Trail Riders Fellowship v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lewison,Lord Justice Coulson |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1275 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/3077 |
| Date | 18 July 2019 |
[2019] EWCA Civ 1275
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Lewison
and
THE RIGHT HONOURABLE Lord Justice Coulson
Case No: C1/2018/3077
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
SIR ROSS CRANSTON (Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adrian Pay (instructed by Brain Chase Coles Solicitors) for the Appellant
Mr Stephen Whale (instructed by Hampshire Legal Services) for the Respondent
Hearing date: 3rd July 2019
HTML VERSION OF JUDGMENT APPROVED
Introduction
This is an appeal from the order of Sir Ross Cranston, sitting as a High Court Judge in the Administrative Court. By that order, Sir Ross dismissed a challenge brought by the Trail Riders Fellowship to a road traffic regulation order (“TRO”) made by the defendant council (“Hampshire”).
There are two main issues:-
1) first whether, when making the TRO, Hampshire had proper regard to, and complied with, its duty under s. 122 of the Road Traffic Regulation Act 1984 (“the 1984 Act”). That provision imposes on a local authority when considering whether to make a TRO, a duty to “secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)” as far as practicable (s. 122(1)) having regard to factors including the maintenance of local amenities and reasonable access to premises and any other matters appearing to the local authority to be relevant (s. 122(2)); and
2) second, whether the report of Hampshire's consultation with the road policing unit of Hampshire Constabulary pursuant to paragraph 20 of Schedule 9 of the 1984 Act, which was not passed to the individual decision-maker, was a “relevant consideration in the legal sense” and/or whether the judge correctly exercised a discretion not to quash the order notwithstanding the failure of the decision-maker to have regard to the report.
The TRO prohibits the use of three linked rural “green lanes” near Warnford in the Meon Valley of Hampshire — Bosenhill Lane, Green Lane and Dark Lane-by mechanically propelled vehicles, in other words motor vehicles and motor cycles. Together these lanes form a through — route from Warnford to Brockwood Park, joining tarmacked public vehicular highways at their three termini. They are unclassified roads which, although appearing on the Council's list of streets under section 36 of the Highways Act 1980, are not recorded on its Definitive Map and Statement.
The Trail Riders Fellowship (“TRF”) is a national organisation which aims to preserve the full status of vehicular green lanes and the rights of motorcyclists to use them. It has a code of conduct and its members are expected to maintain high standards of behaviour. It applies to quash the TRO wholly or in part under Part VI of Schedule 9 of the 1984 Act. Hampshire is both the traffic and highway authority for the county.
Statutory Provisions
The relevant provisions of the 1984 Act seem to have their origin in Part II of the London Government Act 1963, sections 1 and 84(1) of the Road Traffic Regulation Act 1967 and section 130 of the Transport Act 1968. As they now appear in the 1984 Act they are:-
“ 1. Traffic regulation orders outside Greater London
(1) The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a “traffic regulation order”) in respect of the road where it appears to the authority making the order that it is expedient to make it –
(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or
(b) for preventing damage to the road or to any building on or near the road, or
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or
(d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic in a manner which, is unsuitable having regard to the existing character of the road or adjoining property, or
(e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or
(f) for preserving or improving the amenities of the area through which the road runs, or
(g) …
122 Exercise of functions by strategic highways companies or local authorities
(1) It shall be the duty of every strategic highways company and local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway or, in Scotland, the road.
(2) The matters referred to in subsection (1) above as being specified in this subsection are:-
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb) …
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to the strategic highways company or the local authority to be relevant …
Para 20 of Schedule 9
(1) … before making an order under or by virtue of … section 1 … a local authority shall consult with the chief officer of police of any police area in which any road … is situated.”
Part VI of Schedule 9 provides that any person may question the validity of an order 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. Application is to the High Court within six weeks of the date on which the order is made: para 35. Paragraph 36(1)(b) provides that the court
“(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.”
Factual background
I can gratefully adopt the judge's account of the facts. In 2014 complaints arose about the misuse of the three lanes by “off-roaders”, both four wheeled and two wheeled. There is photographic evidence at various dates which shows the damage to the surface of the three lanes and their parlous state. The evidence was that this had been compounded by the deliberate blocking of a drain at the junction of Dark and Green Lanes to create an obstacle for the off-roaders, and by the use of the three lanes to trespass on adjacent land. Whatever the cause, the Council have not kept these lanes in repair.
The claimant does not deny the damage to the lanes but states that its members behave responsibly in accordance with its code of conduct. There was nothing in the evidence to suggest otherwise.
Following an investigation by a member of Hampshire's highways department, and correspondence between the department and the local County Councillor, Mr Huxstep, Council officers came to a meeting of Warnford Parish Meeting on 10 th April 2015 to discuss the lanes and the issues associated with the off-road use of them. After the meeting Warnford Parish Meeting raised the issue with what it described as “the off-roader lobbies”. The situation did not improve, and the Parish Meeting pursued the Council. On 21 st January 2016 Mr Richard Sykes, the Council officer with direct responsibility for the lanes, undertook a site visit to all three lanes. Mr Sykes has a master's degree in civil engineering and nearly four decades of local government experience in highways and transport.
At some point the proposal for a traffic regulation order emerged. In November 2016 Mr Sykes acknowledged to the clerk of the Warnford Parish Meeting that even after meeting the Council's legal team he would still not purport to understand all the implications of each type of traffic regulation order, but could explain the basics. That month a solicitor at the Council sent Mr Sykes a memorandum about the law relating to the making of a traffic regulation order. The memorandum addressed section 1 of the 1984 Act and the attendant Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (“the regulations”), but not section 122 of that Act. The following year, in February 2017, the same solicitor sent a further memorandum about the law and a breakdown of the procedure for making a TRO. Again, there was no reference to section 122.
Meanwhile, Mr Sykes had carried out another site visit, as did Councillor Huxstep and Sergeant Gilmour from the local Meon Valley Police Station. There was a meeting the same day, 15 th December 2016, at Warnford Village Hall. Mr Sykes expressed the view that there was a strong case for a traffic regulation order on grounds which included avoiding danger, preventing damage, facilitating pedestrian and equestrian use and preventing use by unsuitable traffic. There were two police officers in attendance. Sergeant Gilmour stated that, “the Police would be in favour of closing the [three] lanes to motor traffic as this is the only...
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