Jersey Unreported Judgments

Roads committee - re: extinguishment.

[2021]JRC126

Royal Court

(Samedi)

30 April 2021

IN THE MATTER OF THE ROADS COMMITTEE OF THE PARISH OF ST CLEMENT AND THE PARISH ROADWAYS KNOWN AS "LE SQUEZ ROAD" AND "SCHOOL ROAD"

AND IN THE MATTER OF THE EXTINGUISHMENT OF ROADS (JERSEY) LAW 1972, AS AMENDED

Advocate J. M. Lawrence for the Parish of St Clement

judgment

the deputy bailiff:

1.        This is an application to the Superior Number of the Court made by the Parish of St Clement ("the Parish") seeking the extinguishment of two roads namely "Le Squez Road" and "School Road", which are by-roads owned by the Parish. 

2.        At the outset we confirm that the statutory formalities have been complied with in this case in terms of the services of notices pursuant to Article 6 of the Extinguishment of Roads (Jersey) Law 1972 ("the Law"). 

3.        As to the notices to be given under Schedule 1 of the Law, we think that it would be appropriate in future if the 14 day notices to be placed at each end of the road by way of "placard" should be headed in clear terms "Proposal to extinguish this road" and should also state that parishioners, if they so wish, are entitled to attend any hearing before the Royal Court in order to support or object to the application to extinguish the road in question. 

4.        This is not required by statute but it seems to us a matter of good practice so that those who may not have (as would frequently be the case) participated in a Parish Assembly or responded to correspondence have an opportunity to make their views known in relation to a proposal to extinguish a road. 

5.        As to the Court's power under Article 3(2) of the Law to extinguish a road, the Royal Court is entitled to order that the road be extinguished if it is satisfied (after a view if necessary) that:

"(a) the road which forms the subject of the application is unnecessary;

(b) it is in the public interest that the road should be extinguished; or

(c) it is necessary or desirable in connection with the proper development of any part of Jersey that the road should be extinguished..." 

6.        In this case, the members of the Court agreed that a view was necessary, and we viewed the roads on 31^st March 2021. 

7.        In this case, the Parish, having originally suggested that it was in the public interest that the land in question is no longer necessary as a public roadway, at the hearing of the application accepted that it could not succeed under Article 3(2)(a) and submitted that this application was made under Article 3(2)(c), i.e. it is necessary or desirable in connection with the proper development of this part of Jersey that the road should be extinguished. 

8.        The Parish argues that this area has been the subject of substantial improvement over the last few years, pursuant to a general plan of improvement referred to colloquially as the "masterplan" designed to improve the general circumstances for Andium residents living in the neighbourhood.  There are several hundred such residents living in the vicinity of the roads and whilst the roads have remained Parish roads, Andium has, at its expense, paid for resurfacing and, with the agreement of the Parish, some of this area has been virtually pedestrianised to the extent that it is now only accessible by vehicles for emergency purposes. 

9.        We asked the Advocate for the Parish how the residents' area would be advantaged by the road becoming owned by Andium instead of the Parish and were told that Andium would be able to move "nimbly" as they were not required to consult the Roads Committee or the Parish when undertaking further improvements which were planned in the future.  One such plan was a possible drop-off area for the local school and for further restrictions on through traffic. 

10.      We were told by the Connétable that this proposal has substantial Parish support and that at the Parish Assembly meeting in early March 2020 more than 20 parishioners attended, most of whom lived along the School Road and they supported the application unanimously. 

11.      Of the several hundred parishioners who were served with notices in relation to this proposal, only three responded, and their concerns were in relation to rights of way and similar matters and not objections to the proposal per se. 

12.      Andium agreed to provide undertakings in writing to the Court to keep the roads in a good state of repair at its expense and also to ensure that it would provide certain contractual rights to property owners bordering the roads permitting them to use the two roads at all times and all purposes to access the public roads and giving them a right to connect to services contained within the roads that are to be extinguished as public roads.  When we viewed the roads, we noted that in fact the undertaking initially offered to the Court by Andium was insufficient as it only extended to owners of private domestic premises adjoining the roads.  There were other affected premises including a school, a youth club, a large retail premises and other premises that were affected and needed to be the subject of an expanded undertaking, which we requested and with which we were subsequently provided. 

13.      In this fresh undertaking, Andium states that in view of the number of properties affected it is impractical to pass a contract in order for the rights to be created in the conventional manner and accordingly asked the Court to direct that a copy of the undertakings given by Andium be registered in the Public Registry to record the operation of such rights as if created by hereditary contract on the basis that the roads forming a single corpus fundi will be the servient tenement of the rights; that all the properties adjoining the roads will become the dominant tenement of the rights; that the rights to be created in perpetuity between Andium and its successors and successors in title and the owners and their heirs and successors in title, and that the rights shall henceforth be recited in any future contracts relative to the properties of the said owners.  We were content to make this order. 

14.      We also noted that the northerly part of Le Squez Road had in fact for all practical purposes been extinguished in the sense that it was no longer accessible from the northern end or for any vehicular traffic; it was now only available for limited pedestrian use and that this had occurred approximately five years ago.  It would have been better had an application to extinguish that part of the road been made at that time. 

15.      This was in some respects an unusual application, but on the footing that it is one that is supported by the Parish and the residents concerned and is generally in the interest of those residents we decided to grant it.  Accordingly, subject to the undertakings to the Court by Andium that have been provided, we order that the two roads be extinguished as public roads so that the Parish can transfer ownership of the same to Andium Homes. 

Authorities

Extinguishment of Roads (Jersey) Law 1972.