Authorities have power to alter street names pursuant to Section 18 of the Public Health Act 1925.  There is an unrestricted right of appeal under Section 8 to the Magistrates’ Court against a decision to rename a street. Basildon BC v James [2015] EWHC 3365 (Admin) was concerned with the approach to be adopted on appeal. 

Other than the giving of notice, Section 18 imposes no preconditions on the exercise of the power. It gives no direction as to factors to which the authority is required to have regard in making such a decision. Garnham J saw no grounds on which a Court could read into the exercise of the statutory power any requirements to be met, or matters to be considered, before the power is exercised, beyond those required by familiar principles of public law, namely to have regard to all that is relevant and to disregard all that is not.

The nature of the power in question is one that demands a subjective judgment by the authority. It cannot be governed by predetermined requirements. Essentially, Parliament has given the authority the right to choose a name.

There can be no doubt that it is the authority who makes the primary decision. The right of appeal given to “those aggrieved” by Section 8 does not change the identity of the primary decision maker.

The entitlement in the Magistrates’ Court on hearing the appeal to “make such order… as they consider reasonable” describes the remedies available to the Court in disposing of the appeal. It does not make the Magistrates’ Court the body charged with the decision whether or not to alter the street name. It follows that before determining what order is required the Magistrates’ Court must first determine whether or not the appeal succeeds; whether or not the authority’s decision was “wrong”.

The statute provides no guidance as to the test which should be applied in determining whether or not the appeal should be allowed or rejected.  In those circumstances, in Garnham J’s view, it was a mistake for the District Judge here to attempt to introduce objectives of his own devising as a means of testing the adequacy of the authority’s reasoning. There is simply no basis for the Magistrates’ Court to create such a list of objectives or to treat is as decisive. The question for the District Judge was whether, according the authority, appropriate respect for its reasoning and conclusions, that decision could properly be said to be wrong.

At paragraph 43 of his Judgment, Garnham J said:-

“… Section 8 provides an unrestricted right of appeal; but a District Judge is obliged to pay great attention to the opinion of the Council as the duly constituted and elected local authority and should not lightly reverse their conclusion; his function is to exercise the Section 8 powers only if he was satisfied that the judgment of the Council could be shown to be wrong, not merely because he was not satisfied that the judgment was right; if, but only if, he was first satisfied the Council was wrong was it for the District Judge to substitute his opinion for that of the Council.”

In Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council (2015) EWHC 2020 (Ch) the Council was found liable to the claimant developer which had relied on its local search results stating that parking spaces which formed part of the property it was buying were not maintainable at public expense. There was at the time an ongoing investigation into whether this was in fact the case and further consideration was required. There was a real risk that the records might be inaccurate and that the parking spaces might be public highway. The response to inquiries said nothing at all about the investigation. The entire title was stated to be private land.

Under the Highways Act 1980 Section 36, each County Council must make, and keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense. That list is to be kept deposited at the County Council office and is to be available for free inspection at all reasonable hours. In England the County Councils must supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and that list must be kept deposited at the office of the district council and kept available for inspection by the public free of charge at all reasonable hours.

The Judge found that, having regard to its statutory duty, the County Council did not make correct and updated information available to the claimant when its solicitors conducted searches. However, the County Council contended that the statutory duties imposed by Section 36 of the Highways Act 1980 gave rise to no private cause of action, and that it owed no independent duty of care to the claimant. It denied any or any actionable negligence. It argued that the only information which it was required to give by Section 36 about highways maintainable at public expense was to identify highways known to be maintainable at public expense. It was not strictly liable for the accuracy of the information and owed no duty at all to identify roads or streets under investigation on its Section 36 lists or maps.

The Judge observed that the question of whether a local authority may be liable to a member of the public in a private action for breach of statutory duty for an inaccurate search result which leads to loss is undecided. The Council argued that there is no such right. The Judge did not, however, find it necessary to decide whether there is a private right of action for breach of the Section 36 duty. This was because a local authority may be liable to a member of the public in tort. In Gooden v Northamptonshire CC [2001] EWCA Civ 1744 it was held that a local authority owed a duty of care in respect of an incorrect answer to enquiries that certain land was maintainable as a highway at public expense. Arden LJ, who gave the leading judgment, acknowledged that purchasers of property commonly relied upon searches in the form of Enquiries made of highway authorities in deciding whether or not to buy properties, and the law could be criticised if it ignored that reality. She also drew an important distinction between mere foreseeability that that information provided would be used in that way and providing information for that purpose. A highway authority cannot be taken to know for what purpose a particular enquiry is being made, but it would know that answers to enquiries are provided within a ‘well worn’ conveyancing framework. Arden LJ reserved the Court of Appeal’s position on whether a breach of the statutory duty to maintain an accurate list would be actionable by a person harmed by a failure to do so. However, she also pointed out that just because the statutory list of roads maintainable at public expense was wrong, it did not necessarily follow that the Council responsible for maintaining the list was negligent, and in that case it was no part of the pleaded case that the Council in the case had been negligent. Not so in the Oxfordshire case. The case in negligent misstatement was pleaded, and was the primary case at trial. The claimant also contended that the Council’s duty at common law was the same as its statutory duty – namely to cause a list to be made of the streets which are highways maintainable at the public expense, to keep that list corrected and up to date, and to supply each district council within its area an up to date list of the streets within that district which are highways maintainable at the public expense.

The Judge ruled that the Council owed the claimant a duty of care at common law with respect to its reply to enquiries for the purpose of the decision which the claimant made to acquire the property, and that the result of the search amounted to a statement by the Council that the car parking spaces were not part of the highway but were private space. She said:-

“34.      It was the Defendant’s proper role, as required by statute, to answer the inquiries made on the search accurately. It did not do so. The Defendant argued that it was sufficient that the result of the search showed accurately what was on the Highway Map. I do not accept that submission. It overlooks the fact that the statute requires the list of streets which are highway maintainable at public expense to be kept corrected up to date. Had the list been correct and up to date it would have been marked as showing that there was an investigation going on. I entirely accept that the Claimant did not make known to the Defendant that it was buying for development and re-sale, but that matters not where the Claimant is not arguing for prospective development losses to be paid by way of damages but relies on diminution of value from pre-existing use.

35.       I find, on the evidence, that if the reply had been accurate, the Claimant might not have proceeded at all, and would definitely not have proceeded at the same price.”

It was acknowledged by the Council’s witness in evidence that purchasers would rely on the results of searches in making decisions about property purchases. More specifically, in this case, it was clear that the Council knew that a purchaser of the land comprised in the title would inevitably want to know if the land comprised within the title was private land or public highway, or highway maintainable at public expense. The conditions for the creation of a duty of care in tort were therefore present, as were the conditions for liability for misstatement. Reliance has also been proven. It was entirely foreseeable by the Council that if the result of the search was wrong, a purchaser might go ahead at a price which was higher than if an accurate response had been given. This is because a purchaser would believe that the car parking spaces were private land as the title suggested and would not know that they were in fact highway. The difference between the price paid and the value without the car parking spaces was a foreseeable head of loss.

The Supreme Court has unanimously allowed the appeal in R (Newhaven Port and Properties Ltd) v East Sussex County Council (2015) UKSC 7, concerned with the registration of Newhaven West Beach as a TVG.  The Supreme Court held that it could not be so registered.  This was for two reasons.  The first was that the recreational use of the Beach by inhabitants was “by right”, and not “as of right”.  There was an implied licence from the Harbour Byelaws. The second was that such recreation was incompatible with the Port Authority’s statutory functions.

Foulds v Devon County Council, Case No: A90EX006, Judgment 9 January 2015, relates to a cycling accident.  An 18 year old lost control of his bicycle and left the carriageway, continuing through/over ornamental railings which were on top of a low retaining wall, and falling down a large drop to a lower road.  The personal injury claim for negligence against the County Council as highway authority responsible for the road failed.  The essence of the case against the authority was that it owed a common law duty of care to ensure that railings were in place of sufficient strength and structural integrity to prevent a pedestrian or cyclist from falling over the retaining wall to the ground below, ie to cope with the potential impact from a pedestrian or cyclist.

The Judge applied the following principles: (1) at common law a highway authority owes no duty to make a road safer; (2) however, where the highway authority positively acts and creates a trap or danger which would not otherwise have existed it may be liable.

The Judge held that, whilst the authority aimed to regularly visually inspect and maintain the railings so as to provide some safety to pedestrians (and those travelling in the road below) at no stage were the railings ever considered as some form of crash barrier or in any way an effective barrier for cyclists hitting them with considerable force with a bicycle.  The Judge said that there is the world of difference between a pedestrian stumbling and putting an arm on railings to steady him/herself and the sort of considerable force that was very likely to have been involved in the accident.  The Judge simply did not see the relevant act or undertaking of responsibility on the part of the Defendant as regards the prevention of the fall to the road below if a cyclist crashed into the railings at speed and with force.

The Judge said that the submission against the authority amounted to a proposition that once a level of safety has been provided then a duty arises which means that it must be maintained.  The Judge rejected that submission.  Not the least of the reasons why is that the argument that was rejected in Gorringe v Calderdale MBC, [2004] UKHL 15, [2004] 1 WLR 1057, in which there had previously been a sign painted on the road telling motorists to slow that had been allowed to disappear.

In the Devon case the Judge regarded the reality as being that the local authority was not alleged to have done something inadequately or in an unsafe fashion pursuant to a power, rather than it did not do something at all, i.e. that it did not provide a crash barrier or regard the railings as in effect a crash barrier and maintain and/or augment them as necessary so as to achieve that aim. The Judge ruled that there cannot have been a duty of care that required it to do so.

Were it to be otherwise, he said, that would involve questioning the allocation by the Council of its limited funding, upon which there are doubtless many calls, specifically as to whether it chose to enhance the maintenance or enhance the safety of the railings so as to provide this additional protection or undertake some other, in financial terms, competing act.

The Judge saw no trap or danger produced or created by the Defendant’s actions. There is said the Judge the world of difference between a trap or foreseeable risk of injury through the creation of a dangerous layout or allowing a structure that is part of the highway environment to become dangerous to those engaged in ordinary and foreseeable use on the one hand and a failure to enhance safety through provision and maintenance of a feature on the other.  The Judge was therefore not satisfied that the authority was under a duty to ensure that the railings were maintained and/or repaired so as to provide a structure of sufficient strength and structural integrity to withstand the forces exerted in the circumstances of this accident i.e. by a cyclist and bicycle crashing into them.  In light of that finding the claim had to fail.

In Powell v SoS, Doncaster Borough Council Interested Party [2014] EWHC 4009 (Admin) the claimants applied for Judicial Review of an Order made by the Council and confirmed by an Inspector following a Public Inquiry.  The Order was for recognition of a footpath as a right of way.  The application was refused by Dove J.  He held that the correct approach in determining whether there had been use “as of right” was, first, to examine the quality of the use relied upon, and then, once the use had passed the threshold of being of sufficient quantity and suitable quality, to assess whether any of the vitiating elements applied from the “tripartite test” (neither force/ nor secrecy/nor licence) (nec vi/nec clam/nec precario). The Judge ruled (para 32) that it was “absolutely clear” from the authorities that there was no justification for imposing an additional test as to whether the quality of the use was such that a reasonable landowner would be expected to intervene to resist it.  He said (para 33) that the tripartite test is the law’s way of assessing whether or not it would be reasonable to expect that the use would be resisted by the landowner.  He concluded (para 36): “The tripartite test is to be applied objectively from how the use would have appeared to the owner of the land.  The application of that test is all that is required”.

County Councils in England, District Councils in England for an area without a County Council, London Borough Councils and County or County Borough Councils in Wales are “commons registration authorities”.  The commons registration authority in relation to any land is the authority in whose area the land is situated.  Where any land falls within the area of two or more commons registration authorities, the authorities may by agreement provide for one of them to be the commons registration authority in relation to the whole of the land.

The Commons Registration Act 1965 (“the 1965 Act”) created a legal record of common land, town and village greens and rights over the land by requiring that all were registered by a cut-off point, failing which they lost that status. The compilation of the original registers resulted in many mistakes and anomalies, eg land was recorded as common land despite having never been part of the common. Many of these mistakes were not noticed until after the registers became conclusive on 31 July 1970 but there were insufficient powers to correct them. The 1965 Act also failed to require that registers be kept updated when events took place that affected the information in the registers. Consequently the registers currently maintained under the 1965 Act are not an accurate record of common land, town or village greens or the rights over them.

Part 1 of the Commons Act 2006 (“the 2006 Act”) 2006 Act provided for applications to amend the information in the registers to reflect contemporary events, anomalies and mistakes, and unregistered events.  It also provided that changes to the information in the registers are only considered lawful when recorded in the register.

The 2006 Act received Royal Assent on 19 July 2006.  Part 1 of the Act provides for the maintenance of, and amendment of the information in, the registers of common land and of town and village greens which were established under the 1965 Act. Section 1 provides that commons registration authorities shall continue to keep registers of common land and of town and village greens (ie those originally prepared under the 1965 Act). Sections 2 to 5 provide for the purpose of the registers, the definition of commons registration authorities and the land to which Part 1 applies, which is most of England and Wales.  Sections 6 to 17 specify the types of applications to amend the registers to reflect contemporary events which affect the information contained in the registers.  Section 18 provides for the conclusiveness of the registers, eg land (i.e. common land) is deemed to be subject to rights of common upon the registration of the right. Section 19 allows for the correction of the registers in prescribed circumstances, eg where the commons registration authority made a mistake when it made an entry in the register.   Section 20 requires that the registers must be made available for inspection by any person. Section 21 provides for official copies of the registers. Section 22 gives effect to Schedule 2.  This allows for the registration of common land and town and village greens that were not registered, and for the removal of land that was wrongly registered as common land or town or village green, under the 1965 Act. Section 23 gives effect to Schedule 3.  This provides for a transitional period during which historic events which were not recorded in the registers can now be recorded.

Section 24(1) of the 2006 Act provides the Secretary of State (“the SoS”) with powers to make Regulations that provide for the making and determination of applications to amend the registers under Part 1.  Subsection (2) lists the matters that the Regulations may in particular provide for, which includes: the form of an application, the information to be supplied with one, notice requirements, the making of objections and the persons who must be consulted, the holding of inquiries, the evidence to be taken into account. Subsection (2A) provides the SoS with powers to make Regulations for the fees payable for applications, including where the person who determines the application is different from the person to whom it was made. Subsection (3) provides that the Regulations can specify the persons entitled to make certain types of application. Subsection (6) provides the SoS with powers to make Regulations concerning the making and determination of proposals made by commons registration authorities (ie applications the authority makes to itself), and subsection (7) lists the matters that such Regulations may in particular include. Subsection (8) provides that the appropriate national authority (in England, the SoS) may make regulations to appoint persons to discharge functions of a commons registration authority in relation to applications or proposals.

The Commons Registration (England) Regulations 2008 (“the 2008 Regulations”) implemented Part 1 in the seven “pioneer” local authority areas in October 2008. Those authorities comprise: Blackburn with Darwen Borough Council, Cornwall Council, Devon County Council, County of Herefordshire District Council, Hertfordshire County Council, Kent County Council and Lancashire County Council.

The Commons Registration (England) Regulations 2014, SI 2014/3038 (“the 2014 Regulations”) provide for the maintenance of the registers of common land and town and village greens, including the procedure for applications to amend them under Part 1 of the 2006 Act. The registers can be amended to add new information or amend or remove existing information. Amendments can be made to reflect contemporary changes (Sections 6 to 15 of the 2006 Act), mistakes and anomalies (Section 19 and Schedule 2 to the 2006 Act) and historic unregistered events (Schedule 3 to the 2006 Act).

The 2014 Regulations apply in full to the areas of Cumbria and North Yorkshire (“the 2014 registration authorities”) and the pioneer areas (“the original registration authorities”, which were previously subject to the Commons Registration (England) Regulations 2008, which the 2014 Regulations now replace). Cumbria and North Yorkshire are required to review their registers to identify anomalies and to process fifteen types of applications. The 2014 Regulations partially apply elsewhere in England to allow five types of applications to correct mistakes in the registers. The five types of applications are those under: Section 19(2)(a) (correction of mistakes made by an authority when it made an entry in the register), and paragraphs 6, 7, 8 and 9 of Schedule 2, which allow for the removal of certain types of land that were wrongly registered as common land or town or village green.

The 2014 Regulations require applications to be submitted to commons registration authorities.  They have the power to charge fees, set by themselves in relation to most types of applications (certain types are specified as liable to no fee, due to a public interest). Applications must be referred to the Planning Inspectorate for determination where the authority has an interest in the outcome of an application. Applications to correct a mistake, or add land to, or remove land from, the registers must also be referred provided objections have been received from persons with a legal interest in the land.

In Isle of Wight Council and Others v HMRC [2014] UKUT 446 (TCC) the Upper Tribunal held that the First-tier Tribunal had been entitled to find that local authorities were not entitled to recover VAT included in supplies of off-street carparking pursuant to the Road Traffic Regulation Act 1984, Sections 32, 35 and 122.  Non- taxation would lead to the risk of significant distortions of competition in the off-street car parking market and the provision of outsourcing.  Local authorities were not entitled to be treated as a non-taxable person.

Proudman J accepted (para 54) that “the RTRA as a whole is not a revenue-raising measure”; that, although the cases of Cran, Djanogly and Attfield relate to on-street parking, they were applicable in that respect to off-street parking; that it is legitimate for a local authority to structure its car parking prices so as to discourage parking in some places and encourage it in others; that it is likewise legitimate to use surplus revenue generated from some car parks to make up a  shortfall in revenue from car parks which, whether for policy reasons or otherwise, are run at a loss, or where parking is free of charge; and that there is no requirement that income and expenditure be balanced on a car park by car park basis.

Proudman J said that it must follow, if the RTRA is not a fiscal measure, that “overall, and perhaps taking one year with another”, the cost to the local authority of meeting its statutory obligation of providing sufficient off-street parking and the revenue generated from the activity must be “broadly equal”.  The “deliberate making” of a profit would take the activity into the realm of “trading”.

The normal course with highway developments is that estate roads when constructed become public highways maintainable at the public expense.  This result is usually achieved by the mechanism of an agreement made between the developer and the local highway authority under s38 Highways Act 1980.  Such an agreement has two aspects: first, the roads are dedicated and adopted as public highways; and, second, they become highways maintainable at the public expense.

In R (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council [2014] EWCA Civ 1433 both Redrow and the Council as the highway authority wished in principle that this should occur.  A part of the roads will be street lighting. The Council said that it would not enter into an agreement under s38 unless it contained a provision that Redrow pays at the date of the agreement £39,000, which is a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The Council said that such a provision in a s38 agreement is lawful by reason of the word “maintenance” in s38(6) and that maintenance refers to and includes future maintenance of the road following its adoption. Redrow said that no such provision may lawfully be included in a s38 agreement.

The case related only to street lighting and a relatively small sum. However, the issue of statutory interpretation is of wide importance.

The Court of Appeal found in favour of the Council.  Lord Dyson MR, with whom Gloster and King LJJ agreed, said:-

“ … The starting point is that s38(6) is expressed in wide and unqualified terms. On its face, it permits an agreement between a developer and a highway authority containing “such provisions as to the dedication as a highway of any road or way…, the bearing of the expenses of the construction, maintenance or improvement of any highway, road…to which the agreement relates and other relevant matters as the authority making the agreement think fit”. It could hardly be wider in its scope. In particular, there is nothing in the language of the subsection which draws a distinction between what is permitted in respect of the period before and what is permitted in respect of the period after the road or way becomes a highway maintainable at the public expense….”

“19.       … First, as a matter of ordinary language the phrase “maintainable at the public expense” connotes that the highway authority will be liable as a matter of public law to maintain the highway. But it does not indicate how the authority is required to discharge that liability. The authority may carry out the maintenance itself or make an agreement for a developer to carry out the work. It may choose to pay for the maintenance of the highway out of public funds or obtain funds for doing so from the developer or a combination of the two. Whichever course is adopted, the highway authority remains liable and the highway continues to be maintainable at the public expense. Thus, for example, if a developer agrees to maintain a dedicated highway and defaults on his obligation, the highway authority remains liable. That is because the highway is maintainable at the public expense. …

20.        Secondly, quite apart from the natural meaning of s38(6), … it is clear from other provisions of the 1980 Act that Parliament did not intend by the use of the phrase “maintainable at the public expense” in the subsection to exclude the possibility of an act of privately maintaining or of privately contributing to the cost of maintaining a highway maintainable at the public expense. It can be seen from provisions such as ss 44 and 278 that an act of private maintenance or an act of the provision of expenses is not inconsistent with the concept of a highway being maintainable at the public expense.

21.        S44 provides that a person who is liable “under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway” may enter into an agreement with the highway authority “for the maintenance by him of any highway maintainable at the public expense by the highway authority”. Such a person may also enter into a s38(1) agreement. Parliament clearly envisaged in such circumstances that the highway remains maintainable at the public expense notwithstanding continuing maintenance obligations on the part of the counterparty to the agreement. S278 provides that a highway authority may enter into an agreement with any person for the execution by the authority of any works which the authority is or may be authorised to execute on terms that that person pays for the whole or part of the cost of the works. S278(3) provides that the agreement may also “provide for the making to the highway authority of payments in respect of the maintenance of the works to which the agreement relates”. There can be no doubt that an agreement made pursuant to s278 can provide for a payment in respect of maintenance of a highway, including a highway maintainable at the public expense.

22.        Thirdly, … s38(1) when read together with s53 shows that Parliament cannot have intended to preclude the possibility of an agreement for maintenance by a developer after the dedication of a highway. …”

The Supreme Court has given Judgment in Barkas v North Yorkshire County Council [2014] UKSC 31, dismissing Ms Barkas’ appeal from [2012] EWCA Civ 1373 and against the rejection of her application to register land as a town or village green under Section 15 of the Commons Act 2006.  The land was provided and maintained by a local authority as “recreation grounds” under what is now Section 12(1) of the Housing Act 1985.  The Supreme Court ruled that, so long as land is held under such a provision, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land “by right” rather than “as of right”, within the meaning of Section 15(2)(a) of the 2006 Act.  The Supreme Court observed that where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right” simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights.  This means that the decision in Beresford v Sunderland City Council [2004] 1 AC 889, in which the House of Lords held that the public’s use for more than 20 years of land maintained by the local authority with that authority’s knowledge was “as of right”, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was “as of right” rather than by right.

In Church Commissioners v Hampshire County Council [2014] EWCA Civ 634 an application to register a village green just within the 5 year limit failed to comply with the Registration Regulations.  By the time the application was corrected the limit had expired.  The Court of Appeal held that once the application had been corrected it had retrospective effect and was to be treated as having been made on the date on which the (defective) application had been lodged.  The Court further held (by a majority) that what amounts to a “reasonable opportunity” for correction to be made is a question of law for the Court rather than the registration authority.