Council defeats High Court challenge over refusal to remove joint crossover on highway

The London Borough of Ealing has successfully defended a local resident’s legal challenge over a decision by its chief executive not to remove a crossover constructed to permit vehicles to park on the forecourt of a neighbouring property.

The case [published on Bailii this month] related to a kerb being “dropped” or lowered on a road in Southall at some time towards the end of 2015 or the beginning of 2016.

Ealing, the highway authority, constructed the crossover to permit vehicles to park on the forecourt of the neighbouring property.

Dexter Dias QC, sitting as a Deputy High Court judge, said the cause of the trouble was that the crossover was a joint crossover in that it overlapped to some degree, “not fully, but unmistakably”, with the boundary to the claimant’s home.

The claimant, who does not own the freehold to her property, had not asked for a flattening of the kerb outside her home, the judge said. “She did not want it.  She never gave the slightest consent.”

A complaint procedure was pursued with the defendant local authority. This complaint was made by the freeholder of her property and pursued right up to stage three, the highest level, when it was considered by Ealing’s chief executive.

However, he dismissed the complaint and refused to remove the crossover.

Judge Dias said that this had caused much misery to the claimant “for not only is she affronted that it was laid down in part outside her home without her consent, but it has permitted a neighbour, she says, to be able to drive onto her side of the boundary, at least partially, and cause her much distress”.

With the complaint procedure exhausted, and an application to the Local Government and Social Care Ombudsman rejected, the claimant sought relief by way of judicial review against the refusal to remove the crossover.

Judge Dias said the court's role was not here to remake or second guess the decision of the chief executive. "My duty is different. It is to consider whether that decision is lawful."

Judge Dias concluded: 

(1)   This was a subsection (11) Highways Act 1980 request case;

(2)   There was no statutory consent requirement for subsection (11) cases;

(3)   The defendant’s practice of seeking consent in subsection (11) cases was not a consequence of a statutory duty to seek such consent: “there is none”;

(4)   The true context was of a highway authority modifying its own highway and not the claimant’s property or indeed that of the freeholder (someone other than the claimant);

(5)   The defendant’s practice in asking for non-requesting neighbour consent in subsection (11) joint crossover cases was, essentially, a matter of courtesy;

(6)   The chief executive’s refusal to order removal of the crossover was not unlawful as the crossover was not unlawfully constructed;

(7)   In any event, the chief executive rationally and reasonably evaluated all the relevant competing factors and reached a rational and reasonable decision;

(8)   The impugned decision of the chief executive was impregnable to public law challenge.

The judge, therefore, dismissed the claim for judicial review. “The conventional legality challenge fails. The defendant did act within the scope of its powers and it did comply with its duties in its refusal to remove the crossover.”

Judge Dias decided that to read a consent requirement into Type 11 request cases was not to interpret the statute. “It is to rewrite it. It is legislating. This court cannot and must not do that.”

He said he was very sorry that the claimant had had to endure these years of distress and anxiety. “I have seen how it has very visibly affected her and her family member who attended court to support her. But the legal construction of a statute is an exercise in forensic accuracy not sympathy, however strongly that sympathy might be deserved. The peril in such an approach is that law becomes uncertain and waivers, depending upon the personal characteristics of the individual claimant, rather than the democratic intention of Parliament.”

The judge continued: “Thus, I must apply the canons of proper statutory construction and reach a dispassionate conclusion. This court performs a critical function in the protection of the rule of law. It is here to ensure that the executive bodies of state comply with the will of Parliament. Here the defendant public authority acted in accordance with the law.”

Judge Dias said the claimant’s remedy against her neighbour was a question of private law. “Without wishing to prejudge that, I wish [her] well.”