Kirklees Council v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 05 October 2023 |
| Neutral Citation | [2023] EWHC 2459 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case Nos. AC-2023-LDS-000092 |
and
[2023] EWHC 2459 (Admin)
Mr Justice Fordham
Case Nos. AC-2023-LDS-000092
CO/1251/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
SITTING IN LEEDS
Ruth Stockley (instructed by Kirklees Council) for the Claimant
Katharine Elliot (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 5.10.23
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced and approved by the Judge from the ex tempore judgment delivered in open court.
Introduction
On 8 February 2023 the Defendant (“the Secretary of State”) made the Stopping Up of Highway (Yorkshire & Humber) (No. 5) Order 2023 (“the 2023 Order”). A “stopping up” order restricts public use of a highway. The 2023 Order was made pursuant to section 247 of the Town and Country Planning Act 1990 (“the 1990 Act”). It was to take effect from 23 February 2023. It authorised the “stopping up” of a 25 metre stretch of highway at Skelmanthorpe. The stated purpose of the 2023 Order was the enabling of development to be carried out in accordance with a January 2019 planning permission whose October 2022 reserved matters approval bears the reference 2021/61/94622/E. Background can be found in the public domain by Googling that reference.
The 2023 Order was preceded by statutory notice. The Claimant (“the Council”) was a statutory consultee and had lodged an objection on 6 January 2023. The objection raised points about the impact on public rights of way absent a ‘replacement highway’ (ie. an alternative footpath). The Council's position throughout has been that the acceptability of a stopping up order depends on an ‘alternative highway’ to accommodate public rights of way. The Council's objection had been maintained by it, including when the Secretary of State had purported on 7 February 2023 to reject it as not raising “valid” grounds.
By statutory review proceedings, commenced on 5 April 2023 within the prescribed 6 week period (section 287 of the 1990 Act), the Council has asked the High Court to quash the 2023 Order. Four grounds of challenge were pleaded in the claim. Ground 1 is that the Council had made “an objection from a local authority” for the purposes of section 252(4) and (5) of the 1990 Act, with the legal consequence that the 2023 Order could not be made without there first being a local inquiry (see section 252(4)(a)). Ground 2 is that, by treating the issue of a ‘replacement highway’ as being beyond the scope – or remit – of consideration of the merits of the making a stopping up order, a legal relevancy (expressly reflected in the phrase “the provision… of any other highway” in section 247(2)) had unlawfully been disregarded when the 2023 Order was made. These same points had, in substance, been made by the Council back on 7 February 2023 in response to the Secretary of State's characterisation of the objection as not being “valid”. There are two further grounds which do not call for comment.
Interested Parties
When these proceedings were commenced, the Council named – as “interested parties” – the First Interested Party (“LP”) and the Second Interested Party (“the Trust”). The Secretary of State has not disagreed with that approach. The basis for treating these entities as “directly affected” was as follows. As to LP, it had been the applicant for the January 2019 planning permission, the applicant for the October 2022 reserved matters approval, and the applicant for the 2023 Order. It had been agreed between the Council and LP that lawful implementation of the development, in accordance with the planning permission and reserved matters approval, would require the highway to be stopped up. The purpose of the 2023 Order was to allow LP's development to be carried out. As to the Trust, it had objected to the proposed order, within the statutory consultation period, making similar impact points about rights of way. These had similarly been treated as being outside the Secretary of State's ‘remit’ in deciding whether to make the 2023 Order.
Partial Agreement
The grounds of challenge had been clearly articulated in a letter before claim dated 15 March 2023 sent to the Secretary of State and copied to LP. By a letter of response dated 6 April 2023, also copied to LP, the Secretary of State accepted that Grounds 1 and 2 were well-founded and that the 2023 Order ought to be quashed. When the proceedings were commenced, and served on LP and the Trust, the Secretary of State repeated that acceptance in an Acknowledgement of Service dated 5 May 2023. That AOS was served on LP and the Trust. There is an agreed position between three of the four parties. By 4 May 2023 there was a draft Consent Order including a Schedule of Reasons, signed by the Council, the Secretary of State and the Trust. Everything was agreed including that the Secretary of State pay the Council's “reasonable costs of the claim, to be subject to detailed assessment if not agreed”. The quantum of those costs has also subsequently been agreed. However, the draft Consent Order and Schedule of Reasons were not signed by LP. An email from LP to the Court, dated 6 April 2023, recorded that LP disagreed with the claim. That email also criticised as “false” certain contents of the claim documents. I will return to LP's ongoing resistance of the claim.
Law and Practice
It is appropriate to identify some basics regarding judicial review in the Administrative Court and statutory review in the Planning Court. These are all reflected in the Civil Procedure Rules (CPR) and the Administrative Court Judicial Review Guide, which is freely and publicly accessible in the public domain.
i) First, as to substantive determinations on the papers. Where there is an agreed final order including a substantive order such as a quashing order or a declaration, the Court can made that order, on the papers without a hearing, “if satisfied that the order should be made” (PD54A §16.2; PD54D §4.50), based on agreed terms of a draft final order and an agreed statement of the matters relied on as justifying it, together with authorities or statutory provisions relied on (CPR PD54A §16.1; PD54D §4.48; JR Guide 2023 §24.4.1). These must be signed by “all parties” to the claim (PD54A §16.1; JR Guide §24.4.1 and fn.462). Even if the outcome is not agreed, the parties can agree to the process of inviting a Judge substantively to determine the issues and make the appropriate substantive order, without a hearing (see CPR 54.18; PD54D §4.48; JR Guide §11.4.1).
ii) Secondly, as to the need for judicial adjudication on substantive orders. Orders such as a quashing order or a declaration will always require a judicial adjudication. That is so, even if “all parties” agree: even an agreed substantive order will be made only if the Court is “satisfied that the order should be made” (PD54A §16.2; PD54D §4.50). This reflects the nature of judicial powers within the public law supervisory jurisdiction ( R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §74) and the need for the Court to be satisfied that orders it makes can properly be given as a matter of law ( R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin) at §7). Agreed costs orders are different, which is why costs may not require a court order at all (JR Guide §25.5.1) and why, when costs stand alone in an agreed court order, they do not require an agreed statement of justification (PD54A §16.4; PD54D §4.52). The fact that a substantive judicial determination is needed does not mean that an oral hearing is needed, as I have explained.
iii) Thirdly, as to the position of interested parties. An “interested party” is a person “directly affected” by a claim ( CPR 54.1(f); CPR 54.23; JR Guide §3.2.3.1). An interested party, once served with the proceedings, is a “party”. They have rights. They must be identified and served with the claim and other documents. They can – if they wish – participate in the proceedings, whether to support or to resist the claim. They can appeal. They can also be the subject of costs orders (JR Guide §§25.1.1...
To continue reading
Request your trial
-
Kirklees Council v Secretary of State for Transport
...may be treated as authentic. THE HON. Mr Justice Fordham Mr Justice Fordham Mr Justice Fordham 1 This is a sequel to my judgment [2023] EWHC 2459 (Admin) (the First Judgment), foreshadowed at §23. It is a determination on papers of a consequential costs issue. It is a judicial act to which......