Unmanned Car Park

January 2nd, 2018 by James Goudie QC in Environment, Highways and Leisure

In Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal upheld a finding that the Council had not breached its duty under the Occupiers’ Liability Act 1957 to take reasonable care to ensure that visitors would be reasonably safe when using in icy conditions an unmanned car park, owned and operated by the Council, and had not been negligent.  The Car Park in question is one of 46 car parks operated by the Council. Situated in a suburb of Swansea, it is a small 24 hour pay and display car park (with spaces for 40 cars) which is open to the elements. Like the vast majority of the Council’s car parks, the Car Park is unmanned (the exceptions are three multi-storey car parks and three park and ride car parks).  In bad weather the manned car parks will be gritted. The unmanned car parks do not get gritted. The Council operates a reactive system of gritting in its unmanned car parks, whereby it does not pre-emptively grit them but does so only when it receives a report from a member of the public about a dangerous area.

The Council’s winter maintenance plan provides for gritting 43 per cent of its highway network. It only grits footpaths on a reactive basis. Gritting is carried out in response to weather alerts which the Council receives daily.

The Council had received warnings that the temperature would drop below freezing over the night in question. It had accordingly sent out gritting lorries in the early hours to grit highways, but not footpaths or car parks. Gritting could not begin until midnight because of rain, which would have washed away any earlier grit.

The Claimant was 78 years old at the time of the accident. Shortly after 10:30 he had parked his car and was walking towards the ticket machine when he slipped on black ice near the ticket machine. There was a slight downward incline towards the ticket machine, with an estimated gradient of one in ten/one in twelve.

Hamblen LJ, with whom Longmore and Henderson LJJ agreed, said:-

“29.      … I conclude that the judge found that there was no breach of duty.

  1. As to whether he was wrong so to find, the Claimant does not challenge that conclusion by reference to the evidence but only by reference to the findings which the judge made as to the reporting system which “could” have been in place. Those findings as to what “could” have been done on a “prima facie” basis cannot properly found, still less require, a finding of breach of duty.
  2. In any event, I consider that there is much force in the Defendant’s detailed arguments at trial as to why it would not be reasonable in all the circumstances to impose a duty of care that would in effect require the Defendant to grit its unmanned car parks whenever icy conditions were reported.”

“35.      In the present case the Defendant identified the following matters as being particularly relevant to the assessment required to be carried out:

  1. The likelihood that someone may be injured;
    The risk of ice in cold weather is an obvious danger. People out and about in cold weather can be reasonably expected to watch out for ice and to take care. The Car Park did not pose a particular risk compared to any other of the Defendant’s car parks. There had been no previous reports of dangerous ice conditions at the Car Park, nor any previous accidents due to ice.
  2. The seriousness of the injury which may occur;
    Injury due to slipping on ice may be trivial or serious.
  3. The social value of the activity which gives rise to the risk;
    The Defendant’s car parks provide the useful facility of 24 hour parking. If gritting of unmanned car parks, such as the Car Park, is required whenever there is a report of icy conditions the Defendant is likely to have to prohibit their use in all its unmanned car parks in periods of adverse weather, to the considerable inconvenience of local residents and visitors.
  4. The cost of preventative measures.
    The alternative to closing the car parks would be manning them or arranging regular gritting. Such gritting would have to be by hand and would involve significant use of staff and material resources. This would be a disproportionate and costly reaction to the risk and would have diverted such resources from situations where attention was more urgently required.
  1. These are compelling reasons for upholding the judge’s decision that there was no breach of duty ,…”

 

Community Transport

December 15th, 2017 by James Goudie QC in Environment, Highways and Leisure

The House of Commons Transport Committee has issued a Report on Community Transport.

 

Hiring a council park

November 20th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R (Friends of Finsbury Park) v Haringey LBC (2017) EWCA Civ 1831 the Court of Appeal has dismissed an appeal from Supperstone J dismissing a claim for judicial review of a decision by Haringey Council to hire part of Finsbury Park for a licensed music Festival, pursuant to Section 145 of the Local Government Act 1972.

The Council held Finsbury Park under Section 10 of the Open Spaces Act 1906 or a statutory trust for use by the public for recreation. The public were its beneficial owners.  They had a statutory right to use it for recreational purposes.  The local authority owner must generally allow the public the free and unrestricted use of it.  It cannot exclude the general public from it.  All that, however, is subject to contrary legislative provisions.

The Court of Appeal, agreeing with Supperstone J’s reasons, held that Section 145 of the 1972 Act provided the Council with power to enclose part of Finsbury Park for the purposes of events such as the Festival. They were not limited to considering the application for hire only under other statutory provisions. They were able to do so notwithstanding the trust under the 1906 Act, provided that they used the 1972 Act power lawfully and not to frustrate the legislative purpose.

 

Minicab licensing

November 13th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R Milton Keynes Council v Skyline Taxis and Private Hire Limited (2017) EWHC 2794 (Admin) considered an appeal with respect to offences under the Local Government (Miscellaneous Provisions) Act 1976 of operating a vehicle as a private hire vehicle for which a licence was not in force and the driver of which was not licensed.  The Divisional Court set out the legal background as follows.

There are two types of car available for hire to transport passengers, namely hackney carriages (or “taxis”) and private hire vehicles (or “minicabs”), to which different rules apply. The appeal concerned only the latter. Moreover, it concerned only the provisions which apply to out-of-London private hire vehicle operations. Different provisions apply to minicabs in London. Read more »

 

ENVIRONMENTAL OFFENCES

November 6th, 2017 by James Goudie QC in Environment, Highways and Leisure

The Environmental Offences (Fixed Penalties) (England) Regulations 2017, SI 2017/1050, (“the 2017 Regulations”), supplement provisions in Acts for fixed penalties payable in respect of offences relating to the environment. They replace the Environmental Offences (Fixed Penalties) (Miscellaneous Provisions) Regulations 2007 (“the EOR 2007”) (except for Regulation 2(2)(b) and 3(2)(b) of the EOR 2007). The 2017 Regulations prescribe the ranges within which the amounts of certain fixed penalties that are capable of being specified by a local authority are required to fall (Regulations 2 to 5). The ranges for littering, free distribution of printed matter on designated land and graffiti and fly-posting (see Regulations 4 and 5) are different to those under the EOR 2007. For the period beginning with 1 April 2018 and ending with 31 March 2019, the range is not less than £50 and not more than £150 (Regulation 4). From 1 April 2019, the range is not less than £65 and not more than £150 (Regulation 5).

Regulations 6 and 7 amend the Environmental Protection Act 1990 and the Anti-social Behaviour Act 2003 in relation to England to increase the amount of the penalties for littering, free distribution of printed matter on designated land and graffiti and fly-posting where a local authority does not specify an amount. The penalty for each is increased from £75 to £100.

The 2017 Regulations also state a minimum lesser amount which an authority may treat as payment of the full amount if paid before the end of a period specified by the authority in relation to certain fixed penalties (Regulations 8 to 11).

 

 

Conservation of habitats and species

November 3rd, 2017 by James Goudie QC in Environment, Highways and Leisure

The Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the “Habitats Regulations 2017”) consolidate and update the Conservation of Habitats and Species Regulations 2010 (the “Habitats Regulations 2010”). The Habitats Regulations 2017 consolidate all the various amendments made to the Habitats Regulations 2010 and also introduce a small number of minor amendments designed to take account of changes to other related legislation, such as amendments to Town and Country Planning legislation, rectify previous omissions, or improve the clarity of drafting. Read more »

 

Highways

August 16th, 2017 by James Goudie QC in Environment, Highways and Leisure

In Sheffield City Council v Fairhall and others ( 2017 ) EWHC 2121 ( QB ) Males J granted the City Council an injunction to restrain direct action against highway tree removal. The tree removal was for the purpose of highway maintenance and was lawful. Objectors maintaining a presence in a safety zone after barriers had been erected and a notice had been displayed were committing a trespass.

 

 

Meaning of “Highway”

August 7th, 2017 by James Goudie QC in Environment, Highways and Leisure

In Southwark LBC v Transport for London (2017) EWCA Civ 1220 the Court of Appeal applied the common law meaning of “highway” as only the road surface and “the top two spits” of subsoil necessary to use as a highway, and not the entire vertical interest in the land on which the highway runs.

 

 

Open Spaces

August 7th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R (Muir) v Wandsworth LBC (2017) EWHC 1947 (Admin) Lang J held that the Council lacked the power to grant a 15 year lease of a building on Wandsworth Common for use as a nursery for pre-school children. Under Section 10 of the Open Spaces Act 1906 and a Greater London Open Spaces Order the Council held not only the Common itself but also buildings on the Common on a statutory trust. The beneficiaries of the trust are the inhabitants of Wandsworth. The Council was obliged to maintain access for all local residents for the primary purpose of public recreation.

 

 

Sex shop licensing

July 19th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R (Hemming) v Westminster City Council (2017) UKSC 50, Supreme Court Judgment on 19 July 2017, is a sequel to the Supreme Court’s previous judgment dated 29 April [2015] UKSC 25; [2015] AC 1600. It is written with the benefit of the Court of Justice’s answer dated 16 November 2016 ((Case C-316/15) [2017] PTSR 325) to the question which that judgment referred to the Court of Justice. The appeal concerns fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the Council’s costs of enforcing the licensing scheme against unlicensed third parties running sex shops (“enforcement costs”). The respondents’ applications all in the event succeeded. Read more »