Fortune and Others v Wiltshire Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison:,Lord Justice Lloyd |
| Judgment Date | 20 March 2012 |
| Neutral Citation | [2012] EWCA Civ 334,[2011] EWCA Civ 883 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2011/0150,Case No: A3/2011/0150 (Z) |
| Date | 20 March 2012 |
[2011] EWCA Civ 883
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
(CHANCERY DIVISION)
(HIS HONOUR JUDGE McCAHILL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Case No: A3/2011/0150 (Z)
Mr G Laurence QC (instructed by Nicholsons Solicitors LLP) appeared on behalf of the Appellant.
Mr T Mould QC (instructed by Wiltshire Council) appeared on behalf of the Respondent.
(As Approved)
This is the oral renewal of an application for permission to appeal in a large and somewhat complicated appeal concerning the status of a road (I will call it a road without prejudice to any issue as to its status) called Rowden Lane in Chippenham, Wiltshire. HHJ McCahill, sitting as a deputy judge of the High Court, held that it was a public highway for vehicles between points marked M and CG on a plan annexed to the judgment. He refused permission to appeal.
The application for permission to appeal came before me on paper and I granted permission on most of the grounds by an order sealed on 17 May of this year. I refused on a small number of grounds. The grounds of appeal themselves in full run to 110 paragraphs, which is a great deal longer than usual. For convenience I was supplied also with a summary version of the amended grounds of appeal which ran to a mere 47 paragraphs. My grant and refusal of permission was expressed by reference to the summary but should be understood by reference to the full document.
Today Mr Laurence QC for the appellant has renewed his client's application for permission to appeal in relation to the points on which I refused permission. Mr Mould QC for the respondent is here but not to respond to the application, more in the hope that we may be able to use some of the time sensibly on case management issues once I have dealt with the permission application. I should say that there are several legal issues which I can see are of importance and of considerable interest to those concerned with the legal status of highways. Part of the complaint of the appellant is not just that the judge got virtually all of those legal issues wrong in all respects, but also that he did not conduct and articulate his reasoning in a properly even-handed manner. There is a wide range of complaints of that kind. One of them, it may be said, is exemplified by ground 12 on which I had refused permission to appeal. I said that it looked to me as if it were a collateral attack on the evidence of the respondent's expert and on his credibility and that it was not a ground of appeal justifying grant of permission in itself. I spent quite a long time reading the papers before I dealt with it on paper, but having focussed more closely on that particular aspect of the case with the benefit of Mr Laurence's advocate's statement under the practice direction, I have come to the conclusion that ground 12 is a point on which, although to some extent it is collateral, the appellant ought to be able to deploy her appeal and I therefore did not require oral argument on that point. I will grant permission to appeal on that ground.
The other points on which I had refused permission to appeal are summarised at paragraphs 41, 42 and 43 of the summary grounds of appeal. I will grant permission on paragraph 41. It concerns the significance of the presence on the verges to the road of stones and other obstacles, including railway sleepers. There may be some issues of fact involved there but the primary question is as to the significance of those obstacles, the presence of some of which at any rate does not appear to be in dispute. If there is a factual issue there it will no doubt come to light and the court hearing the appeal may regret my granting permission, but I will grant permission on the issues identified in paragraph 41.
Paragraph 42 is in a different position because it challenges the judge's finding that Mr Richard Jennings, who was the owner of Elm Tree Farm which abuts on to the road for some way along its length, had not challenged public user of the road. He based this on inferences from the evidence of Mr Jennings' daughter and it is said that he should not have drawn that inference in the face of other evidence to the effect that Mr Jennings could be violent and aggressive, and on the basis of hearsay evidence of what a victim of one of the challenges had said. That seems to me to go too far in the direction of the points that are essentially findings of primary fact which there is inadequate justification for challenging before the Court of Appeal in this case. Of course – and this is not a conclusion that I daresay anyone would want – if the result of the appeal were that on the specific issue of modern user of the road it were felt necessary that there should be a re-trial of some aspect of that case, then the judge's decision on that issue, as with all other relevant issues of fact, would simply have no standing and the matter would have to be revisited on the basis of the evidence at the retrial. I do not propose to grant permission to appeal for the appellant to deploy, in aid of her complaint of the judge's lack of even-handedness, the challenge to that finding of fact. That also goes for sub-paragraph (c) of paragraph 43, which is the absence of challenges against public use of the road made by individuals such as Mr Jennings and others, including a Mr Burridge.
However, coming on to the rest of paragraph 43 that is a challenge to the effect that the judge's findings of fact in other respects were tainted by a general lack of even-handedness with which he approached the claimant's case in general during the appeal. Some further examples of that are given in an appendix to the full grounds of appeal which I have revisited for the purpose. While not entirely convinced that these are going to be points on which the appeal turns, it seems to me that having excluded sub-paragraph (c) from paragraph 43 for the reasons that I have mentioned, the other points ought to be open to be argued by the appellant, even if there are findings of primary fact involved in the points mentioned. It may be that the Court of Appeal will not be prepared to interfere with those findings. However, it seems to me that it should be open to the appellant to present her appeal on the basis of the lack of even-handedness of the judge which is an important aspect of her case by reference to the matters in the appendix and the matters in paragraph 43 other than sub-paragraph (c). That is the reason why I end up excluding only really a very modest amount from the grounds of appeal on which I grant permission.
Order: Application granted in part
[2012] EWCA Civ 334
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
His Honour Judge McCahill QC
6BS30497
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Longmore
and
Lord Justice Lewison
Case No: A3/2011/0150
Mr George Laurence QC & Mr Nicholas CaddickQC (instructed by Nicholsons Solicitors Llp) for the Appellants
Mr Tim Mould QC & Mr Jeremy Burns (Solicitor to Wiltshire Council) for the Respondents
Hearing dates: 5 – 8 March 2012
Introduction
This is the judgment of the court.
In 2002, against the objection of local residents, planning permission was granted for the erection of 138 houses on land adjoining Rowden Lane in Chippenham. However it will be difficult, if not impossible, to implement the permission unless that part of Rowden Lane with which we are concerned is a public vehicular highway. Mrs Fortune, one of the residents, says that although it is a public highway, the public are restricted to use on foot and on horseback, and are not entitled to use it with vehicles (or at least not with mechanically propelled vehicles). The Wiltshire Council ("the Council") says that it is a public vehicular highway. Mrs Fortune says that even if it was a public vehicular highway before 2006, the public's right to use it with mechanically propelled vehicles has been extinguished by statute. The Council says that the right remains in being.
Taylor Wimpey, one of the developers, was joined as a party to the action but has played no active role, having agreed to be bound by the decision. The dispute was tried in Bristol by HH Judge McCahill QC over some 12 days. In a reserved judgment of remarkable length and detail he decided all the issues in favour of the Council: [2010] EWHC B33 (Ch). The full judgment is available on BAILII. With the permission of Lloyd LJ Mrs Fortune appeals.
Mr George Laurence QC and Mr Nicholas Caddick QC presented Mrs Fortune's case. Mr Timothy Mould QC and Mr Jeremy Burns presented that of the Council.
Although Mr Laurence made serious criticisms both of the judge's findings of fact and of his legal conclusions, he acknowledged the conspicuous care with which the judge had dealt with the many points, both factual and legal, that were argued before him. We associate ourselves with that generous tribute; although as will be seen we did not find it necessary to deal with all the issues that the judge had to decide.
The judge began by considering whether a public vehicular highway had arisen by twenty years' use in the period between 1982 and 2002. He found that it had. He next considered whether Rowden Lane had in any event been a public vehicular highway since before 1835 (when the first of the modern Highways Acts came into force)....
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