Judge criticises claim against council in private dispute

Lady Justice Andrews made this observation at the outset of her judgment in the Court of Appeal in the case brought by Shamim Anwar against the London Borough of Ealing.

The dispute concerned a ‘crossover’ built by the council to allow access for parking in front of the next door house owned by a Mr Johal. Its siting meant drivers could access either side of the boundary between the two properties.

Andrews LJ said:”Unfortunately, the two neighbours do not get on. The source of much of the friction between them is the common means of vehicular access to and from their respective properties…[which] enables each of them to drive across the boundary of the other's land.”

Ealing built the crossover in 2015 following an application by Mr Johal, even though he had not obtained consent from a Mr Caan, who owns Mrs Anwar’s home.

In February 2021, Ealing’s chief executive refused a request by Mr Caan to remove the crossover and three months later Mrs Anwar filed her claim for judicial review of that decision having had complaint dismissed by the Local Government and Social Care Ombudsman because it concerned something that was already six years old.

Permission was eventually granted on the single ground that the decision not to remove the crossover was unlawful because of lack of regard to Mrs Anwar’s belief that it had been unlawfully constructed in the first place.

Andrews LJ said: “It is not possible to get around the time constraints for challenging a decision made by a public body by seeking the reconsideration, withdrawal or reversal of that decision and then challenging the decision maker's refusal to do so.

“Mrs Anwar would have required a very lengthy extension of time to raise a challenge to the 2015 decision [to build the crossover], and none was sought.”

The judge said Mrs Anwar could not establish the premise upon which the ground was argued.

She said Ealing’s decision to construct the crossover was never the subject of a permitted challenge before a court. There was no court order quashing it and therefore Ealing had to regard it as lawfully constructed.

This meant alleged unlawful construction in 2016 “could never have been a relevant consideration” in 2021 since it was long out of time.

Andrews LJ said: “The claim for judicial review could and should have been dismissed in short order on that simple basis, without any need to address the submissions as to why the initial decision was alleged to have been unlawful.”

Mrs Anwar’s appeal was with the permission of the single judge, who saw some force in the point that section 184 of the 1980 Highways Act “is potentially of wide application and that a dispute about its proper construction raised issues of public importance, which in itself was a compelling reason to grant permission”, Andrews LJ said.

Dismissing the appeal she found it was right to conclude that where a request for the construction of a crossover is made under section 184(11) there is no obligation on the highway authority to consult a non-requesting owner or occupier of adjacent land, let alone obtain their consent,

It might be good practice to do so, but that does not mean this was a legal requirement, she said.

Mrs Anwar’s convention right had not been breached and she retained private law rights to act against trespass.

Lord Justice Lewis and Lord Justice Holgate both agreed.

Mark Smulian