England and Wales Court of Appeal (Civil Division) Decisions

Case No: A2/2000/2108

- - - - - - - - - - - - - - - - - - - - - -

Stephen Sauvain QC and Colin Crawford (instructed by Legal Services North Yorkshire District Council) appeared for the Respondents

LORD JUSTICE PILL:

1. This is an appeal against a decision of Mr Justice Maurice Kay given on 19 April 2000 whereby he refused an application by Samuel Smith Old Brewery (Tadcaster) ("the appellants") to quash a Road Traffic Regulation Order made under section 1 of the Road Traffic Regulation Act 1984 ("the 1984 Act") by North Yorkshire County Council ("the respondents"). The Order was described as the Traffic Regulation (Prohibition of Driving except for Access and Revocation of One-way Traffic Flow) (Kirkgate/Westgate Tadcaster) Order 1999 ("the Order"). It was made on 1 October 1999, and came into operation on 14 October. It imposes a prohibition on motor vehicles in parts of Kirkgate and Westgate from 0600 hours to 1700 hours on Thursdays and, to maintain access to properties, revokes a one-way only traffic flow over a part of Kirkgate during the same hours.

2. The respondents are the relevant highway authority and traffic authority and Selby District Council ("the District Council") are the local planning authority for the area. Schedule 9 of the 1984 Act confers a defined right to challenge an Order made under section 1 on the ground that it is not within the relevant powers.

3. Section 1 of the 1984 Act is in Part I of the Act which enacts general provisions for traffic regulation. Section 1(1) provides:

"The traffic authority for a road outside Greater London may make an order under this section (referred to in this Act as a `traffic regulation order') in respect of the road where it appears to the authority making the order that it is expedient to make it--

(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or

(b) for preventing damage to the road or to any building on or near the road, or

(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), or

(d) for preventing the use of the road by vehicular traffic of a kind which, or its use by vehicular traffic which, is unsuitable having regard to the existing character of the road or adjoining property, or

(e) (without prejudice to the generality of paragraph (d) above) for preserving the character of the road in a case where it is specially suitable for use by persons on horseback or on foot, or

(f) for preserving or improving the amenities of the area through which the road runs."

Section 2 of the 1984 Act sets out what a traffic regulation order may provide. The powers conferred are broadly expressed and include the power to prohibit driving on a street except for access and the power to revoke a one-way traffic flow. The appellants are a small independently owned brewery and own properties in and around Kirkgate and Westgate in the centre of Tadcaster. They have a long standing interest in the prosperity of the centre of Tadcaster and some years ago commissioned a report entitled "Vision of Tadcaster," a number of the objectives of which have been achieved.

4. The District Council have for some time wished to re-locate the Thursday Market which has developed in Tadcaster since the 1970's from its present location on the central car park onto Kirkgate and Westgate. Before the present order was made, unsuccessful attempts had been made by other means to secure the closure of Kirkgate and Westgate on Thursdays.

5. On 16 March 1999, the District Council granted itself planning permission "in respect of proposed development for the purposes of proposed re-location of the market from the central area car park on a Thursday to land on Kirkgate and Westgate, Tadcaster West, North Yorks". Apart from a condition that the development should be begun within a period of five years, the only condition was that "before the market is first brought into use, a scheme for the erection of the market stalls shall be agreed in writing with the local planning authority and thereafter the said scheme shall be implemented in its entirety".

6. The validity of the planning permission has not been challenged. The identity of the person or persons who are required by the condition to agree with the local planning authority for a scheme for the erection of the market stalls is not expressed. Nor, as Mr Village for the appellants points out, is the question addressed as to the obstruction of the highway which any such scheme, he says, will inevitably cause. Westgate and Kirkgate form a part of the A659 principal road which provides the route from Boston Spa to York via Tadcaster. The problems involved in the implementation of the permission do not appear to have been comprehensively addressed by the District Council when granting themselves permission.

7. The statement of reasons, dated 2 December 1998, for the Order provided:

"Selby District Council wish to hold a weekly market in Kirkgate/Westgate, Tadcaster and have applied for planning permission to do so. The market will involve erecting stalls in the public highway. A Traffic Regulation Order is required, restricting vehicular access to the street. To facilitate access to premises in Bridge Street and Wharfe Bank Terrace, the One-Way Traffic flow in Kirkgate between High Street and Pegg Lane needs to be suspended during the operation of the market.

The County Council, therefore, considers it expedient to make the order for the following reasons:--

(1) For avoiding danger to persons or other traffic using the road, or for preventing the likelihood of any such danger arising;

(2) For facilitating the passage on the road of any class of traffic (including pedestrians);

(3) For preserving or improving the amenities of the area through which the road runs."

8. Exceptions are then provided, for example for the vehicles of emergency services. The Order was made following appropriate consultation procedures. Under Regulation 9 of the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996, the respondents had the power to cause a public inquiry to be held before making the order but did not exercise their discretion to do so.

9. The appellants have permission to appeal only upon the second of their grounds. Their submission is that there was no power under section 1 of the 1984 Act to make the traffic regulation order, first, because section 1(1)(a) does not apply in circumstances where the danger, or likelihood of danger, contemplated in the paragraph does not exist unless the order is granted and, second, because the purported use of the power in section 1 is an impermissible attempt to circumvent the provisions of section 249 of the Town and Country Planning Act 1990 ("the 1990 Act"). For the respondents, Mr Sauvain QC puts the issue in the case as whether it is possible to make the traffic regulation order under section 1 to deal with the consequences of a future event where that event will not occur if there is no traffic regulation order.

10. The first of Mr Village's submission can be put succinctly. Kirkgate and Westgate are busy sections of a classified A road. Without the Order the market stalls could not in practice be set up. The need for the order arises only if an activity takes place, which cannot in practice take place unless the order is made. Since there can be no danger if the order is not made, the order is beyond the powers of section 1(1)(a).

11. Mr Village seeks to reinforce the point by reference to section 137 of the Highways Act 1980 ("the 1980 Act") which provides that if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence. In the absence of a stopping-up or diversion order, the grant of planning permission does not of itself affect or override any existing rights of property or over a highway (Vasiliou v Secretary of State for Transport [1991] 2 All ER 77 at p 81 per Nicholls LJ). Any implementation of the planning permission would inevitably involve the commission of many such offences and would be unlawful. Not only would it be impossible in practice to set up the market without the Order, but to attempt to do so would inevitably involve the commission of many offences. Mr Village also submits that, even with the Order, implementation of the planning permission will inevitably involve the commission of offences under section 137 because the market stalls will obstruct the movement of traffic, including pedestrians, not prohibited by the order. An exercise of a power which produces that result in unlawful.

12. Mr Sauvain accepts that in practice no attempt was likely to be made to implement the planning permission unless the Order is upheld. The Court is concerned, he submits, only with whether the Order is within the powers of the Act and not what the consequences may be. Mr Village submits that a condition that the planning permission could not be implemented until an order is made would not have been a lawful condition because the making of the order would be unlawful, as submitted.

13. In support of the submission that Parliament cannot have intended section 1 of the 1984 Act to be used in present circumstances, Mr Village refers to the alternative procedure available under section 249 of the 1990 Act. That empowers the local planning authority, which in the present case is the District Council, to apply to the Secretary of State to make an order providing for the extinguishment of any right which persons may have to use vehicles on a highway. The section applies where:

"(a) a local planning authority by resolution adopt a proposal for improving the amenity of part of their area, and

(b) the proposal involves the public ceasing to have any right of way with vehicles over a highway in that area, being a highway which is neither a trunk road nor a road classified as a principal road."

That is the appropriate procedure, submits Mr Village, when the objective is to improve amenity, as in this case, by removing the weekly market from the car park to Kirkgate/Westgate. The procedure is surrounded by safeguards. First, application to the Secretary of State is required. Second, the Secretary of State must under section 252 of the Act hold a local inquiry before making the order, unless he is satisfied that in the special circumstances of the case, and where the objection is made by a person other than a local authority or undertakers, he is satisfied that an inquiry is unnecessary. Third, compensation may be payable by the local planning authority. Fourth, the procedure cannot be followed where the road is classified as a principal road. The designation of Kirkgate/Westgate would first have to be changed using the powers conferred by section 12(3) of the 1980 Act. (This could be done, it is suggested, by making an alternative route along St Joseph's Street in Tadcaster the principal road.)

14. The difficulties involved in the procedure suggested are not minimal. Indeed, it is not admitted by either party that the market proposal in isolation comes within the section as a proposal for "improving the amenity of part of the area". The submission is that Parliament cannot have intended the procedure under section 1 of the 1984 Act to be used by a highway authority to achieve what are planning objectives when a procedure set out specifically for that purpose has been provided, especially when that procedure is surrounded by safeguards. Those safeguards are circumvented if highway powers can be used to achieve a planning objective. Moreover, section 249 would be rendered otiose.

15. In my judgment, the order is within the powers of the 1984 Act. That the powers in section 1 may be used to prevent the "likelihood" of danger arising is clear from the wording of section 1(1)(a). Moreover, the concept of "avoiding danger" in the opening words of the paragraph contemplates a power to take preventative action. It permits action to avoid danger. That is inconsistent with the suggestion that danger must first have arisen. A power to anticipate, by making an order, the occurrence of the danger is contemplated. There will be many situations in which implementation of a grant of planning permission is likely to create highway dangers. In the course of argument, Buxton LJ gave the example of a school adjoining a highway. A highway authority is not constrained from exercising its powers under section 1 by having to wait until the project is complete before making the necessary traffic regulation order even if the project could not be carried out safely, or at all, without such an order.

16. Mr Sauvain draws attention to the fact that the respondents, as highway authority, sought unsuccessfully to make the implementation of traffic safeguards a condition of the planning permission. The presence or absence of such a condition, does not however affect the principle just stated.

17. The existence of the procedure under section 249 of the 1990 Act does not in my judgment limit the scope of the powers conferred by section 1 of the 1984 Act. There is an overlap between the two powers but there is no express prohibition in the 1990 Act upon the exercise of powers under the 1984 Act where planning objectives are also involved and in my judgment no such prohibition should be read into the Act. The 1990 Act procedure contemplates and empowers action by a local planning authority (which in the present case is a different authority from the highway authority) and the Secretary of State, though consultation with the highway authority is required under section 249(8). The procedure does not circumscribe the powers conferred on a highway authority in the 1984 Act. Section 122 of the Act also indicates the generality of those powers. It requires the highway authority, amongst other things, to "secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)".

18. Comments were made in the course of the hearing, and to some extent in this judgment, upon the ends left open by the planning permission which the District Council granted to itself and as to the possible consequences of action taken under the planning permission. The Court is concerned, however, to consider only whether the Order was within the powers of the 1984 Act. In my judgment it was and I would dismiss this appeal.

LORD JUSTICE THORPE:

19. I agree that this appeal should be dismissed for the reasons given by my Lords.

LORD JUSTICE BUXTON:

20. Since no impropriety or irrationality was alleged on the part of the County Council, the only and very short issue in the appeal was whether the terms of section 1(1) of the 1984 Act precluded, as a matter of law, the making of a Road Traffic Regulation Order ("TRO") when, as in this case, the danger sought to be prevented by the TRO could be prevented by not making the order at all: since if the County Council refused to make the order the street market would not go into operation.

21. It would be very surprising if Parliament had indeed so provided. Examples were given in argument of schools, or factories, whose promoters were not willing to build them unless TROs to avoid danger to children or workers using the buildings were put in place. It would be extraordinary if the highway authority simply were not permitted by law to make such orders, as opposed to having a discretion to refuse to make an order in a particular case, with the result that the development necessarily failed: since even if, which I venture to doubt, improvement of "amenity" of an area under section 249 of the Town and Country Planning Act 1990 can be extended to the building of schools and even of factories, as Pill LJ has pointed out that provision only extends to roads that are not principal roads, and therefore the designation of Kirkgate and Westgate would have to be changed as a precursor to any action under section 249.

22. In the event, however, no such conclusion is to be drawn from the terms of the statute. The question for the County Council is whether it is expedient to make the order for preventing the likelihood of danger arising: not, whether it is necessary to make the order for that purpose. The terminology adopted by Parliament plainly leaves it open to the highway authority to decide, as did the County Council in this case, that the expedient, proper or desirable course is that the market should go ahead, but protected by a TRO. In determining the "likelihood" of danger arising the highway authority is not obliged to reason on the basis that if the TRO is not made the danger will not arise at all: because an obligation to adopt such reasoning would be a fetter on the discretion that Parliament clearly intends the authority to exercise.

23. The point is a very short one, not made the worse by the fact that it produces an eminently commonsense solution. I agree with Pill LJ in dismissing the appeal.