England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9th October 2003

Thursday, 9th October 2003 J U D G M E N T

MR JUSTICE MOSES:

Introduction

1. Walk up Penniless Cove Hill towards the castle. Turn left towards Castle Square. You are in the walled town of Tenby. To your right is a raised terrace, separated from the square by a substantial stone retaining wall. The Claimants own No.3, one of three adjoining houses fronted by the raised terrace. Beneath lies the harbour

"with water praying and call of seagull and rook and the knock of sailing boats on the wet webbed wall"

(it is, after all, October, and Laugharne is not far away).

2. On 29th January 2003 the Pembrokeshire County Council passed the Pembrokeshire County Council (Tenby Harbour) (Controlled Area) (Vehicle Use) Terms and Directions 2003 ("the Directions"). They were made pursuant to the byelaws relating to Tenby Harbour dated 21st December 1995. The byelaws themselves were made under the South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975. In this application for judicial review the Claimants challenge the power of the Council to make the 2003 Directions. They contend that the Directions are outwith the power conferred by the 1975 Revision Order and the Harbours Act 1964. They further contend that the Directions are Wednesbury unreasonable and contrary to Article 1 of the First Protocol of the European Convention on Human Rights.

The facts

3. The Claimants bought No.3 Castle Square in 1976. It is, like the other two houses, divided into holiday flats. At No.3 the Claimants retained one for themselves, and the other two are used for holiday lettings. The history of parking on the raised terrace shows that parking was controlled by those with either the freehold or leasehold interests in the three properties. In the statement of facts relied upon in support of the claim, it is said that the raised terrace is used for the stationing of vehicles associated with properties behind it. The centre of the raised terrace stands about six feet above the level of Castle Square beneath. The Claimants, since approximately 1978, had lockable chains across both ends of the raised terrace installed upon it, so that, by and large, vehicles other than those associated with No. 1, No. 2 and No.3 Castle Square have not been able to enter on to it. It should, however, be observed that at both the northern end and at the southern end the terrace slopes down to meet the level of the junction of Castle Square. In about 1988 it became apparent that the chains were becoming damaged or left unlocked, allowing others to park there. In those circumstances, on 22nd February 1989 the Claimants wrote to South Pembrokeshire District Council, the predecessors of the defendants, indicating that they intended to put a collapsible barrier at each end of the boundary of the road. (I shall turn later to the response of the Council, as it is relevant to questions of ownership.) In fact, it did not prove necessary to put up a collapsible barrier. Between 1976 until 1993 the Council introduced concrete paviours onto the raised terrace, but maintenance was carried out by the Claimants. There were at that stage still locked chains at either end of the raised terrace. Subsequently, the Claimants erected bollards, which were dug in and laid into paviours in 1995 without any complaint from the Council.
4. It is important to observe in relation to that history of parking being controlled by the Claimants that the Council did not assert ownership over the terrace. Nor did they assert that the terrace was a public highway. Proprietary interests over the roadway consisting of the raised terrace appear to have been uncertain: (see, in particular, the conveyance relating to No.2 in 1991, which conveyed "together with (so far as the vendors can grant the same) a right of way at all times and for all purposes over the roadway...". In September 1971 when the claimants made the usual preliminary enquiries before buying No.3 Castle Square, the Council responded to the question as to whether the roadways were maintained at public expense, "No", and in relation to whether there had been any resolution as to the maintenance of the road, "No".
5. On 22nd February 1989 the claimant, Mr Richards, wrote to the defendants' predecessors as follows:

"Our tenants are currently experiencing tremendous parking problems immediately in front of our house -- when we purchased the property we were led to believe that we owned the road right up to the wall, and we had a permanent right of way."

6. The response from South Pembrokeshire District Council was on 13th March 1989:

"Having discussed this matter with various officers it would appear that the land in front of your property, up to the wall, is not regarded as being in Council ownership."

Then later:

"No public right of way is registered over the land but presumably you and your neighbours have private right of access over each others frontage."

7. On 17th November 1992 South Pembrokeshire District Council wrote to a firm of solicitors, concerning someone else who was interested in parking problems in Castle Square, as follows:

"I am loath to advise the Council to seek to clarify, so that there is no doubt, precise details of ownership/public ownership rights/onus of maintenance/street cleaning etc."

And later in the letter:

"These matters also bear on the Council Member's wish to somehow regulate the use of car parking spaces on the Square for the benefit of the surrounding property owners/residents."

The letter then continued by saying that for the moment the status quo would remain.

8. On 1st November 1995 the Council made a proposal to provide bollards in each of 15 spaces and to offer specific bays to property owners for an annual charge in Castle Square, but it appears that the proposal was dropped. The Claimants objected, in a telefax message dated 10th November 1995, to having to pay for bollard allotment, as it was described, on property which the claimants considered to be theirs. On 5th March 1996 South Pembrokeshire District Council took the view that there would be no objection to a proposal to provide bollards on the raised terrace, but warned that the decision would be taken without prejudice to the ownership of the land or ability to manage that section in the future.
9. A Highways Committee meeting recorded on 1st October 1996 that it was agreed that a small section of Castle Square should be bollarded off by adjacent owners

"... without prejudice to alleged ownership or the ability of the Council to charge for parking at some future date."

10. On 30th January 1997 the Highways Committee resolved that:

"Further investigations be made into possible introduction of a Car Parking Scheme for the Tenby Harbour area."

11. On 14th April 1997 a proposal was referred to for providing seven bays in Castle Terrace, recording that the scheme was not, in fact, put into place but advising that it might be re-examined in the future. In such circumstances, the views of the occupiers were sought.
12. On 29th January 1998 the Highways Committee, under the heading "Management of Castle Square Tenby", recorded that the outcome of a previous meeting in November 1997 was that:

"Property owners in the Castle Square area were prepared to accept a management system of bollarded bays with an annual charge for their use."

It further recorded that:

"The advantage of such restricted parking would be to reduce the concept of available spaces in the walled Town and thus the degree of cruising the streets seeking a parking space. The disadvantage would be the presence of inaccessible empty spaces and the need for numerous bollards."

That report, which led to a recommendation that the management system should not be pursued, is said by the Claimant to be of significance: it is not suggested there that the parking system was concerned with the management of the harbour, but rather with the control of parking and circulation generally within the walled town. On 26th March 1998, in relation again to the management of Castle Square, Tenby, a report said:

"A series of reports have been considered by this Council and the South Pembrokeshire District Council within which there has been an attempt to control the parking in Castle Square and adjacent non-highway land. The focus has been on how to allocate spaces without challenge to the system devised." (My emphasis)

13. On 2nd April 2001 occupiers of property in the harbour area were advised as follows by the Head of Infrastructure Management:

"You will be aware of problems of congestion in the Castle Square and other parts of the Harbour Area. This arises when vehicles are parked in inappropriate locations which then impedes pedestrian and vehicular flow. The Council has resolved to examine the introduction of more control over vehicles.

The letter then went on to provide more detail.

14. The Highways and Transportation Committee recorded on 17th January 2002 that:

"The current proposal is to use the 1995 Tenby Harbour Bylaws to create Terms and Directions for the allocation of parking bays to specific users."

It also recorded that the claimant contested ownership of the land and suggest that individual bollarded spaces be provided in Castle Square and Pier Hill.

15. On 23rd January 2002 the claimants wrote to the Council, referring to the fact that they had been free to manage parking within the area of the raised terrace themselves and contesting the jurisdiction of the Council over the area where it was proposed to control parking. The Council wrote to the Claimant on 17th May 2002 identifying the area where it was proposed to provide parking bays and providing a map (which is at my page 60 of the bundle) showing seven parking bays. The idea at that time was to provide them for specific vehicles. The Claimant responded, referring to earlier correspondence in respect of which the Council had not asserted that there was a public right of way. The letter concluded as follows:

"We will most certainly cooperate, to the best of our ability; but we are not prepared to give up title of our part of Castle Terrace directly in front of our property."

16. The response from the Council on 21st June 2002 said:

"I note your support to the principle of improving traffic flow within the Harbour. The aim of the revised Terms and Conditions is to define where vehicles may park and to introduce a financial penalty for parking outside a defined space. This should address the problem with double parking which blocks access to bays and is of concern for the access of emergency vehicles.

The proposal is to treat the elevated section of Castle Square the same as Castle Square itself. This would allow individual bays to be accessed without other vehicles to be moved. It would also remove confusion to motorists who would see double parking on the raised section whilst in the main square this would invoke a ticket."

It suggested that the three flats owned by Mr Richards, the Claimant, would be each offered a single permit. The letter went on:

"The aim of the proposals is to make all parking in the Harbour area only available to permit holders. The exception being six disabled bays. The proposal should reduce trips by general motorists through the Walled Town to the harbour seeking a parking space that is not usually available."

17. The decision to introduce the Directions was made on 28th June 2002. The decision showed a map, similar to the one I have referred to, with seven bays in the raised area. The recommendation was framed as follows:

"That the proposals for the control of parking in the Tenby Harbour Area shown on the attached plan and involving mainly residents parking be implemented under the terms of the Tenby Harbour Bylaws 1995 with a charge of £100 per annum being set for a Resident's Parking Permit and £5 per annum for a Harbour's Users Permit ...

REASON FOR RECOMMENDATION

To improve pedestrian safety and the control of traffic and parking in the town centre."

There was thus no mention that the decision had anything to do with the operation of the harbour.

18. Mr John Price, Traffic Manager of Pembrokeshire County Council, says at paragraph 11 of his statement:

"When considering how to control parking in the area in more recent years the legal advice my Division received was to the effect that because the Council could not prove that it owned the land and because the roads in the Harbour area are not adopted highways it was questionable whether the Council could use its powers under the Road Traffic Regulation Act 1984 to control parking in the area, and/or an attempt to do so might be open to legal challenge. For this reason the legal advice was that the Council should use its powers under the South Pembrokeshire District Council (Tenby Harbour) Byelaws 1995 to control parking by means of Terms and Directions."

The Directions were made to come into operation on 1st March 2003, although because of these proceedings their operation has been suspended. The area in respect of which parking permits would be provided was described in paragraph 2 of the Directions as:

"1. each self-contained residential property listed in the Schedule of Properties within The Harbour shall be entitled to one parking permit."

The schedule identifies three for the house owned by the claimants.

Argument

19. The essential argument advanced by the Claimants is that the Council has used powers conferred for the purposes of harbour management for the control of parking within the Town Centre because the Council appreciated that it had no proprietary rights over the raised terrace and that the raised terrace was not a highway. It was, thus, driven to use harbour powers for a purpose which has nothing to do with the management of the harbour. Harbour powers are conferred for the purposes of the operation of the harbour, and not for controlling parking in the raised terrace, which does not impinge upon the operation of the harbour.
20. Since the issue of the proceedings considerable dispute has arisen over the proprietary rights on or over the raised terrace and as to whether the raised terrace is a public highway. It was agreed, rightly in my view, that this court cannot resolve such factual disputes in these proceedings. The case continued on the question of the statutory power to make the Terms and Directions and on the basis, in relation to the other grounds advanced, that there was a live question which persists as to such proprietary rights.

Statutory scheme under which the directions are made

21. The Directions were made pursuant to the 1995 byelaws. Those byelaws were themselves made pursuant to the 1975 Revision Order. The 1975 Revision Order was made pursuant to the Harbours Act 1964 ("the 1964 Act").
22. That Act was subsequently amended, but not in any respect material to this application. By section 14:

"(1) Subject to the provisions of this section and to the following provisions of this Act, there may, in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, be made by appropriate Minister an order (in this Act referred to as a 'harbour revision order') for achieving all or any of the objects specified in Schedule 2 to this Act.

(2) Subject to the next following section, a harbour revision order shall not be made in relation to a harbour by the appropriate Minister-

...

(b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea.

(3) A harbour revision order may include all such provisions as appear to the appropriate Minister to be requisite or expedient for rendering of full effect a provision of the order framed to achieve any of the said objects and any consequential or incidental provisions appearing to him to be requisite ... ."

23. Section 57 of the Act defines "harbour" as follows:

"... except where used with reference to a local lighthouse authority, means any harbour, whether or natural or artificial, and any port, haven, estuary, tidal or other river or inland waterway navigated by seagoing ships, and includes a dock, [or] wharf... "

"Harbour land" is defined as follows:

"'harbour land' means land adjacent to a harbour and occupied wholly or mainly for the purposes of activities there carried on."

"Harbour operations" are also defined, amongst others, as being:

"(b) the berthing or dry-docking of a ship;

(c) the warehousing, sorting, weighing or handling of goods on harbour land or at a wharf;

(d) the movement of goods or passengers within the limits within which the person engaged in improving, maintaining or managing a harbour has jurisdiction or on harbour land."

24. Schedule 2 of the 1964 Act identifies the objects for whose achievement harbour revision orders may be made. By paragraph (1):

"Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed ...

(2) Regulating (in whole or to a less extent) the procedure of, or of any committee of, the authority ...

(3) Varying or abolishing duties or powers conferred on the authority by a statutory provision of local application affecting the harbour, being duties or powers imposed or conferred for the purpose of-

(a) improving, maintaining or managing the harbour;

...

(c) regulating the carrying out by others in connection with the harbour of harbour operations or the carrying on by others of activities on harbour land.

(4) Imposing or conferring on the authority, for the purpose aforesaid, duties or powers (including powers to make byelaws), either in addition to, or in substitution for, duties or powers imposed or conferred as mentioned in paragraph 3 above.

...

(6) Settling (either for all purposes or for limited purposes) the limits within which the authority are to have jurisdiction or altering (either for all purposes or for limited purposes) such limits as previously settled."

25. By section 44(1) of the Harbours Act 1964, as amended by the Documents and Harbours Act 1966:

"A person who desires to question any such order as follows, namely a harbour revision ... order on the ground that there was no power to make the order or that a requirement of this Act was not complied with in relation to the order, ... may, within six weeks from the date on which the order becomes operative ... , make an application for the purpose to the High Court ...

(3) Except as provided by this section a harbour revision ... order shall not, either before or after it is made, be questioned in any legal proceedings whatever... ."

26. It is apparent from Schedule 2 of the 1964 Act that a revision order must relate to the management of the harbour or operations on the harbour or harbour land. Further, harbour land itself must be occupied for the purposes of activities carried on in the harbour.
27. The South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975, Article 2, identified the "harbour" as being:

"(a) the area the limits of which are referred to in article 4 (Harbour limits) of this Order and

(b) the harbour estate."

The limits of the harbour are shown in various maps but are described in words in Schedule 1 to the order pursuant to Article 4 of the order. The "harbour estate" is defined in the revision as follows:

"... the docks, piers, wharves, quays, berths, roads, railways bridges, sheds and other works and conveniences, and the lands, buildings and property of every description of whatever nature, which are for the time being vested in, occupied or administered by the Council for the purposes of the harbour and includes the peninsula known as Castle Hill."

28. Article 5 conferred general powers on the Council in respect of the harbour as follows:

"(1) The Council may, subject to the provisions of this Order take such steps, from time to time as they consider necessary for the improvement, maintenance and management of the harbour and the facilities afforded therein or in connection therewith."

Article 22 is headed: "Byelaws as to harbour."

"(1) Subject to the provisions of this Order the Council may make in relation to the harbour byelaws for all or any of the following purposes-

(a) for regulating the exercise of the powers vested in the harbourmaster:

(b) for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the harbour;

(c) for regulating the conduct of all persons in the harbour, not being members of a police force or officers or servants of the Crown whilst in the exercise of their duties;

(d) for regulating the placing and maintenance of moorings;

(e) for preventing and removing obstructions or impediments within the harbour;

(f) for regulating the use of ferries within the harbour;

(g) for regulating the launching of vessels within the harbour;

(h) for regulating or preventing the use in the harbour or on board any vessel therein of fires, lights or any other equipment, tools or appliances which the Council considers involves a risk of fire;

(i) for regulating traffic on railways within the harbour estate and the use of locomotives thereon;

(j) for prohibiting the use of or regulating the movement, speed and parking of vehicles within the harbour."

29. The byelaws made on 21st December 1995 identify the "inner" and "outer" harbour in paragraph 2 and the "harbour estate" in words which follow the revision order. Byelaw 23 reads:

"No person shall knowingly cause a vehicle to enter or remain within the limits of the harbour except for the permission of the Council or the harbourmaster and in accordance with the terms of that permission."

Byelaw 25 reads:

"All persons in charge of any vehicle brought within the limits of the harbour shall obey all duly authorised directions which may be given by the harbourmaster and conform to all signs, directions and notices erected or displayed relating to the parking and movement of vehicles and will pay such charges as may be levied by the Council."

There is a map, my page 126, which shows the area of the inner and outer harbour and the harbour estate.

Power to control parking under harbour legislation

30. Mr Vivian Chapman, in a clear and forceful argument, accepts that the claimants cannot challenge the 1975 Revision Order or, consequently, the byelaws, insofar as they include within the harbour the peninsular known as Castle Hill and thus the raised terrace. But he contends that, nonetheless, it is unlawful for the Council to seek to control parking on the raised terrace. It did not purport to do so for the sake of management of operations in the harbour, as defined in the 1964 Act, and such parking control, he contends, has nothing to do with the operation of the harbour as defined in the 1964 Act. Indeed, both the Revision Order and the Byelaws identify the harbour in a more restricted way than the harbour estate. In those circumstances, he contends, the Council had no power under the Byelaws to make the 2003 Directions.
31. The Council's first response is to point out that such a contention is not referred to in the grounds of claim and was made only for the first time in the skeleton argument after the Council had pointed out the inability to challenge the Revision Order 1975, in consequence of section 44. Accordingly, the Claimants have proposed an amendment to the claim in which they contend, under paragraph 17A that:

"[The 2003 Directions as made pursuant to the Byelaws] is ultra vires the defendant insofar as it relates to the raised terrace since the raised terrace (a) is not 'harbour' nor 'harbour land' as defined by s 57 of the 1964 Act, (b) is incapable of achieving the objects specified in Schedule 2 to the 1964 Act, and (c) falls outside the ministerial objects specified in section 14(2(b) of the 1964 Act."

32. I accept, as Mr Chapman accepted, that strictly this point was not taken earlier. The earlier arguments were based on unlawful actions under the Revision Order, and what, in effect, was being argued was that the Revision Order, in its geographical description of the harbour estate, was outwith section 57.
33. The Terms and Directions, as I have said, are at present suspended. In my view, the argument advanced before me and set out within the proposed amendment is sufficiently close not to take the Council by surprise. Nor, in the light of evidence (to which I shall turn shortly) from the harbourmaster, is the Council prejudiced. I conclude that the Claimants should be allowed to argue the point. Accordingly, I allow the amendment of which a draft was annexed to the application of 24th September 2003.
34. It is plain that the byelaws fall within the power conferred for the purposes of making directions within the harbour: see Article 22(j) of the Revision Order. By virtue of Article 2 the "harbour" includes the harbour estate, which itself included the peninsular known as Castle Hill and thus the raised terrace. But, contends Mr Chapman, even if the byelaws control parking within the geographical area of the harbour, they must, nevertheless, be made for the purposes identified within Schedule 2 of the Act, namely for the purpose of managing the harbour or the activities thereon: see paragraphs 3(a) and (c) of Schedule 2 of the 1964 Act. The application of the byelaws, through the instrument of the Terms and Directions, is unlawful, contends Mr Chapman, because it seeks to regulate parking for the purposes of traffic control within the inner town or walled town of Tenby generally. Such control has nothing to do with the management or operation of the harbour.
35. The submissions of the Claimant start with the difficulty of the definition of "the harbour" within the Revision Order and the byelaws. Since no challenge was made to the jurisdiction of the harbour authority under the Revision Order, it must be assumed that the limits of the Council's jurisdiction, as harbour authority, pursuant to paragraph 6 of Schedule 2, were set as being desirable in the interests of securing the improvement, maintenance or management of the harbour as defined in section 57 of the 1964 Act: see section 14(2)(b) of that Act. Moreover, it profits the Claimants nothing to complain that control of car parking on Castle Terrace has nothing to do with the management of the harbour when the harbour is identified in the Revision Order and the byelaws as including the terrace itself. Nonetheless, I am prepared to accept that directions made under paragraph 23 and 25 of the byelaws must not be made for some purpose other than that for which the power to make such directions was conferred. The plain purpose is to control traffic within the harbour area for the better management of the harbour. Were it to be shown that the Terms and Directions had nothing to do with the management of the harbour but were rather made for some manifestly and demonstrably ulterior purpose, then it may well be that the directions would be unlawful. Indeed, although no formal concession was made by Mr Rhodri Williams for the Council, he was not disposed to argue to the contrary.
36. Article 22 of the Revision Order is headed "Byelaws as to the harbour". Each and every sub-article concerns specifically the operation and management of the harbour, as defined in the 1964 Act, save possibly (c), (i) and (j). But, construed in the context of the heading and the other Articles, it is plain that the byelaws must relate and are expected to relate to the operation of the harbour as defined in section 57. Moreover, the Revision was made for the express purposes identified in section 14(2)(b), which focuses on the harbour as broadly understood and defined in section 57. But those observations do not necessarily assist the Claimants. The geographical description of "the harbour" and "the harbour estate", identifying the limits of the harbour authority's jurisdiction under the Revision Order, carry with them an acknowledgment that the areas close to, but not actually part of, the harbour may have a direct effect on the operation of the harbour, particularly nowadays, when it is a hub of leisure activities and water sports, made even more attractive by its beautiful location in Tenby. I am quite satisfied that it was open to the Council to take the view that control of parking on the raised terrace but a short distance from the harbour, joining as it does Castle Square at both ends, has a direct effect on the operation of the harbour.
37. The harbourmaster is now unfortunately called a Harbours Manager. He is Mr Carl Evans. Between paragraphs 6 to 10 of his witness statement he describes the difficulties in parking control in the area and the importance of such control, particularly in relation to access, for example, to the all-weather lifeboat station and for the purposes of fuel deliveries. In paragraph 14, he says:

"The area needs to be controlled to allow for safe, clear and free access for both authorised vehicles and pedestrians. Currently approximately 100,000 passengers use Tenby Harbour per annum and there are over 300,000 sundry other visits per annum. The raised terrace of Castle Square is integral to any scheme, both in terms of the gross parking space availability, to provide for adequate safe vehicular turning and manoeuvrability, and as a secondary access route should any blockage occur to or works need to be conducted upon the lower Castle Square route."

38. The importance of clear and ready access to the harbour needs no emphasis. I can well understand the direct effect of congestion due to parking on roads near to the harbour. The knock-on effect is obvious, should only some of those roads be outwith Council control. It is trite to observe that those judgments are not for me but for the Council, provided it is acting within the powers. I acknowledge that the decision to make the Directions, to which I have already referred, refers only to pedestrian safety in the Town Centre. But the Town Centre is itself part of the harbour area. The decision was made in the context of the discussion as a whole. The decision and early discussions refer to the harbour area. I am satisfied that the Council regarded the whole of what is shown in various maps not merely as the Town Centre but rather as a harbour area, as they described it, for example, in the discussions recorded on 17th January 2002 which led to the making of the Terms and Directions.
39. I conclude that the Council was entitled to use powers conferred for the purposes of management of the harbour to control parking nearby. It was entitled to take the view that such control was likely to have a direct effect on the access to the harbour itself. The order was not made outwith the Council's powers.

Were the directions unreasonable?

40. It was further contended that it was irrational to make an order relating to the raised terrace. The order reduces parking spaces from 14 to 7. It deprives the owners of the opportunity to park outside their own property with no countervailing public advantage. Parking has successfully been controlled by the owners for some 25 years without any disruption to access to the harbour itself. I ought to observe that such parking has been double parking, preventing the terrace being used by vehicles passing over and down to Castle Square (see in particular the letter from the Council dated 21st June 2002).
41. I am quite unable to conclude that the decision of the Council to make those directions was irrational. It sought to improve control of the parking and it regarded that as necessary for the purpose of improving access to the harbour and circulation in the harbour area.

The Human Rights Act

42. Finally, it was contended that the directions infringed the rights of the Claimants enshrined in Article 1 of the First Protocol. But unless and until any proprietary right, such as to constitute a possession, is established, the Claimants cannot begin to establish any such breach. The meaning of "possession" is autonomous, but the mere assertion of such rights in these proceedings cannot amount, in my view, to a possession, even though certain claims in relation to possessions may arguably be regarded as themselves possessions (see Pressos Compania Naviera SA v Belgium [1995] 21 EHRR 301).
43. It is a matter of some controversy as to the extent to which a claim may be a possession. But in this case no claim has been made which the claimants have been able or have sought to make on the evidence. The claim to ownership remains one of mere assertion, which this court is unable to resolve. Those assertions do not amount to possessions, and no issue accordingly under Article 1 arises.
44. I recognise my decision will be of some considerable disappointment to the Claimants. They have made sensible and reasonable protests. But, for the reasons I have given, this application fails.
45. MR WILLIAMS: My Lord, in those circumstances, I ask for an order that the claim be dismissed and that the Council be awarded its costs. We did tentatively agree last time that those costs would be subject to detailed assessment. I am happy for that to occur, although I do have a schedule, if you Lordship wishes to deal with it.
46. MR JUSTICE MOSES: Yes. One thing at a time.
47. MR CHAPMAN: Obviously I cannot say anything about the order that my learned friend proposes, save that it ought also to deal with the interlocutory matters which your Lordship mentioned during the course of the judgment, which would be that I should have permission to amend my detailed statement of grounds as asked in the application notice.
48. MR JUSTICE MOSES: Yes.
49. MR CHAPMAN: That the time limit be abridged to validate the application notice.
50. MR JUSTICE MOSES: If I just give you permission to amend those terms, as I did in the body of the judgment, surely everything else follows.
51. MR CHAPMAN: Yes. Could I also have permission to rely on the witness statements.
52. MR JUSTICE MOSES: Yes.
53. MR CHAPMAN: Because I think you did refer to them.
54. MR JUSTICE MOSES: Yes, I did.
55. MR CHAPMAN: But, subject to that, there is nothing I can say.
56. MR JUSTICE MOSES: Yes. I shall dismiss the application with costs. What do you want to do about an assessment. Do you want to have it?
57. MR CHAPMAN: I think a detailed assessment, if not agreed.
58. MR JUSTICE MOSES: Very well then.
59. MR CHAPMAN: So far as permission, unless my learned friend has anything else on the terms of the order.
60. MR WILLIAMS: No. I am entirely happy about it.
61. MR CHAPMAN: So far as permission to appeal is concerned, I have an application. In my submission the point that we have put forward is a very arguable point. Your Lordship has decided against me on the grounds that the Council could have, within the scope of their powers, made traffic regulation orders in relation to the raised terrace for operation purposes. But I would like to have the opportunity to argue that in fact they did not do so, bearing in mind the reasons that they actually gave. In my submission that is an arguable point.
62. MR JUSTICE MOSES: But the legal point, in a sense, is almost -- I put it in fairly tentative terms -- you have won but lost on the facts.
63. MR CHAPMAN: Well, what I say about the facts, of course, is that the facts which your Lordship relied on were the facts which were asserted, as it were, after the event; whereas before the event, in accordance with the various passages which you read out during your judgment, these particular grounds were not asserted.
64. MR JUSTICE MOSES: No, I follow.
65. MR CHAPMAN: So I would like to argue, if possible, before another court.
66. MR JUSTICE MOSES: I am afraid you must ask their Lordships for permission. I do not think any point of principle really arises. Is there anything else?
67. MR CHAPMAN: No, my Lord.
68. MR JUSTICE MOSES: Thank you all very much.
(The Court Adjourned)