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 WC2A 2LL
		10th November 2008

1. MR JUSTICE COLLINS: Mumford Road is a short cul-de-sac running off Railton Road. Mr Cumberbatch has had a running battle with Lambeth Council in relation to their allegations that he has wrongly placed a number of vehicles, which were not taxed and which were used in some way for his business, in Mumford Road, thus blocking it and blocking access to some lock up garages which are at the end of the present cul-de-sac.
2. The Council took proceedings under section 149 of the Highways Act 1980 which provides:

"If any thing is so deposited on a highway as to constitute a nuisance, the Highway Authority for the highway may by notice require the person who deposited it there to remove it forthwith and if he fails to comply with the notice the authority may make a complaint to a Magistrates' Court for a removal and disposal order under this section."

3. It seems that the Council served such a notice and took proceedings under the Act but failed to notify Mr Cumberbatch that they had done so. As a result, he found himself subject to an order made by the Magistrates in his absence. He appealed against that to the Crown Court and, not surprisingly, the appeal was allowed on the basis of the procedural impropriety in failing to notify him. Accordingly, subsequent proceedings were taken and were heard by District Judge Black at Camberwell Green Magistrates' Court on 6th September 2006. The District Judge decided that he was not satisfied that Mumford Road was a highway and so he dismissed the Council's complaint.
4. The Council, as a person aggrieved, had a right of appeal (these being civil matters) under section 317 of the Highways Act 1980. Mr Cumberbatch sought to argue that they were not entitled so to appeal. He did not raise that point before the Crown Court and, in any event, it is a bad point. The Council was clearly a person aggrieved by the order that was made.
5. The Crown Court then went on to consider the evidence in detail in order to decide whether it was satisfied that Mumford Road was indeed a highway. After hearing a considerable amount of evidence over, I think, two days, the court decided that they were satisfied, the burden being, as they said, upon the Council to satisfy them on the balance of probabilities, that Mumford Road was a highway. Mr Cumberbatch asked them to state a case and the court agreed to do so.
6. Normally, of course, this court is bound by the findings of fact which are made in a case stated. However, the appellant's case here is that the Crown Court was not entitled to conclude that it was a highway and their conclusion that it was a highway was an error of law.
7. Mr Cumberbatch has produced, as he produced to the Crown Court, a considerable amount of evidence tracing the history of Mumford Road since the middle of the 19th century when it appears to have been what was described as a "Mews" giving access to an estate which had recently been built off what is now Railton road. The development at that time appears to have been one in respect of which the owners of the various houses were responsible for maintaining the Mews, and thus it appears to have been, certainly at the outset, a private road.
8. However, the Crown Court had evidence, which they accepted, that in 1888 the road was laid out as apparently a largely residential road. The argument raised by Mr Cumberbatch was that the houses on the Mews, which had become called "Hamilton Road", were tied houses for the employees of a farm and the road, therefore, remained private land. The court said that they saw nothing to support that and were inclined to the view that it was improbable. There was apparently a handwritten date on an entry in the Council's card index system which had been replaced in the 1950s which recorded:

"Registered number 112, date of apportionment 03/02/1888, formerly Hamilton Road."

The judge concluded:

"In our judgment this entry refers to the date on which the road was made up and adopted by the Council, or rather its predecessors, and to the charge for that which would have been levied on the various property owners on either side. In the absence of evidence to the contrary, this appears to us to be evidence of a dedication by the owner or owners of the land on which the road was built; see on this, section 186 of the Public Health Act 1875."

9. Subsequently, in 1935, Hamilton Road, as it had become called, was included in a register entitled "List of streets in Metropolitan Borough of Lambeth". In this list, those which were wholly or partly privately owned had a symbol against them. That symbol did not appear against Hamilton Road, the length of which at that time was in the order of 370 feet.
10. The Council then ordered a number of name changes of roads in Lambeth in July 1937, and one of those changes was that Hamilton Road should become Mumford Road. There was a considerable amount of bomb damage occasioned in the area and in the 1950s the London County Council wished to create a large housing development, part of which would be built on part of Mumford Road. There had been a request, in order that that could be done, to the Ministry of Transport to authorise the stopping up of part of that road under the relevant provisions then in force, namely section 49 of the Town and Country Planning Act 1947 which applied to orders in respect of highways. Thus, clearly when that order was made in June 1956, which closed a substantial part of Mumford Road leaving only the short cul-de-sac that now exists, it was clear that it was believed that Mumford Road was a highway, and, what is more, a highway maintainable by the Council at public expense. The court went on to say this:

"In our judgment, if Mumford Road was a highway prior to 1956, then the common law rule, 'Once a highway, always a highway', would apply, so that the rump of it remained a highway thereafter, unless by some specific action the public right over it was released. There is no evidence that it was."

11. Mr Cumberbatch has referred to a number of matters which he says show that those findings are wrong in law. First of all, he points out that in order to be a highway maintainable at public expense it must be of a particular width. Unfortunately, there is no evidence produced before the Crown Court as to the precise width of Mumford Road. Certainly it is not recorded, and there is no evidence before me which I am able to take into account which deals with the width. In any event, it is irrelevant. The reality is that for a highway to be a highway it does not have to be of any particular width. It may need to be of a particular width if it is to be maintainable at public expense, but the reality is that a highway authority is responsible for a highway and, as I say, width is not particularly material. The road is quite clearly wide enough to take two vehicles, as I have seen from the photographs.
12. The other point that he makes (the main point, perhaps) is that the Council itself indicated, certainly in a letter sent to the DVLA and therefore sent on to him, and in other correspondence, that this was a private road. The court considered that material and decided that Lambeth or whoever was responsible for that assertion had made a mistake. Again, as I say, the description of "private" does not by itself necessarily mean that the highway was not a highway for which the authority was the highway authority and therefore section 149 was in play.
13. The findings of fact that this had been used by the public without let or hindrance since at least 1888, certainly since 1937, and treated as a highway in 1956, seems to me to be evidence which conclusively establishes that this was indeed to be regarded as a highway and there can be no conceivable error of law in the decision that was reached by the Crown Court. In those circumstances, this appeal is dismissed.
14. MR CARPENTER: My Lord, there are two matters arising. The first is simply for the benefit of clarity as between the parties. Your Lordship will have some understanding of the history of this matter between Mr Cumberbatch and the Council and we ask whether in addition to dismissing the appeal your Lordship would be willing to make a formal declaration.
15. MR JUSTICE COLLINS: No. This is an appeal by way of case stated and I have no power to make a declaration. I simply dismiss the appeal.
16. MR CUMBERBATCH: Would that mean that this is a binding decision or is it open to a civil court?
17. MR JUSTICE COLLINS: This is a decision based upon the findings of fact made by the Crown Court.
18. MR CUMBERBATCH: What I am trying to understand is the implications for putting the case in front of Master Miller at the moment. Is this a binding decision on anyone who goes -- not binding between me and the Council but --
19. MR JUSTICE COLLINS: There is a finding of fact which has been upheld by this court that it is a highway. That is as far as it goes. If you were able to find further facts --
20. MR CUMBERBATCH: There was a case in 1932 that the owner of 4 Hamilton Road bought a prescriptive right. That is under --
21. MR JUSTICE COLLINS: Mr Cumberbatch, if there is extra evidence which was not put before the Crown Court --
22. MR CUMBERBATCH: They did not produce the deeds that they have.
23. MR JUSTICE COLLINS: I do not know whether that will affect the matter. All I can say, it having being found as a highway in use for well over 20 years within the meaning of the 1932 Act is very strong evidence that it was and is a highway. In addition, there was, of course, a finding of fact that Lambeth does maintain it at the moment. Those findings were open to the court and in those circumstances, as I say, I simply dismissed this appeal. It is not for me to say what the binding effect of it is.
24. MR CUMBERBATCH: Could you put that in the judgment if that is the case?
25. MR JUSTICE COLLINS: I am not going to make a declaration.
26. MR CUMBERBATCH: Can you say that it is not binding or whatever?
27. MR JUSTICE COLLINS: You will have to argue that before whatever court is the relevant court. It is not for me to decide.
28. MR CARPENTER: My Lord, the other matter is of course costs which I seek in this court.
29. MR JUSTICE COLLINS: Mr Cumberbatch, have you seen the --
30. MR CUMBERBATCH: I got something through the fax. What I would say in regards to that, my Lord, is two things. First, the judge found that this whole case came about because of their mistake with that record and he refused to award the costs. I am going to ask the court to do the same. They have clearly admitted an administrative fault and the Highways Act itself or the Public Services Act clearly says there is a remedy if you suffered loss because of a failure of statutory duty. I think it would be unjust, in my submission, to award costs. It was reasonable for me, given the evidence that I have, including all the deeds for the whole estate before the restrictive covenants to ask the court to open the appeal. This is an important appeal where there was a direction that it had not been fully argued and recorded so we know what the evidence was. I am not saying it is the fault of the court but a lot of the evidence that was put was not recorded. So we come here, the judge has made findings of fact and no-one can successfully challenge it because the evidence is not available.
31. MR JUSTICE COLLINS: Mr Cumberbatch, you chose to come here to challenge it. You had an order --
32. MR CUMBERBATCH: One final point, my Lord. Also, from as long ago as last November, the Crown Court wrote to the respondents telling them that the case was going to be stated. They wrote to me sending the documents and then they did not send anything until after the time laid down inside the three weeks. I only got notice that they were going to take that last week. The notice that came tells you that you have to do this at least three weeks before and they had to do it two weeks before and they did not.
33. MR JUSTICE COLLINS: That, I fear, is standard.
34. MR CUMBERBATCH: They were represented, my Lord, and that caused me a surprise. I did not know they were going to be here. I wrote to them and said "Let the court decide, there is the evidence". They had a chance to look at it and did not give me any notice they were going to take part. In the civil court when everything is recorded, if you do not obey the rules you get sanctions and one of the sanctions is that you do not get your costs.
35. MR JUSTICE COLLINS: Thank you. Mr Carpenter.
36. MR CARPENTER: My Lord, as far as the costs order made in the Crown Court was concerned, the argument there was that until the point where Lambeth finally got on order in its favour, it had brought proceedings on itself.
37. MR JUSTICE COLLINS: Indeed.
38. MR CARPENTER: As your Lordship observed in this court, Mr Cumberbatch has chosen to take matters further. His appeal was wholly without merit and the expense for that does fairly lie on him, I submit.
39. MR JUSTICE COLLINS: Well, I am afraid, Mr Cumberbatch, that is right. You chose to come here and you did not have a good case. Now, you have seen the amount they are claiming, have you?
40. MR CUMBERBATCH: Yes.
41. MR JUSTICE COLLINS: I can either give you an opportunity to make representations about the amount, but it is quite substantial so what I can order is that it is dealt with by a costs judge, if not agreed; ie, he will go through it and see whether the amounts claimed are reasonable.
42. MR CUMBERBATCH: Normally if it is over a certain amount it is usually assessed, but Mr Carpenter is charging £1,500 for an hour. Is that just? They have put that they have spent 38 hours reviewing documents. The documents I put in was just 52 pages.
43. MR JUSTICE COLLINS: They had reviewed them all in the Crown Court. There was nothing extra.
44. MR CUMBERBATCH: But the Crown Court had already said I was not entitled to costs because of the error. This case had merits as I found in that court case from 1935. I do not know what I will do but it will probably go to the Court of Appeal in the civil proceedings that are running concurrently. There is a claim currently before Master Miller for breach of statutory duty causing loss. If you make a costs order in this case, all that is going to happen is that I am going to say it is a continuation of the error that needs to be clarified and claim damages in the civil court. I did not put myself in this position, as he says. They told me it is private, I know it is private from 1962 and then a judge comes along, totally ignores the facts, and says --
45. MR JUSTICE COLLINS: Mr Cumberbatch, I think they are entitled to costs, but I agree with you that the amount they are claiming is excessive; in fact, grossly excessive. Quite unnecessary to have spent 38 hours, I agree entirely. Apparently they have solicitors in Manchester. Is that right? That is hardly reasonable.
46. MR CARPENTER: Your Lordship will see that the hourly rate which they charge is barely a commercially viable one.
47. MR JUSTICE COLLINS: That may be, but there is a huge amount of travelling expenses.
48. MR CARPENTER: They are simply the cost of my instructing solicitor attending.
49. MR JUSTICE COLLINS: It does not seem to me to be entirely reasonable for a London Borough to employee Manchester solicitors and charge a huge sum for them to come by train down to London.
50. MR CARPENTER: The flip side, I would submit, my Lord, is that no London solicitor could do this kind of work at the rate that has been agreed.
51. MR JUSTICE COLLINS: Do not they have in-house solicitors in Lambeth?
52. MR CARPENTER: No, my Lord, not that I am aware of. A lot of local authorities tender out.
53. MR JUSTICE COLLINS: I take your point on the rate charged. On the other hand, 38 hours is grossly excessive. Were these solicitors involved in the Crown Court?
54. MR CARPENTER: They were, my Lord. I have given a breakdown of how the time has been spent. I have no doubt that time has been spent. There were a lot of documents that your Lordship will have seen and there have been delays all the way along this case. It has been the best part of a year since the proceedings in the Crown Court --
55. MR CUMBERBATCH: That was not my fault.
56. MR JUSTICE COLLINS: Mr Cumberbatch, I would be minded to award them some £2,500, if you ask me to assess it, all in.
57. MR CUMBERBATCH: I could not agree because they made the mistake.
58. MR JUSTICE COLLINS: You will not do better than that.
59. MR CUMBERBATCH: It will cost me £500 to go bankrupt.
60. MR JUSTICE COLLINS: Whether they enforce it is another matter.
61. MR CUMBERBATCH: I cannot agree to costs. It is totally unjustified and in any event I am going to seek to continue the proceedings.
62. MR JUSTICE COLLINS: I will dismiss this appeal and I will order that Mr Cumberbatch pays £2,500 costs to the respondent. Thank you.