The Queen v Cambridge County Court and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRESSWELL |
| Judgment Date | 14 December 2000 |
| Judgment citation (vLex) | [2000] EWHC J1214-5 |
| Date | 14 December 2000 |
| Docket Number | CO/2884/2000 |
| Court | Queen's Bench Division (Administrative Court) |
[2000] EWHC J1214-5
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Cresswell
CO/2884/2000
MR PETER BIRTS QC and MR P G MANTELL-SAYER (instructed by Messrs
Andrew Grove & Company, Cambridge CB4 3AG) appeared on behalf of
THE APPLICANT
MR GEOFFREY STEPHENSON (instructed by Messrs Sharpe Pritchard, London WC1V 6HG, agents for the solicitor to the Cambridgeshire County
Council) appeared on behalf of THE RESPONDENT
Thursday 14 December 2000
This is a renewed application for permission. The order in respect of which relief is sought is the order of the Cambridge County Court dated 17 May 2000 in Cambridgeshire County Council v Stephen and Elizabeth Mear. The order provided that by consent there be judgment for the claimants. Paragraph 2 of the order read:
"It is declared that the land coloured blue on the Plan attached hereto and marked 'M' is a public road over which the public have rights of way at all times and for all purposes including the right of passage with vehicles, the length of the said public road between points A and B being 72 metres or thereabouts."
In addition, there were terms endorsed on counsel's briefs. The first term endorsed provided:
"The County Council will promote a Stopping-Up Order under section 116 of the Highways Act 1980 as soon as reasonably practicable in respect of the section of public road shown upon Plan M attached hereto and to the order of His Honour Judge Langan dated 17 May 2000 coloured blue and measuring about 72 metres in length, subject to the reservation of a bridleway to a maximum unobstructed width of 3 metres and subject to the existing gates referred to in 9 below over the said land."
The application for permission came before Keene J on paper. He refused permission with these observations:
"1. There was nothing improper or unlawful in the order made by the County Court in the proceedings between the County Council and Mr and Mrs Mear.
In any event, judicial review is not appropriate in the present case. The County Council is proposing to seek a Stopping Up Order under s116 of the Highways Act 1980, subject to the reservation of a bridleway and footpath. This would, if made, prevent the use of this highway for vehicular purposes, but if you object to such an Order you will have the opportunity of objecting to it and being heard in opposition to it."
I agree with the first observation of Keene J (as he then was), and add the following. The County Council has a statutory duty "to assert and protect the rights of the public to the use and enjoyment of any highway": section 130(1) Highways Act 1980; see further R v Surrey County Council, ex parte Send Parish Council (1979) 40 P&CR 390 (Geoffrey Lane LJ at page 396), and Reynolds v The Urban District Council of Presteign [1896] 1 QB 604 (Lord Russell CJ). Even if the County Council's decision to pursue a civil action was susceptible to judicial review (upon which I express no opinion), that does not render the order of the County Court unlawful.
I turn to the reference to a Stopping Up Order. It appears that the Council has promoted a Stopping Up Order otherwise than in accordance with the terms referred to. Further, the Parish Council to date has refused consent. Despite this, Mr Stephenson on behalf of the Council has given undertakings as follows: to withdraw the erroneous order; to promote a second order; and, prior to doing so, to discuss the matter with Mr and Mrs Mear and/or their legal advisers. It is possible that if a further Stopping Up Order is promoted in accordance with the terms endorsed on counsel's briefs, the concerns expressed by the applicant will be resolved.
There is a complicated, detailed and extensive background to the problems before the court. The applicant is being funded or indemnified by Mrs Mear. The Council suggest that Mrs Mear has some agenda of her own in seeking, indirectly, to get the consent order quashed. The Council submits that such financial support should have been declared as a material fact in Form 86A. In truth and in fact, as Mr Birts QC has frankly conceded, Mrs Mear wishes to rewrite the settlement agreement arrived at before the County Court Judge. Mr Birts goes further. He asserts that Mr and...
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