QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|(1) PAUL DH RICHARDS|
|(2) GILLIAN A RICHARDS||(CLAIMANTS)|
|PEMBROKESHIRE COUNTY COUNCIL||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR RHODRI WILLIAMS (instructed by Legal Services, Pembrokeshire County Council) appeared on behalf of the DEFENDANTS
Crown Copyright ©
MR JUSTICE MOSES:
"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).
"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."
"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."
"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."
"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.
"... without prejudice to alleged ownership or the ability of the Council to charge for parking at some future date."
"Further investigations be made into possible introduction of a Car Parking Scheme for the Tenby Harbour area."
"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)
"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.
"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.
"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."
"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."
"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.
"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.
Statutory scheme under which the directions are made
"(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 ... ."
"... 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."
"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."
"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... ."
"(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."
"(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."
"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
"[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."
"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."
Were the directions unreasonable?
The Human Rights Act