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.

R (Keep Streets Live Campaign Limited) v Camden LBC [2014] EWHC 607 (Admin) is a claim for judicial review of Camden’s decision to adopt Part V of the London Local Authorities Act 2000 and to approve a Policy the effect of which is to license busking in Camden’s area.  Patterson J dismissed the claim.

The first ground of challenge was that the Policy was insufficiently certain.  However, as Patterson J observed (para 39): “The requirement of certainty is not one of absolute certainty”; and (para 43): “Given the nature of street entertainment it would be impossible to come up with an absolute definition”.  She concluded (para 48): “There is … sufficient clarity in the drafting of the Policy for a concerned person, with advice if necessary, to know whether there was likely to be a breach of licence conditions or a requirement to obtain a licence”; and (para 49): “… the Policy is sufficiently comprehensible”.

The second ground of challenge was that the Policy was adopted on an unlawful basis.  Patterson J rejected this challenge.  The statutory preconditions for making a scheme had been satisfied.

The third ground of challenge was that the Policy infringed ECHR Art 10.  Patterson J, however, held that the Policy was necessary and proportionate.  She held (para 101) that busking “is not the most important right of free expression in a democratic society.  It is not akin to political speech”.  Although Art 10 was engaged, “it operates at a low level”.  The scheme did not stop people busking in Camden, and (para 102) limiting busking to prevent obstructions of the highway or the creation of nuisance was “an acceptable interference with Article 10 rights”.  In applying the proportionality analysis, the Court held that there was a “pressing social need” to regulate busking (nuisance/obstruction), and existing powers available to the Council (e.g. enforcement under the Environmental Protection Act 1990) were not equivalent to the powers under the 2000 Act for dealing with buskers in a comprehensive way.

Patterson J concluded (para 122) that Camden “has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking.  It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden”. 

In R (Thompson) v Oxford City Council (2014) EWCA Civ 94 the Court of Appeal was concerned with a decision whether or not to grant or renew a lap dancing club’s licence under the Local Government (Miscellaneous Provisions) Act 1982, as amended (“the 1982 Act”), a licence which has a maximum term of 12 months.  Lloyd Jones LJ observed (para 25) that the statutory scheme “gives a wide discretion to licensing authorities, in particular in forming value judgments as to whether the grant or renewal of a licence would be appropriate having regard to the character of the locality”.

It was held (para 34) that while it was open to the Sub-Committee to depart from the decision of its predecessor, “it was under a duty to take account of the earlier decision, to grasp the nettle of any disagreement with the earlier decision and to state its reasons for coming to a different conclusion”.  Lloyd Jones LJ summarised the position thus:

(1) On an application to renew an SEV licence it is not necessary for an objector to demonstrate that something has changed since the decision granting the licence. Were the position otherwise, the efficacy of annual reconsideration would be much reduced.

(2) However, the decision maker has to have due regard to the fact that a licence was previously granted.

(3) If there is no relevant change of circumstances, the decision maker has to give his reasons for departing from the earlier decision.

The authority was permitted to have regard to an imminent development, even if there was no certainty that it would be completed and operational within the licence period (para 49).  However, it was not open to the authority to rely on a development plan which contemplated development five years into the future (para 50).

What is the effect of lapse of time on an application under Section 14 of the Commons Registration Act 1965 for rectification of a registration as a town or village green?  This was the issue before the Supreme Court in Adamson v Padico (267) Limited and Taylor v Betterment Properties (Weymouth) Limited, (2014) UKSC 7, on appeal from [2012] EWCA Civ 250 and 262, in which Judgment was given on 5 February 2014.  The Supreme Court observed as follows.

The starting point is the 1965 Act itself, which lays down no limitation period for Section 14 applications. Section 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but also that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants.  Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy.

Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights harm from the curtailment of his rights.   The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondent’s significant detriment.

In Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950 the Council unsuccessfully appealed against a decision that it was liable for damage caused by floodwater escaping from one of the roads in the County when drains it had installed in the road had become blocked.  The road was known to be a high flood risk.  The Council’s system to prevent such blockages was adequate.  However, the Council’s contractor on two occasions did not follow his normal practice.  This caused the flooding. There was no adequate explanation for the failure to attend the road during exceptionally heavy rainfall.

Jackson LJ, having reviewed the authorities in relation to the liability of land owners for non-feasance in respect of natural nuisance, extracted the following principles (para 49):

“(i)        A landowner owes a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties. 

(ii)         In determining the content of the measured duty, the court must consider what is fair, just and reasonable as between the two neighbouring landowners. It must have regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties.

(iii)        Where the defendant is a public authority with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.”

The Council submitted it was only an adjoining owner by reason of its position as a highway authority.  Bearing in mind the many demands upon the Council’s resources, the Court should not impose unduly onerous requirements.  As to this factor, Jackson LJ said (para 57):  “… it is correct that the council is a highway authority with a large network of roads to maintain and the principal duty of preserving the safety of road users. On the other hand, precisely the same measures were needed both to protect motorists against flooded roads and to prevent flood damage occurring to adjacent properties. These measures were to check and clear the drains.”

Jackson LJ said (para 58) that the point made about resources is an important one and cannot be lightly dismissed, but concluded (para 59) that, even after making due allowance for the pressures on local authorities, the duty on the Council did require it to keep the drains functioning properly.  Moreover (para 61) the availability of insurance was not a factor of any great relevance.  At para 63 Jackson LJ said:

“Whilst I accept that there are limits on what can be expected from local authorities in relation to flood prevention, I do not accept that the judge applied too high a standard of care in the present case. He properly took into account all the relevant circumstances. Although he was carrying out a multifactorial assessment, he properly highlighted those factors which were particularly significant. I therefore reject the council’s first and principal ground of appeal.”

R (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin) is a judicial review of the Council’s decision to increase the charges for residents’ parking permits and visitor vouchers in Controlled Parking Zones in its area.  The claim succeeded before Lang J.  She held that the increase in charges, pursuant to s45(2)(b) of the Road Traffic Regulation Act 1984 (“the RTRA”) was unlawful, because its purpose was to generate a surplus on the Special Parking Account, maintained under Section 55 of the RTRA, beyond the monies needed to operate the parking scheme, to fund other transport expenditure, such as road repair and concessionary fares.  She rejected the Council’s argument that it was entitled to exercise its powers under s45 (such amount as the authority may prescribe) for the purpose of raising a surplus to use for any transport functions, provided that they come within the scope of s122 of the RTRA.  Lang J said, at para 59:

“The purpose of section 122 is to impose a duty on local authorities to exercise their functions under the Act in accordance with the objects set out therein. It is necessarily couched in general terms because it applies to a remarkably broad range of functions in the RTRA 1984, e.g. traffic schemes, pedestrian crossings, school crossings, street playgrounds, speed limits, bollards, traffic wardens, removal and immobilisation of vehicles, as well as different types of parking facilities. I do not consider that section 122 was intended to authorise a local authority to raise a levy on parking permit holders, pursuant to section 45(2)(b), to fund any project which met the objects set out in section 122. Such an intention is not expressly stated, nor can it properly be implied. The RTRA 1984 is not a revenue-raising or taxing statute.”

Lang J concluded that the amount of the charge is limited to the amount the authority considers appropriate for the purposes of parking regulation, not for other transport purposes.  She observed, however (para 57):

“… the authority has a discretion to set charges to reflect its parking policies.  It is not restricted to levying a charge only to cover the base cost of running the schemes.”

What is a local authority entitled to take into account when deciding whether or not to renew a sex establishment licence for a lap dancing club?  That was the issue before the Court in Thompson v Oxford City Council [2013] EWHC 1819 (Admin).  Haddon-Cave J held that the fact that the character of an area was in the process of changing was a relevant consideration when deciding upon the appropriateness or otherwise of such a licence in accordance with Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, as amended by Section 27 of the Policing and Crime Act 2009.

At paragraph 50 of his Judgment he summarised the general principles to be derived from the authorities regarding the licensing of sex establishments as follows:-

(1)        Local authorities are granted a very wide statutory discretion to decide whether or not a licence should be granted;

(2)        Local authorities can take into account “any strong body of feeling in the locality” which objects to the existence of a sex shop there, although this does not include moral objections to its activities;

(3)        The legislation expressly contemplates that the circumstances in which a licence has been granted or renewed may change and there can be no expectation of annual renewal;

(4)        Local authorities have “a very broad power to make an evaluative judgment” whether the grant of a licence would be inappropriate having regard to “the character of the relevant locality”: this imports “a significant evaluative power” at two levels: first, in assessing whether the grant or renewal of the licence would be “inappropriate” (a very broad and general concept); and, secondly, in assessing the character of the relevant locality, which, again, involves questions of fact and degree and local knowledge which import, at that level also, a broad power of evaluative judgment to be exercised by the local authority;

(5)        There is no radical conceptual divide between “the character of the relevant locality” and “the use to which any premises in the vicinity are put”: the former is a concept calling for “a compendious and general evaluative judgment to be made by the authority”, having regard to a range of factors which may be relevant to that question, including not least the use to which properties within the relevant locality happen to be put, the latter simply provides an additional ground for refusal if, eg, it cannot be said that it would be inappropriate to grant a licence given the general character of the locality, but the use of particular premises within the vicinity does give cause for concern viz eg a church, or primary school;

(6)        The considerations were intended by Parliament to be considerations for the local authority’s own evaluative judgment, subject only to the Court’s supervisory jurisdiction on a claim by way of judicial review.

At paragraph 68 the Judge said:-

“…  licensing decision-makers are entitled to take into account both the present and future “character” of an area. There is no reason to limit the reference to “character” only to the present character of the area. Indeed, it would make no sense to do so in the context of prospective licences which were to be granted for 12 months in the future. Prospective licences required a prospective view. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate.”

In Cusack v Harow LBC [2013] UKSC 40 the Supreme Court has held, reversing the Court of Appeal, that the Council as highway authority was not required to pay compensation for the erection of barriers preventing a property owner accessing a public highway from his property.  The Council had power to proceed under Section 80, which does not provide for compensation, rather than Section 66(2) of the Highways Act 1980 (“HA 1980”), which does provide for compensation.  The Supreme Court observed that, albeit the owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property, that right has been greatly limited by statutory provisions and there is no general right to compensation when action is taken to restrict a property owner’s right of access to an adjoining highway.

Canons of statutory construction, including the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision, have a valuable role to play as guidelines embodying logic or common sense.  However, the distinction between general and specific statutory provisions was of no assistance in this case because neither Section 66(2) nor Section 80 of HA 1980  could be regarded as more specific or less general then the other.  HA 1980 is a consolidating statute and is the result of a complex history extending over more than 130 years. It contains a variety of overlapping and sometimes inconsistent powers. The Council was entitled to rely on the clear wording of Section 80 in order to erect the barriers. It did not matter that the Council could use Section 66(2) to achieve the same objective. However, a highway authority’s use of Section 80 could be challenged if, for example, it circumvented the specific prohibitions of the use of the power conferred by Section 66(2).

The Human Rights Act 1998 did not preclude the Council from relying on Section 80 because it involved no breach of the right to peaceful enjoyment of property under Article 1 of the First Protocol to the ECHR (“A1P1”).  The erection of the barriers would be a control of the use of property, not a deprivation of property. The case concerned land development and town planning, in relation to which the State enjoys a wide margin of appreciation. The issue of the proportionality of the interference with A1P1 rights requires a broad judgment as to where a fair balance lies between competing general and individual interests.  The mere fact that another statutory route was available to the Council and that it required the payment of compensation did not itself lead to the conclusion that the Council’s reliance on Section 80 was disproportionate. There is no general rule under A1P1 that, where the State seeks to control the use of property and could do so under two different provisions which have different consequences in terms of compensation, it is obliged to use the provision which carries some (or greater) compensation.