Derbyshire County Council v High Peak Magistrates' Court Ms Kate Marlow (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 27 June 2013 |
| Neutral Citation | [2013] EWHC 1762 (Admin) |
| Docket Number | Case No: CO/11044/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 June 2013 |
[2013] EWHC 1762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street
Birmingham B4 6DS
Mr Justice Kenneth Parker
Case No: CO/11044/2012
and
Paul Stinchcombe QC (instructed by Derbyshire County Council) for the Claimant
David Lock QC and Philip Williams (instructed by Nigel Davis Solicitors) for the Interested Party
Hearing dates: 22 May 2013
Approved Judgment
Introduction
This is an application for judicial review of the judgment on costs of District Judge Davison, sitting in the High Peak Magistrates' Court ("the Defendant"), by which, consequent to the application by Ms Marlow ("the Interested Party") for an Order under section 130B of the Highways Act 1980 that the Council remove an obstruction to New Mills Footpath No. 84, he ordered the Council to pay the Interested Party's costs of the application.
Statutory Framework
I set out the statutory framework in an Annex to this judgment.
The Factual Background
New Mills Public Footpath 84 descends a steep hillside, passing Noonsun Farm and Noonsun Cottages, one of which is owned and occupied by Ms Marlow (2 Noonsun Cottages). The public have the right to pass over Footpath No. 84 on foot. There are also private vehicular rights over the footpath for the benefit of certain properties, including that owned by Ms Marlow. The Council's duties in relation to the removal of obstructions relate to the protection of public rights of way on foot. There was evidence before the District Judge that the relevant obstruction did cause significant prejudice to the public, and that at least one member of the public had complained.
In about 2002 the then owner of Noonsun Farm carried out re-development works to his property, improving his own vehicular access but affecting Footpath No. 84 by:
i) Raising land levels in the area by depositing materials on the footpath and significantly re-grading it;
ii) Installing a flight of steps with hand railings in the footpath;
iii) Installing a retaining wall;
iv) Erecting a field gate and post at the top of the flight of steps to provide access to an adjacent field.
Ms Marlow purchased her property in 2005 and first complained to the Council about the obstruction in 2007. The Council sought to advance proposals for further works to remedy the effects of the alterations.
These endeavours were not successful and on 29 October 2007 Ms Marlow was compelled to serve a first notice on the Council under section 130A of the 1980 Act. Initially, the Council did take action in favour of Ms Marlow by serving a notice on the persons responsible for the obstruction, under section 130A(6). However, having served the notice, and having taken that position in unequivocal terms, the Council then changed its position. The Council contended that the works had not "significantly" interfered with the exercise of public rights of way by foot over the footpath, as required by section 130B(4)(c) of the 1980 Act. The application was at that point, therefore, withdrawn by Ms Marlow on a basis that at the end of the day was not to be pursued by the Council in circumstances that will be described shortly.
In 2010 in Herrick v. Kidner and Somerset County Council [2010] EWHC 269 (Admin) (" Herrick"), Cranston J. decided that the requirement, under section 130B(4)(c) of the 1980 Act, that works must "significantly" interfere with the exercise of public rights of way meant that such works should not interfere with the right of a member of the public to have unrestricted access to the whole, or any part of, the highway.
Ms Marlow drewHerrick to the Council's attention and the Council's Acting County Secretary responded to Ms Marlow on 14 May 2010 in the following terms:
"It is clear that the works which were carried out in 2001 in this footpath without any highway authority authorisation, involved a hand gate and fencing across the footpath which introduced an obstruction which physically narrowed the footpath available for public use. My current understanding is that the gate itself was removed some time ago but that a physical narrowing to some extent caused by the surrounding structure currently persists. The general position in the light of the Somerset case is that any unauthorised works on the footpath which narrow the width available for the public to use (except by a trivial amount under the de minimis exception) are unlawful obstructions which should be subject to effective action by the Council as highway authority to restore the width available for use." (My emphasis)
The Council undertook investigations, the outcome of which was communicated to Ms Marlow in a further letter from the Acting County Secretary, dated 29 October 2010, which stated as follows:
"The Council has this week received advice from Counsel concerning the alterations to this footpath which were caused by the works which were carried out in 2001. Taking into account the advice, the Council continues to regard the alterations as having caused an unlawful obstruction to the footpath." (My emphasis)
I note that the Council had specifically taken advice from Counsel on its legal obligations. If that advice was thought to have more general and important potential consequences for the Council, it could of course have sought further advice, in particular, about the meaning of "obstruction" and whether the conclusions of Cranston J could realistically be challenged in another case. The Council did not take any such precautionary steps.
The letter of 29 October 2010 then set out the Council's proposal for a period of consultation, after which, it was stated that:
"… if the Director of Environmental Services is not satisfied that full accessibility for footpath users had been restored or that this would not be accomplished under a suitable scheme within a reasonable time, then he would serve a statutory Highways Act Notice on the landowners to require substantial removal of the highway obstruction." (My emphasis)
Ms Marlow served a second section 130A notice on the Council on 1 November 2010. In response the Council itself served notices on Mr and Mrs Broughton-Law (the landowners) and Ms Marlow on 3 December 2010, containing the following "description of obstruction":
"… an unauthorised restriction (via a set of unauthorised concrete steps approximately 1 metre wide) in the right to pass and re-pass over the footpath at its western side. It results from the situation of the steps in combination with (1) a deposit of material which has raised the surface level causing a very steep gradient over the footpath in the vicinity of the steps; (2) a stone retaining wall across the footpath to the east of the bottom of the steps; and (3) a gatepost supporting a bar gate at the eastern side of the top of the steps."
The notice set out what, if any, action the authority proposed to take in relation to the obstruction in accordance with section 130A(6). The Form said:
"This authority proposes to take the following action in relation to the obstruction:
• To refrain from taking formal enforcement action through its Director of Environmental Services until after Monday 31st of January 2011, to encourage a suitable scheme for restoration of accessibility for users of Footpath 84 to be put forward by then.
• If a suitable scheme for restoration of accessibility for users of Footpath 84 is put forward by 31st of January 2011, to state reasonable time limit for the carrying out of the scheme.
• If a suitable scheme for restoration of accessibility for users of Footpath 84 is not put forward by 31st of January 2011, and it is not then apparent that such restoration is not otherwise about to be achieved, to take formal enforcement action after that date in order to achieve the removal of the obstruction"
Thus the Council's Notice at that stage formally committed the Council to taking enforcement action against the landowners over whose land Footpath 84 ran if a suitable scheme for restoration of accessibility was not put forward by 31st January 2011. A notice was also served on Ms Marlow explaining that this was the course that the Council proposed to follow.
Again it was open to the Council at that stage to take advice on "obstruction", "significance" and any other relevant legal matter. However, the Council proceeded on the unequivocal basis that there was an unlawful obstruction.
The period stipulated in paragraph 12 above was extended on the Council's initiative to 30 March 2011, pending a response from High Peak Borough Council's Planning Department on the acceptability of an alternative suitable scheme.
However, the revised 30 March 2011 deadline passed with no scheme of works emerging from the landowner. In the evidence before the District Judge, and before this Court, there is then simply a deafening and quite astonishing silence about what happened within the Council between 30 March 2011, when, it is necessary to recall, the Council was adopting the unequivocal position, following Counsel's advice, that there was an unlawful obstruction that needed to be removed, and 29 June 2011. On the evidence — or lack of it — nothing in any event was said to Ms Marlow between these dates to indicate that the Council — once again — was changing its position. It appears that Council had gone to new Counsel, Ms Ruth Stockley, who, differing from the earlier advice, had advised the Council...
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