England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		18th October 2013

THE DEPUTY JUDGE:

Introduction

1. This application for judicial review raises a question of statutory construction as to whether section 38(6) of the Highways Act 1980 permits agreed sums relating to future maintenance of a highway maintainable at public expense.
2. Section 38(6) is concerned with provisions which may lawfully be contained within a section 38 adoption agreement. The subsection provides that a section 38 adoption agreement may contain such provision as the authority making the agreement think fit in relation to three limbs. First, as to the dedication as a highway of any road or way to which the agreement relates. Secondly, as to the bearing of the expenses of the construction, maintenance or improvement of any highway, road, bridge or viaduct to which the agreement relates. Thirdly, as to other relevant matters. I can leave aside for the purposes of this case and this judgment the question of bridges, viaducts and railway canals or tramways and their undertakers (see section 38(4)) and I can leave aside for the purposes of this case trunk roads and the Minister.
3. A section 38 adoption agreement is one in which a highway authority agrees to undertake the maintenance of a highway in one of two scenarios. The first scenario is a highway which another person is liable to maintain. I will describe that as the section 38(1) scenario. It relates to what I shall call "privately maintainable highways". The person liable to maintain such a highway will have such a liability under a special enactment or by reason of tenure, enclosure or prescription.
4. The second scenario relates to what I shall call "future dedicated highways" and I will describe it as the section 38(3) scenario. There, the highway authority agrees to undertake the maintenance of a "way" which another person, who may be a developer, proposes to dedicate as a highway.
5. The consequence of a section 38 adoption agreement is that there comes into being a highway which for the purposes of the Act is maintainable at the public expense from whatever date specified in the section 38 adoption agreement.
6. The consequence of there being a highway maintainable at the public expense is that it vests in the highway authority (see section 263), who has a statutory duty to maintain – which includes repair – the highway (see sections 41 and 329), and which statutory duty is directly enforceable against the highway authority (see section 56). The highway authority also has various statutory powers.
7. A highway maintainable at a public expense can be contrasted with two things in particular. Firstly, a privately maintainable highway, a term which I have already used. Secondly, a private street.
8. A privately maintainable highway, as I have already indicated, is one which there is a person liable to maintain, whether under a special enactment or by reason of tenure, enclosure or prescription. That person then owes the enforceable statutory duty to maintain – including repair – it (see section 56). The highway authority has powers in relation to it as a highway, albeit that it is not one maintainable at public expense (see, for example, section 57(2) and section 130).
9. A private street (as to which see section 203(2)) is not a highway, but it may become a future dedicated highway. While it is a private street it falls within the supervision of a body known as the Street Works Authority who can take appropriate action if justified (see, for example, section 205).
10. A section 38 adoption agreement is not the only route by which a highway maintainable at the public expense can come into being. There are other provisions in the 1980 Act by which such a position is mandatorily arrived at. Such mandatory routes apply both to privately maintainable highways and to future dedicated highways. As regards privately maintainable highways, the 1980 Act alongside the consensual route in section 38(1) provides a mandatory route involving the Magistrates' Court to resolve relevant controversies in section 53. As regards the future dedicated highway, for which the voluntary agreement route is section 38(3), Parliament provided in the 1980 Act a mandatory route, again involving the Magistrates' Court to resolve relevant controversies (see section 37). Each of the two key scenarios therefore which attracts the agreement provisions of section 38 is accompanied by a mandatory statutory route involving the Magistrates' Court.
11. The issue, as I have already indicated, is whether the permissible terms of a section 38 adoption agreement under section 38(6) – either the second limb or the third limb - can include a provision which has the following features. It would involve the party with whom the highway authority is entering into the agreement being liable to make a payment or payments where those payments are referable to the maintenance of the highway and where that maintenance of the highway is maintenance after the time at which it will have become maintainable at the public expense, that is to say after the contractually specified start date.

The Context

12. The context in which the issue arises is that this is a case involving a future dedicated highway, the section 38(3) scenario. The claimant in this case is a developer of a 525 dwelling housing development at Huyton, pursuant to a planning permission secured on 7th February 2011, the development is at phase 1 and relates to Thingwall Lane.
13. The section 38 agreement which is envisaged in this case, were it entered into, is designed to address various matters including the developer's responsibility to undertake all necessary works to make up the road to a satisfactory standard and specification. Those steps are to be enforceable by a "bond" intended to provide surety under the agreement. The "bond" would mean that should the developer default on those responsibilities the highways authority could carry out the relevant works and recoup the cost of making up the road itself. The position is helpfully set out in a witness statement of Sean Traynor. Those steps are referable to a contract period preceding the specified start date at which the highway would become maintainable at the public expense. They therefore illustrate the sort of provision which it is common ground is intra vires (section 38(6)). In my judgment, that uncontroversial situation as to works prior to the contractually specified date and obligations arising out of those works at that time is also the context for some of the other materials which the parties have shown to the court in this case, including for example the Crest Estate judgment of the Court of Appeal [2005] EWCA Civ 1059, a case relating to indemnities. Those materials do not in my judgment provide much assistance, if any, on what is the controversial question which arises in this case.
14. The question arises because the defendant, the local highways authority, wishes to include in the section 38 adoption agreement, alongside the provisions relating to making up the road and the bond, an additional provision for the payment by the developer of a commuted sum. A commuted sum is a quantified sum which is payable under the agreement but relates to future expenses. The sum in question in this case is around £39,000 and in this case it relates only to one component of maintenance of the highway in question, namely street lighting maintenance. The apparent benign nature of all of that cannot, as Mr Barnes QC for the claimant submits, conceal the importance of the point of principle which arises, nor conceal the legal logic of the argument on both sides. What matters is that the maintenance with which the proposed commuted sum is concerned is maintenance in relation to the highway which necessarily arises and will arise after the date on which it would become maintainable at public expense.
15. There is evidence before the court as to the defendant's street lighting arrangement and its policy in relation to commuted sums. There is evidence relating to the practice of certain other highways authorities in relation to commuted sums and there are various other materials which have been put before the court and touched on the question of the practice of insisting in a section 38 adoption agreement on such provisions. No party says that any of that material is an aid to construction and I shall therefore put it to one side.

Analysis

16. Mr Barnes QC, for the claimant, focuses on the second limb of section 38(6) and the phrase "the bearing of the expenses of the construction, maintenance or improvement of any highway ... to which the agreement relates". He submits that in this context, and in particular where a highway is becoming one maintainable at public expense, this phrase, properly interpreted, has a temporal restriction. He says it excludes expenses which relate to maintenance after the date on which the highway becomes maintainable at the public expense. Why? Because otherwise it would be a highway maintainable at the private expense. The phrase he says "maintainable at the public expense" must straightforwardly mean what it says and that means that the highways authority cannot insist on the provision of the payment of expenses which are not from a public source but are from the developer.
17. Mr Barnes says that straightforward interpretation is supported not just by the ordinary and natural meaning of the words, not just by the context and purpose of the provision, but is reinforced also by a number of other indicators. The principal ones, in my judgment, among them are these.
18. Firstly, he points to the relevant mandatory route for a section 38(3) scenario, namely section 37 and alongside it Mr Barnes relies on section 228. His submission is that Parliament, through those mandatory provisions, has excluded the imposition of future maintenance costs and that being the case it indicates that those sorts of future costs must equally be excluded from what Parliament was envisaging in section 38(6).
19. Mr Barnes says that the position is further reinforced by the fact that there are various provisions which allow for or contemplate private maintenance or privately paid expenses of maintenance in the case of a highway maintainable at the public expense. He relies on section 44, section 53 and section 278(3) as illustrating that point. But he submits those are all situations in which Parliament specifically 'spelled out' the position, which indicates that where in section 38(6) there is no such expansive 'spelling out' of the position, Parliament intended temporally to restrict the second limb of the subsection.
20. Mr Barnes next submits that the position is strongly reinforced when one steps back and looks at the consequences of the arguments. He says if he is wrong there is no stopping point and what begins as a commuted sum for a modest part of future maintenance costs logically ends with ongoing annual payment of 100%, not only of maintenance but also construction and improvement for, as he points out, the phrase in the subsection is "construction, maintenance or improvement". It cannot be right, he submits, that if future expenses are contemplated by section 38(6), one could draw any distinction of principle between part payment and full payment between commuted sums and ongoing liabilities and between maintenance and construction or improvement. Those startling consequences, he submits, strongly indicate that Parliament intended something narrower, more tailored and far more sensible.
21. He relies on re-enforcement in other respects as well, pointing to various other provisions in the 1980 Act in which liability for expenses attracts statutory mechanisms for enforcement included charging provisions. He submits that it is striking that there is no such provision for any such enforcement built into section 38 which again, he submits, indicates that it is not a provision intended to encompass future or ongoing expenses.
22. Finally, still focussing on what in my judgment are the headline points, Mr Barnes submits that if he is right so far about the true ambit and meaning of section 38(6) as to its second limb, and if he is right that the bearing of the expenses of the construction, maintenance or improvement of any highway is deliberately temporally restricted, then he says that a different answer cannot be achieved through an expansive reading of third limb (other relevant matters). That he submits that would be allowing the general to overrule the specific. He says it would allow a general provision intended to deal with ancillary or incidental matters to be invoked to defeat a limitation on a specific and relevant previous limb.
23. Notwithstanding the attractiveness with which they were advanced, I am unable to accept those submissions. In my judgment the answer lies ultimately in the two propositions. Firstly, Parliament cannot in section 38(6) be taken to have intended a temporal restriction, notwithstanding the statutory concept of highway maintainable at public expense, and notwithstanding that the consequence of a highway maintainable at public expense is that any statutorily relevant liability to maintain is extinguished by the coming into being of a highway maintainable at the public expense (see section 38(1)). Secondly, Parliament can be taken to have provided a suitable statutory safeguard to deal with circumstances in which consensual arrangements put forward by a highway authority are not acceptable to the other contracting party. I do not accept, as was suggested for the written submissions for the claimant, that that safeguard viewed in that way means that section 38 becomes a dead letter. But in my judgment it does provide the answer to many of the points raised about the logical consequences of unreasonable insistence on expenses provisions.
24. The analysis starts with the statutory concept of highway maintainable at the public expense. Viewed on its own, in my judgment, it is clear that Parliament did not intend by the use of that phrase to exclude any possibility of either any act of privately maintaining or of any act of privately making contribution towards expense. The implications of a highway being characterised as maintainable at the public expense are spelt out in the statutory scheme, including the statutory duty that applies only to such highways. But, in my judgment, taking the phrase "maintainable at the public expense" it can be seen from provisions such as section 44 and section 278 that it is not necessarily inconsistent with that statutory concept for there to be an act of private maintenance or an act of the provision of expenses.
25. Section 44 is a provision which deals with the situation where a person responsible, that is to say liable to maintain a privately maintainable highway, undertakes by agreement to maintain a highway maintainable at public expense. Parliament has made clear that such an Act in those circumstances does not detract from the fact that the highway is and remains maintainable at public expense and the relevant statutory duty remains applicable.
26. Section 278 of the 1980 Act is concerned with works and deals in terms, at subsection 3, with a consensual arrangement under which "the agreement may also provide by the making to the highway authority of payments in respect of the maintenance of the works to which the agreement relates." It is common ground and Mr Barnes accepts that that sort of agreement can extend to a payment which would relate to maintenance and maintenance in relation to a highway, maintainable at public expense.
27. So much for the position of the meaning "maintainable at the public expense viewed in isolation". Mr Barnes would I think accept all of that but his submission, as I have already outlined, is that there is a particular contextual meaning of the relevant phrases when one comes to consider highways maintainable at the public expense coming into being, in other words: at their birth. I turn then to deal with that topic.
28. In my judgment, it is clear from the reading of the statutory scheme that becoming a highway maintainable at the public expense does not exclude the provision from a private source of expenses relating to its future maintenance. The position is emphatically illustrated when one comes to consider the section 38(1) scenario of a privately maintainable highway and the position of the person who is liable to maintain it but wishes for it to become a highway maintainable at public expense.
29. That scenario is graphically illustrated by a 1911 case called in re: Earl Stamford Hill and Warrington [1911] 1 Ch page 648. It is a case which involved a monetary payment in the sum of £500 by five equal half yearly instalments of £100 to be paid on behalf of the person liable to maintain the privately maintainable highway with which the case was concerned. There was an agreement, and on the basis of that payment designed to release the party from what would have been their ongoing liability to maintenance, the relevant public authority was said to have undertaken, for the future, the duties of maintenance and repair and the person with previous liabilities from whom the payment had been secured was said to have been released from any such liability.
30. Mr Barnes submits that I ought to approach the Stamford and Warrington case, as authority, with great caution. I agree. He points out that the issue argued before Warrington J in that case related to whether the council, by reason of that agreement, had undertaken a liability for ever thereafter or on the other hand, whether they merely had the power to contract with the occupier from time to time, to do repairing work. I accept that that appears to have been the focus of the argument before the court in that case and I therefore approach with some caution the conclusion of the learned judge when he said at page 661 that the agreement with which he was concerned was one which was "not ultra vires the rural district council and will if carried out effectively discharge the land from the liability to repair."
31. I also note that the provision in play in that case, section 148 of the Public Order Act 1875, did not in terms use the phrase "maintainable at the public expense" but a rather different phrase "take on themselves the maintenance". Looking at the statutory archaeology it appears that Parliament used possibly interchangeably phrases such as "maintainable at the public expense" - see for example the 1858 Act, sections 39 and 40 – and then phrases such as "take on themselves the maintenance …"
32. It suffices in my judgment to take the scenario in the Stamford and Warrington case, which clearly involved a payment relating to expenses as to the future maintenance of a highway that was becoming maintainable by the relevant authority.
33. When one takes that scenario, and considers the 1980 statutory scheme, in my judgment the position is clear. Parliament envisaged that that sort of arrangement could lawfully be entered into. It envisaged that position, notwithstanding that it was using the language of highway maintainable at the public expense.
34. The starting point in that respect is that, unlike the statutory provisions in the Stamford and Warrington case, Parliament spelt out in section 38(6) that an agreement under the section could make provision for bearing the expenses of construction, maintenance or improvement. That provision, on its face, is applicable to the section 38(1) scenario. On the face of it, therefore, it empowers provision to be made for maintenance expenses. Moreover it is couched in broad statutory discretionary language: "such provisions ... as the authority making the agreement think fit".
35. What puts the matter beyond any doubt, in my judgment, is consideration of the relevant mandatory mechanism which a person faced with a section 38(1) scenario could invoke or indeed could have invoked against them. In my judgment, Parliament in section 53 of the 1980 Act has spelt out that in the case of a person with liability to maintain a privately maintainable highway, the question of whether that highway should become one maintainable at the public expense can be put before the Magistrates' Court. In putting it before the Magistrates' Court section 53(3) provides as follows:

"Where by virtue of an order under this section the liability of a person to maintain a highway is extinguished …

[I interpose that it is an application to the magistrates for an order to extinguish liability that has the consequence that the highway becomes maintainable at the public expense - see section 53(1)]

… that person is liable to pay to the highway authority for the highway such sum as may be agreed between him and that authority or, in default of agreement, as may be determined by arbitration to represent the value to him of the extinguishment of his liability."

36. That, in my judgment, is very clearly the type of arrangement in the Stamford and Warrington case, specifically being identified as appropriate by Parliament under section 53(3). Not only that, but subsection (4) of the same section goes on to make clear that that sort of payment, of the value of release of liability to maintain, can either be in the form of a lump sum – in other words a commuted payment – or annual payments continuing on into the future.
37. Mr Barnes points out that of course is a specific provision, dealing with a specific statutory mechanism. I agree. But, in my judgment, it is inconceivable that Parliament could both: on the one hand, require a provision for the payment of sums plainly referable to future maintenance – for that is the value of what is being extinguished – when the case gets to the magistrates; but also on the other hand, exclude any equivalent voluntary provision in an agreement between two parties who wished to arrive at an agreed position and avoid going before the magistrates.
38. I can see no logical basis on which it could be said to be impermissible to have a consensual payment of the sort which would become mandatory were the matter to be pursued before the magistrates under section 53.
39. I find nothing in the wording of section 38(6) to indicate such a restriction. On the contrary, in my judgment, the wording chosen by Parliament is not only broad but open-textured in including that sort of expense provision.
40. If I am right so far about the correct interpretation of the phrase "the bearing of the expenses of the construction, maintenance or improvement of any highway ..." in section 38(6), when that provision is relating to the section 38(1) scenario – that is to say the Stamford v Warrington type situation – then the question becomes this. Is there any basis for identifying a temporal restriction on that phrase in relation to one of the scenarios in section 38 but not the other? I say that because the argument, in my judgment, would then need to be this: all that may be right for section 38(1), that nevertheless there is an implied temporal restriction in relation to section 38(3).
41. Mr Barnes accepts that that would be an untenable position and he does not advance any arguments as to why the same phrase could bear a different meaning in relation to the two different section 38 scenarios. Although that matter is common ground, I have considered whether I can see any basis for supporting such a distinction. In the absence of any argument on the point, I should record that I regard that concession as one correctly made. That is, I can see no basis on which it can convincingly be said that the same phrase could bear a temporal restriction in one scenario but not the other. If Parliament had intended to differentiate, it could have done and would have done. If might be submitted, for example, that section 38(6) is to be interpreted in line with what magistrates could order (which may be different in a section 53 mandatory case than in a section 37 mandatory case, for the two different scenarios). Or it might be submitted that a different interpretation of the same limb of section 38(6) is justified: because one scenario involves a statutory liability to maintain which is being extinguished, and the other does not, which is why the wording at the end of subsection (1) of section 38 is not replicated for section 38(3). If those sorts of distinctions were advanced – and to be fair to Mr Barnes, as I have said, he does not advance them – they would in my judgment fall foul of the difficulty of giving the self-same broad provision a materiality different meaning in those two contexts. Parliament could have made provision whereby subsection (6) arrangements were referable to what magistrates could order, or referable to pre-existing liabilities. It could have said so. It did not say so. So the language, in my judgment, does not support any such distinction, were one advanced. Ultimately, even if the liability (or the burden, as Mr Tucker QC put it) in relation to the section 38(3) scenario is not of the same nature as for the section 38(1) scenario, and even if those liabilities to maintain would be matters for consensual arrangements rather than operation of a statute, the fact is that section 38 is concerned with consensual arrangements with the highway authority. In my judgment, there is no basis for arriving at a different conclusion where consensual arrangements are in play in the section 38(3) scenario.
42. So, in my judgment, it is compatible with subsection (6) for the parties to include within their agreement provision for expenses relating to maintenance albeit that the maintenance postdates the date on which the highway would become maintainable at public expense.
43. In my judgment, as with other provisions in the statutory scheme, section 38(6) is itself a provision which is 'spelling out' that arrangements can be made including as to maintenance, including as to a highway maintainable at the public expense and including after such time as it becomes maintainable at the public expense.
44. I see no justification for reading in some implied temporal restriction. There is no incoherence, in my judgment, viewed against the statutory context as a whole, in interpreting the provision in that way. Given that it is not, in my judgment, an illogical or incoherent interpretation, it is relevant to ask this question. If Parliament had intended a provision which did not include a temporal restriction, what would that provision look like? In my judgment, there is no reason to suppose that it would not look like subsection (6) of section 38.
45. Turning to the other matters, and in dealing with those, the mandatory route that relates to the section 38(3) scenario, as I have already said, is to be found in section 37, including resort to the magistrates. It is common ground between the parties that the magistrates in imposing any relevant order under section 37 have no statutory power in section 37 to impose a monetary order or an order for the payment of expenses.
46. It is controversial, between Mr Barnes and Mr Tucker, whether the phrase "be of sufficient utility to the public to justify its being maintained at public expense" (section 37(2)) could build in considerations as to what was to be paid for by whom. Mr Barnes submits that there could be no role before the magistrates of any question of what the developer may pay for. I shall assume - for it is not in my judgment necessary for the purposes of this case to decide - that he is right, and there is no role before the magistrates for questions of payment by a developer (in relation to the relevant highway or any question of ongoing arrangements for the highway). Assuming that to be right, the answer is nevertheless that section 37 provides the statutory route and the statutory safeguard for any developer who, for whatever reason, does not wish to enter into a section 38 arrangement on the terms being proposed by the highway authority.
47. Mr Barnes accepted that there are other respects in which a highway authority acting under section 38 could lawfully and properly insist on matters on which it could not insist were the case before the magistrates under section 37. Examples that were given in argument included the route for a proposed highway or the specification. The highways authority may be willing to enter into an agreement under section 38 on the basis of particular considerations which the developer may or may not accept. If they are unacceptable, some of those then may not be open to the highways authority or the magistrates under the mandatory mechanism in section 37.
48. If the parties agree under section 38(6) to make a monetary provision, and if it is agreed that the developer will make a contribution to expenses albeit that they are referable to maintenance after the time which the highway becomes maintainable at public expense, then the matter is in my judgment the subject of what would be an intra vires and valid agreement.
49. The question can be tested by supposing certain other scenarios in which a highway authority may wish to adopt a different approach from that which could arise under the mechanism of section 37. Section 37 is framed in such a way that the relevant work on the highway needs to be complete, so that the council can certify that the highway has been made up in a satisfactory manner. There is then provision for a 12 month period at which it is to be maintained and the question of whether it is being used can be tested and only then the question of it being a highway maintainable at public expense can arise under section 37. I can see no reason, by reference to the broader and more flexible language of section 38, why a different position could not in an appropriate case arise where the matter is consensual.
50. Suppose the highway authority, for whatever reason, is prepared to agree an earlier date as the start date for the highway becoming maintainable at the public expense. Suppose it wishes to undertake steps which are facilitated by that position but it remains concerned that various steps, including possibly the finishing of construction or improvement, or of maintenance ought also to be undertaken. Section 38, in my judgment, does not constrain the highway authority so that it is sole permissible consensual route is to deal with those sorts of situations by delaying the specified date for the highway becoming maintainable at public expense.
51. Suppose the highway authority wishes to insist on a 12-month period at which the highway is to be maintained by the developer, but wishes that 12-month period to be immediately after rather than immediately before the highway becomes maintainable at public expense. In my judgment, the language of section 38 is broad enough and flexible enough to allow such arrangements to be addressed consensually between the parties, even though it does not replicate what the position would be under the section 37 mechanism.
52. To that extent, it seems to me that it cannot be said that the sole relevant future step under subsection (6) of section 38 is "maintenance" in the examples I have given: there might be steps that relate to "construction" or "improvement" that could properly be the subject of expenses even though they postdate the contractually agreed start date. Mr Tucker submits that, in principle, it could be lawful to have a consensual provision that relates to the expenses of construction or improvement, and that it is not simply a question of maintenance. I accept that submission emphasising, as I already have, that in relation to all of these matters Parliament has provided the section 37 statutory safeguard, if what is being suggested is considered to be unreasonable or inappropriate on the part of the developer.
53. As to the absence of express provisions for charging mechanisms and enforcement and land charges, in my judgment the position is that there is no uniformity throughout the statute as to when those sorts of provisions are made and Parliament has on occasion included such provisions even where there are consensual arrangements. Mr Barnes points to section 278(5) as illustrating that point. I agree, but it does not follow in my judgment from the absence of equivalent provisions in section 38, or the absence of section 38 in the section 305 list, that section 38(6) is temporarily restricted.
54. Indeed, even in relation to what I have described the "bond" arrangements – the uncontroversial payment of liabilities, under the envisaged section 30(8) agreement in this case – there is a provision recognised by both the parties as being lawful and within the terms of section 38. The fact is that Parliament has not provided a specific enforcement or charging mechanism, but that does not alter the fact, as is common ground, that such provision is one on which the highway authority can lawfully insist.
55. I ought to say this as to the third limb of section 38(6). If Mr Barnes were right in relation to the second limb, I certainly accept that he must be right in relation to the third limb. If it were the position that Parliament had intended a temporal restriction on the expenses of the construction maintenance or improvement of a highway, so as deliberately to limit those expenses to the time before the highway becomes one maintainable at the public expense, I cannot see how any reference to "other relevant matters" could defeat that purpose. The 'general', in my judgment, would need to 'yield to the specific'. However, in my judgment, that question does not arise since for the reasons that I have given – which reflect the submissions made for the defendant by Mr Tucker QC – I am satisfied that there is no temporal restriction under the second limb.
56. I turn to the outcome. I am asked not only to give a judgment with my reasons, seeking to analyse the issue which has been eloquently argued by the parties before me. I am asked by both parties also to make a declaration, whichever way I decide the issue, dealing with the question of maintenance and maintaining the highway (rather than matters of construction or improvement), but a declaration not limited to the question of a commuted sum – as is the factual scenario in this case – but which includes other provision for payment.
57. Subject to any further observations from the parties, the declaration that I am minded to make in this case and in the light of the judgment I have just delivered is as follows. On the correct interpretation of section 38(6) of the Highways Act 1980, a section 38 agreement, including when made under section 38(3), can in law contain provision for the party other than the highways authority to pay a sum (whether a commuted sum or otherwise) referable to the expenses of a highways maintenance after the date on which it becomes maintainable at the public expense.
58. I will hear submissions in relation to the wording of the proposed declaration and then deal with any consequential matters.

1. MR BARNES: Your Lordship has comprehensively decided against me on my submissions, indeed also on submissions I did not make, but all of them.

2. As far as the declaration is concerned, I agree; in my submission, that is absolutely a correct declaration in the light of your Lordship's judgment.

3. MR TUCKER: I concur.

4. THE DEPUTY JUDGE: Can we agree now that someone will e-mail an order? It will help the court if we could have the order e-mailed. I think we have no problem with wording so far.

5. MR BARNES: I have just volunteered Mr Barratt to do that.

6. THE DEPUTY JUDGE: Thank you very much.

7. MR BARNES: I suspect that my learned friend is going to ask for costs.

8. MR TUCKER: That was certainly my next stage, yes.

9. THE DEPUTY JUDGE: Shall we do that next?

10. MR TUCKER: By all means my Lord.

11. MR BARNES: I agree in principle we pay the costs.

12. MR TUCKER: I will hand up.

13. THE DEPUTY JUDGE: I have a schedule.

14. MR BARNES: Your Lordship should have a schedule in the sum--

15. THE DEPUTY JUDGE: £23,892.25 plus VAT.

16. MR TUCKER: Correct. I make that application my Lord.

17. THE DEPUTY JUDGE: Is there anything you want me to knock out?

18. MR BARNES: I do not think so my Lord.

19. THE DEPUTY JUDGE: That is very fair. I shall order the claimant to pay the defendant's costs in the sum of £23,892.25 plus VAT. We better have a time frame for that. There is no problem with timeframe - 14 days?

20. MR BARNES: It is usually 14 or 21 days my Lord. Twenty-one days.

21. THE DEPUTY JUDGE: Within 21 days. Could that go in Mr Barrett's order please? Thank you very much. That deals with costs.

22. MR BARNES: I ask for permission to appeal. Obviously permission to appeal usually depends on two matters. One is whether there is a matter of substantial public importance. I find it unusual there be resistance on this because it involves a lot of authorities and general matters. It is not just one matter between this developer and this authority; there has been a lot of dispute of this in the past and so forth.

23. The other question of course is the question of whether there is a reasonable prospect of succeeding on appeal. I always find this difficult because a judge makes his judgment and I well know some judges --

24. THE DEPUTY JUDGE: Be not afraid. I know exactly what you mean.

25. MR BARNES: You give me leave?

26. THE DEPUTY JUDGE: No, I am saying do not be deterred.

27. MR BARNES: I am saying that it is my experience that some judges feel absolutely content with what they have said, there can be nothing else to the contrary. Other judges feel there maybe matters of dispute. They have to arrive at a decision, as all judges do. I do not know how your Lordship feels but I leave it to you. Those are the two matters, but I do say there is a matter of substantial public importance. I ask for permission to appeal.

28. THE DEPUTY JUDGE: Mr Tucker?

29. MR TUCKER: My Lord, ultimately it is a matter for the court. I have to concede the former given the way in which Mr Traynor pitches his witness statement there are plainly more than simply this authority and more than this issue, which is of an interest in relation to the outcome of this case.

30. THE DEPUTY JUDGE: Is it sensible to get it dealt with at Court of Appeal level in an authority that will bind everybody. Are you supporting it?

31. MR TUCKER: I am not instructed to support it, no, my Lord. I see three shakes of the head. That is an indication that I am not. But I do have to formally concede I think the matter of general public importance. I do not concede reasonable prospects.

32. THE DEPUTY JUDGE: Have we got to a White Book? I just want to check whether my hands are tied. If it is on the question of importance, I am very familiar with the two grounds. But my recollection is that even if a case is undoubtedly important, permission to appeal is not automatic that you really have to look at it in the round and consider both limbs together. I do not know if that is a common ground.

33. MR BARNES: It is.

34. THE DEPUTY JUDGE: It is.

35. I am going to refuse permission to appeal. I will explain to you why. I agree that there is the importance of the issue. It plainly is important and that was identified by the judge when he granted permission to appeal. I do not think it is right to look at that in isolation, so I have to look at that alongside prospects. My view is that, looking at the statutory scheme as a whole, actually the answer is a very clear one.

59. That is not to exclude the possibility that others may disagree with me, and pride comes before a fall; it is not me being proud. But what I do think is that if the matter is to be pursued before the Court of Appeal, the Court of Appeal ought to decide whether this is an issue in which the court needs further argument or whether it is an issue where that court can see a clear answer, having looked at the matter at the permission stage. If I grant permission to appeal, I am forcing their hand in a sense, that there will then be a substantive appeal. In my judgment, the appropriate course, in all the circumstances, is for any application for permission to appeal to be pursued with the Court of Appeal and for the Court of Appeal to decide whether it wishes to give permission.
60. For those reasons I am going to refuse.
61. MR BARNES: In those circumstances we will have to pursue our appeal before the Court of Appeal, as is our right. There is this difficulty, that your Lordship's judgment has been a long and careful one and given ex tempore. It is not in a written form. Obviously we normally have within 21 days to put in our appeal and we have to put in our appeal, and our skeleton argument in the appeal. It is very difficult to do that --
62. THE DEPUTY JUDGE: I can extend time, can I not?
63. MR BARNES: What I am going to ask is your Lordship extends time. We will undertake to obtain a transcript as soon as we reasonably can. Subject to that would your Lordship extend time to 21 days beyond the reception of the transcript?
64. THE DEPUTY JUDGE: Any observations?
65. MR TUCKER: No, my Lord. That seems entirely logical and plainly it would be wrong to force my learned to draft his grounds before seeing the transcript in its final form. In other cases I have had this court order a transcript and order that be expedited.
66. THE DEPUTY JUDGE: I can do both of those. I will very happily do both of those. They are both entirely justified. I will direct, and if Mr Barrett can please include this as well: I will direct an expedited transcript and I will make sure those upstairs know that is going to happen. I will also extend time for the lodging of any appeal notice until 21 days after reception by the claimant's representatives of the approved transcript. Does that deal with that?
67. MR BARNES: Yes.
68. THE DEPUTY JUDGE: Is there anything else from either of you?
69. MR BARNES: My Lord, no.
70. THE DEPUTY JUDGE: May I thank you all for your assistance in this interesting case.