Stevens v Dorset County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 16 March 1999 |
| Judgment citation (vLex) | [1999] EWHC J0316-6 |
| Docket Number | CO/2149/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 1999 |
[1999] EWHC J0316-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Mr Justice Scott Baker
CO/2149/98
MR D EDWARDS (instructed by Messrs Bevan Ashford, Bristol) appeared on behalf of the Applicant.
MR A STRUTT (instructed by the County Solicitor, Dorset County Council) appeared on behalf of the Respondent.
This is an appeal by way of Case Stated from a decision of the Dorchester Justices stopping up a byway in order that it should be retained as a bridleway three metres wide. The order was made on the basis that the byway, previously open to all traffic and referred to as 'BOAT 4' at Cheselbourne in Dorset, was unnecessary.
The relevant law is to be found in section 116 of the Highways Act 1980. Section 116(1) provides:
"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."
Subsection (4):
"An application under this section may be made, and an order under it may provide, for the stopping up or diversion of a highway for the purposes of all traffic, or subject to the reservation of a footpath or bridleway."
Subsection (6):
"A magistrates' court shall not make an order under this section unless it is satisfied that the applicant authority have given the notices required by Part 1 of Schedule 12 of this Act."
Part 1 of Schedule 12, so far as is material, reads as follows:
"1. At least 28 days before the day on which an application for an order under section 116 of this Act is made in relation to a highway the applicant authority shall give notice of their intention to apply for the order, specifying the time and place at which the application is to be made and the terms of the order applied for (embodying a plan showing what will be the effect thereof)—
(a) to the owners and occupiers of all lands adjoining the highway;
(b) to any statutory undertakers having apparatus under, in, upon, over, along or across the highway;
…
2. Not later than 28 days before the day on which the application is made the applicant authority shall cause a copy of the said notice to be displayed in a prominent position at the ends of the highway.
3. At least 28 days before the day on which the application is made the applicant authority shall publish in the London Gazette and in at least one local newspaper circulating in the area in which the highway is situated a notice containing the particulars specified in paragraph 1 above, except that there may be substituted for the plan a statement of a place in the said area where the plan may be inspected free of charge at all reasonable hours."
The Magistrates heard the complaint on 24th and 25th October 1997. Before I refer briefly to the facts, it is perhaps helpful to mention the definition of, first of all, a 'bridleway':
"A highway over which the public have the following, but no other, rights of way, that is to say, rights of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the highway."
That definition can be found in section 329 of the Highways Act 1980. 'Footpath' from the same section is a highway over which the public have a right of way on foot only. A 'byway open to all traffic' is defined by section 66(1) of the Wildlife and Countryside Act 1981 as:
"A highway over which the public have a right of way for vehicular and all other kinds of traffic, but which is used by the public mainly for the purpose for which footpaths and bridleways are so used."
BOAT 4, the byway in question in the present case, is
350m in length and is part of a longer route that was awarded as a public carriage road, with a width of
30 feet under the Enclosure Award of 1845. The same award also formalised the status of what is now the tarmacadamed classified road C110, Streetway Lane, which forms the other sides of the triangle of which
BOAT4 forms the base. This can helpfully be seen from the plan which is Annex A to the statement of case.
BOAT 4 had been obstructed for many years until the summer of 1997. The first question is whether satisfactory notices were given in accordance with the provisions of Schedule 12, Part 1. Whilst a notice was displayed in a prominent position, at each end of the highway to be stopped up for vehicle traffic, it exhibited no plan. The Notice was in the following terms. It set out as a heading "Section 116 Highways Act 1980—"Notice of Application to Stop Up Vehicular Rights of Way over a byway open to all traffic at Cheselbourne, Dorset". Then there is a paragraph specifying where and when the application will be made. The Notice continues:
"The effect of this Order, if made, will be to:—
1. Stop up all vehicular rights of way over the byway open to all traffic for Cheslebourne subject to the retention of a bridleway and
2. Stop up all highway rights over the land hatched black on the attached plan to reduce the width of the highway to three metres."
Then this paragraph:
"A plan showing the extent of the Order applied for may be inspected free of charge during normal office hours at the Corporate Services Division, Legal Office, County Hall Dorchester."
Then there is a reference that anybody being aggrieved by the application and opposed to it should attend at the Dorchester Magistrates' Court on the June date.
The matter which gives rise to particular complaint about this notice, which was displayed at each end of the highway to be stopped up, was that it exhibited no plan, stating instead that the plan could be inspected at the legal office in County Hall. Reading paragraphs 1, 2 and 3 of Part 1 to Schedule 12 together, it is plain, it seems to me, that the notice to be displayed at the two ends of the highway to be stopped up should incorporate a plan. Why else should paragraph 3 specifically exempt the need for a plan to accompany the notices required in the London Gazette and in a local newspaper?
It is accepted by both Mr Edwards, on behalf of the appellant, and Mr Strutt on behalf of the respondent that, in order strictly to comply with the provisions of paragraph two, a plan should have been incorporated with the notices. The Justices found at paragraph 7 on page 12 of the statement of case:
"We were of opinion that:
(a) there had been substantial compliance with the requirements of Schedule 12, Part I to the Highways Act 1980. Whilst the notice given in accordance with paragraph 2 of Part I of Schedule 12 to the Highways Act 1980 did not embody a plan showing what would be the effect of the order, the reference to a location where the plans could be inspected was sufficiently clear and adequate to enable members of the public and potential objectors to identify the area which was the subject of the application. From his evidence we were satisfied that Mr Stevens [the appellant] was fully aware of the area, he had seen a map referring to the byway in question and had visited the area on at least one occasion. Applying our local knowledge and from the evidence of the majority of the objectors who had claimed to use the byway or had visited it and who had maps showing the area in question with them, we were satisfied that no-one could have been misled about the area in question. The stretch of the byway in question is of a relatively short length, being 350 metres, no-one could have been in any doubt from visiting the site and/or inspecting the relevant plan or map at the establishment specified in the notices, as to its existence, purpose and the nature of the proposals for the closure put forward by the local authority."
The magistrates, as is apparent from paragraph 7(d), lower on that page, had indeed carried out a site inspection. Their findings that there had been substantial compliance with Part 1 of Schedule 12 reflects the approach of Woolf LJ (as he then was), in the case of Ramblers Association v. Kent County Council, a decision of the Divisional Court, on 29th January 1990 and reported in 60 P & CR 464. In that case the Divisional Court had to consider the adequacy of notices. Woolf LJ said at page 465:
"Among the points that are taken on behalf of the appellants there are two which relate to the notices which are required to be given in order to give the justices jurisdiction to hear an application to stop up a way. In a sense, they could be described as technical. However, the importance of failure to give the required notices should not, for this reason, be underestimated because the notices are intended to bring to the attention of the public the proposals to stop up the public rights of way and, if the public are not aware of the proposal, they may be deprived of an opportunity of protecting the public rights to which they are entitled."
Then, at page 469:
"Although the statutory requirement contained in Schedule 12 is to place the notice at the end of the highway, in looking at that requirement, it obviously has to be interpreted in a commonsense way. Where it is not possible to place the notice precisely at the end, if there is substantial compliance with the requirement, that, in my view, is sufficient to fulfil the...
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