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.

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.