R Spice and Others v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 27 February 2006 |
| Neutral Citation | [2006] EWHC 661 (Admin) |
| Date | 27 February 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1414/2005 |
[2006] EWHC 661 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Ouseley
CO/1414/2005
Mr G Lawrence Qc And Ms R Crail (instructed By Chadwick Lawrence) Appeared On Behalf Of The Claimant
Mr S Sauvain Qc And Mr M Carter (instructed By Leeds City Council, Legal Services) Appeared On Behalf Of The Defendant
In 1982 a small residential development was constructed around a cul-de-sac called The Laurels, in Gledhow, Leeds. There was an irregularly shaped strip of land on the west side of The Laurels between the hard surface of the road and the boundary fence of a large house and its substantial grounds called Gledhow House. The strip is, very approximately, forty metres long and varies between three and six metres wide. This strip of land was adopted as publicly maintainable highway pursuant to an agreement made in 1982 under section 38 of the Highways Act 1980 between the developers and the predecessor Highway Authority to the defendant, Leeds City Council.
The final certificate of completion was issued on November 1984, and The Laurels, including that strip, then became a highway maintainable at public expense. The surface of the highway, and therefore of the strip, is thus now vested in Leeds City Council as Highway Authority. The subsoil of the strip belongs to the owners of Nos 1, 2 and 3 of The Laurels, which are the properties opposite or just to the south of the strip. Each owner owns approximately one third of the strip. The claimants in these proceedings are the current owners of Nos 1, 2 and 3, The Laurels.
The strip is densely covered in laurel bushes and has other trees on it. It is maintainable at public expense, but in the past has not in fact, it seems, been maintained by the Highway Authority. In 1998 and again in March 2004 the owner of Gledhow House sought planning permission to develop part of the grounds of his house, but withdrew the applications. In November 2004 he made a further application for planning permission for residential development. This was recommended for approval by officers of the Leeds City Council, but the City Council refused permission in July 2005 and there has been no subsequent appeal to the First Secretary of State.
The only access to the development in the grounds of Gledhow House, which the defendant would accept in principle, was across part of this strip. Whether or not in order to prevent or to profit from such development, or for other legitimate reason, the claimants made a request to the defendant under section 117 of the Highways Act 1980 that the City Council apply to the Magistrates' Court under section 116 of the 1980 Act for an order authorising the stopping up of that part of the highway known as The Laurels, constituted by the strip, on the grounds that that part was "unnecessary".
In November 2004 the relevant officer recommended that that request be denied, and that recommendation was upheld by the relevant technical board in December 2004. Following the grant of permission to apply for judicial review by Sullivan J in July 2005, and following amendments to the grounds of challenge, the Leeds City Council accepted that its December 2004 decision, denying the claimant's request, was legally flawed. It accepted that it had failed to deal properly with the use, or absence of use, of the strip in question for passing and re-passing, and had taken account of an irrelevant factor, which was the erroneous possibility that seeking and obtaining a stopping up order could lead to a compensation claim against it by the owners of Gledhow House. Accordingly, the City Council offered a quashing of its decision by consent. But the claimants contended that, on the facts, the City Council was obliged to accede to the request and to make the application under section 116. The claimants continued to pursue a mandatory order requiring the City Council to make the application. That particular aspect is not pursued in the light of the City Council's indications as to what it would do and how it would reconsider matters if the claim were successful.
The claimants contend next, however, in amended grounds that the approach which the City Council intends to adopt in reconsidering the claimant's request, as evidenced by a new draft report (undated but produced around November 2005), would be unlawful. It recommends taking into account immaterial considerations and pursuing an approach, it is said, contrary to the purpose for which the statutory powers at issue were given. I now turn to those powers.
It is necessary first to start with section 130 of the Highways Act 1980, upon which Mr Stephen Sauvain QC, for the City Council, put considerable weight. It reads as follows:
"130(1). It is the duty of the Highway Authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the Highway Authority, including any roadside waste which forms part of it."
Mr Sauvain drew attention to the inclusion within the scope of "highway" of roadside waste. There is no very useful definition of a highway. Section 328 simply says that, except where the context otherwise requires, "highway" means the whole or part of a highway.
Section 116 provides:
"(1) Subject to the provisions of this section, if it appears to a magistrates' court, after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the highway authority have made an application under this section-
(a) is unnecessary; or
(b) can be diverted so as to make it nearer or more commodious to the public,
the court may by order authorise it to be stopped up or, as the case may be, to be so diverted."
Mr Sauvain puts stress on the word "unnecessary" in that section. He did so to highlight that it was for the Highway Authority to show that the highway was unnecessary. It did not have to prove that it was necessary to keep the highway open. These were words of emphasis and indicated what had to be shown and by whom. It is clear that the power granted by the word "may" is only exercisable once the magistrates have concluded that the highway is unnecessary. It is thus not an alternative power under which a necessary highway may be closed. It is a power to refuse the closure of an "unnecessary" highway.
By section 116(3) an authority has to give notice of that proposal to the Council of the district in which the highway is, if it is in a non-metropolitan district, and to the Parish Council. Section 116(3) provides that the application shall not be made if within two months from the date of the service of the notice by the Authority the District or Parish Councils have refused to consent to the making of the application. This, in effect, gives those two Councils the power of veto over the continued pursuit of the application.
Mr Lawrence QC, for the claimants, indicates that the precise construction of that provision and the nature of the powers given to those authorities might one day be the subject matter of dispute. I do not doubt what he says, but that matter is not before me today.
The procedure that the section 116 application envisages is that notices are required to be given by Part I of Schedule 12 to the Act of the intention of the Highway Authority to apply for the order. The notice has to be given in a variety of ways, but specifically to the owners and occupiers of all lands adjoining the highway. We need not be concerned for the purposes of this case with the particular provisions which apply to the giving of notice to statutory undertakers and the protections available for them in the event of the stopping up of a highway under which they have equipment. Before the Magistrates' Court, the applicant authority can of course be heard, but so too can any person who uses the highway and any other person who would be aggrieved by the making of the order.
Section 117 provides:
"117. A person who desires a highway to be stopped up or diverted but is not authorised to make an application for that purpose under section 116 above may request the highway authority … to make such an application; and if the authority grant the request they may, as a condition of making the application, require him to make such provision for any costs to be incurred by them in connection with the matter as they deem reasonable."
It is not in dispute but that the powers in sections 116 and 117 can be exercised in respect of part of a highway, and can be exercised in respect of a strip of land such as the one with which I am here concerned. The powers do not have to be exercised over a part or the whole of the highway over which members of the public in fact pass and re-pass.
I should also refer to section 96 of the 1980 Act. Section 96(1) provides:
"Subject to the provisions of this section, a highway authority may, in a highway maintainable at the public expense by them, plant trees and shrubs and lay out grass verges, and may erect and maintain guards or fences and otherwise do anything expedient for the maintenance or protection of trees, shrubs and grass verges planted or laid out, whether or not by them, in such a highway."
It is evident from the powers in this section that the planting of trees and shrubs and the maintenance of guards and fences may in fact...
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