Ching Garage Ltd v Chingford Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE PEARCE,LORD JUSTICE DEVLIN |
| Judgment Date | 04 July 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0704-1 |
| Court | Court of Appeal |
| Date | 04 July 1960 |
[1960] EWCA Civ J0704-1
Lord Justice Sellers
Lord Justice Pearce and
Lord Justice Devlin
In The Supreme Court of Judicature
Court of Appeal
Mr C.E. Scholefied, Q.C. and the Hon. Gerald Ponsonby (instructed by Mr. C.G. Dennis) appeared as Counsel for the Appellants.
Mr G.D. Squibb, Q.C. and Mr D. Kerrigan (instructed by Messrs Hillearys) appeared as Counsel for the Respondents.
: This la an appeal by the Chingford Corporation front the Lord Chief Justice's Judgment making a declaration that the defendants were not, by virtue of the powers they relied on, "entitled to obstruct, interfere with or otherwise limit the use of the means of access enjoyed with the plaintiffs premises known as the Ching Garage at the junction of Sewardstone Road and Lea Valley Road, Chingford as constructed, formed and laid out".
The facts were put before the Court by an agreed written statement and by an agreed plan. It appears that the plaintiffs or their predecessors had erected in 1932 a garage at the junction of Sewardstone Road and Lea Valley Road on the south west corner as shown on the plan. The garage with Its surrounding land was set back somewhat from the carriageways of the two roads at irregular distances and for the greater part at distances varying from about 30 ft, to 50 ft. The land intervening between the plaintiffs' boundary and the carriageway was part of the highway and formed the footpath of the highway as distinct from the carriageway. The plaintiffs or their predecessors had applied under Section 18 of the Public Health Acts Amendment Act of 1907 to carry out works of access and permission had been granted in 1932. The work was carried out providing two ways, one to the south between B and C on the plan some 30 ft. wide on the plaintiffs' land and more than double that width at the carriageway and another to the north between D and E, also about 30 ft, wide where the plaintiffs got access to the highway and a much greater width where it abutted on the curve of the junction. The defendant Corporation wished to erect the structure Y shown on the plan about the centre of the curve at the junction adjacent to the carriageway for the safety of pedestrians not only crossing the roadway which is across Lea Valley Road but for those moving, as I see It, also east and west on the southerly side of the Lea Valley Road across the mouth of the access for vehicles to the plaintiffs' garage. The structure the defendants propose to make (and this Information was given by Counsel but it is also In part to be derived from the plan) is to be about 20 ft, long, somewhat pear—shaped, and about 15 ft at its greatest width. It would all be raised at the height of its kerb 4 ins. and adjoining the carriageway would be a footpath similar to the footpath at each side of this entrance to the garage, that is the area coloured pink on the plan, with a verge at the back. It would be some 15 ft. from the garage, that is the plaintiffs' boundary, at its nearest point and so would not prevent access to the highway from any point on the plaintiffs' premises. There would be two wide means of access from the garage to the carriageway on each side. All that is clearly seen on the plan.
The structure proposed would appear to be of great advantage to pedestrians and to my mind of no apparent disadvantage to those using the garage or the plaintiffs themselves. It would, however, take up part of the surface laid down In 1932, of which the plaintiffs or their predecessors paid the cost of laying, and would be a small island in the mouth of this wide exit on to the road junction. It is accepted that the Corporation cannot do what they propose to do unless they have statutory powers which permit it with or without compensation. Their efforts to establish adequate powers have been subject to various changes and, to avoid confusion, I will endeavour to state them. Of the numerous statutory powers set out In Paragraph 6 of the Defence, only Section 149 of the Public Health Act 1875, with the assistance of Section 18(1)(c) of the Public Health Acts Amendment Act, 1907, and Section 58 of the Road Traffic Act 1930 and Section 45 of the Road Traffic Act 1956 were raised at the trial. The learned Lord Chief Justice would have found, as I read his Judgment, in favour of the defendants under Section 58 of the Road Traffic Act 1930, but before his Judgment to that effect was concluded it was discovered that the section had been amended and could no longer be relied upon for this purpose. The learned Judge found against the defendants on the other powers on which they relied. Between that Judgment and the hearing in this Court both those statutes which were finally considered by the learned Judge were repealed and they were substituted, at any rate In part they were substituted and indeed were replaced, by provisions In the Highways Act of 1959, We, therefore, gave leave for the defence to be amendod accordingly.
The question now is whether the defendants have power to do what they propose to do not under those various enactments on which they have previously relied but under two sections of the Highways Act 1959 and they pleaded It in this way "under Section 67 or alternatively under Section 68 of that Act". So pleaded their claim is a reversal of their previous claims, for it seems they have throughout contended they could do this work without compensation. It has further never been in. dispute, at least perhaps right up until the last moment, that If the Corporation were to proceed under their statutory powers arising out of the Town and Country Planning legislation they could succeed in what they wish to do but with the obligation to pay that compensation which would be appropriate under that legislation. Whilst it has been recognised that the power to do what they wish to do is not to be found in the Town and Country Planning legislation directly, I understand Mr Squibb to recognise that If properly invoked power can be found to do that which they want to do once the Town and Country Planning legislation Is brought Into force.
Now Section 68, with which I will deal first although it is the second submission made on behalf of the Chingford Corporation, reads as follows: "A highway authority may, In relation to a highway maintainable at the public expense by them, being a highway which consists of or comprises a made up carriageway, construct and maintain works in that carriageway for providing places of refuge for the protection of podestrians crossing the carriageway". If that section applies, then there appears to be no provision for compensation. This road junction does comprise a made-up carriageway, the Lea Valley Road and, in so far as it forms part of the junction, the other road intersecting, Sowardstone Road. Does that carriageway include the access to the plaintiffs' promises constructed in 1932? That access is certainly made up and as serviceable for the use of vehicles as the carriageway on the road but it Is also part of the highway, for that consists of the carriagoway plus the footpath from one side to the other. But the area in question (and it is defined on the plan within the letters D, E, F, Y and G) was originally a footpath for the use of the public at large with the right of access to the garage in the plaintiffs as occupiers of the abutting garage. "Carriageway" Is defined in the...
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Cusack v Harrow London Borough Council
...lawfully increased, by the adjoining owner or owners increasing their means of access." 5 However, as Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 477 having referred to Lord Atkin's statement: "I think, however, that it needs to be remembered in connec......
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Ngati Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General
...59 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [4–36]. 60 See for example Ching Garage Ltd v Chingford Corp [1960] 1 WLR 947 (CA) at 61 Te Runanga o Wharekauri Rekohu, above n 23. 62 Court of Appeal (Civil) Rules 2005, r 48(4). See also H......
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Ngāti Mutunga O Wharekauri Asset Holding Company Limited v ATTORNEY-GENERAL
...Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [4–36]. See for example Ching Garage Ltd v Chingford Corp [1960] 1 WLR 947 (CA) at That brings us to the primary flaw in the pleading. It is the same flaw identified by this Court in Te Runanga o Wharekauri Rekohu.61 ......