R (Richards and Another) v Pembrokeshire County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,THE PRESIDENT,LORD JUSTICE NEUBERGER,Lord Justice Neuberger |
| Judgment Date | 11 February 2005 |
| Neutral Citation | [2004] EWCA Civ 137,[2004] EWCA Civ 813,[2004] EWCA Civ 1000,[2005] EWCA Civ 123 |
| Docket Number | C1/2003/2273,C1/03/2273/B/C,Case No: C1/2003/2273/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2005 |
[2004] EWCA Civ 1000
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION—DIVISIONAL COURT)
(Mr Justice Moses)
Royal Courts of Justice
Strand,
London, WC2A 2LL
The President
Lord Justice Sedley and
Lord Justice Neuberger
Case No: C1/2003/2273/QBACF
CO/1760/2003
V R Chapman Esq (instructed by Messrs John Collins & Partners) for the Appellants
Rhodri Williams Esq (instructed by Pembrokeshire County Council) for the Respondents
This is the judgment of the Court in an appeal brought by Mr Paul Richards and his wife Mrs Gillian Richards ("the appellants") against a decision of Moses J, given on 9 th October 2003. Both the appellants and the respondents, Pembrokeshire County Council ("the Council"), are agreed as to the core issue on the appeal. It is whether, in adopting the Pembrokeshire County Council (Tenby Harbour) (Controlled Area) (Vehicle Use) Terms and Directions 2003 ("the Directions") the Council acted lawfully within the powers derived from s14 of, and schedule 2 to, the Harbours Act 1964 ("the 1964 Act"), at least so far as the Directions extended to a raised terrace in front of a house owned by the appellants at Castle Hill in Tenby.
The facts
The old and picturesque town of Tenby was of a somewhat irregular shape. Roughly speaking, its northern and eastern extremities were bounded by the coast, and its southern and western extremities were bounded by old walls. Tenby Harbour is and was on the town's northern boundary. With the passage of time, the town has substantially expanded outside the wall to the west (along the coast and inland) and the south. The old town is often known as the "walled town".
Between the northern and eastern sea-bound boundaries is a substantial promontory known as Castle Hill. Historically, it appears to have been walled off from the rest of the old town. Castle Hill includes streets and private houses, a small park, castle ruins, a museum and a lifeboat station. In particular, it includes Castle Square, which has an irregular shape, and over which motor vehicles and pedestrians pass. Immediately to the east of Castle Square is a raised terrace or roadway called Castle Terrace. On the east of Castle Terrace are three houses which, going from north to south are 3, 2 and 1 Castle Square respectively ("the three properties") . The appellants own the freehold of 3 Castle Square ("No 3") . It is divided into three flats, two of which are let out by the appellants on holiday lettings, and one of which they retain for themselves.
The Directions were made pursuant to byelaws relating to Tenby Harbour, dated 21 st December 1995 ("the 1995 Byelaws") . These byelaws were made under the South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975 ("the 1975 Order"), which was itself made pursuant to the 1964 Act.
Before Moses J, the appellants contended that the Directions were unlawful on three grounds, namely:
i) they were outwith the power conferred by the 1975 Order and/or the 1964 Act, because they were not made for what may be called a harbour operational purpose;
ii) they were unreasonable, in the sense that no reasonable council could have made the Directions on the grounds given for making them;
iii) they infringed the rights of the appellants under Article 1 of the First Protocol of the European Convention on Human Rights ("Article 1 of the First Protocol") .
Before us, and at our invitation, the appellants canvassed a further argument which had been abandoned below, namely that, despite certain preclusive provisions of the 1964 Act, they were entitled to challenge the lawfulness of the 1975 Order in so far as it extends to Castle Hill.
The history of parking on Castle Terrace, in summary form, is as follows. Parking has been in practice controlled by those who occupied the three properties, at least since about 1970, although there is evidence to suggest that such control was exercised earlier. From about 1978, two years after the appellants purchased No 3, there were lockable chains across each end of Castle Terrace, so that, at least in general, no vehicles other than those associated with the three properties have been able to enter on to it. By around 1988, because the chains were becoming damaged or being left unlocked, members of the public sometimes—perhaps frequently—parked on Castle Terrace. The appellants wrote to the South Pembrokeshire District Council, the statutory predecessors of the Council, indicating that they intended to put a collapsible barrier at each end of Castle Terrace. This did not in fact happen.
On 22 nd February 1989, the appellants wrote to the Council referring to the fact that their tenants at No 3 were "experiencing tremendous parking problems immediately in front of our house". The appellants added that, when they purchased No 3 (which was in 1976), "we were led to believe that we owned the road right up to the wall [ie Castle Terrace] and we have a permanent right of way".
In its reply, dated 13 th March 1989, the Council stated that "it would appear that the land in front of your property up to the wall [ie Castle Terrace] is not regarded as being in Council ownership", and that "no public right of way is registered over the land". In that letter, the Council offered to paint "Keep Clear" at the junction of Castle Terrace and Castle Square, albeit on a "rechargeable basis". It appears that the owners of the three properties then erected and maintained lockable bollards at either end of Castle Terrace.
Thereafter, albeit in a somewhat spasmodic fashion, the Council gave consideration to the possibility of introducing some sort of parking or traffic management scheme over Castle Square. Thus, in November 1995, the Council wrote proposing to put up bollards at Castle Square and to provide "property owners" with "specific bays" at a cost of £90.00 per annum. The Council also suggested the erection of "lockable bollards" at each end of Castle Terrace, with a view to providing seven parking bays at a similar rate "by private agreement".
On 26 th March 1998, a report to the Council's Highways Committee referred to "an attempt to control the parking in Castle Square and adjacent non-highway land" (emphasis added) . The latter land appears clearly to be Castle Terrace.
By 2001, the Council's intentions had become more focused. On 2 nd April 2001, the occupiers of property in the harbour area were advised by the head of the Council's infrastructure management that the Council had "resolved to examine the introduction of more control over vehicles" because of "problems of congestion in the Castle Square and other parts of the harbour area".
On 17 th January 2002, the Council's Highways and Transportation Committee was told in a report from Council officers that:
"The current proposal is to use the 1995 Tenby Harbour Byelaws to create Terms and Directions for the allocation of parking bays to specific users."
This report also contained "background" which, in paragraph 1.5(c) recorded against "Police" the following:
"No objections, notes that enforcement is a Council matter as the area is non-highway."
In paragraph 1.5(v) of the same report, it was noted that the appellants had suggested "individual bollarded spaces be provided in Castle Square …".
On 23 rd January 2002, the appellants wrote to the Council referring to the fact that they had been free to manage parking on Castle Terrace themselves, and contesting the jurisdiction of the Council to exercise parking control over it. The Council replied reiterating their intentions. The appellants responded by saying that, while they were willing to co-operate in principle, they were "not prepared to give up title of our part of Castle Terrace directly in front of our property".
In a letter dated 21 st June 2002 addressed to Mr Richards, the Council reiterated its "proposal … to treat the elevated section of Castle Square (ie Castle Terrace) the same as Castle Square itself". It suggested that each of the three flats owned by the appellants in No 3 would be offered a single parking permit, and went on to state that
"the aim of the proposal was to make all parking in the harbour area only available to permit holders. The exception being six disabled bays. The proposal should reduce trips by general motorists round the Walled Town to the harbour seeking a parking space that is not usually available."
On 28 th June 2002, the Cabinet of the Council considered a report from the Director of Transportation and Environment ("the Report") . Part 4 was headed "Control of Parking, Tenby Harbour Area". Paragraph 4.1 stated that the Policy and Resources Committee of the Council "agreed to consult on the introduction of mainly residents' parking in the harbour area". The Report then went on to describe public reaction to the proposals, and then in paragraph 4.12 said:
"The aim of the revised Terms and Conditions would be define all parking in the Harbour Car Park and Harbour Area as permit parking only, except for the six disabled bays. The measure should remove the current practice of motorists entering the Walled Town in search of a parking space in the Harbour Area. The Terms and Condition will allow council employees to enforce the parking conditions as the area is non-highway and not under Police Control."
Four recommendations were contained in Part 5 of the Report, the fourth of which was:
"That the proposals for the control of parking in the...
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