’s refusal in February 2021 to remove the crossover, Mrs Anwar commenced judicial review proceedings challenging that decision. Permission was given on a single ground relating to an asserted failure to consider that the crossover had been unlawfully constructed. The Deputy High Court Judge (Dexter Dias KC) nevertheless addressed statutory construction of section 184 and Schedule 14 and concluded the 2015 construction was lawful. Mrs Anwar obtained permission to appeal to the Court of Appeal.

Nature of the claim and relief sought. The claim was for judicial review of the Chief Executive’s 2021 decision not to remove the crossover; relief sought included quashing that decision and requiring the Council to reinstate the kerb.

Issues framed by the court. The primary issues were (i) the proper construction of section 184(11) of the Highways Act 1980 and the meaning of "any person" and "a vehicle crossing" in that subsection, (ii) the interaction between subsection (11) and the compulsory notice procedures in subsections (1) and (3) together with Schedule 14, (iii) whether the Council had an obligation to obtain consent from adjoining owners or occupiers before constructing a crossover under subsection (11), and (iv) whether the statutory construction adopted would engage Article 1 of Protocol 1 and require reading down under section 3 of the Human Rights Act 1998.

Court’s reasoning and subsidiary findings. The Court of Appeal accepted the Deputy High Court Judge’s analysis. It held that subsections (1) and (3) plainly identify the limited class of persons who may be served with compulsory notices and thereby gain a statutory right under Schedule 14 to object; by contrast subsection (11) uses the broader phrase "any person" and was intended to permit members of the public (not only owners or occupiers) to request construction of a crossing. The design, location and dimensions of the crossing are matters for the highway authority, subject to the considerations in section 184(5) and the requirement to act rationally. There is no statutory right to object to works proposed under subsection (11) akin to the Schedule 14 regime because the requester is not a person required to contribute to the cost. The Court further held that the statutory construction did not engage A1P1 rights in the present circumstances because the works were carried out on the public highway (not private land) and did not deprive the occupier of their possessions or peaceful enjoyment; private-law remedies for trespass remained available. Finally, the Court observed that the time for challenging the original 2015 decision had long passed, so the Chief Executive was bound to treat the crossover as lawfully constructed.

Outcome. The Court dismissed the appeal, upholding the Deputy High Court Judge’s construction and conclusions.

The appeal is dismissed. The Court held that section 184(11) of the Highways Act 1980 permits "any person" to request a vehicle crossing and gives the highway authority a wide discretion to approve, modify, propose alternatives to, or refuse such a request; there is no statutory obligation to obtain the consent of neighbouring owners or occupiers before constructing a crossover under subsection (11). Persons who may be compelled to contribute under subsections (1) or (3) are specifically identified and have a right to object under Schedule 14. The 2015 construction, not having been validly quashed within time, was to be treated as lawful; the statutory interpretation does not breach Article 1 of Protocol 1 and does not require a different reading under section 3 of the Human Rights Act 1998.

Appeal to the Court of Appeal from the Administrative Court (Dexter Dias KC sitting as a Deputy High Court Judge) where judgment was given at first instance: Dexter Dias KC (sitting as a Deputy High Court Judge) [2022] EWHC 2464 (KB). Permission to appeal to the Court of Appeal was granted by the single judge.