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Cite as: [2000] EWHC Admin 336

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SAMUEL SMITH OLD BREWERY (TADCASTER) and NORTH YORKSHIRE COUNTY COUNCIL [2000] EWHC Admin 336 (19th April, 2000)

Case No: CO/4424/99

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Liverpool Crown Court
Queen Elizabeth II Law Courts
Liverpool L2 1XA
Wednesday 19th April 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY

	SAMUEL SMITH OLD BREWERY (TADCASTER)	Claimant
	and NORTH YORKSHIRE COUNTY COUNCIL	Respondent

__________________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
__________________________________
Mr Peter Village and Mr Martin Chamberlin (instructed by Pinsent Curtis) appeared
for the Claimant)
Mr Colin Crawford (instructed by North Yorkshire County Council) appeared for the Respondent)
__________________________________
Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE MAURICE KAY:
The market town of Tadcaster in North Yorkshire has been known for centuries as a brewing town. Today three brewing companies are active there. One of them is Samuel Smith Old Brewery (Tadcaster), which I shall refer to as SSOBT. In the 1980's SSOBT commissioned a firm of architects to produce a scheme for the redevelopment of part of the town centre. They produced a report known as Vision of Tadcaster. One of its central features was the pedestrianisation of Westgate, Kirkgate and Chapel Street with the attendant road widening of St. Joseph's Street for diverted through traffic. In the event, Vision of Tadcaster was never implemented and the pedestrianisation suggested on behalf of SSOBT did not find favour. Also in the town centre there is an area known as Central Car Park. It is a public car park dating from the 1970's, since when Selby District Council (the District Council) has established a Thursday Market on part of its surface. Stalls are erected in the early morning each Thursday and removed later in the day. In due course the District Council set up a consultative group known as the Tadcaster Regeneration Group (TRG), comprising, among others, Councillors, Council Officers, representatives of Tadcaster Civic Society and the Chamber of Trade. In or about September 1997, TRG proposed the relocation of Thursday Market from Central Car Park to Kirkgate and part of Westgate where it would operate as a street market on Thursdays. For this to happen, it would need the highway authority, North Yorkshire County Council (the County Council), to use its powers to regulate traffic in the affected area.
The first attempt by the County Council to regulate the traffic was the North Yorkshire County Council (Temporary Prohibition of Traffic) (Kirkgate and Westgate (Part Only) Tadcaster Order 1998 No. 101. The County Council purported to rely on powers contained in section 14 of the Road Traffic Act 1984 (the 1984 Act) and the Road Traffic (Temporary Restriction) Procedure Regulations 1992. The Order sought to exclude vehicles from Kirkgate and part of Westgate from 06.00 until 17.00 on Thursdays for a period of twelve months. On 6 July 1998 SSOBT were granted leave to apply for judicial review in respect of that Order and on 23 September 1998 a Consent Order was made quashing the Order following a Form of Consent which had been signed by the parties and which contained the following provision:
"The Respondent (the County Council) and the Person Interested (the District Council) have carefully considered the Order.....in the light of the Notice of Application for leave to apply for Judicial Review.....and concede that the Respondent acted unlawfully in seeking to make the Order in reliance on section 14.....in order to facilitate the holding of a weekly market and consequently the Order was ultra vires the County Council."
This amounted to a concession that the temporary prohibition procedure was inappropriate. There was a further skirmish in November and December 1998 at a time when the District Council was contemplating temporary closure on two days in the run-up to Christmas by resort to powers in the Town Police Clauses Act 1847 but SSOBT and others dissuaded them from this by a threat of further legal action.
In the meantime, steps were taken with a view to permanent prohibition. A sub-committee of the County Council (No 4 Area Highway Sub-Committee) reconsidered the matter on or about 27 November 1998 and on 2 December 1998 the County Council sent SSOBT copies of a proposal to make an order, adding that the proposal
"is being pursued following representations from Selby District Council to hold a Thursday Market"
The proposal referred to an application for planning permission which had been made by the District Council and described a proposed Traffic Regulation Order restricting vehicular traffic. The Statement of Reasons added
"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."
Nor surprisingly, the District Council, as local planning authority, granted planning permission to itself for the relocation of the Thursday Market from Central Car Park to Kirkgate and Westgate on 16 March 1999. The appropriate committee of the County Council considered the matter again and resolved to publish the proposed Traffic Regulation Order and on 19 March 1999 a Notice was published in the local press. In response to the Notice, SSOBT's solicitors and others wrote letters of objection. Detailed correspondence ensued during the period of consultation but on 10 September 1999 the County Council resolved to proceed with the order which was sealed on 1 October 1999 to come into force on 14 October 1999.
The somewhat prolix title of the Order is the North Yorkshire County Council (Prohibition of Driving Except for Access and Revocation of One-Way Traffic Flow) (Kirkgate/Westgate, Tadcaster) Order 1999. I shall henceforth refer to it as "the Order". In its terms, it is stated to have been empowered under section 1(1) and 2(1) to (3) of the 1984 Act. In the present proceedings, SSOBT seek to challenge the Order by way of the statutory procedure prescribed by paragraphs 34-37 of part VI of Schedule 9 of the 1984 Act. On such an application the Court
"if satisfied that the Order, or any provision of the Order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the Order or any provision of the Order."
(Paragraph 36(1)(b))
No issue arises as to the standing of SSOBT to make such an application. Apart from its brewing activities, it owns properties in the area covered by the Order.
The statutory framework
Section 1(1) of the 1984 Act enables a traffic authority such as the County Council to make a Traffic Regulation Order
"in respect of the road where it appears to the authority.....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
......
(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrian); or.....
(f) for preserving or improving the amenities of the area through which the road runs."
I have omitted reference to (b), (d), (e) and (g) which are not relied upon in the present case. Section 2 sets out provisions which may lawfully be included in a Traffic Regulation Order. Section 3 provides for certain restrictions on Traffic Regulation Orders. In particular, such an order
"shall not be made with respect to any road which would have the effect
(b) of preventing for more than 8 hours in any period of 24 hours access for vehicles of any class,
to any premises situated or adjacent to the road, or to any other premises accessible for.....vehicles of that class, from and only from the road." (Section 3(1).
However, that provision, so far as it relates to vehicles, "shall not have effect" in so far as the authority are satisfied, and it is stated in the Order that they are satisfied, that
"(a) for avoiding danger to persons or other traffic using the road to which the Order relates or any other road, or
(b) for preventing the likelihood of any such danger arising, or
it is requisite that subsection (1) above should not apply to the Order."
Section 5 makes it a criminal offence to contravene the Order.
Section 122, so far as material, provides as follows:
"(1) It shall be the duty of every local authority upon whom functions are conferred by or under this Act, so to exercise the functions.....as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expedient, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway....
(2) The matters referred to in subsection (1) above as being specified in this subsection are-
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to....the local authority...to be relevant."
It will become necessary to refer to other statutory material but these are the central provisions applicable to the making of a Traffic Regulation Order. I shall now turn to the grounds upon which SSOBT seek to challenge the order in this case.
Improper or collateral purpose
On behalf of SSOBT, Mr. Village made two interlinked submissions: (1) that the purpose of the Order was to facilitate the transfer of the Thursday Market from Central Car Park to Kirkgate/Westgate; (2) that any perceived danger or likelihood of danger within the meaning of section 1(1)(a) would only arise as a result of such a transfer and would not otherwise exist. One way or the other, he submitted, the County Council had not exercised its order-making powers for any of the purposes set out in section 1(1). Moreover, those powers had to be considered in the context of section 122. So far as the latter provision is concerned, he relied on a passage in Greater London Council v. Secretary of State for Transport [1986] JPC 513, where Oliver LJ stated (at p. 517):
"The starting point was the duty which was imposed on the GLC by section 122. It was a duty `so to exercise the functions conferred on them by the Act to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrian)', and the GLC, in carrying out that duty was `so far as practicable' to have regard, specifically, to the effect on the amenities of any locality affected and.....the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the road runs."
Mr. Village emphasised the words "the starting point" and suggested that the duty flowing from it is in the nature of an absolute duty. In essence, his argument was that the County Council had taken its eye off the ball and had allowed itself to be distracted by consideration of a purpose - the transfer of the Thursday Market - which was outwith the range of permissible purposes. In this regard he referred to evidence to the effect that the Order is, as a matter of practicality, a prerequisite for the holding of the Market in Kirkgate and Westgate and that, mindful of this, the purpose of the County Council in making the Order was to enable the Market to be relocated.
When No 4 Area Highway Sub-Committee had met on 11 September 1998, several Councillors expressed views about the market. For example, Councillor Wilson said:
"We want it to be plain that what we want to achieve is the transfer of the Market to Kirkgate."
To which Councillor Metcalfe added:
"The whole objective is to get the Market into Kirkgate because it is in terminal decline......The priority is to get the Market into Kirkgate."
And Councillor Mrs. Ashton:
"It is important to get the Market back"
When the Director of Environmental Services wrote a report for the same Sub-Committee on 12 March 1999, he stated:
"At your meeting on 11 September 1998, Members agreed that the relocation of the market should be pursued as a high priority."
He later co-authored (with the head of Legal Services) a report for the subsequent meeting of 21 May 1999 which stated:
"The Order is necessary for safety reasons because Selby District Council wishes to hold a market in the street and has granted planning permission for the market to take place."
All this (and more), submitted Mr. Village, showed that the County Council, as highway authority, was motivated by a desire to line up alongside the District Council as proponents of the relocation, regardless of the highway implications which would simply have to be made to correspond. Moreover, the matters which the Order sought to address would not exist but for the existence of the Order itself.
On behalf of the County Council, Mr. Crawford submitted that there is nothing to suggest that the statutory powers were deployed for an improper or collateral purpose. First, the Statement of Reasons which accompanied the proposal for the Order identified three reasons why it was considered expedient to make the Order and they corresponded with section 1(1)(a), (c) and (f) of the 1984 Act. They were proper highway reasons and must be accepted at face value unless shown to be inapplicable. Secondly, the argument on behalf of SSOBT confused purpose with consequence. Even if a particular consequence was considered desirable by some or all of the Councillors, that does not mean that the purpose of the Order was otherwise than a proper highway purpose, albeit that it was pursued following a request from the local planning authority and in the light of a grant of planning permission. Thirdly, the contemporaneous documents showed that the County Council, regardless of its views about the desirability of relocating the Market, correctly kept its eye on the highway ball. Fourthly, it is dangerous to place reliance on words attributed to particular Councillors at a meeting because (a) those quoted may be - indeed, were in this case - a minority of those present and (b) councillors who start off on the wrong legal foot may well be acting with complete propriety by the time the decision is taken: see Porter v. Magill [1999] LGR 375, 402, per Schiemann LJ. Fifthly, the way in which the achievement of an incidental, albeit desired, consequence, is tolerable, provided that the purpose for which the power was exercised falls within the parameters of the statute is illustrated by London Borough Transport Committee v. Freight Transport Association [1991] 1 WLR 828 (HL). Sixthly, the primary criterion in section 1(1) is what is considered "expedient". When applied in the context of section 1(1)(a), what is expedient "for avoiding danger" clearly embraces the anticipation of danger and, as is opined in the Encyclopaedia of Highway Law, para 3-1666, an order "can take account of conditions which do not yet exist but which may exist when some extrinsic event takes place". Seventhly, it is necessary to have regard to the reality that the local planning authority had granted planning permission (which was not conditional upon the making of a traffic regulation order) and that decision had gone unchallenged. In the circumstances, the County Council was bound to have regard to that reality when considering its powers under section 1(1). Eighthly, the attempted reliance upon the Greater London Council case (supra) was misplaced.
These are formidable arguments and, in my judgment, they put paid to the allegation that, in the present case, the County Council pursued an improper or collateral purpose. I am entirely satisfied that the Order was made for the stated purposes set out in section 1(1)(a), (c) and (f). The fact that County Councillors shared the view of their colleagues on the District Council about the desirability of the relocation of the Thursday Market is unremarkable and does not begin to sustain an argument that the Order results from a highway decision that was made in order to achieve non-highway purposes.
Section 122
Although Mr. Village sought to derive assistance from section 122 in connection with his argument concerning improper or collateral purpose, he also referred to it as supporting a discrete ground of challenge. In so doing, he again relied on the passage from the judgment of Oliver LJ in the Greater London Council case to which I have already referred. He submitted that it is authority for the proposition that section 122 imposes a duty on a highway authority to exercise its functions under section 1 "so.......as.....to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians)", in such terms that it is an absolute duty and not subject to the parenthetical phrase "so far as practicable having regard to the matters specified in sub-section 2". Applied to the facts of the present case, the Order fails to secure the expeditious, convenient and safe movement of traffic because it envisages two-way traffic in part of Kirkgate that is normally one-way and is thereby a recipe for confusion.
Mr. Crawford's answer to this submission was that it rested on an expansive and unjustified reading of the judgment of Oliver LJ which does not support the proposition of law and was, in any event, obiter. Support for this is to be found in St. Helens Metropolitan Borough Council v. West Lancashire District Council (1997) 95 LGR 484 where Carnwath J said (at p.491):
"I do not find section 122 an altogether easy section to construe. It refers to a wide range of different matters which have to be taken into account, but it is not clear precisely how the priorities between these various matters are to be ordered. The words `so far as practicable' show that some limitation is intended on the weight to be given to some of the factors. In GLC v. Secretary of State for Transport, the Court of Appeal appears to have assumed that those words qualify the duty to have regard to the items in subsection (2) thus, in effect, making those matters subordinate to the matters which are referred to in subsection (1). However, there appears to have been no detailed argument on the point in that case and the comments appear to be obiter. To my mind, it seems more likely that the intention is the other way round. Had it been as the Court of Appeal suggests, one could have expected the parenthesis to read `having regard so far as practicable to the matters specified in subsection (2) below.' Furthermore, it is difficult to see the purpose of such a limitation on a duty which is simply to `have regard' to certain matters, since it is always practicable to have regard to matters, not always to give them effect. It is more likely that the limitation was intended to qualify the duty in subsection (1) to secure the expeditious, convenient and safe movement of traffic, that being a duty which would otherwise be expressed in absolute terms."
I find myself to be wholly in agreement with this analysis and conclude that there is no absolute duty pursuant to section 122. Moreover, even if there were, SSOBT have not established a breach of it. Their case is based upon two letters of objection which were written by persons associated with them. The County Council was entitled to conclude that such objections were adequately met by appropriate signs.
Irrationality
The next challenge to the Order is on the ground that it is, in a public law sense, irrational. In part, the argument draws on material to which I referred in the context of improper purpose. Thus, Mr. Village submitted, as the only potential source of danger in the context of section 1(1)(a) would not exist but for the making of the Order, no reasonable highway authority would make an Order such as this. I do not need to repeat what I have already said about that submission. However, the case on irrationality was also put on other grounds. One was that it was irrational to conclude that, in its detail regarding two-way traffic for part of Thursday, the scheme was a rational way of avoiding danger. The second was that, in reaching its decision, the County Council did not take into account certain material considerations. In this regard, Mr. Village criticised the report of the Director of Environmental Services dated 12 March 1999 and, in particular, the following passage:
"The principal concerns of the objectors relate to the maintenance of access to properties served from Kirkgate and Westgate, and the effect of operating a section of Kirkgate as two-way flow on only one day of the week. The Orders will be drafted to retain access to premises. The revocation of the one-way Order on Kirkgate between Pegg Lane and High Street is aimed at facilitating access to premises and the layout of stalls has been amended to take account of this and of previous problems. Any fine tuning of the stall location can be dealt with by Market Staff. There is currently no access to Kirkgate from High Street. During the operation of the Market only drivers requiring access to premises will be permitted and the signing will make this clear. The number of vehicles is likely to be small, as is the opposing flow. Officers are, therefore, satisfied that it can operate safely."
Mr. Village `s complaint was that this does not do justice to the points made on behalf of the objectors. He referred particularly to a letter of objection from Mr. Bentley, SSOBT'S chief architect, which raised various points to do with vehicular access, the conflict between pedestrians and vehicles, confusion arising on non-market days and the existing dangerous habits of some drivers. Mr. Village sought to gain support from a traffic survey which has been carried out on behalf of SSOBT and the County Council since the Order was promulgated but he rightly accepted that it could have little, if any, bearing on the rationality of the Order.
In my judgment it simply cannot be said that the making of the Order was irrational. I do not consider that the summary, in both narrative and tabular form, of the objections which was prepared by the Director of Environmental Services was deficient. There is no reason to suppose that the objections were not taken into account. The weight to be accorded to them was primarily a matter for the decision makers. In the event, there was no objection from the Police or the other emergency or public services, nor from interested groups such as the Road Haulage Association. I do not find anything of substance in this ground of challenge.
Section 3
I turn next to an ingenious argument based on section 3 and the prohibition on orders which "have the effect.....of preventing for more than 8 hours in any period of 24 hours access for vehicles of any class.....to any premises situated on or adjacent to the road..." The Order in the present case, having provided in article 1 for the prohibition of vehicles between 06.00 and 17.00 on Thursdays, continues:
"2. Nothing in Article 1 of this Order shall render it unlawful for any motor vehicle to proceed along the road therein specified if the vehicle is being used:
(a) for fire brigade, police or ambulance purposes;
(b)(i) in connection with any building operation or demolition [or various other similar activities];
(ii)in the service of a local authority or water authority in pursuance of their statutory powers and duties;
(iii) for the purpose of conveying persons, goods or merchandise to or from premises or land adjacent to that road;
and cannot conveniently be used for such purpose in any other road."
Mr. Village submitted that this offends section 3(1)(b) because, in relation to premises which are "conveniently" accessible from "any other road", there is a restriction for more than 8 hours in any period of 24 hours of access from the restricted area. The difficulty with this argument is that, although there is clearly a restriction or hindering of access in the envisaged circumstances, it does not have the effect of "preventing" access. In Corfe Transport Ltd. V. Gwynedd County Council [1984] RTR 79 McCullough J refused to give the word "preventing" (in the equivalent part of the predecessor legislation) the wider meaning for which Mr. Village contended. I am satisfied that "preventing" in this context means "precluding" and not "restricting" or "hindering". Accordingly, this ground of challenge fails. An alternative submission based on section 3(2), does not arise.
Uncertainty
The final challenge to the Order was on the ground that it is void for uncertainty. Mr. Village submitted that the word "conveniently" in article 2, supra, is inappropriately uncertain, having regard in particular to the fact that the order is enforceable by a criminal sanction (section 5(1)). He sought to support this submission by reference to Staden v. Tarjanyi (1980) 78 LGR 614. However, it is to be observed that in giving the second judgment in that case Woolf J. said (at p.624):
"I regard this.....as being an exceptional case where the argument which normally has little prospect of success based on uncertainty applies, and certainly in relation to uncertainty the decision should not be regarded as having a wide application."
Although it is clear that there are circumstances in which an instrument may be vitiated by uncertainty, the principle is a limited one. The leading modern exposition is that of Simon Brown LJ in Percy v. Hall [1996] 4 All ER 523 (CA). Whilst it may be described in a very technical sense as obiter, it is in my experience regularly applied. It draws on the speech of Lord Denning in Fawcett Properties Ltd. v. Buckingham County Council [1961] AC 636, 678:
"I am of opinion that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them"
Simon Brown LJ preferred this approach to the line of authorities from Kruse v. Johnson [1898] 2 QB to Staden (supra). He said (at p. 535:
"At what point does a bye-law become invalid for uncertainty? It seems to me insufficient to answer.....that this can safely be left to the magistrates of the day or the judges on appeal. Better, surely, as with the Fawcett test, to treat the instrument as valid unless so uncertain in its language as to have no ascertainable meaning, or so unclear in its effect as to be incapable of certain application in any case.....being a criminal provision, it will be wherever reasonably possible construed or, as the case may be, applied to avoid penalty."
I observe that the Fawcett test which has prevailed was apparently not considered in Staden.
In the present case, applying the approach of Simon Brown LJ to the "conveniently" criterion cannot be said to be uncertain. In any particular situation it has an ascertainable meaning and is capable of application. It is no more uncertain than are words such as "reasonably", "dangerously" or "carelessly".
Conclusion
It follows from what I have said that, in my judgment, the grounds upon which SSOBT seek to challenge the Order are not made out and the challenge therefore fails.