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.

Section 15(4) of the Commons Act 2006 (“CA 2006”), in relation to registration of town and village greens (“TVG”), is compatible with the right to peaceful enjoyment of possessions pursuant to Article 1 of Protocol 1 to the ECHR (A1P1).  So the Court of Appeal has held in R (Newhaven Port and Properties Ltd) v SoS for DEFRA, East Sussex County Council and Newhaven Town Council [2013] EWCA Civ 673. The Port did not argue that the TVG scheme as a whole is incompatible with A1P1. It accepted that that argument was barred by Oxfordshire County Council v Oxford City Council [2006] 2 AC 674.  The challenge was to Section 15(4) of CA 2006, which applies (broadly) where (a) a significant number of the inhabitants of any locality indulged “as of right” in lawful sports and pastimes on the land for a period of at least 20 years, (b) they ceased to do so before the time of the application but before the commencement of Section 15, and (c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b). By Section 15(1) any person may apply to the commons registration authority to register land to which Part 1 of CA 2006 applies in a case where subsection (2), (3) or (4) applies.

The Port argued that the effect of Section 15 (4) was to deprive it of the statutory defence by which it could have defeated any application which had been made before the Section came into force, namely by demonstrating that use had not continued until the date of the application. The Port argued that in so doing Section 15 (4) is incompatible with A1P1.  It was common ground that CA 2006 (and Section 15 (4) in particular) is an interference with the Port’s peaceful enjoyment of its possessions because it significantly restricts what activities the owner can carry out on the registered land. Thus A1P1 is engaged. It was also common ground that the jurisprudence of the European Court of Human Rights has established that A1P1 involves three distinct rules: the general principle of the peaceful enjoyment of possessions; a rule against deprivation of property, and right on the part of states to control the use of property in the general interest but subject to the striking of a fair balance between that interest and those of the property owner.  It was also common ground that registration of a TVG does not involve a deprivation of possessions, because legal title remains with the owner. This was, therefore, a case of control of use, falling within the second paragraph of A1P1. Lastly it was common ground that the interference had taken place subject to conditions provided for by law; in the sense that the law is clear and accessible. The key issues, therefore, were whether the contested legislation pursues a legitimate aim; and, if it does, whether the means by which it does so are reasonably proportionate to achieving that aim.

The Court of Appeal held that Section 15(4) does have a legitimate aim.  The key issue was that of proportionality.  The Court of Appeal held that the means by which Section 15(4) pursued the legitimate aim, including the period of grace being 5 years rather than a shorter period, are not manifestly without reasonable foundation.  It had been open to the Port to prevent the twenty years use as of right from coming into existence at all.  The Port’s bye-laws amounted to consent to the uses on which the local inhabitants relied.  If the Port had displayed the bye-laws on the quayside or the sea wall the whole problem would have been eliminated.  Moreover, all landowners have effectively been put on notice that those using their land for recreational purposes may well be asserting a public right to do so if their use of the land is more than trivial or sporadic. 

What is the relationship between judicial review and the intervention powers of the Secretary of State (“the SoS”) in relation to changes in local library provision? On 31 May 2013 the SoS announced her decisions not to direct Inquiries under the Museum and Libraries Act 1964 into such changes in the Isle of Wight and in Bolton.

The SoS stated the Principles as follows:-

“The Secretary of State has considered the duty of a local authority to provide a comprehensive and efficient service under section 7 of the 1964 Act. What constitutes a comprehensive and efficient service is a question involving a significant element of judgement. Those judgements are, in the first instance, for the local authority to make. It has good knowledge of local conditions and needs and has direct democratic accountability to the local population. This is a significant factor. The Secretary of State’s view is that decisions about local issues should ordinarily be taken by democratically elected local representatives accountable to local voters. The duty of the Secretary of State is one of superintendence. A wide range of approaches were open to the local authority when deciding how to provide a comprehensive and efficient library service. The Secretary of State also notes that the local authority is entitled to take account of cost in deciding whether a proposal is efficient.

The Secretary of State seeks to promote and secure the proper discharge of the statutory duties on local authorities.  She has power to direct a local inquiry. Her approach in deciding whether she is minded to intervene to direct an inquiry has been to ask herself whether, having regard to the duties on her and the local authority, there is good reason in all the circumstances for her to direct an inquiry at the present time.

In taking that decision, the Secretary of State has given consideration to a number of factors. They include:

• Whether there is any serious doubt or uncertainty as to whether the Council is (or may cease to be) complying with its legal obligation to provide a comprehensive and efficient library service.
• Whether the Council appears to be acting in a careless or unreasonable way.
• Whether the decision is or may be outside the proper bounds of the Council’s discretion, such as a decision to stop serving a particularly vulnerable group.
• Whether the Council, has failed to explain, analyse or properly justify its proposals.
• Whether the local proposals are likely to lead to a breach of national library policy.
• Whether substantial further investigation is needed. A local inquiry would be more likely to be appropriate in a case where there are substantial uncertainties as to compliance with the statutory duty, and inadequate public consultation and discussion of proposals.  The converse is also true.
• The advantages of local decision making by democratically accountable local representatives.
• The cost and delay of an inquiry.
• Whether there is any further good reason why a local inquiry would be appropriate or inappropriate.

The Secretary of State has also borne in mind that too ready an intervention would risk preventing or discouraging prompt and efficient reforms of library services. Equally, failing to intervene in an appropriate case would risk the delivery of an efficient and comprehensive service.”

There were two particular features in the case of the Isle of Wight.

First, as regards community libraries, the SoS said:-

“For the purposes of her assessment as to whether to order a local inquiry, the Secretary of State has based her view solely on the council run libraries, and the mobile library service.  The community libraries have not been taken into account, although they appear to be successful and to form an important part of Island life.  Accordingly, if the community service were to be taken into account, it would only reinforce the Secretary of State’s view.”

Second, the SoS noted that a claim for judicial review of the changes failed, and that permission was refused on grounds not only that there had been delay in bringing the claim, but also that, in any event, the claim was not of sufficient merit to justify the grant of permission.  She said:-

“In the view of the Secretary of State it is clear that the Isle of Wight continues to offer a comprehensive and efficient library service through its core libraries and mobile library service.  The Secretary of State has taken into account that the Court has decided that the changes were lawful (and it was unarguable to suggest the contrary).”

The costs of enforcing a licensing system (of sex establishments) against unlicensed operators (who may not have applied for authorisation) cannot be reflected in licence fees charged by a local authority (under the Local Government (Miscellaneous Provisions) Act 1982).  So the Court of Appeal has held in Hemming v Westminster City Council [2013] EWCA Civ 591, upholding Keith J.  This is because such costs are not (proportionate) costs of “authorisation procedures and formalities” under an “authorisation scheme”.  They are therefore prohibited by the EU Services (in the Internal Market) Directive and the Provision of Services Regulations 2009, SI 2009/2999.  In order to justify a (licence) fee or charge it has to be shown that it is related to the cost of the actual authorisation process: Beatson LJ at para 84.  The Court rejected (para 98) the “consequentialist arguments” about the effect on other regulated areas advanced by the Council in support of its construction.  The Court, however, accepted (para 103) that not only can costs in investigating the suitability of an applicant be reflected in the fee, so too, in the case of an application to renew a licence, can be the costs of monitoring the applicant’s continued suitability and compliance with the licence terms.  Enforcement against licensed operators is to be distinguished from enforcement against unlicensed operators.

The Growth and Infrastructure Bill has received the Royal Assent (“the 2013 Act”).  Section 16 of the 2013 Act will amend the law on the registration of new town and village greens under Section 15(1) of the Commons Act 2006 (“the 2006 Act”).  It does this by inserting new provisions –Section 15C and Schedule 1A into the 2006 Act – which exclude the right to apply to register land as a green when any one of a number of events, known as ‘trigger events’, have occurred within the planning system in relation to that land. The trigger events are prescribed by Schedule 1A to the Commons Act 2006. For example, where an application for planning permission is first publicised then the right to apply to register that land as a green is excluded. Decisions regarding whether land should be developed or not will be taken within the planning process.

The new Section 15C(2) of the Commons Act 2006 provides for ‘terminating events’, which are also set out in new Schedule 1A to that Act. If a terminating event occurs in relation to the land in question, then the right to apply for registration of a green under Section 15(1) is again exercisable. For example, if the right to apply to register land has been excluded because an application for planning permission has been publicised, the right to apply for registration of the land as a green again becomes exercisable if planning permission is refused and all means of challenging that refusal have run their course.

The change takes effect from 25 April 2013, and affects applications under Section 15(1) of the Commons Act 2006 made on or after that date.  Applications made before that date are unaffected.

The 2013 Act makes two other amendments directly related to the law on town and village greens.  First, Section 14 of the 2013 Act amends Section 15(3)(c) of the 2006 Act, which  applies where recreational use of land as of right has ceased before an application is made.  This change will come into force on a date to be appointed by Order. Second, there is the introduction of Landowner Statements, which bring to an end recreational use as of right on the land to which the Statement relates, through new Sections 15A and 15B of the Commons Act 2006 (as inserted by Section 15 of the 2013 Act). Section 15A makes provision for the deposit of Landowner Statements as well as accompanying maps.  Section 15B provides for certain information relating to such deposits to be recorded on a publicly available register.  These provisions will come into force on a date to be appointed by Order, and will be supported by Regulations.

DEFRA has issued Interim Guidance to Commons Registration Authorities on Section 15C of the Commons Act 2006, the exclusion of the right to apply under Section 15(1) to register new greens.

What is the status of a non-statutory Code of Practice?  This question has been considered by the Court of Appeal, in the context of the duty to maintain a highway pursuant to Section 41 of the Highways Act 1980 (“HA 1980”), in Devon County Council v TR [2013] EWCA Civ 418, in which Judgment was given on 30 April 2013.  The highway authority successfully appealed against a decision that it had been liable for a road traffic accident and that the driver had not been negligent at all.

TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the nearside and his passengers were very seriously injured in the ensuing crash into trees alongside the road. They sued him. He made a third-party claim against the Council.  He alleged that the defective state of the offside of the road was what had caused him to lose control.

The road in question was part of what is mostly a winding and hilly country road. After a winding and steep section of road, and a right hand bend, the road ahead opened up into a straight section which gave ample visibility to overtake. The road was a single carriageway in each direction. At some points it had no line markings at all, but on the section where the accident occurred there was a long dash centre white line and solid white lines down each edge. On both sides there were soft grass verges. On TR’s nearside there was a ditch with trees beyond it, approximately level with the road surface. On his offside, there was a noticeable and quite steep short bank down into a ditch, and a hedge beyond it.

There was damage to the offside (east) edge of the tarmac, both outside and (in places) over and inside the continuous white edge line. This is common enough where the outer edge of the tarmac meets a soft grass verge. It is caused by heavy vehicles running along or over the tarmac’s edge with their tyres. It is known to highways engineers and maintenance people as “overriding” damage.

The area of overriding damage was 51 metres long. At its widest the damaged area extended just under 6 inches inside the edge of the continuous white edge line and, in places, obscured or obliterated that line. The deepest part of the damaged area was something more than 3 inches deep. TR must have put his offside tyres into the damaged area, at a point before the place at which it intruded most into the carriageway, and at a point where the continuous white edge line was either missing or difficult to see.

Hughes LJ, as he then was, observed that, as is well known, the duty of the highway authority evolved from the common law duty of the local inhabitants to maintain a highway. That duty was an absolute one but was enforceable only by what today would be called a public law action. The inhabitants were not liable for any private loss caused by the state of the road, unless there was misfeasance, as distinct from nonfeasance or simple failure to maintain. That origin is the explanation for the manner in which the law has been expressed since the Highways Acts 1959 and 1961, and in which it now appears in HA 1980. The duty to maintain contained in Section 41 (which includes repair) is now broken by mere nonfeasance. It remains an absolute duty, and it may be invoked not only in relation to civil claims against the authority arising out of an accident but also by action to enforce the maintenance of the road. It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected. However, so far as civil claims arising out of accidents arising from non-maintenance are concerned, the liability of the authority is limited by Section 58 to the case where it has not taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The onus of proving that all reasonable care was taken lies on the authority.

The issues which called for decision were therefore whether there was a breach of Section 41, either whether the road was in a condition which exposed to danger those using it in the ordinary way; if so, whether the accident was caused by that breach; if so, whether the Council made out the statutory defence under Section 58, ie of taking all reasonable care; and, if not, whether there was any contributory negligence on the part of TR.

The road was dangerous, at least in places.  However, in order to succeed in a claim made on the basis of a breach of Section 41 it is not enough to show that the highway was dangerous somewhere other than where the accident happened; it must be shown that it was dangerous where the accident occurred, and that the accident occurred as a result of the danger.

In this case the point of entry into the rut was dangerous.  A causative breach of Section 41 was made out.

The principal issue on the statutory defence under Section 58 was whether Devon inspected the road sufficiently often.  Devon’s settled practice for this road and a great many others of the same kind in the County was to inspect at six monthly intervals. The trial judge found that this was not enough to discharge the onus laid upon Devon by Section 58 to show that it had taken such care as was in all the circumstances reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.  This is where the Code of Practice fitted in.

There was and is a non-statutory Code of Practice: “Well maintained highways”.  One of a great many areas of practice which is traversed by the Code is frequency of inspection.  In addition, Devon had its own manual for road inspection and the treatment of defects.  The judge concluded that Devon had failed to make out the statutory defence because it had not justified its departure from the recommended inspection interval referred to in the Code. She held that six monthly inspection was insufficient, both generally and specifically in relation to this particular road. Her finding was not simply that six monthly inspection was insufficient, but that only monthly inspection, as per the Code, would discharge the duty to take reasonable care.

The Court of Appeal said that, in adopting this approach, the Judge fell into error.  Hughes LJ, with whom Lloyd LJ and Sir Stanley Burnton agreed, said, from paragraph 20:

“Despite the recognition in the opening words that the code was non-mandatory, this approach amounted to treating it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. Whilst the code is clearly evidence of general good practice, its status must not be overstated. It has no statutory basis …”

“The code does not set out mandatory rules. It is evidence of good practice. Authorities must exercise their own judgment.”

“When it comes to the specific issue of inspection intervals, other considerations will clearly include traffic use, experience, the frequency of adverse incidents and the like.”

“It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the code a mandatory instrument.”

“At the very least, the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

“There appears to have been no evidence of the exact age of Devon’s practice, but if, as appears, it had been applied to local distributor roads generally for a significant period without problems in the form of avoidable accidents or otherwise, that was in itself some evidence that reasonable care was taken.”

“For these reasons, the judge’s finding that Devon’s adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care cannot stand. It was founded on an erroneous approach to the code.”

“However, the judge also held that this particular road called for greater frequency of inspection. Although that finding was in part predicated upon her flawed findings about the policy for local distributor roads generally, the evidence before her was by no means confined to the general. It extended to the detailed inspection reports for this road, over a period of the three and a half years before this accident. … Despite the flawed approach to the policy of Devon in relation to local distributor roads generally, it is clear that there was sufficient evidence to justify the judge’s conclusion that this particular road needed inspection at shorter intervals than six monthly, and I see no warrant for interfering with it. I would accordingly uphold her finding that the statutory defence had not been made out, whilst rejecting her wider basis that Devon’s policy in relation to local distributor roads generally betrayed a lack of reasonable care because it amounted to a departure, without sufficient reason explained, from the non-statutory recommendations contained in ‘Well maintained highways’.”

Finally, the Court of Appeal concluded that TR was 50% contributorily negligent.

WHAT IS A HIGHWAY?

In Kotegaonker v SoS for Environment etc and Bury MBC [2012] EWHC 1976 (Admin) Hickinbottom J held that a footpath linking two privately-owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under the Highways Act 1980 s.31, because members of the public had no legal right of entry at either end of the path.  They entered the health centre and the shops under licence from the respective landowners, not because they had an unrestricted right to do so.  There was no statutory definition of the word “highway”.  Common law did not have any authority directly on the issue.  As a matter of principle, the concept of a highway that was unconnected to any other highway was incongruous, because such a way did not have all the requisite essential characteristics of a highway.  Passing along a route as licensee did not constitute passing along it “freely and at … will”, since passage was at the will of the landowner, who could withdraw the licence at any time.  The fact that the owners of the health centre and the shops at either end of the path had never imposed any restrictions was irrelevant to the terms of s.31, which required that the right of way had to be enjoyed by the public “as of right”.

PSED

Yet another first instance decision on the PSED: R (Hunt) v North Somerset Council [2012] EWHC 1928 (Admin).  Applying the approach of the Court of Appeal in the Brent Libraries case, [2012] LGR 530, Wyn Williams J dismissed a judicial review challenge to North Somerset Council’s decision to approve, during its budget-setting process, a proposal to reduce financial provision for youth services and to review the ways in which such provision was made in its area.  The Judge held that the Council had complied in substance with its duties under s.149 of the Equality Act 2010 and s.507B of the Education Act 1996.

Dedication of Highway

The dedication to the public by a local highway authority of highways was inferred by the Privy Council in J & O Operations Ltd v Kingston & St Andrew Corporation [2012] UKPC 7, relying (para 13) on Espley v Wilkes (1872) LR 7 Ex 298 and (para 14) Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.

Village Green

In Adamson v Kirklees MBC [2012] EWCA Civ 262 the Court of Appeal held, allowing an appeal from Vos J, that although land should not have been registered as a village green (because, agreeing with Vos J, it had not been used by the inhabitants of a single locality), it would not be just to rectify the public register after a delay of over 12 years in seeking rectification. Sullivan LJ said (para 37):

“While Parliament did not prescribe a time limit for making applications under section 14, it must have envisaged that persons adversely affected by an erroneous amendment of the register would take reasonably prompt action ton secure rectification, and would not sleep on their rights. All other things being equal, the longer the delay in seeking rectification the less likely it is that it will be just to order rectification”; and (para 39)

“While it must be desirable, in principle, that errors in a public register should be rectified, the delay of over 12 years in seeking rectification of the register in this case was, by the standards of any reasonable legal process, so excessive as to make it not just to rectify the register.”

Patten LJ, on the other hand, could see no injustice (para 44) in a deprivation of rights to which one was never entitled, absent (para 43) some “significant or material prejudice attributable to the delay” which makes it just to refuse to restore to the owner of the land its full legal rights. Patten LJ thought (para 45) that there was a public dimension which militated strongly in favour of ordering rectification of the register. Carnwath LJ, however, agreed (para 66) with Sullivan LJ’s reasoning and conclusions. Carnwath LJ (at para 67) said that, on the basis that ECHR Art 1/1 was engaged:

“The administrative process of amendment of the register does not meet the requirements for independent determination under article 6. The rectification procedure fills the gap. I agree that for that reason a precise analogy with judicial review time-limits is not appropriate.”

He continued (at para 68):

“However, article 6 does not require the right to be kept open indefinitely. I agree with Sullivan LJ that the public nature of the register requires the balance to include considerations of public administration, … Although that is provided for expressly in the judicial review legislation, I see no reason why the concept of “justice” under the 1965 Act should not be wide enough to include similar considerations. Justice in this context need not turn on proof of individual prejudice, but is wide enough to cover general prejudice to the public (including planning authorities) who are entitled to rely on the register to order their affairs, public and private. … It is probably not appropriate for the court to lay down a specific time-limit, where Parliament has declined to do so. But for my part, I would be regarding a delay beyond the normal limitation period of six years as requiring very clear justification. On the facts of this case, I agree with Sullivan LJ that on any view the delay was too long.”