QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GOVERNORS OF HOCKERILL COLLEGE||Claimants|
|HERTFORDSHIRE COUNTY COUNCIL||Defendant|
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Mr S Pickles appeared on behalf of the Defendant
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(b) that, as respect any relevant highway for which they are the highway authority and which crosses land occupied for the purposes of a school, it is expedient, for the purpose of protecting the pupils or staff from -
(i) violence or the threat of violence,
(iii) alarm or distress arising from unlawful activity, or,
(iv) any other risk to their health or safety arising from such activity,
that the highway should be stopped up."
"(4) Where this section applies, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the highway.
(6) Before making a Special Extinguishment Order, the council shall consult the police authority for the area in which the highway lies.
(8) The Secretary of State shall not confirm a Special Extinguishment Order ..... and a council shall not confirm such an order as an unopposed order unless he or ..... they are satisfied that the stopping up ..... is expedient as mentioned in sub-section (1) (b) above and that it is expedient to confirm the order having regard to all the circumstances, and in particular to -
(a) any other measures that have been or could be taken for improving or maintaining the security of the school,
(b) whether it is likely that the coming into operation of the order will result in a substantial improvement in that security,
(c) the availability of a reasonably convenient alternative route or, if no reasonably convenient alternative route is available, whether it would be reasonably practicable to divert the highway under Section 119B below rather than stopping it up, and
other provisions not directly relevant to this case.
"They were advised prior to the inquiry to carry out a number of further tasks which would assist them with arguing the case for confirmation. Your clients have so far been quite assiduous in obtaining incident reports to help their case, but they may consider some of the York recommendations to be pertinent."
She added this:
"This of course would not affect the decision to make an order, as the tests do not require the points below to be met. However it would be very important at the confirmation stage, as the legislative tests do not then require the matters below to be taken into consideration."
The claimants rely on there being distinct stages in this process.
"the making of an SEO be deferred for a period up to six months to enable the applicant the opportunity to finish the ..... initiatives and provide additional evidence to satisfy the Highway Authority that ..... tests required by the legislation for an order have been met; and
within a period of six months, on receipt of additional evidence for the making of a SEO, the matter be referred to the Development Control Committee for determination."
"We ..... noted that the matter will go back to the councillors for determination as opposed to the officers. We understand that if an order is made and there are still objections, then clearly the objectors will have the right to be heard at an enquiry. It appears to us that if an officer's recommendation was made to stop the footpath up, but that was not accepted by the councillors, the school has no further recourse save for an application for judicial review."
That is a reference to the fact that the officers had in mind a deferral by the committee of a decision until the officers were satisfied. But, as it happened, the committee decided to retain that decision to itself until a meeting six months later.
" ..... that the applicant has met the additional requirements. All of the necessary legislative tests have been met with regard to the section of the path between points B and C on the attached plan. As such, it is recommended that the Director of Environment make a Special Extinguishment Order to stop up that part of Bishop's Stortford Footpath 53 between points B and C ..... "
But the committee resolved not make the order and that is what leads to this case.
"8.1 ..... The Manor Road gates are kept closed by the school but members of the public keep opening them and leaving them open. The school has tried to police this but is finding it difficult; it intends to replace the manual gates for electronic ones at the end of February 2007."
There is other similar material.
" ..... the SEO ..... should not be made for the following reasons:
- the footpath is well used,
- the violence, threats of violence and harassment incidents need to be reacted to by improved security and continued police action against persons mainly youths causing the incidents,
- that Footpath 53 is used as a means of access by children and residents to gain access to neighbouring schools and the local community hospital and its closure may lead to residents instead driving children to the nearby schools or driving to the community hospital,
- ease of accessing the site from Dunmow Road plus with gates already provided sometimes being left open, further security works were required to make the college premises more secure and that a Footpath Extinguishment Order on its own would not provide the total solution at the present time."
The Differences between the Parties
"satisfied that the stopping up of the highway is expedient, and
(b) it is expedient to confirm the order having regard to all the circumstances and in particular to the matter specified in 8 [which I have read out]."
Case Law Guidance
"14 ..... On the face of Section 119 (1) the word 'may' gives the authority a discretion, even in a case where the condition precedent is fulfilled, not to embark on the statutory process.
15 On the face of the sub-section therefore the authority has a discretion as to whether or not to make an order. I do not consider that the mere fact that it is expedient in the interests of the owner that the line of the path should be diverted means that Parliament has imposed on the authority a duty to make such an order once it is satisfied that this condition precedent has been fulfilled."
"In my judgment the authority faced with an application to make a footpath diversion order is at liberty to refuse to do so. In considering what to do the council is, in my judgment and contrary to Mr Birts' submissions, entitled to take into account the matters set out in Section 119 (6). [That is the equivalent to sub-section (8)]. It would be ridiculous for the council to be forced to put under way the whole machinery necessary to secure a footpath diversion order where it was manifest that at the end of the day the order would not be confirmed ..... "
"31 ..... This case depends upon the nature of the duty or discretion that is imposed upon a Local Authority that receives an application for a diversion of footpath order under Section 119. It would not be surprising if a high degree of discretion and judgement were conferred upon the Local Authority in those circumstances."
Lord Justice Buxton went on to give two reasons:
" ..... The first is that Section 119 deals with interference with, and changes to, public rights, that is to say the rights of the public in the footpath. The custodian and adjudicator upon those rights is the Local Authority, and it is to be expected that as a public authority it is given considerable discretion to deal with matters of public interest. That conclusion as to Section 119 is, in my judgement, reinforced by the point very fairly made by Mr Birts that exactly the same procedure applies under Section 118 which deals not with the diversion, but with the stopping up of footpaths and bridleways, that is to say their complete extinction: which might well be thought to have a more extensive impact on public rights than does a mere diversion. That is the background to the structure of these sections.
33 ..... On another reading, even of the literal words, the discretion of the Local Authority continues past the stage of the making of the order and into the stage of considering whether to submit the order to the Secretary of State. In light of the background considerations that I have already ventured to refer to, it seems to me that the latter reading is by far the more cogent interpretation of this section."
"The issue before the inspector was clearly one of balance. The council had submitted 'that the benefits of closure outweigh any limited adverse effect the closure would have upon the public and also outweigh any remaining marginal historical significance'. The objectors disagreed. In paragraph 39 the inspector agreed with the objectors. In my judgment, he was entitled to do so. I can well understand that the council is disappointed with the decision. It may indeed be surprised by the decision. It is possible that another inspector might well have reached a different conclusion ..... "
He makes further observations to similar effect about the nature of the discretion.
Grounds 1 and 2 - Submissions
R U L I N G
R U L I N G
There were occasions during judgment when I had difficulty hearing. I have indicated same with a query - (?)