Basildon Borough Council v James
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 26 November 2015 |
| Neutral Citation | [2015] EWHC 3365 (Admin) |
| Docket Number | Case No: CO/3284/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2015 |
[2015] EWHC 3365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/3284/2015
Mr Gasztowicz QC (instructed by The Solicitor for Basildon Council) for the Claimant
Ms Moonan (instructed by Palmers Solicitors) for the Defendant
Hearing dates: 12 th November 2015
Introduction
The Five Links estate in Basildon, Essex, has been undergoing substantial re-development. As part of that redevelopment, Basildon Borough Council, the council with responsibility for the estate, decided to rename a number of the streets on the estate. More than 400 residents, representing about 50% of the population of the estate, sent letters of objection. Three of them appealed against the Council's decision to the magistrate's court. The District Judge upheld that appeal, setting out his reasoning in a lengthy written judgment dated 24 April 2015.
The Council now appeals to this Court by way of case stated. The District Judge has stated a case, in a document dated 30 June 2015, at the conclusion of which he sets out a number of questions for the opinion of the Court. I set out the questions at paragraph 20 below. In order to understand those questions, and the answers I give to them, it is necessary to know a little more about the history of this case. I take this background substantially from the judgment of the District Judge; it has not been suggested that that account was inaccurate.
The History
The Five Links estate was built in the late 1960s and early 1970s. It was largely pedestrianised, with car parking and garage facilities around the perimeter. Perhaps as a result of that layout, the estate developed a reputation for car crime and anti-social behaviour. For a time it was known locally as "Alcatraz".
Since about 1997 the estate has been undergoing major redevelopment. Apparently some £8 million has been spent on the project, which has involved the replacement of the perimeter parking with parking within the estate. An underground car park and many properties have been demolished and a number of new roads and many new homes constructed.
As part of this redevelopment, the Council has published a number of proposals for the renaming of streets, which, as the District Judge put it, " were opposed by residents with varying outcomes". On 16 th June 2005, for example, Basildon Magistrates Court allowed an appeal, largely on technical grounds, from the residents of a district called "Brendon", against renaming of streets in their area as part of phase 1 of the works. The proposals were reformulated and republished. An appeal against that proposal was rejected on 24 January 2006, the Justices concluding that " the council has acted reasonably in relation to the road renaming and in accordance with its statutory duty".
I am concerned with the renaming of streets affected by phase 3 of the work. The Council decided to rename streets in that phase in 2006, and again in 2009, but neither decision was acted upon. The physical work on phase 3, involving the demolition of garages and residential properties and the construction of 186 new homes, began in 2008. On 10 July 2014 a decision was made to rename, and renumber, 533 properties in four streets covered by phase 3, namely Somercotes, Somercotes Court, Mellow Pergess and Newberry Sides.
The power to rename street names is provided by Section 18 of the Public Health Act 1925. In Basildon that power has been delegated by the Council to Mr Garry Edwards, Head of Street Scene and Leisure Services, acting in consultation with the current Cabinet Member for Environment and Community, Councillor Terri Sargent. All of the 533 affected would lose their current street name. All would have a new house number and a new post code.
By letter 16 th September 2014 Mr Edwards purported to give the affected residents notice of the Council's intention to proceed with the next phase of the renaming and renumbering. Notices were posted in the area but the period of notice was insufficient and the process had to be repeated. The effective period of notice expired on 27 th October 2014.
On 16 th October 2014 Councillor Frank Ferguson proposed a motion at the meeting of Basildon Borough Council which called for the withdrawal of the proposed order for the renaming and renumbering of the 533 properties. The motion was passed by 22 votes to 18. It is accepted, however, that that motion had no legal consequence and in particular did not overturn the decision made by Mr Edwards and Councillor Sargent, to rename the streets.
On 15 th October 2014 the three complainants lodged their appeal with Basildon Magistrates Court. On 9 th January 2015 the Magistrates issued a summons and on 24 th April 2015 the appeal was heard by District Judge Gareth Branston.
Mr Branston's judgment is an impressive piece of work. It runs to 112 paragraphs and provides a careful and thoughtful approach to the facts, to the applicable law and to the analysis which District Judge Branston was called upon to make. The question for me is whether he was right in the approach he adopted and, if so, in the conclusion he reached.
The Statutory Scheme
The power to rename streets is provided by the Public Health Act 1925. Section 18 of that Act provides as follows:
" (1) The urban authority by order may alter the name of any street, or part of a street or may assign a name to any street, or part of a street, to which a name has not been given.
(2) Not less than one month before making an order under this section, the urban authority shall cause notice of the intended order to be posted at each end of the street, or part of the street, or in some conspicuous position in the street or part affected.
(3) Every such notice shall contain a statement that the intended order may be made by the urban authority on or at any time after the day named in the notice, and that an appeal will lie under this Act to a petty sessional court against the intended order at the instance of any person aggrieved.
(4) Any person aggrieved by the intended order of the local authority may, within twenty-one days after the posting of the notice, appeal to a petty sessional court."
The Act provides for appeals against decisions of the "urban authority" in Section 8:
" Where any enactment in this Act provides for an appeal to a petty sessional court against a notice, determination, requirement, order or intended order of a local authority under this Act …
(2) The court may make such order in the matter as they consider reasonable, and may award costs to be recoverable as civil debt…"
The Judgment and the Stated Case
The judgment of 24 April 2015 began with a consideration of the test that should be applied. The District Judge noted that neither he nor the advocates in the case had been able to find any previous reported authority on either Sections 8 or 18 of the 1925 Act. He declined to apply a test akin to " Wednesbury" unreasonableness, pointing out that neither party suggested that that would be appropriate.
The District Judge then referred to the approach adopted, and the objectives which apply, in licensing cases, observing that there are no such statutory objectives in cases such as the present. He said he found the court's experience of dealing with licensing appeals to be analogous and helpful. He said, at paragraph 18, that he had therefore approached the case by observing the following principles:
" a. Both the complainants and the defendants are entitled at this appeal to adduce evidence and I make my decision on the full material before me, which includes evidence coming into existence after the local authority made its decision.
b. The burden of proof is on the complainants. It is the civil standard.
c. I pay careful attention to the reasons given by the local authority for making the decision it has made, bearing in mind that Parliament has placed the responsibility for making such decisions on the local authority. The weight I attach to the local authority's reasons is a matter for me, bearing in mind the nature of the issues and the evidence before me"
d. The decision I have to make is whether the decision made by the local authority is now wrong, based upon all the evidence before me"
He continued at paragraph 20:
"Neither the local authority nor this court are therefore required to promote any particular objects. But in order to determine whether the decision of the local authority is wrong or not, that decision to rename and renumber homes must have been done with a view to promoting reasonable and identifiable objectives (rather than merely being arbitrary or on a whim). In seeking to promote such objectives, the local authority should have considered alternative and opposing objectives. I determined that I should approach this appeal by considering seven objects: (a) Logic; (b) Clarity; (c) Utility; (d) Attractiveness; (e) Public Safety;(f) History; (g) Wishes and feelings of residents."
The District Judge summarised the evidence and submissions he had heard and then turned to his consideration of each of the factors he regarded as relevant. He ended his observations about the wishes of residents with the following (at paragraph 104):
"In short, the residents, for clear and understandable reasons, do not want this change. In my judgment, as the aggrieved persons referred to in the 1925 statute, their wishes and feelings are an important objective which should be promoted and considered when the Council is considering changing a street name. Do the Council's submissions as to the advantages of this scheme outweigh such a negative response? In my judgment, no."
The Case...
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