View from the street: TfL must learn lessons from its High Court defeat

PUBLISHED: 10:30 20 September 2018

copyright Fiona Campbell 2014

Hard on the heels of a successful injunction granted by Judge Holgate against TfL, Judge Sir Ross Cranston gave judgement against TfL in the main judicial review hearing on September 13, 2018.

By its nature, judicial review is fought and decided on points of procedure. But in this case, each and every argument advanced by TfL’s barrister was comprehensively rejected by the judge and every argument of Westminster’s barrister was accepted and upheld.

The judge even commented, to TfL’s detriment, on the applicability of regulations that demand openness from local authorities, which Westminster’s barrister said was a side issue. Having taken a judicial battering, you would think that TfL would take note of these criticisms and undertake the necessary improvements.

Instead, on the same day as the judgment was handed down by Judge Cranston, Will Norman, the walking and cycling commissioner tweeted that the judgement was merely on a procedural point – inferring that it related to a minor technicality. This could not be further from the truth. TfL did not lose on some dry technical legal process, but rather on real world, big picture, good governance process requirements where a proper evaluation of a decision is required to be undertaken and their impacts shared with those affected, which had not happened.

The judgment exposed the systemic flaws in TfL’s processes and Judge Cranston called them out on this in open court. The judgment also shines a light on how TfL thinks it can ride roughshod over local authorities and affected residents. Even CS11’s creator and most vocal supporter, Andrew Gilligan, has been consistent in saying that Swiss Cottage alone made no sense and was the worst of all worlds.

So, despite TfL’s brave efforts to minimise the impact of the judgment, this was not a technical loss as it suggests. This was an overwhelming defeat.

There is only one way to interpret the judgement, which is to oblige TfL to choose between two courses of action if it wishes to build a scheme at Swiss Cottage – namely, either

(1) consult on an appropriate standalone scheme or

(2) build Swiss Cottage as part of CS11 only after engagement and agreement with all relevant authorities in a transparent and collaborative way that provides protection for cyclists and protects residents from the ravages of displaced traffic.

No other path involving Swiss Cottage would be in compliance with the ruling. Judge Cranston stated clearly in his judgement that constructing Swiss Cottage alone would be a “major departure from the scheme as promoted”, meaning only a fresh consultation would support this approach. TfL must now provide the required modelling that takes account of HS2 traffic impacts, which it can no longer dodge.

The judicial review proceedings were always a last resort. It should not have been necessary for the High Court to rule that our concerns were correct.

We stand ready to work collaboratively with TfL and expect TfL now to behave as a responsible public authority. The worst outcome would be for TfL not to learn the lessons of its defeat and not to change.

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