Pamela Wesson, Chair of Friends of Mill Road Bridge v Cambridgeshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr James Strachan |
| Judgment Date | 07 May 2024 |
| Neutral Citation | [2024] EWHC 1068 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002285 |
[2024] EWHC 1068 (Admin)
Mr James Strachan KC sitting as a Deputy Judge of the High Court
Case No: AC-2023-LON-002285
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Stephanie Bruce-Smith (instructed by Fortune Green Legal Practice) for the Claimant
Mr Charles Streeten (instructed by Pathfinder Legal Services) for the Defendant
Hearing date: 1 February 2024
Approved Judgment
Mr James Strachan KC (sitting as a Deputy Judge of the High Court):
Introduction
This is an application by the Defendant for summary judgment dismissing, or alternatively an order striking out, all or parts of the Claimant's statutory claim under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (“the 1984 Act”) challenging the Defendant's decision to make the Cambridge (Mill Road) (Bus Gate) Order 2023 dated 14 June 2023 (“the Order”).
The effect of the Order is, subject to specified exceptions, permanently to prohibit vehicular use of Mill Road in Cambridge from its junction with Headly Street to its junction with Great Eastern Street except for buses, taxis, bicycles and authorised vehicles (as those vehicles are defined in the Order). The length of highway affected includes Mill Road Bridge. The prohibition in the Order is intended to apply at all times and on all days. It was intended to take effect from 16 October 2023.
The Order also seeks to authorise the carrying out of physical works to the highway layout to facilitate that closure (such as realignment of the carriageways, the provision of traffic islands and the provision of advance warning signage).
The Claimant is a resident of the area. She is also Chair, and acting on behalf, of the Friends of Mill Rod Bridge, an unincorporated association. Both she and the association oppose the making of the Order.
It is clear from the evidence before the Court that the Order is controversial. There are strongly held competing views as to the merits, or otherwise, of the closure of Mill Road Bridge and the effect on the area. On a statutory claim of this kind, however, the Court's function is limited to considering whether the Order or any of its provisions are within the relevant powers of the Defendant under the statutory scheme and the relevant requirements imposed on the Defendant for the making of such an order have been complied with.
Paragraph 35 of Schedule 9 to the 1984 Act provides:
“35 If any person desires to question the validity of, or any of the provisions contained in, an order to which this Part of this Schedule applies, on the grounds –
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order,
he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court …”
It is that context in which the Defendant's application for summary judgment or an order striking out all or part of that claim falls for determination.
Unlike a claim for judicial review under CPR Part 54, or a statutory claim or appeal under sections 288 and 289 of the Town and Country Planning Act 1990, a claimant bringing a statutory claim under paragraph 35 of Schedule 9 to the 1984 Act is not required to obtain the permission of the Court. There is therefore no “permission stage”. In the ordinary course, such a claim would therefore proceed to a substantive hearing under the relevant provisions governing a CPR Part 8 claim. Both parties agree, however, that either party is still entitled to make an application for summary judgment under CPR Part 24.3, or an application strike out a statement of case under CPR3.4, as the Defendant has done here. I agree.
That said, in making the order dated 1 December 2023 providing for the listing of the Defendant's application, Mr Dan Kolinsky KC (sitting as a Deputy High Court Judge) observed that in making such an application, the Defendant is asking the Court to consider the grounds of challenge against a lower threshold than if the Court were determining the claim at the substantive stage. The Deputy Judge observed that there are risks in taking that course. If the application fails, even in part, there is a danger that additional costs will be incurred and more time spent, as compared with the matter proceeding to a substantive hearing directly.
The Deputy Judge therefore suggested that the Defendant may wish to reflect on whether, in such circumstances, it wished to pursue the application, rather than proceeding directly to a substantive hearing, and that if the Defendant changed its position, the parties could agree directions as to how the matter should proceed directly to a substantive hearing.
In the event, the Defendant did not change its position. The application came before me for determination at a hearing listed for 2.5 hours (reflecting the time estimate given by the Defendant originally). That time estimate proved to be significantly inadequate. The parties' submissions extended significantly beyond that time. It left no time for the giving of judgment, particularly given the other cases in the list. Given my conclusions on the Defendant's application itself, coupled with the other elements of the procedural history dealt with below, the risks foreshadowed by the Deputy Judge have manifested themselves.
Procedural Background to the Defendant's Application
That procedural history is already somewhat complex.
The Claimant's claim as filed on 26 July 2023 originally identified six grounds of challenge:
a. Ground 1 – a failure by the Defendant to provide adequate reasons for proposing the Order;
b. Ground 2 – a failure by the Defendant to provide adequate reasons for making the Order;
c. Ground 3 – a mistake of fact as to an exemption under the Order for use of Mill Road by carers of ‘Blue Badge’ holders;
d. Ground 4 – (a) a failure to carry out the Defendant's public sector equality duty under s.149 of the Equality Act 2010; and (b) a failure to consult on the impact of a two vehicle restriction for Blue Badge holders;
e. Ground 5 – erroneously taking into account the potential to attract funding;
f. Ground 6 – a failure to consider consulting other organisation as part of the consultation on the Order;
The Claimant also sought: (1) a protective costs order on the basis that it was an Aarhus claim; (2) an interim order under paragraph 36 of Schedule 9 to the 1984 Act suspending the operation of the Order.
The Defendant filed Summary Grounds of Defence dated 15 August 2023 opposing the claim. The Defendant accepted it was an Aarhus Claim, but resisted the imposition of a cap on the costs recoverable by the Defendant from the Claimant on the basis of a lack of detail as to the financial resources of the Claimant and the Friends of Mill Road Bridge and lack of details as to the unincorporated association.
By Application Notice dated 16 August 2023, the Defendant made applications for: (1) security for costs; and (2) summary judgment dismissing, or an order striking out, of all or parts of the claim. The Defendant gave a time estimate of 2.5 hours for the hearing of that application.
By Order of Mr Ockleton (Vice President of the Upper Tribunal and sitting as a Judge of the High Court) dated 15 September 2023, the Court ordered that the Claimant's application for an interim order and a protective costs capping order, along with the Defendant's application for security for costs and for summary judgment be listed for hearing with a time estimate of 3 hours as soon as possible, but no later than 6 October 2023. The hearing was listed for 11 October 2024.
On 5 October 2023 the Claimant made an application to amend her grounds of claim.
All of the applications came before Mr Tim Smith (Sitting as a Deputy High Court Judge) at a hearing on 11 October 2023 with a time estimate of 3 hours. As set out in his Judgment subsequently delivered on 13 October 2023 ( [2023] EWHC 2801 Admin), the Deputy Judge had identified from pre-reading that it was very unlikely that a 3 hour hearing would be sufficient to deal with all five applications. In answer to the Deputy Judge's enquiries, the Defendant had indicated that it was unable to extend the hearing beyond the three hour listing.
At the hearing, the Deputy Judge declined to hear the Claimant's application to amend, given the absence of sufficient notice for the Defendant to respond, along with the Defendant's application for strike out/summary judgment, given the interrelationship between the two.
The Deputy Judge heard the interim relief application, but much of it was resolved by the Defendant giving an undertaking on the morning of the hearing not to carry out a significant part of the works authorised. The Deputy Judge refused the remaining part of the interim relief sought. The Deputy Judge heard, but declined to decide the Claimant's application for a costs capping order, but gave directions as to how it should be dealt with. The Judge heard and refused the Defendant's application for security for costs.
Following that hearing, having received further written representations from the parties pursuant by directions, the Deputy Judge made an Order dated 8 November 2023. This gave effect to his decisions on the interim order, recording the terms of the undertaking provided by the Defendant, and on security for costs. Additionally, the Deputy Judge made an order capping the costs liability of the Claimant to the Defendant at £10,000 and that of the Defendant to the Claimant at £35,000.
The Deputy Judge granted the Claimant permission to amend her grounds of claim in include a further Ground 7, an...
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