QUEEN'S BENCH DIVISION
B e f o r e :
|MICHAEL JOHN HILL||Claimant|
|(1) SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT|
|AND THE REGIONS|
|(2) MID-SUSSEX DISTRICT COUNCIL||Defendants|
Smith Bernal Wordwave Limited
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MISS J BOYD (instructed by Messrs DMH, Brighton BN1 3YB) appeared on behalf of the Claimant on 5th February, 2003
MISS N LIEVEN (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Defendant on 4th February 2003
MR T BULEY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Defendant on 5th February 2003
MR W UPTON (instructed by Legal Department, Mid-Sussex District Council, Haywoods Heath, West Sussex RH16 1SS) appeared on behalf of the Second Defendant
Crown Copyright ©
"Without planning permission, the carrying out of engineering operations by the formation and laying out of a means of access including a track and entrance on to a classified road."
It then went on to identify, by means of an attached plan, the approximate position of the operations against which the enforcement was to be applied.
"Development required by the conditions of a site licence for the time being in force under the 1960 Act."
As I have already said, there was a site licence in force. The conditions required, among other things, that an access should be constructed to enable the caravan to be taken on and off the site.
"The permission granted by Schedule 2 shall not, except in relation to development permitted by Parts 9, 11, 13 or 30, authorise any development which requires or involves the formation, laying out or material widening of a means of access to an existing highway which is a trunk road or classified road, or creates an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons."
"'Classified road' means a highway or proposed highway which-
(a) is a classified road or a principal road by virtue of section 12(1) of the Highways Act 1980 (general provision as to principal and classified roads); or
(b) is classified by the Secretary of State for the purposes of any enactment by virtue of section 12(3) of that Act."
That sounds, on the face of it, simple. Sadly, it is not because, as this case has exemplified, there is a real difficulty in ascertaining whether a road such as Valebridge Road -- which is not an A road or a B road -- is indeed a classified road. Part of the problem is that the concept of classified road commenced, as we shall see, in 1919 and was purely designed to deal with funding, because classified roads would be funded, at least in part, out of central rather than local government funds. Since then, there have been a number of Acts which have affected the position. However, the concept of classified roads for the purposes of funding really came to an end in the Act of 1980. It had been radically changed in previous Acts, but as I say it came to an end in 1980.
"For the purpose of advances for the construction, improvement, or maintenance of roads, the Minister may, after consultation with the Roads Committee hereinafter referred to and the local authorities affected, classify roads in such manner as he thinks fit, and may, by agreement with the local authority, defray half the salary and establishment charges of the engineer or surveyor to a local authority responsible for the maintenance of such roads, subject to the condition that the appointment, retention, and dismissal of such engineer or surveyor, and the amount of such establishment charges, shall be subject to the approval of the Minister."
"... classified by the Minister under the Ministry of Transport Act, 1919, in Class I or Class II or any class declared by him to be not inferior to those classes for the purposes of the Local Government Act, 1929."
So matters stood until after the war.
"It is the intention of the Minister to issue a declaration that roads classified by him in Class III are not inferior to roads classified in Class I or Class II for the purposes of the Local Government Act, 1929, and the Local Government (Scotland) Act, 1929. It follows, therefore, that when any road vested in an Urban District Council becomes a Class III road, the County Council will became the highway authority for that road: similarly, that, when any road vested in the Town Council of a small burgh becomes a Class III road, the functions of the Town Council as highway authority in respect of that road will be transferred to and vest in the County Council."
That last bit I think relates to Scotland. Then it indicates what the level of grant will be for Class I, Class II and Class III roads.
"For the purposes of subsection (3) of this section any road which, immediately before the commencement of this Part of this Act, was classified under the said section 17 [that is section 17 of the Ministry of Transport Act 1919] in Class I, II or III shall, until the Minister otherwise directs, be treated as classified under subsection (2) of this section as a classified road for the purpose of every such enactment or instrument as is mentioned in the said subsection (3)."
Pausing there, that subsection makes it plain that there must have been roads classified under section 17 of the 1919 Act in Classes I, II and III, although, as I say, no specific document has been put before me which establishes that.
"... so far as it relates to the making of advances to local highway authorities and for the purposes of any enactment or instrument (whether passed or made before or after the passing of [the 1966 Act]) which refers to highways classified by the Minister, classify highways and proposed highways in such manner as he may from time to time determine after consultation with the highway authorities concerned."
So that gives a general power to the Minister to classify highways in ways which he decides would be appropriate for the future. That is a general subsection which gives him that power for the purposes of any enactment or instrument -- that of course includes subsidiary legislation such as the GPDO -- relating to classified highways.
"... in any enactment (including an enactment in any local Act) or any instrument in force at the commencement of this Part of this Act any reference to a highway classified, or classified in any class, under the said section 17 [of the 1919 Act] shall be construed as a reference to a highway which for the time being is classified by the Minister under subsection (2) of this section-
(a) as a principal road for the purposes of advances under the said section 235; or
(b) as a classified road for the purposes of that enactment or instrument."
It will be noted that subsection (3), therefore, deals with enactments or instruments in force at the commencement of the 1966 Act, which was April 1967.
"Subject to subsection (3) below, all such highways or proposed highways as immediately before the commencement of this Act-
(c) were classified roads for the purposes of any enactment or instrument by virtue of being treated as such in accordance with section 27(4) of the said Act of 1966,
continue to be, and to be known as, principal roads or, as the case may be, classified roads (or both principal roads and classified roads of a category other than principal roads, in the case of highways falling within both paragraph (a) and paragraph (b) above) for the purposes specified in subsection (2) below."
"The County Council's Engineer has confirmed that Valebridge Road was transferred from East Sussex County Council at the re-organisation of Local Government on the 1st April 1974. He confirm that it is listed as C52 under Class III roads and is shown on page 17 of the Schedule of Roads supplied by East Sussex County Council. I attach a copy of page 17 of the Register."
That is the page from which I have just read the relevant extract.
"During 1984 the work of classifying roads will be delegated to the Regional Offices (Transport).
The RRU will retain the records detailed in this guide and from January 1984 will maintain the 1:10,000 national classification record maps covering England from copies of declarations and trunk road orders issued by the Regional Offices (Transport)."
It then describes, in paragraph 1.7, how Class III roads were introduced in 1946. It refers to the declarations made between 1946 and 1966 and states they are kept in heavy green binders and listed in a book titled "Class III Roads Register of Declarations 1946-1966". It goes on:
"From all these documents, a clear picture of the Classified Network immediately prior to the introduction of Principal Roads in 1967 can be reconstructed for any particular area."
"A route number does not determine the classification of a road, although it might indicate it. A road only becomes Classified, Principal or Non-Principal when either a Declaration or a Trunk Road Order has been made to that effect. It does not cease to be classified until a further Declaration is made. This process is governed by statute (Highways Act 1980, Section 12). Route numbers are not referred to in any legislation, and the Secretary of State has no powers to enforce their allocation."
It also raises this caveat:
"As the highway authorities are not accountable to the Department for the erection of signs, there are many discrepancies between RRU records and the situation in the field. RRU records show what has been agreed, not what the highway authority have actually put into effect. If the function of a road has been altered by the removal of a sign, then that route should be reclassified. It is Regional Controller's responsibility to liaise with the highway authority to ensure that the appropriate action is taken."
That does not engender the greatest confidence in the system in being to identify classified roads for the purposes of planning and development, or indeed for any purpose.
"Some lesser roads are, like principal roads, classified roads. They are classified for the purpose of attracting legislation relating to the control of development and sundry other matters. They have in common a value to traffic other than that associated with their immediate area. The more important of the non-principal classified roads are numbered with a 'B' prefix. Some others are given numbers prefix 'C', but this is for administrative purposes only and the numbers are not usually shown on maps or road signs."
Of course it is right that when one drives through the countryside one will normally see signs which indicate which roads are B roads and which roads are A roads. But signs in relation to other roads do not indicate that they are C roads, or indeed that they are any other classification at all. One sometimes may in some areas have a sign which indicates that the road is unclassified, but that is a rarity. Certainly there is no assistance given in relation to Valebridge Road from any sign.
"With regard to the description of Valebridge Road as a 'classified road', the highway authority's Inventory of Maintainable Highways shows this section of road to be part of the classified C307. Therefore, as a matter of fact, Valebridge Road is a classified road in the eyes of the Council and they are entitled to describe it as such."
That may be so, but that has no legal effect at all because the point being taken was that it was not a classified road for the purposes of the GPDO. The fact that the council described it as such and were entitled to regard it as such cannot assist.
"In an appeal on ground (c) the onus of proof is on the appellant to show that there has not been a breach of planning control."
That is a statement with which Mr Clay quarrels. He submits that that is putting it far too high and too generally. He accepts, as he has to, that there is the decision in Nelsovil Ltd v Minister of Housing and Local Government  1 WLR 404 which has been regarded, ever since 1962, as governing the approach in enforcement notice appeals. But he submits, essentially, that the principle of Nelsovil cannot extend to requiring an appellant to prove a negative, in circumstances where it really is unfair and impossible for him to carry out that task. So here, he submits, that it must be for the local planning authority to establish that this was indeed a classified road. If they cannot do that, the inability of the appellant to establish that it was not a classified road should not mean that he fails to succeed in his appeal.
"Mr Dawson's argument is that the onus is on the local planning authority to establish the necessary features of an enforcement notice, and the facts which they rely upon as showing that they are entitled to restrain the use complained of. In particular, he says that the onus is on the local planning authority to prove that the development alleged occurred after the appointed day, and if it is material, to prove that the development occurred within four years of the service of the enforcement notice ... This, in my view, unquestionably does raise a question of law and one perhaps of general interest, and I approach the matter in this way: when one looks at [the relevant section which was in force at the time], the words show that the landowner seeking to take advantage of its provisions appeals to the Minister on certain specified grounds. In principle, I should have thought that a person given a right to appeal on certain specified grounds is the person who has to make good those grounds and is the person on whom that onus rests. Furthermore, when one looks through the several paragraphs in section 33 [which was the relevant predecessor to section 174 of the present Act] in the majority, if not all, other than paragraph (e), the onus of proof must, in the nature of things, rest on the person appealing. To quote one example, under paragraph (a) if the issue is that permission ought to be granted, I would think it unarguable that any onus rests on the local planning authority in the first instance to prove the contrary. Furthermore, as Mr Goodfellow has pointed out, the conception of an appeal against an enforcement notice is not new. There were provisions for appeal in the Act of 1947, which have since been repealed, and again under that Act it seems to me clear that the matters raised by way of appeal were matters where the onus lay on the appellants, and it would be surprising if the onus had now changed under the new procedure of appeal which the Act of 1960 instituted. Furthermore, and I regard this of some considerable importance, for my part I can see no sort of hardship in requiring that the onus shall lie on the appellants in such a case. Where development takes place behind closed doors, it is the developer who knows precisely when the development occurs, and the local planning authority may have only the most nebulous idea as to the precise date of the change. Accordingly, as between the local authority and the original developer, it seems clear to me that the onus of proving the development occurred more than four years before should rest on the developer, and although an assignee frequently may be in a less advantageous position with regard to knowledge of when the development occurred, I see no reason why the ordinary principle that an assignee acquires no wider rights than his assignor should not apply."
"Paragraph (e), as my brother has pointed out, is the ground that the enforcement notice was not served on the owner or occupier of the land within the relevant period of four years. It is a novel proposition to me that an appellant does not have to prove his case."
"As stated in paragraph 8 of this decision, it is evident that the highway authority (West Sussex County Council), treats Valebridge Road as a Class C classified road and that the Council regards it as such for the purposes of the GPDO. The case for the appellant, however, sought to draw a distinction between roads classified for the purposes of the GPDO and other forms of road classification. The Council did not accept that it was appropriate to draw any such distinction. Having regard to all the evidence before me it is apparent that the basis upon which Valebridge Road has been classified as a Class C road is unclear. The passage of time since the road was first classified, plus changes to County Council administrative boundaries, seem to have been major contributory factors in this lack of clarity. The appellant has gone to considerable lengths to try and establish if there is a statutory basis to the classification of Valebridge Road, and his failure to achieve a definitive answer from the highway authority is due only to the apparent absence of documentary evidence in the possession of that authority. I have some sympathy with the predicament in which the appellant has found himself. Nevertheless it is apparent that, under the provisions of section 27 of the Local Government Act 1966, a road may be classified in Class I, II or III. Furthermore a road so classified for the purposes of the 1966 Act would be treated as classified for the purposes of section 12(1) of the Highways Act 1980. In the absence of evidence to the contrary, it is reasonable to conclude that a Class III road in the 1966 Act corresponds with the current Class C categorisation. As such, there is a possibility that Valebridge Road may be classified for the purposes of section 12(1) of the Highways Act 1980 and hence classified for the purposes of the GPDO. In addition, I draw some support for the view that a lesser road such as Valebridge Road might be classified for the purposes of the GPDO from a document produced by the Government Office for the South East. ... [That document I have already read.]
The reference to classification being 'for the purpose of attracting legislation relating to the control of development' suggests to me a connection between the classification of 'B' and 'C' class roads and the provisions of Article 3(6) of the GPDO. However none of this evidence provides a clear-cut answer to the question as to the basis upon which the classification of Valebridge Road occurred. The Council produced no substantial evidence to demonstrate that the road is classified for the purposes of the GPDO, but neither did the appellant produce any substantial evidence to show that it is not. As stated at the opening of this paragraph, for the appeal to succeed on ground (c), the onus of proof is on the appellant to show that Valebridge Road is not classified for the purposes of the GPDO. As a matter of fact and degree, that he has failed to do."
That, then, was the basis upon which the inspector found against the appellant.