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
		5 March 2010

1. MR JUSTICE NICOL: This is an appeal by Beckley Parish Council under section 287 of the Town and Country Planning Act 1990. The Parish Council seeks to quash an order made by the Secretary of State for Transport stopping up the byway open to all traffic, known by the acronym BOAT, between Kings Bank Lane and Main Street in the village of Beckley. The order was made on 13 August 2009. Its formal title is the Stopping Up of Highways (South East)(County of East Sussex)(Number 26) Order 2009. The Parish Council has been represented by its chairman, Mr Baverstock; the Secretary of State by Ms Busch; the second defendant, Central & Provincial Developments Limited, by Mr Nardell. The East Sussex County Council and Rother District Council who were also defendants have not appeared and were not represented.
2. The BOAT, Kings Bank Lane and Main Street, form a triangle with the BOAT as its western side. The area in the middle is, for the main part, grass. That area, like the land to the west of the BOAT, is owned by Central & Provincial Developments Limited, the second defendants. On 3 September 2004, the second defendants were granted planning permission by the first defendant, the Secretary of State, on appeal, against a refusal by Rother District Council. The planning permission permitted the erection of a group of houses and associated developments.
3. At that stage, the claimant, ie the Parish Council, had applied for an order that the BOAT should be recognised as such, but recognition only came on 17 June 2005. The route of the BOAT and the planning permission conflicted. The second defendants then applied for a stopping-up order under section 247 of the Town and Country Planning Act 1990. This provides:

"(1)The Secretary of State may by order authorise the stopping up or diversion of any highway if he is satisfied that it is necessary to do so in order to enable development to be carried out --

"(a) in accordance with planning permission granted under Part III [...]

"(2) Such an order may make such provision as appears to the Secretary of State to be necessary or expedient for the provision or improvement of any other highway."

I should say at this point that the term "highway" is used in a technical sense in this and other legislation. It will of course include the more familiar lay concept of a highway such as a motorway, an A road or a B road, but it will also include footpaths and bridleways. All are embraced in the statutory concept of a highway.

4. Section 252 of the 1990 Act prescribes the procedures which the Secretary of State must follow before making a stopping-up order. In brief, and so far as is material, he must advertise the application, deposit a draft of the order and any relevant map or plan, so that they are available for public inspection. The Secretary of State first did this in 2005, but that attempt can be set aside as not material to the present appeal. On 8 June 2007, he published what is convenient to describe as the second draft order. At that stage it was proposed that the BOAT should be replaced by a footpath to run approximately parallel to the BOAT but slightly to its east. The path was to be 1.5 metres wide. It was to be only for pedestrians. On 28 June 2007, the East Sussex County Council, the third defendants, objected. On 2 July 2007 Rother District Council decided not to object if the second defendants agreed to dedicated the land for the footpath as a public highway and contracted to carry out the necessary improvements. On 6 July 2007, the claimant objected to the second draft order. Among the points that they made in those objections were these:

"A new footpath (1.1/1.3 m wide) is shown on the deposited plan linking Kings Bank Lane with Main Street. The Parish Council is concerned that this makes no provision for the many horse-riders and cyclists accustomed to taking advantage of the refuge of the generous width of the BOAT [...] To accommodate cyclists a footpath of at least 3 metres is required; and for a bridleway a minimum of 3 metres is also recommended."

5. Section 252 envisages that normally a local inquiry will be held before a stopping-up order is made and such an inquiry was arranged here. In the run-up to the inquiry, a number of things happened. On 11 June 2008, the East Sussex County Council and the second defendant agreed what they would put forward as proposed amendments to the second draft plan. In essence, and so far as material, these would have (a) expanded the new footpath to 3 metres wide, and (b) identified it as a bridleway, and so open to use by horse riders and cyclists, as well as by pedestrians. Next, the Secretary of State agreed to present the second draft order, and these proposed amendments to the plan, to the Inspector holding the inquiry. Next, on 11 July 2008, the claimant received a copy of a proof of evidence on behalf of the second defendant, which had been prepared for the forthcoming inquiry. That proof of evidence included these proposed amendments. On 28 July 2008, an agreement under section 278 of the Highways Act 1980 was reached between East Sussex County Council and the second defendant, whereby the second defendant agreed to undertake certain highway works referred to in schedule 1 of the agreement, and which provided for a 3-metre wide highway surfaced with appropriate dressing for equestrians, pedestrians and cyclists. The inquiry began one day later, that is on 29 July 2008. Mr Baverstock on behalf of the claimant appeared at the inquiry and objected that the proposed amendments should not be considered on the grounds that they had not been advertised. The Inspector holding the enquiry said that he would consider both the second draft order and also the proposed amendments. The Inspector said this at paragraph 3.2 of his report:

"I gave my view that, while I was indeed appointed to inquire into the draft Order as published..."

I add here that is what I have referred to as the second draft order:

"...the proposed changes from the advertised draft Order were not so substantive that they amounted to a new draft Order. As far as the footpath was concerned, I pointed out that a public footpath was as much a highway as a bridleway or any other type of public road. All that was now being proposed was to increase the width of the path from one to three metres [...] In ruling against the submission, I said that I proposed to treat the changes as possible modifications. Were she [now he]..."

And again I interpose that that is referring to the Secretary of State:

"...minded to make the Order as modified, the Secretary of State could consider any need for re-advertising (and, in the light of any objections received, even a second inquiry) before the Order was made -- a matter which I would cover in my report."

That is a reference to paragraph 7.81 in the report, in which the Inspector said this:

"I further conclude that, taking account of the advice published in paragraph 10.9 of DEFRA Circular 1/08..."

Again, I interpose, I will return to that matter in due course:

"...were he minded to make the Order as modified the Secretary of State may care to give consideration as to whether these modifications should be advertised before the Order is made."

6. The first stage of the inquiry continued until 30 July. It was then adjourned to allow Rother District Council to consider their position in relation to the proposed amendments. It was argued that the proposed wider new path would adversely affect an oak tree which was subject to a tree preservation order. The inquiry resumed on 10 September 2008 and continued until 12 September 2008. Over both stages of the inquiry, extensive consideration was given to the safety consequences of the proposed stopping-up order, and the extent, if at all, to which the proposed amendments to that order might alleviate those safety concerns.
7. The Inspector reported on 29 October 2008.
8. The claimant sought judicial review in separate proceedings of (a) the grant of planning permission to the second defendant, and also to the decision of the East Sussex County Council to enter into the section 278 agreement. On 9 January 2009, Mr Ockelton sitting as a Deputy Judge of the High Court refused permission to proceed with that application for judicial review.
9. On 13 August 2009, the Secretary of State set out in a decision letter why he was going to make the order on the same day. The order incorporated the changes which had been proposed by the second defendant and the East Sussex County Council, i.e. making the substitute path a bridleway and increasing its width to 3 metres, as well as various other consequential matters.
10. Section 252(8) of the Town and Country Planning Act provides as follows:

"After considering any objections to the order which are not withdrawn and, where a local inquiry is held, the report of the person who held the inquiry, the Secretary of State may, subject to subsection (9), make the order even without modification or subject to such modifications as he thinks fit."

It is agreed by all parties that subsection (9) of section 252 has no bearing on the present case. In connection with the modifications, the Secretary of State said this at paragraph 19 of the decision letter:

"The Secretary of State is satisfied that the modifications to the Order, as identified in Doc 2.9 of the Inspector's documents, and as represented on the Annex E Plan which accompanies his report, subject only to the further amendments referred to in paragraphs 14 and 17 above, should be made by him to the Order. The Secretary of State has considered the advice in paragraph 10.9 of DEFRA Circular 1/08 (now replaced by DEFRA Circular 1/09 paragraphs 10.9-10.11 'Secretary of State's powers to modify orders'). He is satisfied that it is a matter of degree in every case as to whether the proposed modifications would effectively involve an Order which was materially different, ie a new Order, to that which was published in draft. Having considered this particular Order he is satisfied that the proposed modifications are not of a substantial nature to represent a significant departure that would require it to be, further, advertised. No additional area of highway is proposed for stopping up in the proposed modified Order. The Secretary of State is to include the proposed 3 metre wide path, as a Bridleway, in the Order to replace a previously intended 1.5 metre wide Footpath. However, whilst the permission for these widened works and dedication of the land as a Bridleway is to be obtained outside the provisions of the Order, he considers it appropriate to include the modified path as a provision of the Order and to include the requirement that it be provided ahead of stopping up of the highway subject of the Order. These amendments to the Order are not considered by him to be substantive."

11. The claimant's principal ground of challenge on this appeal is that the Secretary of State erred in law by making these modifications. It is said he should instead started the process again. He should have re-advertised the proposed amendments given the prescribed period for objections, and then held another inquiry. The claimant refers to the Secretary of State's guidance, to which he alluded in paragraph 19 of his decision letter, and which I have just quoted. As the Secretary of State said, Circular 1/08 paragraph 10.09 is in identical terms to what is now paragraph 10.11 of the Rights of Way Circular 1/09 from DEFRA. It says this:

"Where he makes a draft order under section 247 of the 1990 Act [...] and then proposes to modify it, the Secretary of State would be bound by the requirements of section 252 to treat the order as a new order, and so would ensure that the owner of the land and anyone who made representations or objections to the original draft order was given the opportunity to make further representations or objections."

12. The claimant says that that it was unfair to deal with the matter as the Secretary of State did. Although the claimant had notice of the proposed amendments, it had less than the 28 days notice which section 252(1)(b) and section 252(2) envisaged. Other members of the public did not get the public notice which section 252(1) also requires. The claimant had prepared for the inquiry, in the understanding that the second draft order was what was going to be considered. It was unfair to shift the goal posts in the way that late notice of the proposed amendments did.
13. Mr Baverstock on the part of the claimant has presented the Parish council's case with care, economy and forcefulness. I echo the compliment which Mr Nardell for the second defendant gave him. In this respect, and in the preparation of the documents for the hearing, he achieved a standard which some members of the legal profession do not (I do not mean to refer to any of the lawyers in the present case). Nonetheless, I am clear that this central argument fails.
14. Section 252(8) expressly allows the Secretary of State to make the order without modification, or subject to such modification as he thinks fit. The subsection cannot be concerned merely with matters that come within the Latin expression, de minimis non curat lex (the law is not concerned with trifles). If all that was to be done was to make some trifling alteration to the draft order, there would be no need for section 252(8). Even without that provision the law would not be concerned with such trifling changes. It is clear that the subsection confers a wider discretion than this.
15. The circular on one reading purports to say that the Secretary of State can never modify without going through the public notice process again. If that reading were right, the Secretary of State would be bound to ignore it. He cannot by way of a circular fetter a discretion which Parliament has given him. Correspondingly, there can be no legitimate expectation that he will do so. One possible alternative reading of the circular, although I readily admit one which itself is problematical, is that the circular is intending to deal with a situation where a final order has been made. In that case it is quite clear that any further modification would need to be subject to the full statutory procedure. But that was not the situation which the Inspector and Secretary of State were considering in the present context.
16. At the same time, in my judgment it is also clear that some limitation is implicit in the word "modification". There must come a point where the change to the original draft order is so dramatic that what was originally proposed is completely transformed. At that point, the Secretary of State could not purport to approve the plan as merely a "modification". In the course of the hearing, there was debate as to the role of the court in reviewing whether a change was a modification or not. If the change is a modification, then it is quite clear that the statute gives the Secretary of State a discretion as to whether or not to make it and what precise form the modification should take. How the Secretary of State exercises that discretionary power is open to review on traditional Wednesbury grounds. In other words, the court is only concerned with whether the Secretary of State has had regard to all relevant matters, excluded irrelevant matters, and taken a decision which is rationally open to him. But I am not satisfied that Wednesbury is the correct characterisation of the court's task in deciding whether the change is within the statutory term "modification". At this stage, that is in deciding whether or not the proposed alterations to the draft plan is a "modification", the Secretary of State is not exercising a discretion, he is making a judgment. The court will pay respectful attention to that judgment and the reasons for his conclusion that the change is a "modification", but at the end of the day it is a matter of law as to whether the alteration is a "modification" or something more fundamental. Here, as always, it is necessary to look closely at the legislative test. Ms Busch for the Secretary of State invited my attention to comments that had been made in earlier decisions in the context of regulation 18 of the Town and Country Planning (Development Plan) Regulations 1991, regulation 18. There a subjective element, "unless they are satisfied that the modifications they intend to make will not materially affect the content of the proposals" is expressly included. I express these as provisional views because, whatever the test, I am satisfied that the change made by the Secretary of State in this case was a "modification", and I give my reasons as follows.
17. First, the essence of the order remain the same. It is not to be forgotten that this whole exercise was about the stopping up of the BOAT. It was that in the second draft order, it remained that in the order which was made. It did of course involve widening the proposed alternative path, but that in my judgment is not conclusive. Mr Baverstock referred me to the Wildlife and Countryside Act 1981, schedule 15, paragraph 8. That deals with alterations to definitive maps and plans showing where footpaths run. In that context, express provision is made for what cannot be treated as modifications. The paragraph of the schedule includes addition of land not affected by the order or altering the description of the highway. The claimant says that both those matters characterise the changes that were made between the second draft order and the order as made here. But in the 1981 Act, Parliament has added express provisions which are simply not in the Town and Country Planning Act 1990. I conclude that I am not assisted by that legislation.
18. My next reason for saying that this was a modification is that the alternative path also remained very similar to the original draft order. Of course it was not identical in size. Of course, as a bridleway, a wider range of users could lawfully use it. Nonetheless in my judgment it was sufficiently similar that changes could be characterised as modifications.
19. Next, the reason that the term "modification" needs implicit limitation is so that it should not lead to unfair curtailment of the opportunity to object to the modification. In this context the Secretary of State was entitled to consider, as is the court, that the claimant did have notice; if not the full 28 days' notice in advance of the inquiry, well before it. In addition, the claimant, as the Parish Council, had a representative role for the community which it was vigorously discharging. Next, the inquiry adjourned for several weeks specifically to allow Rother District Council to consider its position in relation to the proposed amendments. Any other objectors would also have been able to consider and express views at the adjourned hearing which took place more than 28 days after the inquiry had first begun to sit and the proposed modifications had become well and publicly known. Finally, the inquiry gave the claimant and any other objectors ample opportunity to voice their views about the modifications, or proposed modifications, as well as the original proposal. I add, but only really by way of footnote, that as it happened the proposed amendment was very similar to what the claimant itself had suggested in the quotation from its objection that I have read previously. It is not identical to what they wanted, as explained in the course of the hearing of this appeal. The claimant would have wished to segregate the part of the path available for equestrian and cyclists from pedestrians, but still, the nature of their objection was evidence that the change could properly be described as a modification.
20. An ancillary matter was raised in the course of preparation for the hearing, namely whether the Secretary of State had misdirected himself in considering that the works to the new path could be carried out under the General Development Order. In paragraph 15 of the decision letter, the Secretary of State said this:

"The Order's integral plan as published in draft included the proposed 1.5 metre wide Footpath across the site and which path the planning permission granted by the First Secretary of State on 3 September 2004 authorised. The Secretary of State notes that, in line with the requirements of the County Council and to satisfy its concerns about the Order, the path is now otherwise proposed as a 3 metre wide Bridleway, to facilitate use by all non-vehicular users. Whilst the Secretary of State appreciates that the planning permission granted does not authorise this widened highway facility he, like the Inspector [...] and both the County Council as Highway Authority [...] and the Local Planning Authority, Rother District Council [...], sees no reason why the achievement of the widening to a 3 metre Bridleway could not be obtained under part 13 of the GPDO, provided the path is first dedicated as a public highway. The Secretary of State notes that the section 278 agreement between the County Council and the Applicants will obtain such a dedication of the entire 3 metre wide path facility, and for it to be suitably surfaced with an appropriate dressing to provide for equestrians, pedestrians and cyclists, who would be afforded its public rights of use."

Mr Nardell argued that I should not consider this aspect because it did not feature in the grounds of appeal. I was not happy with excluding an argument if it had merit, on the grounds that it had not been taken so clearly by litigants without legal representation. In the event, it is not necessary for me to resolve that procedural point, because I am satisfied that there is nothing of substance in the argument anyway. It may be the case that the General Development Order does cover the works, I make no decision on that, but even if that were not the case, it would be open to the second defendant to apply for planning permission for them. Planning permission of course may be granted or it may be refused, but none of these contingencies undermine the validity of the stopping-up order. That is because the stopping-up order is carefully conditioned. Article 2 of the order says this:

"The said highway shall be stopped up pursuant to this Order when East Sussex County Council certify to the Developer that the provisions of Article 4(a) of this Order have been complied with [...]

"4(a) The new and improved highway works as listed in Schedule 2 paragraphs 1 and 3 are to be completed to a standard which East Sussex County Council (acting reasonably) considers to be acceptable in both design and construction, and are to be completed prior to the stopping up of the said highway in accordance with Article 2."

Schedule 2 of the order has, at paragraph 3:

"a three (3) metre wide Bridleway across the development site surfaced with an appropriate dressing to provide for equestrians and cyclists."

21. The careful construction of that order means that if the works, in other words the construction of the bridleway, do not take place, then East Sussex County Council will not be able to give a certificate and the BOAT will not be stopped up. In what I hope would be the unlikely event that the second defendant undertook development without lawful permission, then it would be open to Rother District Council to take enforcement measures as a result. In those circumstances, it is difficult to imagine that East Sussex County Council would regard it as appropriate still to give its certificate to the developer. Again I emphasise, absent such a certificate, the stopping-up order will not take effect.
22. It is for those reasons that I have considered that the argument relating to the general development order does not avail the claimants. For all of those reasons, this appeal is dismissed.
23. MS BUSCH: Thank you very much, my Lord. Two points of correction. I think you referred to the section 278 agreement being made under the 1990 Act, whereas it is actually under the Highways Act 1980.
24. MR JUSTICE NICOL: Just a minute. It is the Highways Act 1980?
25. MS BUSCH: Yes, my Lord.
26. MR JUSTICE NICOL: Thank you.
27. MS BUSCH: My Lord, the second point, it is only a minor point, but you referred to "definitive plan", when discussing the Wildlife and Countryside Act. It is normally referred to as the "definitive map", or sometimes "definitive map and plan". Only a very small point.
28. MR JUSTICE NICOL: It is the "definitive map". I probably should not say that "it indicates"; it does say where footpaths are.
29. Yes, thank you very much.
30. MS BUSCH: My Lord, I would make an application for our costs. I don't have a costs schedule with me, so I would simply suggest we are entitled in principle to them and the order should be assessed if not agreed.
31. MR JUSTICE NICOL: Well, the normal rule is that if you are having a hearing that is only going to last a day or less, the court wants to make a summary assessment of the costs, and the reason for that is because a detailed assessment causes time and delay. Delay is to your disadvantage, but a detailed assessment occupies the court's resources and that is a matter that the court has to be concerned about anyway.
32. MS BUSCH: Well, I appreciate that, my Lord. I am sorry I don't have one.
33. MR JUSTICE NICOL: Well, it is nice for you to apologise, but the question is, absent a schedule, what can I do?
34. MS BUSCH: My Lord, I have unfortunately been in this situation previously, and judges have been willing to order an assessed if not agreed basis, even on a one-day hearing. I suppose the other possible alternative is I could attempt to get one and then we could leave it to be dealt with in writing by you. Typically, being for the Secretary of State and the Treasury Solicitor, I don't anticipate the costs are likely to be particularly excessive.
35. MR JUSTICE NICOL: Well, I hear what you say. Mr Nardell?
36. MR NARDELL: No application on my part, my Lord.
37. MR JUSTICE NICOL: The Secretary of State has asked for an order that the claimant pay its costs. Ordinarily of course, as the successful party, that would be in accordance with the general rule in Part 44 of the Civil Procedure Rules. However, this is a hearing that has taken only one day, and the rule or Practice Direction is that the parties must exchange a schedule of their costs, or provide a schedule of their costs, at least 24 hours before the hearing takes place. The reason for that is that where the hearing is so short, the court is likely to want to make a summary assessment of any costs, and so avoid the costs, and I include in that costs to the court administration of carrying out a detailed assessment. No reason has been given today as to why that schedule was not provided. Accordingly I am left in the position of no information as to the costs that the Secretary of State has incurred.
38. In those situations I am not prepared to put over the matter for detailed assessment. I make no order as to costs.
39. Thank you all very much indeed.