England and Wales High Court (Administrative Court) Decisions

Ashbrook v East Sussex County Council [2002] EWHC 481 (Admin) (27th March, 2002)

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2002

Mr Justice Grigson:

1. At Framfield near Uckfield in East Sussex there is a footpath designated as Framfield 9. It runs from a public road across land owned by a company called Rarebargain Ltd. In or about 1989 a large barn was constructed directly across the footpath. It is to be assumed that that was done at the behest of or at least with the consent of Rarebargain. The footpath was completely obstructed. Subsequently further obstructions were put in place - a barbed wire fence, a locked gate and a line of refrigeration units. It is difficult to draw any conclusion other than that these were deliberate acts designed to deprive the public of the use of the footpath.
2. The Claimant, Ms Ashbrook is an officer of the Ramblers Association who are concerned to preserve public rights of way. She and the Organisation are particularly concerned that landowners should not be allowed to obstruct public footpaths in the way that Rarebargain Ltd have done in respect of Framfield 9.
3. The East Sussex County Council is the Local Authority with responsibility under the Highways Act 1980 for the maintenance of public rights of way.
4. Their statutory duty is to be found in section 130(1) of the Highways Act 1980

“1) It is the duty of the Highway Authority to assert and protect the rights of the Public to the use and enjoyment of any highway for which they are the Highway Authority.......”

5. Sub-section (3) to which I have been referred is in these term;

“........it is the duty of a council who are a highway authority to prevent as far as possible the stopping up or obstruction of

a) the highways for which they are the highway authority......”

6. Mr Green, counsel to the Local Authority, submits and I accept, that this provision relates to prevention and not cure. It is irrelevant in this matter as the stopping up or obstruction had already occurred.
7. In order to carry out their statutory duty the Highway Authority is given certain powers.

First:

8. Section 143

1) Where a structure has been erected or set up on a highway otherwise than under a provision of this Act or some other enactment, a competent authority may by notice require the person having control or possession of the structure to remove it within such time as may be specified in the notice.

9. It is to be noted that the Highway Authority have discretion as to whether or not they exercise this power.
10. There is no suggestion that Rarebargain Ltd does not have control or possession of these obstructions.
11. Section 143(2) reads:

“If a structure in respect of which a notice is served under this section is not removed within the time limit specified in the notice the competent authority serving the notice may, subject to subsection (3) below, remove the structure and recover the expenses reasonably incurred by them in so doing from the person having control or possession of the structure.”

12. Subsection (4) gives a wide definition of structure as would include gates, fences, refrigerator units and buildings.
13. Between 1989 and the late 1990’s there was inconclusive discussion between the Highway Authority and representatives of Rarebargain as to the obstructions.
14. On the 20th March 2000 the Local Authority served notices under section 143 upon Rarebargain Ltd requiring the removal of the gates, barbed wire, refrigeration units and barn within 90 days.
15. The Claimants submit that when making the decision to issue notices under Section 143, the Council must have decided that the removal of the obstacles was reasonably achievable. They assert that otherwise the decision would be unlawful.
16. I see no basis for that submission. There is no requirement of reasonable achievability in the section. If such a qualification was to be implied, it would provide an incentive for the determined obstructor of the highway to create as large and permanent an obstruction as he could.
17. In my judgement the only conclusion that can be drawn from the decision to issue the Section 143 notices are:

i) That the footpath had been obstructed.

ii) That the obstruction was unlawful

iii) That in pursuant of its duty under section 130(i) the Council were requiring Rarebargain Ltd to remove that unlawful obstruction.

18. What action the Council took thereafter would be governed by the response of Rarebargain Ltd. Obviously, had the obstructions been removed, the Council would need do nothing further. What actually happened was that Rarebargain Ltd applied for the footpath to be diverted.
19. It was on the 15th June 2000 that Solicitors acting on behalf of Rarebargain Ltd applied for the diversion of the footpath. They agreed as part of the application that if the diversion was adopted they would do work such as would bring the proposed route up to a satisfactory standard in terms of safety and amenity.
20. On the 30th June 2000 an alternative proposal for the route of the diversion was proposed.
21. The Council had to decide what course of action they should pursue. They could not properly exercise their powers under section 143 (2) without first considering and rejecting the application for diversion.
22. The powers relating to diversion are to be found in Section 119 of the Act.

“:i) When it appears to a Council as respects a footpath.... that, in the interests of the owner.......of land crossed by the path......, it is expedient that the line of the path..........should be diverted.........the Council may, subject to sub-section 2 below, by order made by them and submitted to and confirmed by the Secretary of State or confirmed as an unopposed order -

a) create.........any such new footpath ..........as appears to the council requisite for effecting the diversion, and

b) extinguish ...... the public right of way over so much of the path ...... as appears .......requisite.”

23. Section 119 (6) reads:

“the Secretary of State shall not confirm a public path diversion order and a Council shall not confirm such an order as an unopposed order unless he or .........they are satisfied that the diversion to be effected by it is expedient as mentioned in subsection (i) above and further that the path .......will not be substantially less convenient to the public in consequence of the diversion and that it is expedient to confirm the order having regard to the effects which -

a) the diversion would have a public enjoyment of the path ...... as a whole.

b) -

c) - ”

24. The Concise Oxford Dictionary give two definitions of expedient;

“:i) convenient and practical although possibly improper or immoral.

ii) Suitable and appropriate.”

25. I think it safe to assume that Parliament had in mind the second, although I dare say the Claimants would suggest that the first is an apt description of the Council’s conduct.
26. It is beyond question that it was in the interests of the landowner to divert the footpath.
27. The Council had to confront two other questions immediately;

i) Did it appear to them that it was expedient that the path be

diverted?

ii) Was the path as diverted substantially less convenient to the

public?

28. If the answer to the first question was ‘no’ or the answer to the second question was ‘yes’, then the Council would have to consider exercising its power under section 143(2) on the safe assumption that Rarebargain Ltd was not going to comply with the notice under subsection I. It should be remembered that they had discretion as to whether they did or not.
29. If the answer to the first question was ‘yes’ and to the second question, ‘no’ then if there was no objection the Council would have to consider whether it was expedient to confirm the order having regard to the effect which the diversion would have on the public enjoyment of the footpath. If there was objection, that last question fell to be determined by the Secretary of State.
30. On the 18th October 2000 the Council made the East Sussex (Footpaths Framfield 9 (Part) Public Path Diversion Order 2000. On the 8th June 2001 having received a substantial number of objections the Council submitted the Order to the Secretary of State for confirmation.
31. The Claimant has submitted that the Council failed to apply the test set out in section 119 (6). As appears from what I have said above, in my judgement the test only falls to be applied by the Council when they decide whether to confirm an unopposed Order.

“a Council shall not confirm such an order as an unopposed

order unless......they are satisfied...”

32. It follows that it is only the first two questions that the Council had to address after the application for diversion was made.
33. Mr Munn is the Senior Rights of Way Officer for the East Sussex County Council, Transport and Environment Directorate. He was the author of what he describes in his witness statement as an internal guidance note, its purpose being to establish a more uniform approach to the determination by the four Area Officers of public path diversion applications. He asserts that the guidance has not been adopted as policy or approved by the Council. It is not generally circulated to members of the public. However it is supplied to interested members of the public for their assistance.
34. The documents must be read as a whole:

EAST SUSSEX COUNTY COUNCIL

GUIDANCE NOTE FOR PROCESSING PUBLIC PATH ORDERS

The County Council’s Aim

To consider applications for path diversion from landowners/tenants and to

promote changes to the rights of way network in the county where these are

considered to be advantageous to the applicants and beneficial to the public

Policy

All applications and proposals will ONLY be dealt with when the following criteria are met:-

1] The Definitive line of the rights of way affected by the proposal are open, signed and clear and safe to use.

2] The status of the path is not in dispute.

3] The statutory criteria for a path diversion can be met.

4] If a proposal is in the applicants, landowners and/or tenants interest the proposal will only proceed on the receipt of the following.

(a) Written agreement that the County Council’s administrative and advertising costs will be met.

(b) Written agreement that any required works will be undertaken and paid for by the applicant/landowners and/or tenants.

(c) Production of proof of title to the land affected.

5] The proposal is not considered to increase the County Council’s financial liability towards the maintenance of the rights of way subject to the proposal or if the financial liability is reduced.

6] Where a public right of way has been obstructed by a structure/building with or without planning permission, a diversion will be considered and processed if:-

(a) The removal of the obstruction is not considered reasonably achievable.

(b) A suitable safe alternative route is available.

(c) All applicants, landowners and/or tenants agree in writing to the proposal and the applicants, landowners and/or tenants agree to pay the County Council’s administration and advertising costs.

(d) All applicants, landowners and/or tenants agree to undertake and pay for any works that may be required to bring the proposed route into good order.

7] The County Council will only contribute to/pay the costs involved in changing the path network if:-

(a) The suggested changes to the network have been put forward by the County Council and therefore are considered to be solely in the public interest.

(b) Where a natural event renders a Definitive right of way unsafe for public use.

(c) If corrections are required to the Definitive map where a mistake has been made in drawing up the map prior to and during the period up to the latest revision/publication of the Definitive Map.

(d) A proposal is put forward by landowners/tenants which would provide major benefits for the public using the path/paths concerned.

35. Although this document was created for the benefit of Officers of the Council, it is supplied, on request, to members of the public. Given the terms of the document and given that it was intended to guide officers of the Council and used to assist members of the public I am quite satisfied that it is properly described as the Council’s policy. The document is in plain terms and I do not need to consider the question of whether it bears a ‘jargon’ meaning. The meaning of the document would be much the same to a Council officer as to a member of the public.
36. In my judgement the publication of that document does give rise to a legitimate expectation that the Council will be guided by its own policy and that if it chooses not to do so, it will give reasons for making that choice.
37. The policy is expressed in emphatic terms.

“All applications and proposals will only be dealt with when the following criteria are met:-

(1) The Definitive line of the rights of way affected by the proposal are open, signed, clear and safe to use.”

38. It is common ground that when the application was being considered that criterion had not been complied with.
39. The Claimant submits that in ignoring that criterion and considering the application the Council was failing to conform to their own policy and frustrated the legitimate expectation that they would follow their own policy. She wrote and told the Council exactly that on the 14th November 2000. She invited the Council to exercise its powers under Section 143(2) to ensure that the state of the footpath conformed with criterion 1.
40. The submission ignores paragraph 6 of the Policy Document.:

“Where a public right of way has been obstructed by a structure/building with or without planning permission a diversion will be considered and processed if:

a) the removal of the obstruction is not considered reasonably achievable.

b) if suitable safe alternative route is available.”

c) & d) need not be considered here.

41. It is plain that the policy document envisaged and dealt with the consideration by the Council of applications for diversion even though criterion [1] had not been fulfilled. In my judgement a member of the public reading the document as a whole cannot have had any legitimate expectation that the Council would only consider the application when criterion [1] was satisfied. Despite the emphatic terms of that criterion, it is plain from the wording of 6. that if the Council took the view that the removal of the obstruction was not reasonably achievable, they could consider the application for diversion even though there was no compliance with criterion 1. I find as a fact that the Council acted in accordance with its policy when it chose to consider the application made on the 15th June 2000.
42. That, however, is not a decision actually the subject of these proceedings.
43. The first decision of the Council which the Claimant seeks to impugn is the decision of the 8th June 2001 to submit the Diversion Order to the Secretary of State for confirmation. That decision can only be justified if the Council answered question a) in the affirmative; i.e. that it was expedient to divert the path; and question b) in the negative - that the path as diverted was not substantially less convenient to the public.
44. These decisions had to be taken in accordance with policy.
45. As to expediency, the Council had to consider 6(a) - whether the removal of obstructions is considered reasonably achievable. As to “substantially less convenient” then the Council had to consider 6 (b) whether a suitable safe route is available.
46. Section 137 of the Act provides;

i) 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.........

47. The section provides for the offender to be punished by way of fine and in addition section 137 (2) (a) provides that;

if it appears to the Court that

a) the obstruction is continuing and

b) it is in that person’s (the offender’s) power to remove the cause of the obstruction

The Court may ...... order him to take within some reasonable period as may be fixed by the order such steps as may be specified in order for removing the cause of the obstruction.

48. Subsection (4) provides that where an Order is made under section 137 (2) (a) but is not complied with the Highway Authority may remove the cause of the obstruction and recover the costs thereof under section 143 (2).
49. In short terms, there are two possible triggers for action by the Highway Authority under section 143 (2): first the failure to comply with a section 143 notice and second failure to comply with an Order of the Magistrates Court under section 137 (2) (a).
50. Mrs Ashbrook issued summons under section 137 of the Act against Rarebargain Ltd. in respect of each of the obstructions of Framfield 9. On the 20th March 2001 Rarebargain Ltd. was convicted in respect of each, fined, and ordered to remove the obstructions - the fence, gate and refrigeration units within 28 days, the barn within 6 months - i.e. by the 20th September 2001.
51. Rarebargain Ltd. had not appeared at the hearing. There was no appeal from the Orders of the Magistrates Court.
52. It is evident that the Council knew or ought to have known of the proceedings in the Magistrates Court and the Orders.
53. These Orders are relevant if relevant at all to the first question - was the removal of the obstruction reasonably achievable. Under the section the Magistrates do not have to consider whether the removal of the obstruction is reasonably achievable. As I understand the legislation, there is no machinery which enables the Magistrates Court to enforce its order. All they can do is to continue penalising the offenders financially if the order is not complied with It is only the Council which can actually remove the obstruction.
54. On the 8th June the Order of the Magistrates Court in relation to the most substantial obstruction of the footpath, the barn, had not yet bitten. So, in reality, the Council’s position was much as it had been before.
55. It was open to the Council to decide that the removal of the barn was not reasonably achievable and without the barn being removed, the removal of the other obstructions was of little point. They decided that it was expedient to consider the application. I cannot see how that decision can be impugned. It was reasonable, on a purely practical level albeit it appeared to condone flagrant and deliberate obstruction of the footpath.
56. The second question for the Council was whether the proposed diversion was
substantially less convenient and in making that decision to consider whether 6 (b) “a suitable safe route is available.”
57. The Council’s position appears in a letter of the 28th July 2001 where reference is made to the proposed alternative route available ‘on the ground’. In fact, the alternative route was not then available on the ground if that phrase means that the ‘suitable safe route’ is there and then available for the use of the public. The Claimants evidence is that the final proposal of diversion was never in a suitable and safe state for use.
58. The Claimant submits that if the Council acted on the premise that the alternative route was then available, they acted in ignorance of an established and relevant fact. See Alconbury Developments v. Secretary of State for the Environment [2001] 2 WLR 1389.
59. It is important to note that the plan attached to the Public Paths Diversion Order refers to the ‘proposed diversion’ and the Order itself reads:

“Rarebargain Ltd......... have agreed to defray any expenses which are incurred in bringing the new site of the path into a fit condition for use by the public.”

60. Criticism of the state of knowledge of the Council may or may not be valid but the decision was taken and must have been taken on the basis of the proposal and undertakings by Rarebargain. In the context here the phrase ‘a suitable safe route is available’ must mean that a suitable and safe route is available for the diversion. To illustrate the point, if the only available route for diversion could not be rendered safe - for example if it took the public close to the edge of an unstable cliff, then a suitable safe route was not “available.” In my judgement ‘is available’ means ‘available once the necessary work has been done’. It does not make practical sense to require the diversion to be made safe and suitable before the order has been confirmed. What the Council had to consider was the suitability and safety of the diversion as proposed.
61. In my judgement the decision of the Council

a) to consider diversion.

b) to make the diversion Order and

c) to submit the Order to the Secretary of State for confirmation

was all within the discretion of the Council and there is no sustainable argument that the decision was taken contrary to policy or in ignorance of material facts.

62. Further the Council had discretion as to whether they took steps to enforce the section 143 notices. They were entitled to consider and make the Diversion Order before taking such steps, for the obvious reason that if the Diversion Order was confirmed, there would be no point in doing so.
63. In these circumstances it must follow that all the Claimant’s applications fail.
- - - - - - - - - - - - -

MR JUSTICE GRIGSON: As is apparent, the claimant's application fails. Are there any applications?

MISS SKERRETT: My Lord, I appear on behalf of East Sussex. In relation to the costs, before I address your Lordship on the principle and amount, could I hand up a revised schedule, I understand the one you have now is inaccurate.

MR JUSTICE GRIGSON: I do not think I have one at all.

MISS SKERRETT: I understand my learned friend is also relying on the skeleton, have you got a copy of that before I address you on those points, my Lord?

MR JUSTICE GRIGSON: No.

MR WOLFE: My Lord, it may be that your Lordship -- a copy was sent through, it clearly has not reached your Lordship. It may be that my learned friend would want to deal with it by way of reply rather than in opening, and your Lordship, clearly, has not had a chance to read it.

MR JUSTICE GRIGSON: Can I just read it and we will see where we are going?

MR WOLFE: Of course, my Lord.

MR JUSTICE GRIGSON: Yes, I have read that. Miss Skerrett, have you seen it?

MISS SKERRETT: Yes, I have, relatively briefly, yes. I can deal with it. Firstly, in relation to the application for costs. In principle, it is quite simple, we say the ordinary rule should apply. The reason for that being wholeheartedly the judgment upholds the defendant's submissions in which they deal with all of the claimant's challenges. The claimant's submissions are wholly refuted by yourself and denied. I think that is set out quite clearly at paragraph 61 of the judgment where it says that there is no sustainable argument that a decision was taken contrary to policy or in ignorance of material facts and, I submit, my Lord, that clearly resolves all the issues.

In relation to my learned friend's point in his skeleton, he submits that the ordinary rule should not apply because this is an issue of true public importance. Well, clearly, there is that line of argument, but that, I would submit, does not apply in the present case. Whilst the issue is clearly of public importance, there are always likely to be private interests at stake as well.

My learned friend makes the point that this raises an issue of public importance in that it applied the East Sussex policy, well you yourself determined that in your judgment that it was not relevant to the present decision at hand. I can take you to the relevant paragraph, if that is necessary, that is paragraph 41 of the draft judgment as handed down. I would say that was not relevant to the present decision and, therefore, cannot be relied upon to justify departing from the ordinary rule of costs. At that stage I think I will let Mr Wolfe make his submissions.

MR JUSTICE GRIGSON: I do not think you need to, Mr Wolfe. I have read your skeleton argument. I accept the submissions there. I shall make no order for costs.

MR WOLFE: My Lord, I am most grateful on that. My Lord, can I deal with the question of permission to appeal? Your Lordship's draft judgment, if I can ask your Lordship to take it up very briefly, and before taking your Lordship to the detail of it, I will simply remind your Lordship of the two-strand test which arises in relation to permission to appeal. Two questions, expressed in the alternative in Part 52.3(6), whether the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard, and my Lord may be assisted by looking at the footnote in the White Book.

MR JUSTICE GRIGSON: Can you give me a page number?

MR WOLFE: Page 983, if your Lordship has the autumn 2001 text. My Lord, the test is on the left-hand page, page 982, about halfway down the page, (6): "permission will be given where the court considers the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard." Then, my Lord, on the right-hand page, page 983, towards the foot of the page, in paragraph 52.3.15, there is an illumination of the second limb of the test, namely the question of whether there is a compelling reason. My Lord sees in the penultimate paragraph, about six lines up from the foot of 983: "The question, certainly for these purposes, comes down to whether the case raises an issue where the law needs clarifying", and over the page, at the top of page 984, it is suggested that the approach to rule 52.3.6 should be purposive rather than literary: if there is some other compelling reason then the real prospect of success test remains but it is applied more charitably.

My Lord, as I say, there are two limbs. In my submission both of those are in play in this case, both the real prospect of success on the merits of an appeal and this is an area in which the law needs clarification. If I can deal with those in reverse order. Plainly, your Lordship has dealt, in part, with the specifics of the East Sussex policy and the application of that. My Lord, there is plainly a much wider importance, albeit only with East Sussex, for that policy to be properly applied and understood. But your Lordship's judgment has also dealt with the question which arises when following the new legislation, the 2000 Act. Magistrates have made an order requiring obstructions to be removed, and the question then dealt with by your Lordship is: what are a local authority's obligations in those circumstances? That is plainly of much wider public importance. Your Lordship has expressed views on both of those things, so there is the narrow geographical and the national issues in play. My Lord, just picking up a couple of paragraphs of your Lordship's judgment, if I may, in relation to those matters. First of all, at paragraph 62, the closing paragraphs of your Lordship's judgment, your Lordship makes the observation, this is in relation to section 143 notices so, the power to remove the obstruction.

MR JUSTICE GRIGSON: Yes.

MR WOLFE: Then in the second sentence: "They were entitled [the defendant] to consider and make the Diversion Order before taking such steps", in other words, acting on the notices, "for the obvious reason that if the Diversion Order was confirmed, there would be no point in doing so." My Lord, with the greatest respect, observations in that respect arguably overlook the fact that the obstructions will have to be removed in any event because there is in place a Magistrates' Court order to which effect will need to be given.

MR JUSTICE GRIGSON: There is no machinery to enforce it.

MR WOLFE: There is no machinery to enforce it but, equally, there is no machinery to revoke it, so it will remain in play regardless, even if, contrary to everything else my client wishes to see happen, whether the order is made effective, the barn will still have to be removed. So that is the first matter in play. Secondly, my Lord, just going backwards through your Lordship's judgment, in relation to your Lordship's observations about East Sussex policies, this is at paragraph 61 of your Lordship's judgment, your Lordship has adopted a construction of the policy which was not contended for.

MR JUSTICE GRIGSON: You have made this point in your skeleton argument.

MR WOLFE: My Lord, in my submission, particularly given that East Sussex did not themselves contend for the construction your Lordship in the end found to be the correct one, plainly there is a real prospect of success in arguing for the position that was effectively commended to the court as common ground between the parties as to what that limb meant.

MR JUSTICE GRIGSON: Let me hear what Miss Skerrett says.

MISS SKERRETT: My Lord, in relation to my learned friend's submission about the merits of success, I would say there is not actually a real prospect of success in that all issues have been dealt with within the judgment, and all the allegations, as raised by the claimant, have been rejected. There appear to be no outstanding issue that the claimant has been partly successful on. My learned friend has put a lot of emphasis on the point of East Sussex policy, without wishing to repeat myself, my Lord, I shall make clear, as per paragraph 42 of the judgment, you state: "That, however, is not a decision actually the subject of these proceedings." Therefore, I submit, it would be inappropriate to grant permission to appeal on the basis of the wider public importance of the East Sussex policy.

In relation to, I think, perhaps a subsidiary point of my learned friend in relation to the existing magistrates' order, as I understand it, I will just repeat the point you yourself made, my Lord, in that there is no machinery to put that into progress and, equally, there is no machinery to revoke it. I take that point by my learned friend, but I do not think that is sufficient in itself to justify granting permission on grounds of reasonable prospect of success and on a some other compelling interest. At this stage, my Lord, there is nothing I wish to address you on further.

MR GRIGSON: I will give you leave, Mr Wolfe.

MR WOLFE: My Lord, I am grateful.

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