CO/5117/2007 
Neutral Citation Number: [2008] EWHC 2060 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 10 July 2008
 
B e f o r e: 

HIS HONOUR JUDGE MACKIE QC
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Between: 
THE QUEEN ON THE APPLICATION OF GOVERNORS OF HOCKERILL COLLEGE 
Claimants 
v 

HERTFORDSHIRE COUNTY COUNCIL 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr R Pearce QC  appeared on behalf of the Claimants
Mr S Pickles appeared on behalf of the Defendant
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J U D G M E N T
1.	JUDGE MACKIE:  In order to avoid a further delay, I am going to give judgment this morning out aloud rather than by  delivering a document.  The process has been complicated by the fact that through some oversight I have been listed this morning in two cases at the same time in different Divisions. I apologise for any inconvenience that may have caused.   
2.	The claimants, the Governors of Hockerill Anglo/European College ("the school") seek judicial review of a decision made on 20 March 2007 by the Development Control Committee of the defendant, Hertfordshire County Council.  That was a decision not to make a Special Extinguishment Order ("SEO") under Section 118B of the Highways Act in respect of a public footpath which crosses the grounds of the school.  
3.	The relief sought, which I shall turn to in more detail, is an order quashing the decision and directing the council to make a fresh determination of whether or not to make the  SEO.  Permission was granted by Mr Justice Simon on 30 October 2007.  He made a suggestion that the matter might more usefully be dealt with by a fresh application.  I will return to that shortly.  
The Legislation 
4.	I should first mention the legislation as it is comparatively unfamiliar.  The Highways Act 1980 confers powers on, amongst other things, highways authorities to stop up and divert highways.  Section 118B was added by the Countryside and Rights of Way Act 2000 and came into force in February 2003.  The section confers power on a highway authority to make an SEO in respect of certain highways for two purposes, the relevant one in this case being for the purpose of protection of pupils and staff at the school which occupies land crossed by a highway which, for present purposes, includes footpaths.  
5.	There is also machinery in the 2000 Act to enable the proprietors of the school to apply for an SEO, being provisions which also require the authority to determine the application as soon as reasonably practicable.  They also confer a right of appeal on the school to the Secretary of State.  Those provisions have not been brought into force.  The school contends therefore that it has no remedy other than judicial review.  
6.	Section 118B provides in relevant part that where it appears to a council ‑
" .....
 (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, 
 (ii) harassment, 
 (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." 
7.	"Highway" is defined to include a footpath.  Sub‑section (4) states:
"(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.  
8.	Schedule 6 contains provisions which require the council which has made an SEO to publish and serve notice specifying the 28‑day period for representations.  If those are made and not withdrawn they require the Secretary of State to hold a  local inquiry or hearing before confirming an order.  There is, in Regulations of 2003, a prescribed form of order that was relied on in the course of the hearing which seems to me to add little.
The Facts 
9.	Against that background I summarise the facts, taking them largely from the skeleton argument of Mr Pearce QC, for the claimant, but modifying and adding to that account in certain respects.  The material before me consists of a number of bundles of documents with statements, notably a witness statement from the school's headmaster, Dr Guthrie. The school is a state maintained co‑educational day and boarding school in Bishop's Stortford.  As at June 2007 it had 739 pupils, of which 237 were boarders.  
10.	The topography of the site is straightforward when you look at the plan, more complicated if you try to describe it in words.  Broadly, the site is bordered by Dunmow Road to the south, by Stortford Hall Park to the north.  To the west of the southern part of the site lies Manor Road.  To the west of the northern part lies Stansted Road, and there is a gate in the perimeter of the school site from Stansted Road.  The main entrances are in Dunmow Road.  The footpath (known as FP 53) crosses the school from north to south.  The length of the footpath on the plan is 465 metres.  There is a dispute about the length of the footpath capable of being extinguished.  That is not for me today.
11.	In January 2005 the school, by its solicitors Nockolds, who appear to have done a dedicated and professional job for their clients throughout, applied to the council to make an SEO extinguishing FP 53.  That began a process taking something over two years so far.  
12.	In February 2005 Nockolds provided further supporting material.  The council that month informed the school that the application had been accepted.  In June 2005 the council wrote to Nockolds summarising the procedure it intended to follow.  The letter sought details of a number of matters and also referred to an informal consultation with local user groups, the parish and district councils, statutory undertakers and with the police authority and fire service which would also be undertaken.  Details were sought of how sections of the footpath crossed the land, what measures identified in the risk assessment had been carried out, how various unpleasant  incidents reported could be shown to originate from the  footpath and how they related to the statutory criteria, details of incidents occurring before January 2004 and how the extinguishment of the footpath would result in sustainable improvement in the security of the school.
13.	Nockolds replied in July 2005 with extensive material, including five statements.  In February 2006 the council again wrote to Nockolds giving details of a procedure and asking for responses on six matters identified in an earlier letter.  Those were answered in April.  Further information was provided in May, a site meeting of interested parties taking place in June 2006.  
14.	In July 2006 the council's Definitive Map Officer wrote that she was preparing a report for committee which she hoped to put to the September 2006 meeting.  She offered some suggestions to help the clients in the event that the order was made.  She referred to the only successful application so far being St Peter's School in York:
"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.
15.	The Definitive Map Officer then listed 12 further points for action.  Those were an Origin and Destination Survey which was completed; an Air Quality Survey which was completed; a Risk Assessment which was responded to by the school stating that it was constantly assessing risks; an independent Health and Safety Report that the school rejected because it was thought the risks posed to its pupils by the footpath were sufficiently demonstrated by the existing evidence; a count of movements across the path ‑ the school produced some calculations in September 2006; details of report of all incidents to the police; consideration of whether the path was crossed during evacuation; a report on disabled access across the bridge; obtaining a quotation for the cost of the bridge and various other matters that were done or were not unreasonably decided not to be carried out.  
16.	The correspondence continued.  
17.	The matter came up before the committee on 12 September.  The committee had a report from the officers which recommended that consideration of the making of a Special Extinguishment Order be deferred for a period up to six months to allow the applicant to finish the additional security initiatives at the school to satisfy the Highway Authority that all the tests required by the legislation have been met.
18.	The committee duly resolved ‑
"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."
19.	It should not be thought that the matter was seen as proceeding automatically to the making of an order by the council.  One sees, for example, in the letter of 19 June 2006 concerns being expressed by the solicitors for the school in the following terms:
"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.  
20.	There are also other indications that the matter was the subject of controversy as one would expect with something like a long‑established footpath.  One sees that from the materials put in before the discussion at the meeting in September.  Furthermore the school's solicitors continued to express concerns in the ensuing six months.  There is a letter on 21 September stating that they hope the council is aware of and understands the legislation and will apply it to the facts of the case.  There is another indication of concern in January 2007.
21.	The matter came back before the committee on 20 March 2007.  The officers had submitted a further report recommending ‑
" ..... 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.  
22.	The materials before the committee containing that recommendation correctly presented the legal issues for decision.  No criticism is made of the way in which the officers presented materials for decision by the committee.  The materials were not however limited to a simple recommendation by the officers that the SEO be made.  The papers referred to consultation that had been taking place since October 2006: 64 letters of objection, 54 letters of support.  The materials referred to the issue of the fencing of the perimeter of the school and identified matters which it is suggested were still outstanding.  At paragraph 8.1 it states:
"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.  
23.	The decision of the committee was expressed in reasons  which it gave as follows:
" ..... 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."
24.	The position around the school's perimeter from a  security point of view as at 20 March 2007 appears to be that there were gates on Dunmow Road and a wall there 1.5 metres high.  There were gates on Manor Road which could be forced open when closed.  An up‑grade had been ordered but not installed.  There were gates on Stansted Road and there were gates on Dunmow Road and Manor Road which were opened, or capable of being opened, when the school buildings were in use.  
The Differences between the Parties 
25.	Against that factual background, I turn back to the legislative provisions.  It seems to be common ground that Section 118B can be analysed in stages.  First, the council, in its capacity as highway authority, has to determine whether it appears to it that it is expedient for the reasons I have given that the highway should be stopped up.  If that test is satisfied, the council has a discretion to make a SEO.  If it makes a SEO it must give public notice of it.  If no representations or objections are received, the council has to determine before confirming the order whether it is ‑
"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]."   
26.	If the council is satisfied it has a discretion to confirm the order.  If representations or objections are received and not withdrawn the council has a further discretion to submit the SEO to the Secretary of State for confirmation.  If the council submits an order to the Secretary of State it must be accompanied by, amongst other things, a statement of the grounds on which the council considers the order should be confirmed.  The process then goes on to stages which have not been reached in this case.  
27.	I turn to the grounds upon which the decision is  challenged.  These are numerous.  Ground 1 is based on a submission that Section 118 must be construed to give rise to presumption that if it is expedient to the council that the highway should be extinguished an order should be made.  And it is contended that the committee erred in law in failing,  first, to determine that it appeared to the council that it  was expedient for the purposes set out in Section 118B that the highway should be extinguished, and to apply the presumption on which it relies.  
28.	Ground 2 is a claim that the committee erred in law, first, in failing properly to distinguish between matters appropriate for consideration at the initial and confirmation stages; second, in failing to hold that there was at least an arguable case that after a full consideration of the matters specified in Section 118B (8) an order, if made, would be confirmed; third, in deciding not to make an order by reference to matters which ought (unless there was no arguable case that an order, if made, would be confirmed) to be fully considered at the confirmation stage.
29.	Ground 3 is a claim that the use made of the footpath cannot properly be considered save in conjunction with alternative routes.
30.	Ground 4 is a claim that the committee erred in law insofar as it decided not to make a SEO on the grounds that the order "on its own would not provide a total solution at the present time".  
31.	Ground 5 is based on failure to observe natural justice.  The committee gave reasons and, having done so, it was under a duty to give proper and adequate reasons.  The claimants say it did not.
32.	Grounds 6 and 7 are legitimate expectation.
33.	Ground 8 is based on alleged irrationality, contrasting the Director's report with the committee's decision.  It was, I recall, not pursued.  If it was pursued, in my judgment, there was nothing in it.  
Case Law Guidance 
34.	There is little case law directly relevant to Section 118.  The first decision is R (Hargrave and Hargrave) v Stroud District Council [2002] EWCA Civ 1281, 22 July 2002.  This was a case under Section 119 of the Highways Act.  I will do no more than refer to two short passages in the judgments each of Lord Justice Schiemann and Lord Justice Buxton, recognising of course that these need to be seen in context.  I should add that the scheme under Section 119 is the same as that under Section 118.  Lord Justice Schiemann said at paragraph 14:
"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."
35.	Lord Justice Schiemann went on to deal with suggestions about the significance of the word "may" and added ‑
"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 ..... "
36.	In the course of his judgment Lord Justice Buxton said a paragraph 31:
"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." 
37.	The only other authority to which I refer is that of Mr Justice Sullivan in Manchester City Council v Secretary of State for Environment Food and Rural Affairs [2007] EWCH 3167, which I have in a Lawtel full text, (14 December 2007).  That is a case under Section 118 albeit a challenge to an inspector's decision.  The judge set out the framework and said at paragraph 83 about the nature of the exercise:
"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 
38.	Ground 1 involves a submission by the claimants that Section 118B discretion is not unfettered but must be exercised having regard to the policy and objects of the section as determined by construing it as a whole.  That is a proposition that is not in doubt.  
39.	Mr Pearce QC set out a series of considerations as to the policy and objects of the section which are disputed in paragraph 11 of the skeleton argument of his opponent.
40.	The school accepts that in the exercise of its discretion the council may take into account additional matters of which the Secretary of State has to be satisfied.  It is accepted that there will usually be an overlap between the questions of expediency within (1) (b) and those set out in (8).  However it is submitted that there will usually be no overlap between (1) (b) and sub‑sections (c) and (d), of which only (c) arises in this case.  It is submitted that the proper approach to the order‑making stage is for the council to determine whether it appears to it that expediency has been made out.  If it does so determine, the council ‑ then exercising its discretion whether to make an order ‑ may properly consider issues specified in sub‑section (8).  But at all events where these do not overlap they should only do so to the extent necessary to ensure that there is an arguable case that,  after full consideration of these matters at the confirmation stage, an order, if made, would be confirmed.  That is consistent with the approach in Hargrave.  
41.	The council disagrees.  The council emphasises the contrast between the high degree of discretion vested in the council's decision and the underlying requirement for the balance to be struck between competing interests, important features of a statutory regime.  It says that the submissions based on overlap overlook the fact that it is conceded that regard has to be had to all the circumstances at the initial stage.  The council submits that the concession is a clear indication of the impracticability of hard and fast distinctions between Section 118B (1) and (8), let alone inferring standards of proof in respect of each.  Ultimately the question whether the council should or should not assume responsibility and the basis upon which it should do so   remains first and foremost for the council.  
Ground 3 
42.	The third ground is invoked by reference to the reasons given by the committee.  The school submits that the first reason that the footpath is well used is, on its own, irrelevant.  The statement and reason that the footpath is "used as a means of access by children and residents" itself appears to be addressed to availability of a reasonable, convenient alternative route; ie sub‑section (8) (c).
43.	Criticism is then made of the evaluation by the committee of the route and of the Origin Destination Survey which was carried out.  The school submitted that the reasons do not contain a proper assessment of the issues relevant to sub‑section (8) (c), in particular to the conclusion that making the SEO would have the consequence of "residents instead driving children to the nearby schools and driving to community hospitals".  
44.	The council says that is misconceived.  Section 9 of the report to committee shows that it considered the matter appropriately based on the overall length of the trips.  The decision of the committee was accompanied by reliance by the members on their own local knowledge at the time decision was taken in March.
Ground 4 
45.	The school says that the statement and reasons that a SEO "on its own would not provide a total solution at the present time" shows that the committee erred in law.  It applied the wrong and an excessively strict test.  It is not a requirement for making a SEO that it should on its own provide a total solution.  Its effect should be judged prospectively at the time it will take effect.  
46.	The council says that there is nothing in that, that it was entitled in the context to consider whether there were additional security measures to be taken and whether their proposal of extinguishment provided the total solution at the present time.  It submits that the decision fell to be made on the evidence available and that the council did not refuse to make the order on the basis that it could only be made if it provided a total stand‑alone solution.
Ground 5 
47.	This, as I say, is based on alleged failure to observe natural justice.  The duty to give reasons is to give proper and intelligible reasons.  The failure of the committee to explain why it considered the school security to be deficient and to explain why it considered that further security measures should proceed before an SEO was made was, the school submits, unlawful.  The committee should have been more specific so that the school knew where it had failed and what more it should do to qualify for an SEO.  
48.	There are further detailed and additional criticisms set out in the claimant's skeleton argument.  
49.	The council respond to that by contending that the reasons were proper and adequate.  They were not wholly unspecific, and particularly in the context of security, it is submitted, by reference to a variety of documents, that the range of matters potentially relevant were before the committee having been identified by them.  I consider that this aspect of the council's case is a somewhat convoluted response to what appears to be a clear and straightforward criticism.
50.	There are then two grounds based on legitimate expectation which I will not set out in detail for reasons which I will give in a moment because they are not necessary for my decision, and also as I explain I do not think there is anything in them either.  
51.	I turn to evaluate the very detailed submissions about a legal issue which is important to the school and, no doubt, to the council but which has perhaps been examined in too much detail.  
52.	The broad object of the legislation is, in my judgment, wider than that which the claimants seek to identify.  There is an obvious need for balance between very strong and legitimate competing interests.  It is no doubt because of that that the council has a wide balancing discretion under Section 118.  At this first stage the council has to address the question of expediency for reasons which have been identified.  It can have regard to sub‑section (8) for a variety of reasons.  I do not see that the approach identified by the Court of Appeal is as rigid as that urged by counsel for the claimants.  The exercise is a broad one and it is not helpful to categorise the process in terms of there having to be an arguable case as regards the second stage as the time of the first stage. 
53.	That said, this is clearly a staged process.  As Hargrave makes clear, there is no point going through the first stage if at a subsequent stage the application will obviously be doomed.  That is not this case.  Further there is, and is conceded to be, great overlap between considerations at both stages and most obviously with sub‑sections (8) (a) and (b).  In addition, in this case the distinction between the stages has been blurred by the extensive voluntary consultation and other anticipatory inquiries which both sides have sensibly conducted.  Nonetheless the decision of the committee is the first stage decision, not the second stage decision.  It was clear from the papers that this was their task.  
54.	Once the council chose to give reasons, those reasons had to meet the required standard.  While I recognise that the first two reasons given by the committee relate to expediency, the second two are less clear cut.  The impression I have when reading the reasons as a whole is that the committee looked at the broad question of whether there should be a SEO instead of at the more limited question of expediency which it was required to consider.  In reality, when one looks at two of the three reasons given they are from sub‑section (8).  A further indication that members may have taken their eyes off the expediency ball is the view  that a SEO on its own would not provide the "total solution" at the present time.  
55.	An additional difficulty with the reasons is this.  The committee concluded "further security works were required to make the college premises secure".  Given the conclusions of  the officers in the report and the position of the school and the staff, with heavy responsibility for the safety and well being of their pupils, that was an unhelpfully unparticularised reason to give.  
56.	Mr Guthrie, the headmaster, in his statement said he does not know what was meant by this.  Like him, having reviewed the papers, neither do I.  It seems to me that the headmaster was put in an invidious position.  It seems to me that in this respect the council has failed to give proper and adequate reasons. Furthermore most security measures, as a matter of commonsense, need to be evaluated at the time the potential stopping up order would come into effect.  It would be daft for the school to spend public money on taking measures now unless a SEO was to come into force.  It would be wrong to expect this school to spend money on security steps which will be useless unless a SEO is made.  The council were free to look at a wide range of factors to decide the expediency question but they looked at those matters and decided the second broader question instead.  That was unlawful and has left the school in a quandary on the security issue.
57.	To that extent, and subject to questions of remedy which I will canvass with counsel, the claim succeeds.  
58.	I will deal very briefly with the question of legitimate expectation.  It was perfectly clear and properly pointed out by the officers throughout and the claimants well understood ‑ from commonsense and what was written to them and what they saw ‑ that whatever the officers recommended, the final decision was for the members to take on the day.  This might still go against the school.  The school was under no illusions.  
59.	Of course, the fact that the claimants have succeeded to this extent does not compel the members to find expediency when the matter is next considered.  What they have to do is to approach a decision, which is a matter of broad discretion for the members in a manner advised by their officers and not in the manner which they understandably but unlawfully followed in their decision.  
60.	Finally Mr Justice Simon drew attention to the fact that a more appropriate remedy than judicial review might be to make a fresh application.  That concern was addressed by counsel for the claimants, and I understand why the school felt it necessary to proceed.  The court is nonetheless  concerned that a substantial piece of litigation has been needed to resolve a dispute between two organisations, both of whom are funded by the public.  
61.	Having said that, there will be judgment for the claimants but I will hear counsel about the question of remedy.
62.	MR PEARCE:  May I take as my starting point Part 54 of the CPR? 
63.	JUDGE MACKIE:  Whereabouts?
64.	MR PEARCE:  Part 54.19, page 1153 of the 2008 White Book.  At Part 54.19 there is a rule that applies for where the court makes a quashing order in respect of the decision to which the claim relates.  It goes on to say that the court may remit the matter to the decision maker and direct it to reconsider the matter to reach a decision in accordance with the judgment of the court.  
65.	The relief that I ask you to order is that indicated by this paragraph.  You have held in terms that the decision of the council was unlawful.  That being the case, your Lordship should make an order quashing that decision.  Having done so, the appropriate course is for the court to remit the matter to the decision maker and to direct it to reconsider the matter and reach a decision in accordance with the judgment of the court.  Your reasons give clear guidance to the council as to the way it should approach the matter.  It would be appropriate for the court's order to include a direction in terms of paragraph 19.2 (b).  
66.	The result would be that it would then be for the council to consider how to progress the matter.  It will doubtless wish to consult with the school and others as to what, if any, further evidence should be put before the council when it comes to reconsider the matter.  Obviously there would be a need for updating evidence, but there is no reason to suppose that the parties will not be able to handle that sensibly.  It would, in my submission, be inappropriate ‑ you having found that the council's decision was unlawful ‑ for you not to quash that decision or for you, having quashed it, to do nothing more to guide the council as to what it should do next.
67.	There is no good reason, in my submission, why the court should not take the course indicated by paragraph 19.
68.	JUDGE MACKIE:  19 of what?  Do you mean 54.19?
69.	MR PEARCE:  Yes.  I am sure my friend and I would have no difficulty in framing a declaration in the terms of that order.
70.	MR PICKLES:  Your Lordship, I do not think, on behalf of the council, that I can resist an order to quash and to remit.  In my submission, it is not necessary or appropriate to go further in terms of a direction to consider.  It is not  necessary.  This is of the nature of on‑going matter and on‑going application where, as my friend says, the school and the council will have to consider for themselves what further evidence needs to be collated and how to proceed.  I would respectfully submit that it is not necessary to go further than quash and remit.
71.	JUDGE MACKIE:  Because you say it is implicit and obviously a matter to be reconsidered.
72.	MR PICKLES:  Yes.
73.	JUDGE MACKIE:  If it is not reconsidered in accordance with the  judgment of the court, you will be back here.
74.	MR PICKLES:  Yes.
75.	JUDGE MACKIE:  We are dealing with sensible and civilised parties here.  It seems to me that the court should make the minimum order necessary to achieve the object of justice.  That can be achieved by an order to remit the  matter without an explicit direction in terms of 54.19 (b)  because that is going to happen anyway.
76.	MR PEARCE:  Would your Lordship make an order quashing the decision?
77.	JUDGE MACKIE:  Yes.  I have to because otherwise it stands.
78.	MR PEARCE:  I am grateful.  May I turn to the question of costs?  My friend and I agree that there is no "without prejudice"   correspondence that is going to assist you to deal with costs.  Therefore my submission is that the general rule set out in Part 54 that the unsuccessful party be ordered to pay the costs of the successful party should apply and the simple order for costs should be that the defendant pays the claimants' costs of and incidental to the application.
79.	JUDGE MACKIE:  Mr Pickles, what do you say?
80.	MR PICKLES:  I cannot resist that.
81.	MR PEARCE:  I am not in a position to ask you to make a summary assessment of the costs but I ask you to give consideration to ordering payment on account.  Your Lordship is required to give consideration to that question if you make an order for detailed assessment of costs.  
82.	There are two matters I can draw to your attention on the question of quantum on any payment on account that you are mined to make.  That is that we have the advantage of having received a schedule of the defendant's costs.  The claimants' costs are undoubtedly going to be no less than those of the defendant.  The grand total shown by the defendant's schedule of costs is £31,000 odd.  That, I think, is a figure which excludes VAT.  
83.	The second matter that I can properly draw to your attention in this context is that there was an abortive negotiation between the parties concerning settlement of this matter in December 2007.  I can hand up to you correspondence which was written without prejudice save as to costs.
84.	JUDGE MACKIE:  What does it go to?
85.	MR PEARCE:  It goes to the quantum of payment on account.  The submission I would make based on this correspondence is that the parties exchanged information about costs in December 2007.  At one stage the council made an offer to the claimants to pay their costs in the sum of £22,500 inclusive of VAT.  That offer was subsequently withdrawn but that offer was made in December 2007.  So the council was evidently satisfied at that date that that was a proper sum as part of an abortive attempt at settling litigation.
86.	MR PICKLES:  So far as the council's schedule of costs is concerned, I cannot be confident that I would have recovered in total £31,000.  So far, secondly, as the ‑ ‑ my friend is absolutely right that the offer of £22,500 was made, but it was made in the context ‑ ‑ that was an increase in an offer.  The council had previously offered £15,000 in the context that it viewed that the claimants' claim in relation to costs was totally unreasonable.  So it was going an extra mile plus.  I would not invite you to treat 22,500 as in any way ‑ ‑ ‑ ‑ ‑
87.	JUDGE MACKIE:  I am not going to.
88.	MR PICKLES:  I am grateful for that.
R U L I N G 
89.	JUDGE MACKIE:  There should be a payment of an amount on account.  I do not have a schedule from the successful claimants in that respect.  I am not critical of that but, without a schedule which is required by the rules and has not been provided, I need to be cautious in my approach to the payment on account.  I have a suggested figure of £31,000.  It is my practice with payments on account to give anything between about 30 and 70 per cent depending on what seems to me to be justified.  In this case I will make an order for payment on account of £15,000 by the defendant towards the claimants' fees within 14 days.
90.	MR PEARCE:  I am grateful.  Would you Lordship wish the parties to agree and lodge a minute of order?
91.	JUDGE MACKIE:  Yes.
92.	MR PICKLES:  This is a novel area of the law.  Your Lordship has made rulings in relation to the approach at stage 1 and, so to speak, the burden in relation to reasons which are novel.  I invite you in those circumstances to grant permission to appeal.  I have no specific instructions in that regard.  I am doing the usual thing.  I ask your Lordship (a) to do that and (b) it would be helpful also in terms of time to have an indication of when your judgment might be available and if we might not proceed on the basis that if there were to be an appeal 14 days would run from the availability of that transcript.
93.	JUDGE MACKIE:  Do you want to say anything about that?
94.	MR PEARCE:  Your Lordship's reasons were clear.  The prospect of them being interfered with by a higher court is one which you can properly discount.  If you are against me, I have no difficulty with my friend's submission on time.
R U L I N G
95.	JUDGE MACKIE:  There is an application for permission to appeal based on my approach to the section which I approached, I hope, in the light of the guidance from the Court of Appeal.  It does not seem to me that there is any real prospect of success in this case.  I will leave it to Mr Pickles to try his luck with a Lord or Lady Justice.  I will extend his time for appealing to 14 days from the time he has received or his clients have received an approved copy of my judgment.
There were occasions during judgment when I had difficulty hearing.  I have indicated same with a query ‑ (?)