Shopping centre malls — Whether malls subject to walkway agreement — Whether public have equitable licence or public rights to use malls
The appellant
holds from the local authority a long lease of a shopping centre which includes
a number of internal pedestrian malls; these malls were not included on the
plan of roads, paths and walkways expressly dedicated as public highways when
the shopping centre was created. In April 1991, and by reason of their
behaviour, the respondents were sent letters by the appellant revoking any
licence they might have to enter the centre; the respondents continued to
frequent the centre. In proceedings by the appellant seeking declarations and
injunctions against the respondents, the recorder held that although the
pedestrian malls were not subject to any walkways agreement, the respondents
had an equitable licence to enter the centre which had been revoked. The
appellant appealed.
the centre by way of a lease, and that lease provided for access to the centre
by the public, it did not amount to, or evidence, a walkways agreement within
the Highways Act 1980
representation by either the local authority landlord or the appellant that the
public would have irrevocable rights to use the pedestrian malls, nor was there
any evidence that any member of the public had altered their position in
reliance upon any representation; accordingly the respondents did not have any
equitable rights. There was not obligation upon the appellant, as a company
occupying land in consequence of the statutory powers of the local authority,
to permit the public to enter the centre. The case was therefore remitted to
the county court to continue on the basis that the appellant had the right,
subject only to an issue under section 20 of the Race Relations Act 1976 to
determine any licence the respondents had to enter the centre.
The following
cases are referred to in this report.
Barker v Midland Railway Co (1856) 18 CB 46
British
Airports Authority v Ashton [1983] 1 WLR
1079; [1983] 3 All ER 6
British
Trawlers Federation Ltd v London & North
Eastern Railway Co [1933] 2 KB 14
Cinnamond v British Airports Authority [1980] 1 WLR 582; [1980] 2 All
ER 368; [1980] 28 LGR 371, CA
Crabb v Arun District Council [1976] Ch 179; [1975] 3 WLR 847;
[1975] 3 All ER 865; (1975) 32 P&CR 70, CA
Harrison v Carswell (1975) 62 DLR (3d) 68
Perth
General Station Committee v Ross [1897] AC
479
State v Schmid (1980) NJ 423 A2d 615
Uston v Resorts International Inc (1982) NJ 445 A2d 370
Williams v Staite [1979] Ch 291; [1978] 2 WLR 825; [1978] 2 All ER
928, CA
This was an
appeal by the appellant, CIN Properties Ltd, against the decision of Mr
Recorder Philip Cox QC, in proceedings for declaratory and injunctive relief
against Martin Rawlins and a number of respondents.
Jonathan Gaunt
QC and Nicholas Taggart (instructed by Nabarro Nathanson) appeared for the
appellant; Bruce Coles QC, Mark Piercy and James Mason (instructed by Lawrence,
of Wellingborough) represented the respondents.
Giving
judgment, BALCOMBE LJ said: This appeal is from a judgment of Mr
Recorder Philip Cox QC, given on a preliminary issue on January 6 1994. The
appeal raises a question as to the nature of the rights of the public to use
the pedestrian malls within a town-centre shopping centre.
Swansgate
Shopping Centre occupies a large area in the middle of Wellingborough. The area
is bounded on the north by Midland Road, on the west by Market Street, on the
south by Sheep Street and on the east by a new road called Commercial Way.
Before the construction of the centre the area consisted largely of older
properties, many of them used as retail shops, and also included Cheese Lane
and Commercial Lane, which connected (in the shape of a ‘dog-leg’) Market
Street and Sheep Street. To the south-east of Commercial Lane lay the site of
an old brewery, which was being used as a car park.
Plans for the
redevelopment of this area started in January 1968, when a joint report by the
county planning officer and the county surveyor set out certain long-term planning
principles. These included:
Pedestrian
safety — shopping streets to be pedestrianised, and
rear servicing to be provided for existing shopping development.
Pedestrian
convenience — provision of direct access by
walk-ways free of traffic from residential areas to the central shopping areas.
In March 1971
a development brief was prepared by the surveyors, Drivers Jonas, on behalf of
Wellingborough Urban District Council (‘the council’). This described the main
objectives of the development as:
To secure a
compact convenient and safe centre which is both economically and aesthetically
attractive by:
consolidating,
improving and expanding the existing main shopping areas, and, as far as
possible, making these free from the hazards and disturbance of vehicles by
providing alternative roads and servicing arrangements in and around the centre
with car parks and bus facilities all closely linked by footways with the
shopping business and civic areas.
Para 3 of the
brief set out the basic principles to which the selected developer would be
expected to adhere, of which the following extract is relevant:
3.2 …
(i)… In mind particularly is the established road
and shopping street pattern and the architectural and historic qualities of
nearby buildings.
(ii) A strongly
emphasised shopping mall is required through the development. It is to
contribute to the aim of creating a new shopping axis at right angles to and
linking with Market Street. When complete it will connect All Hallows Church
and the Market Place via a widened Pebble Lane and the new shopping area to a
new bus station and car park which are to be incorporated into the development.
Pedestrian links are also required from the new shopping mall to Midland Road
and Sheep Street. The design of these pedestrian walkways should be such (as)
to strike a balance between offering shelter to shoppers from the cold, wind
and rain, yet allowing sunshine and daylight to enter.
It should be
observed that All Hallows Church, the Market Place and Pebble Lane are all on
the west side of Market Street, ie are separated from the centre by Market
Street, which, we were told, has itself now been pedestrianised. Similarly the
car park is now on the south-east side of Commercial Way, although connected by
a pedestrian bridge over Commercial Way which leads into the south pedestrian
mall of the centre. The bus station, which would also have been to the
south-east of Commercial Way, was never constructed.
Para 4 of the
brief dealt with the implementation of the development:
Site Acquisitions
and Road Closures
4.1 The Urban District Council intends to acquire
and retain the freehold interest in all land contained within the area of
development …
4.2 The Urban District Council intend to make any
necessary Compulsory Purchase Order in order to acquire all the interests …
4.3 The Urban District Council intend to take
steps to effect the closure of roads, footpaths, rights of way, etc. Subject to
Ministerial requirements the Developer may need to provide alternative routes
for footpaths and rights of way.
Building
Agreement and Head Lease
4.4 The Urban District Council intends to grant
the Selected Developer a Building Agreement to be followed on completion of the
works by the grant of a Lease for a term of 99 years.
4.5 The lease to the Developer will not include
the site of any public roads
…
Roads and
Service Areas
4.22 The Developer will be responsible for the costs
and implementation of construction of all roadways, footpaths and service
areas, including lighting and drainage within the boundary of the development
site.
4.23 The Highway Authority reserves the right to
adopt any of the roads, service areas and footways if and when it so desires.
Appendix I to
the brief contained a draft of the main heads of terms for the grant of a
building agreement and lease in respect of the redevelopment of the area. I set
out below paras 1 and 13 of the draft heads of terms:
1. Parties
(a) The
Wellingborough Urban District Council (hereinafter referred to as ‘the
Council’).
(b) The
Selected Development Company (hereinafter referred to as ‘the Company’) …
13.
Dedication to Council or other Authorities
As and when
required by the Council the Company shall dedicate free of cost to the Council
or to other statutory Authority, any road or vehicular access way within the
Development site that the Council shall determine should be adopted as a Public
Highway. The Company shall similarly dedicate any pedestrian walkway footpath
or area that the Council shall determine should be adopted as a Public walkway
or footpath.
One of the
diagrams attached to the brief indicated in diagrammatic form a pedestrian mall
running in a north-westerly direction leading from the car park and bus
station, across the centre, across Market Street (shown as a future pedestrian
area) to the market area.
On December 15
1971 Northamptonshire County Council granted the council outline planning
permission for the development. The permission was granted subject to
conditions, of which the second was:
The detailed
scheme shall take the form of a comprehensive proposal for the whole block and
shall provide for full segregation of pedestrians and vehicles including the
complete pedestrianisation of the new shopping mall and the provision of
pedestrian only links between the shops, bus station and car park
…
In March 1972
the council made a compulsory purchase order relating to some 6.37 acres of
land in the area required for the redevelopment and applied for its
confirmation; they also applied for a stopping-up order for Cheese Lane and
Commercial Lane. A public inquiry into these applications was held in January
1973. The inspector who held the inquiry reported on July 5 1973 and his report
stated, inter alia:
3.12 These
proposals [for the redevelopment of the area], which received wide coverage in
the local press, were exhibited in the Council Offices from 30 May to 10 June
1969 and seen by about 500 people. The public appeared to be generally pleased,
and no adverse comments were received in relation to the area south-east of
Market Street …
3.41 Nobody
has challenged the main principles behind the redevelopment scheme:
1…
2…
3. The
advantages of creating a new pedestrian area between Pebble Lane across Market
Street to the new link road and car park …
The compulsory
purchase order was confirmed on December 4 1973 and on December 17 1973 a
building agreement for the development was made between: (1) the council, (2)
Midland City Properties Ltd (‘the company’) and (3) Town & City Properties
Ltd (‘the surety’). This agreement provided for the company to construct the
shopping centre and for the council to grant to the company a 125-year lease
for the centre at the conclusion of the development. Clause 5 of the agreement
provided:
Dedication of
roads and walkways
WITHOUT prejudice
to any other obligation on the part of the Company contained in the Agreement
or to be contained in the Lease at its own expense and from time to time as and
when required by the Council to take all such steps as shall be necessary to
join with and concur in the dedication to the Highway Authority of the roads
and paths and walkways shown coloured yellow on Plan B as highways paths and
walkways maintainable at the public expense
The roads
paths and walkways shown coloured yellow on plan B to the agreement were parts
of the site abutting on to Midland Road, Market Street and Sheep Street, ie the
dedication of the yellow land was for the purpose of widening those streets.
The pedestrian malls, which were also shown on plan B, were significantly left
uncoloured.
The second
schedule to the agreement set out the form of the lease to be granted and
clause 3(15)(b) of the draft lease included a covenant by the lessee with the
council:
… to allow full pedestrian access to the common
part of the demised premises from 7.00 am to 11.00 pm daily throughout each
year during the said term. It being further agreed that in the event of such
opening hours being shown to be excessive or unnecessary particularly in
relation to Sundays and Bank Holidays or in the event of excessive cost or
vandalism the Lessee may make representation to the Council for a relaxation of
this covenant.
On December 21
1973 an order was made authorising the stopping-up of Cheese Lane and
Commercial Lane.
On April 1
1974 Wellingborough Urban District Council ceased to exist, being replaced by
Wellingborough Borough Council. For the sake of convenience I shall refer to
the latter also as ‘the council’. By a novation agreement made on August 8 1975
the appellant, CIN Properties Ltd (‘CIN’), assumed the rights and liabilities
of Midland City Properties Ltd under the 1973 building agreement. CIN then
proceeded to construct the shopping centre, which was opened in 1977.
On December 22
1980 the council granted to CIN a lease of the centre for a term of 125 years
from April 1 1975. Clause 3(15)(b) of the lease included a covenant by CIN (the
lessee) with the council:
… to allow full pedestrian access to the common
parts of the demised premises from 7.00 am to 11.00 pm (or between such other
hours as may be mutually agreed between the Council and the Lessee from time to
time) daily throughout each year during the said term. It being further agreed
that in the event of such opening hours being shown to be excessive or
unnecessary particularly in relation to Sundays and Bank Holiday or in the
event of excessive cost or vandalism the Lessee may make representation to the
Council for a relaxation of this covenant (such relaxation not to be
unreasonably withheld).
The reason for
setting out the history of the development of the centre in such detail will
shortly become apparent.
The defendants
to this action are young men who live (or lived) in Wellingborough or its
vicinity and who in early 1991 frequented the centre. CIN alleges that their
behaviour caused a nuisance and by letters dated April 3 1991 sent to each of
the defendants revoked any licence they might have had to enter the centre.
When, notwithstanding these letters, the defendants continued to frequent the
centre, CIN started an action in the High Court seeking appropriate
declarations and injunctions. Some of the defendants took no part in the
proceedings, but a defence and counterclaim was served on behalf of defendants
two to nine (inclusive), 13 and 14 (‘the respondents’). In its re-reamended form
the defence set out the history of the development and by paras 13–16 asserted:
13. By reason
of the premises it is contended on behalf of these Defendants that they and all
other members of the public have a right to enter the centre and use the
walkways, whether for visiting the centre or passing through it. Further, it is
contended that by reason of the foregoing, the lease is or evidences a walkways
agreement falling within Section 18 of the Highways Act, 1971, the Council
being a highway authority within the meaning of the Highways Act 1959 …
14. In the
premises it is denied that these Defendants are only entitled to enter the
centre with the Plaintiff’s licence and consent. So long as the centre is open,
the public, including these Defendants, have a right to enter …
15. In the
premises, the purported termination of these Defendants’ licence to enter the
premises was unlawful …
16. Further
or alternatively, if members of the public are only entitled to enter the
premises as licensees, as alleged by the Plaintiffs then, as a matter of law,
these Defendants contend:
(a) the
licence is not revocable on a personal basis; the licence is for all or none,
but not to a selection of people chosen by the Plaintiffs;
(b) the
licence may only be withdrawn if good cause can be shown therefor;
(c) the
licence may not be withdrawn in circumstances where it would be unlawful to
exclude these Defendants from the premises.
There was also
an assertion that the respondents had been the victims of unlawful racial
discrimination. The respondents counterclaimed for declaratory and injunctive
relief and damages, including damages for unlawful discrimination.
The matter was
transferred to Wellingborough County Court and came on for trial before Mr
Recorder Cox. The hearing lasted six days but, as the recorder said in his
judgment:
Some days
after the beginning of the hearing before me it became apparent that I ought to
rule upon certain questions as to fact and law before proceeding further with
the evidence … The questions are as follows:
1. Is there a
walkways agreement relating to the malls?
2.a If so,
can the plaintiff nevertheless exclude persons such as the defendants from the
malls by injunction?
2.b If so, in
what circumstances?
3. If there
is no walkways agreement, what is the character of the defendants’ licence to
use the premises, and in what circumstances, if any, may such licence be
withdrawn by the plaintiff?
The recorder
came to the conclusion that there was no statutory walkways agreement relating
to the pedestrian malls in the centre and so his questions 2.a and 2.b did not
arise.
However the
recorder went on to find that the respondents, as members of the public, had an
equitable licence to use the malls, but the licence was revocable for good
reason. The relevant parts of his
I am however
satisfied that the members of the general public, including these defendants,
in their use of these pedestrian ways, or malls as they are called, which have
replaced the former street pattern of a substantial area (10 acres) of central
Wellingborough, are not to be considered as bare licensees whose rights can be
revoked at will by the plaintiff. In the absence of any walkway agreement,
which the public has no right to demand, it seems to me that equity must step
in to preserve for the public an irrevocable right to use these malls in the
town centre, when they are open in accordance with the terms of the lease, even
though they are passing through private property …
I therefore
find that the public has an irrevocable right to enter and use these malls
whenever the doors are open but, as this right is equitable, reasonable conduct
is required of those availing themselves of the facilities and in appropriate cases
at the suit of the plaintiff the court will have power to grant injunctions
restraining entry to the centre.
From this
finding CIN has appealed, while the respondents have by a respondents’ notice
cross-appealed to contend:
(1) that there
is a walkways agreement between the council and CIN;
(2) that any
equitable licence is irrevocable;
(3) that there
has been implied dedication of the malls as highways.
This was not a
point which had been raised in the court below.
It will be
convenient for me to deal with the issues that arise in this appeal in the
following order:
(1) dedication
as a highway
(2) walkways
agreement
(3) equitable
licence
(4) a public
right to use the malls not covered by any of the preceding heads.
Dedication
A lessee
cannot dedicate land as a highway without the consent of the owner of the
freehold: see Halsbury’s Laws of England 4th ed vol 21 para 68. Indeed,
it is usually only the freeholder who is in a position to make an effective
dedication: see Halsbury vol 21 para 65. In the present case the council
are the freeholder and the council are not a party to these proceedings. In the
absence of the council, and as the point had not been taken in the court below,
we refused to allow the respondents to argue the point before us. However, I
should say that I have seen nothing in the material before us (including the
skeleton argument submitted by counsel for the respondents) which persuades me
that there is anything at all in this point.
Walkways
agreement
Section 18 of
the Highways Act 1971 provides for the creation of footpaths in buildings by
agreement.
18. Agreements
for the provision of walkways.
(1) A local
highway authority may enter into an agreement with any person having an
interest in any land on which a building is, or is proposed to be, situated,
being a person who by virtue of that interest has the necessary power in that
behalf —
(a) for the
provision of ways over, through or under parts of the building, or the building
when constructed, as the case may be, or parts of any structure attached, or to
be attached, to the building; and
(b) for the
dedication by that person of those ways as footpaths subject to such
limitations and conditions, if any, affecting the public right of way thereover
as may be specified in the agreement and to any rights reserved by the
agreement to that person and any person deriving title to the land under him.
A footpath
created in pursuance of an agreement under this section is hereinafter referred
to as a ‘walkway’.
Section 18(2)
allows an agreement under the section to make provision for matters such as the
maintenance and lighting of the walkways, payment to the landowner and, by
subpara (f), for:
… the termination, in such manner and subject
to such conditions as may be specified in the agreement, of the right of the
public to use such walkway;
Section 18(4)
provides for the registration of a walkways agreement as a local land charge.
Section 18(5)
provides, inter alia:
(5) A local
highway authority by whom an agreement under this section has been made may
make byelaws regulating —
(a)
the conduct of persons using any walkway to which the agreement relates;
(b)
the times at which any such walkway may be closed to the public
…
Section 188(6)
of the Local Government Act 1972 authorised the council of a district, after
consultation with the local highway authority, either alone or jointly with the
highway authority, to enter into a walkways agreement under section 18(1) of
the Highways Act 1971, with power for the district council, where the highway
authority were not a party to the agreement, to make byelaws under section
18(5).
These were the
statutory provisions in force at the date of the grant of the lease of the
centre by the council to CIN; they have since been replaced by section 35 of
the Highways Act 1980. There were also then (and still are) in force the
Walkways Regulations 1973 (SI 1973 No 686) as amended by the Walkways
(Amendment) Regulations 1974 (SI 1974 No 735), which contain a large number of
detailed provisions relating to walkways.
The
respondents contend:
(1) that there
was an oral walkways agreement between the council and CIN; or
(2) that the
lease itself constitutes a walkways agreement; or
(3) that a
walkways agreement is to be inferred from the lease and certain surrounding
correspondence.
(1) There was
absolutely no evidence of an oral agreement. In my judgment, this contention
fails in limine.
(2) The
respondents submit that the lease is to be construed against the factual matrix
of the history of the site as set out earlier in this judgment. They assert
that the history evidences an intention on the part of the council that the
public should have rights of way over the pedestrian malls and the court should
be ready to presume that the council acted in accordance with that intention. I
do not accept this assertion. The history of the site certainly demonstrates an
intention that the developer should provide pedestrian malls as part of the
construction, but the nature of what rights the public should have over those
malls was to be fixed at a later stage: see in particular para 13 of the draft
heads of terms annexed to the development brief and clause 5 of the building
agreement. Eventually the council decided to regulate the rights of the public
over the pedestrian malls by the form of the covenant contained in clause
3(15)(b) of the lease.
In my
judgment, clause 3(15)(b) of the lease does not constitute a walkways agreement
within section 18(1) of the Highways Act 1971. Although that section does not
require that a walkways agreement should be in any particular form, central to
it is the requirement that it should provide for the dedication by the
building owner of the walkways as footpaths, ie as being subject to public
rights of way. Clause 3(15)(b) contains no provision for any such dedication.
It is clear that the parties never considered that the lease created a walkways
agreement: no byelaws were made, there was no registration of the agreement as
a local land charge and in 1984 the council and CIN were corresponding about
the possibility of entering into a walkways agreement relating to those malls.
In my judgment, the lease by itself did not create a walkways agreement.
(3) The
surrounding correspondence in fact strengthens the case that the lease was not
intended to constitute, or evidence, a walkways agreement. The correspondence,
which is in two tranches, the first from May–November 1978 and the second in
March–April 1980, indicates that the council and the developers had the
possibility of an agreement well in mind, but had not reached any firm decision
about entering into a statutory walkways agreement.
In my
judgment, the recorder was correct in his finding that there has never been any
statutory walkways agreement relating to the malls in the centre.
Equitable
licence
The equitable
principle upon which the respondents rely is that referred to in Halsbury’s
Laws of England 4th ed vol 27(1) para 14:
Equity
recognises and enforces rights (sometimes referred to as ‘equities of
possession’ or ‘equitable licences’) so as to restrict the revocation of
licences to occupy or use premises which at common law would be regarded as
revocable. This restriction occurs where a person who is occupying or using
land has acted in reliance upon the representation or the acquiescence of the
person having a proprietary interest in respect of that land.
This principle
is exemplified by cases such as Crabb v Arun District Council [1976]
Ch 179; Williams v Staite [1979] Ch 291.
In my
judgment, this principle has no application in the circumstances of the present
case. There was no representation by either the council or CIN that the public
would have irrevocable rights to use the pedestrian malls in the centre, nor was
there any evidence that any member of the public had altered his or her
position in reliance upon any such representation. Indeed, I have the gravest
doubts whether this principle could ever apply so as to create rights in favour
of the public at large, since it is difficult to see how the acts or omissions
of those individuals who rely on a representation could create rights in favour
of the public. Counsel was unable to refer us to any reported authority in
which an equity of this type had been created in favour of the public.
The recorder
acknowledged the difficulty of fitting the facts of the present case into the
two cases and the passage from Halsbury, which I have mentioned, but
after the first passage from his judgment, which I have quoted above, he said
he found some support from a passage in the judgment of Scrutton LJ in British
Trawlers Federation Ltd v London & North Eastern Railway Co [1933]
2 KB 14, at p35. That case concerned the obligations of a company which had
acquired land compulsorily under, and for the purposes of, an Act of Parliament
and neither it, nor the passage from the judgment of Scrutton LJ, has any
relevance to the application of the principle of equity currently under
consideration. It was after the citation of that passage that the recorder made
the finding contained in the second passage from his judgment quoted above. In
my judgment, this finding cannot be sustained.
Public
right
We were
referred to a number of British cases which considered the extent of the
obligations of companies which occupied land pursuant to statutory powers, and
for the purposes of those statutes, to permit the public to enter on that land.
The earlier cases concern railway companies: see Barker v Midland
Railway Co (1856) 18 CB 46; Perth General Station Committee v Ross
[1897] AC 479 and the British Trawlers Federation case (supra). The
later cases concern British Airports Authority: see Cinnamond v British
Airports Authority [1980] 1 WLR 582; British Airports Authority v Ashton
[1983] 1 WLR 1079. I derive no assistance from these cases since the
decisions depend upon the statutory purposes for which the particular companies
occupied the land.
Of more
obvious relevance are two north American cases. In Uston v Resorts
International Inc (1982) NJ 445 A2d 370, the Supreme Court of New Jersey
laid down as a general proposition that when property owners open their
premises — in that case a gaming casino — to the general public in pursuit of
their own property interests, they have no right to exclude people unreasonably
but, on the contrary, have a duty not to act in an arbitrary or discriminatory
manner toward persons who come on their premises. However that decision was
based upon a previous decision of the same court in State v Schmid (1980)
NJ 423 A2d 615, which clearly turned upon the constitutional freedoms of the
First Amendment. The general proposition cited above has no application in
English law.
The case of Harrison
v Carswell (1975) 62 DLR (3d) 68, in the Supreme Court of Canada,
concerned the right of an employee of a tenant in a shopping centre to picket
her employer in the centre, against the wishes of the owner of the centre. The
majority of the Supreme Court held that she had no such right and that the
owner of the centre had sufficient control or possession of the common areas to
enable it to invoke the remedy of trespass. However Laskin CJC in a strong
dissenting judgment held that since a shopping centre was freely accessible to
the public, the public did not enter under a revocable licence subject only to
the owner’s whim. He said [at p74] that the case involved a search for an
appropriate legal framework for new social facts and:
If it was
necessary to categorize the legal situation which, in my view, arises upon the
opening of a shopping centre, with public areas of the kind I have mentioned
(at least where the opening is not accompanied by an announced limitation on
the classes of public entrants), I would say that the members of the public are
privileged visitors whose privilege is revocable only upon misbehaviour (and I
need not spell out here what this embraces) or by reason of unlawful activity.
Such a view reconciles both the interests of the shopping centre owner and of
the members of the public, doing violence to neither and recognizing the mutual
or reciprocal commercial interests of shopping centre owner, business tenants
and members of the public upon which the shopping centre is based.
I have already
said that this was a dissenting judgment. Nevertheless counsel for the
respondents submitted that we should apply it in the present case. I accept
that the courts may have to be ready to adapt the law to new social facts where
necessary. However, there is no such necessity where Parliament has already
made adequate provision for the new social facts in question, as it has here by
section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980. (Harrison
v Carswell makes no mention of any similar legislation in Canada.) Where
Parliament has legislated and the council, as representing the public, chooses
not to invoke the machinery which the statute provides, it is not for the
courts to intervene.
I would allow
this appeal and remit the case to Wellingborough County Court to be continued
on the basis that CIN had the right, subject only to the issue under section 20
of the Race Relations Act 1976, to determine any licence the respondents may
have had to enter the centre.
ROCH and SAVILLE LJJ agreed and did not add anything.
Appeal
allowed.
