Highways Act 1959–Dispute between parish council and county council–Application by parish council for order of mandamus to compel the county council to take action under section 116 to prevent the obstruction of a footpath–Various obstructions erected by ‘frontagers’ to impede passage on what was probably a public footpath–Although proceedings were begun by county council under section 124 to require removal of obstructions, they were not pressed and subsequently the council acceded to a suggestion from the frontagers that the path should be extinguished and an alternative way provided–County council’s ‘pusillanimous attitude’ promoted the interests of the frontagers who were obstructing the path instead of protecting the rights of the public to the use and enjoyment of it–Order of mandamus granted.
This was an
application by Send Parish Council for a judicial review, the remedy sought
being an order of mandamus directed to Surrey County Council to compel them to
carry out their duty as a highway authority under section 116 of the Highways
Act 1959 to remove obstructions from a highway. The path in question ran from
Highcotts Lane to Dedswell Drive in West Clandon, Surrey.
F M Ferris
(instructed by Pettit & Westlake) appeared on behalf of the applicant
parish council; J Sullivan (instructed by the Clerk, Surrey County Council)
represented the respondent county council.
Giving the
first judgment at the invitation of Lord Widgery CJ, GEOFFREY LANE LJ said:
This is an application by the Send Parish Council for a judicial review in the
shape of an order of mandamus directed to the Surrey County Council to carry
out their obligations under the provisions of the Highways Act 1959 and
particularly of section 116 of that Act.
The material
portions of the section read as follows:
(1) It shall be the duty of the highway authority
to assert and protect the rights of the public to the use and enjoyment of any
highway for which they are the highway authority, including any roadside waste
which forms part of it.
Subsection (3)
provides:
Without
prejudice to subsections (1) and (2) of this section, it shall be the duty of
the council which is a highway authority to prevent, as far as possible, the
stopping-up or obstruction of highways for which they are the highway
authority. . . .
Subsection (5)
provides:
Without
prejudice to their powers under section 276 of the Local Government Act 1933 a
council may, in the performance of their functions under the foregoing
provisions of this section, institute legal proceedings in their own name,
defend any legal proceedings and generally take such steps as they deem
expedient.
Subsection
(6), which is the most important part of this section, reads as follows:
If the
council of a parish, or community or, in the case of a parish or community
which does not have a separate parish or community council, the parish meeting
or a community meeting, represent to a local highway authority–(a) that a
highway, being one as to which the local highway authority have the duty
imposed by subsection (3) of this section, has been unlawfully stopped up or
obstructed . . . it shall be the duty of the council of the local highway
authority, unless satisfied that the allegations are incorrect, to take proper
proceedings accordingly.
This case is
about a long-standing altercation. It concerns a ‘path’ (to use a neutral term)
at the village of West Clandon near Guildford in the county of Surrey. The
path, in so far as it has a name at all, has at its northern end the name of
Highcotts Lane. It runs to the west of and roughly parallel to the A247 Clandon
Road. Between the path and Clandon Road there have been built over the years a
number of houses with large gardens. What has happened is this. The owners of
some of those houses have bought part of the land over which the path runs, and
have extended or purported to have extended their gardens to include those
portions of the path which abut upon the western boundary of the gardens. They
have erected wattle fences and various obstructions which have been
demonstrated in photographs before us so as to make it impossible in effect for
anyone to walk along the path unimpeded. We have been told that on the western
side of one of the gardens there is a summer house, which has been planted, if
not actually put into the soil, on the line of the path; and at another point
it is said that part of a swimming pool or a wall abutting on a swimming pool
also impinges upon the line of the pathway.
The
altercation has involved those house-owners (to whom I will refer for a matter
of convenience as the ‘frontagers’), and they have been in bitter opposition to
the parish council (and the predecessors in title of the parish council), a
society which seeks to preserve the village of West Clandon called the Clandon
Society, and indeed with most of the villagers, it seems, other than those who
own these particular houses.
The Surrey
County Council, who are admittedly the relevant highway authority, occupy a
position, or should occupy a position, somewhere midway between those various
protagonists, a position which has over the years been somewhat ambivalent as
events will show.
Since 1969
various efforts have been made to persuade the Surrey County Council to act
under their powers under the Highways Act which I have described and to
persuade them to remove the obstructions. At one stage it seemed certain that
they were going to do just that. In autumn 1977, however, as the result of
pressure from the frontagers, the Surrey County Council’s previous decisions,
which were in favour of removing the obstructions, were revoked, and they
determined to accede to the frontagers’ suggestion that they should exercise
powers to extinguish the path under section 110 of the Act in return for the
frontagers providing an alternative way to the west of the existing path. That
involved a passage over land which did not belong to the frontagers, but they
were prepared to, and in effect eventually did, make the necessary purchase
from the adjoining farmer in order that they would have the land over which
that suggested alternative path could run.
The parish
council had–and this is admitted–on August 16 1977 made the representation
which they are entitled to make under section 116 (6)(a) and they contend that
it is the duty, in the terms of the Act, of the Surrey County Council to take
proper proceedings accordingly; that is to enforce the removal of the
obstructions on the pathway.
The parish
council contend, first of all, that the Surrey County Council cannot be, and
are not, satisfied that the allegations are incorrect, which is the one
loophole the Act provides for their not acting to remove the obstructions.
Indeed, it is said (and it is not seriously contended to the contrary) that
both the Surrey County Council and the frontagers have had opinions from
counsel whom they have instructed, indicating that if the matter is litigated
the chances are heavily in favour of it being held that this path is in fact a
way over which the public have the right to walk. Secondly, the parish council
contend that the Surrey County Council have not taken proceedings, and, even if
they have, have not taken proper proceedings to put matters right, as it is
contended they are obliged by the Act to do. They could, it is said, have taken
proceedings under section 124 or for a declaration and injunction in the
Chancery Division, had they been so minded.
I do not find
it necessary to go through the detailed history of events since 1969. We have
been taken, so to speak, with a fine-tooth comb through almost every incident
which happened between these parties over those 10 years. It is sufficient
perhaps for the purposes of this judgment to make one or two points and to
describe one or two incidents which will fill out the bare bones of that
summary which I have just given.
In 1958 a Mr
Claydon bought from the Onslow Estate (which up to that date had been the
owners) land which included the land over which this pathway ran. He sold the
material section of the path to a Mr Ekins, who at that stage owned one of the
frontagers’ houses. It matters not which. In 1968 or 1969 Mr Ekins sold to the
other seven frontagers with whom we are concerned that portion of the path
which adjoins their respective gardens on the west side.
There is a
body of evidence, so it seems, to the effect that the path was used by the
public as a footpath or bridleway for very many years before these obstructions
were placed upon it. In 1962 Mr Ekins erected notices on the pathway saying ‘No
public right of way,’ but representations were made to him by the parish
council, among other people, and in, I think, May of 1962 Mr Ekins agreed that
the path was to be maintained as a public right of way thereafter.
It was in 1969
that the frontagers started to erect the obstructions which I have described.
Representations were made to the Guildford Rural District Council, who at that
time were the appropriate authority, who accepted that this was a public
footpath, and indeed they succeeded in persuading some, but not all, of the
frontagers who had placed obstructions upon it to remove those obstructions.
For reasons
which it is not possible, at any rate at this stage, to discover with any
accuracy (it may have been a selfish attempt to restrict the use of the path to
villagers only) the path was not included in the Surrey County Council map
prepared under the National Parks and Access to the Countryside Act 1949. But
the evidence of the use of this path for 20 years and upwards prior to the 1959
sale of Onslow Estate was furnished to the Surrey County Council.
Eventually, in
May 1972, the Clandon Society referred this matter to the county council, and
on June 28 1972 the relevant committee of the county council recommended action
under section 124 of the Act.
Section 124
reads as follows:
(1) Where a structure has been erected or set up
on a highway otherwise than under a provision of this Act or some other
enactment, the highway authority for the highway may by notice require the
person having control or possession of the structure to remove it within such
time as may be specified in the notice.
There are
three other subsections which go on to describe the procedure and remedies
which are in furtherance of that particular power.
The Surrey
County Council, however, did not adopt the suggested course. They favoured at
that stage an informal inquiry, but when this proposal was put to the
interested parties they did not share the county council’s enthusiasm for the
idea, and indeed they rejected it.
Once again, in
November 1976, the committee resolved that the path should be recognised as a
public footpath and should be included in the next definitive map. Secondly,
they agreed that notices should be served under section 124 requiring removal
of the obstruction; and, thirdly, the committee suggested or recommended that
such further actions should be taken as might be necessary to protect the
public use of the footpath.
In January
1977 notices under section 124 were served, and in a letter sent a day or two
later to the various frontagers this was said to them, among other things: ‘The
county council have received representations that such a right of way has been
established and are satisfied on the evidence supplied that the public have
acquired rights. The Area Highways Subcommittee have considered this matter and
have authorised this action in an attempt to resolve this dispute.’ It was at this stage that the frontagers
started to make their counter-proposals for the diversion, as I have indicated.
On June 20
1977, something like five or six weeks after the original notices, further
notices were served under section 124. It is not necessary to enquire why. The
Surrey County Council at that stage were certainly not impressed, or did not
seem to be impressed, by the counter-offer put forward by the frontagers. In
the meantime the diversion which was being proposed was hotly contested and
strongly objected to by the parish council and all the other interested parties
on the side opposite the frontagers. It was opposed as being much less
commodious than the existing path, opposed as being of indifferent foundations
whereas the original path was on solid foundations and so on. They also
objected to the way in which it was apparently being suggested that the
frontagers should be allowed to obstruct what was a public footpath in their
submission, and then, so to speak, buy their way out of the trouble by
purchasing this strip of land from the adjoining farmer and then suggesting
that a footpath should be run over there and so extinguish the rights of those
who were entitled to use the footpath.
To cut a long
story short, the letter under section 116(6) was sent by the parish council on
August 16 1977, as I say, requiring the county council to act under section
116. Yet again the matter came before the subcommittee of the county council,
this time in early October 1977. They concluded that the clerk and chief
executive officer be authorised to enforce the section 124 notice. It was
resolved: ‘That the clerk and chief executive be authorised to enforce the
notices served under section 124 of the Highways Act 1959 upon the frontagers
of land affected by the footpath from Highcotts Lane to Dedswell Drive, West
Clandon.’
There then
ensued a series of letters passing chiefly between the frontagers’ solicitor
and the local authority. They start with a letter of October 5 1977 and end
with a letter of October 17. Those letters are letters discussing what action
it should be proper for the county council on the one hand to take and the
frontagers on the other. The result was that the frontagers through their
solicitor issued proceedings against the county council claiming a declaration
that the path is not a public footpath, and claiming injunctions to prevent the
county council from exercising their rights or their duties under section 124.
It is fair
comment, and one that puts it objectively, that that writ claiming the
injunction was to a great extent stimulated by the letters which the county
council had written. They seem, at least on a cursory reading of the
correspondence, to be inviting the frontagers to take that action. Be that as
it may, the action was taken, and since then the Surrey County Council have
maintained rigid inactivity.
Nothing has
been done with regard to the writ. No one has suggested that the hearing might
be expedited. No one has sought to dismiss the proceedings for want of
prosecution, and not unnaturally those who are anxious to have the benefit of
the footpath are getting a little anxious. It is the result of that anxiety
that we find ourselves here, deciding whether or not an order of mandamus
should issue in order to stimulate the county council into activity. The writ
by the frontagers was issued on October 19, after, as I say, the Surrey County
Council had persistently invited the frontagers to take that action. It is
interesting to note that a letter from the frontagers’ chief protagonist was
dated the very same date as the writ. That is to be found as an exhibit to an
affidavit. I will not read it, but it is an interesting comment on the
situation. Since then, as I say, nothing has happened.
If one turns
to correspondence one finds the present situation. It is a letter dated
December 13 1977 from the clerk and chief executive to Sturges Trotter &
Co, solicitors:
Footpath from
Highcotts Lane to Dedswell Drive, West Clandon. I thank you for your letters of
November 28 and December 12 and I am obliged to you for arranging this meeting
at such short notice. As you are aware the representatives of the subcommittee
recently met members of the Parish Councils and the Clandon Society and it was
clear that they were totally opposed to the suggested compromise. The main
concern of the Parish Council was that the alternative route was not
sufficiently wide and the public had established rights over the wider area of
land that has now been enclosed in your clients’ gardens. They also considered
that the surface of the alternative route was unsatisfactory. Generally the
representations were that the county council should see that the existing route
is opened before any diversion is considered.
The evidence,
as I say, that this is a public footpath is very strong. What has now happened
is simply this. The Surrey County Council are proposing to try to stop up what
is alleged to be the existing footpath and to use the suggested new footpath as
an alternative. They have been persuaded by the frontagers that this is a
proper exercise of their powers; and that the villagers and the Clandon Society
hotly contest. The parish council, the Clandon Society and the villagers
maintain that the proposed new path is much less commodious. It is a good deal
less wide, and they point out that the county council have been persuaded by
the frontagers to cut down even the original narrow width of the new path from
10 ft to 8 ft, and they have been persuaded to give way on the question of
fence or no fence between the farmer’s field and the path.
We do not have
to decide in this court whether this is a public footpath or not. The basis
upon which we can approach the problem is that the evidence that it is a public
footpath is very strong indeed, and if the matter were to be litigated it is
agreed on all hands (and we have seen the various opinions of counsel) that the
chances of the frontagers succeeding in showing there was no such footpath are
pretty remote. The only two points in issue are whether the Surrey County
Council have taken proper proceedings accordingly under section 116, and, if
they have not, whether the court should exercise its undoubted discretion to
order mandamus to issue.
The
submissions of the applicants are these. First of all, they suggest that
section 116(6)(b) is clear. It obliges the county council in the circumstances
of this case to take proper proceedings and to take proper proceedings
accordingly. They submit that the word ‘accordingly’ must refer to the earlier
subsections and mean that the county council must take steps to assert and
protect the rights of the public to enjoy the use of the highway and to prevent
or have removed any obstructions of that highway. The county council have, so
it is submitted, no discretion. It is their duty to take proceedings, and it is
their duty not to compromise those proceedings or to settle them.
I do not find
that an acceptable argument. It seems to me that the use of the word ‘proper’
indicates that the local authority must have not only a discretion as to the
form of the proceedings which they choose to take, for example, section 124 for
an action in the Chancery Division–that is not in dispute–but also a further
discretion as to the way in which and the extent to which those proceedings
ought to be prosecuted. To that extent I would agree with the submissions of Mr
Sullivan on this point, Mr Sullivan appearing as he does for the county council.
But then one asks oneself the next question: what are the limits of that
discretion? Those limits must be culled
from the words of the Act themselves. The local authority must at all times act
with the object of protecting the highway and of preventing or removing any
obstruction, and, more broadly speaking, of promoting the interests of those
who enjoy the highway or should be enjoying the right of way; and the county
council must likewise operate against the interests of those who seek to
interrupt such enjoyment of the highway.
It is trite
law now, and needs hardly to be expressed, that this court must not, and will
not, interfere merely because it thinks, if it had been a local authority, it
would have acted in a different way. Before we can properly interfere by way of
mandamus, or indeed by any other method, we must be satisfied that the local
authority have acted under a misapprehension as to their duties or else in a
way no reasonable local authority could have acted had they had their duties as
set out in the 1959 Act properly in mind. This seems to me to be in accordance
with the speech of Lord Reid in Padfield v Minister of Agriculture,
Fisheries and Food [1968] AC 997. The passage to which I should like to
refer is at p 1029 as follows:
There are a
number of reasons which would justify the minister in refusing to refer a
complaint. For example, he might consider it more suitable for arbitration, or
he might consider that in an earlier case the committee of investigation had
already rejected a substantially similar complaint, or he might think the
complaint to be frivolous or vexatious. So he must have at least some measure
of discretion. But is it unfettered?
It is
implicit in the argument for the minister that there are only two possible
interpretations of this provision–either he must refer every complaint or he
has an unfettered discretion to refuse to refer in any case. I do not think
that is right. Parliament must have conferred the discretion with the intention
that it should be used to promote the policy and objects of the Act; the policy
and objects of the Act must be determined by construing the Act as a whole and
construction is always a matter of law for the court. In a matter of this kind
it is not possible to draw a hard and fast line, but if the minister, by reason
of his having misconstrued the Act or for any other reason, so uses his
discretion as to thwart or run counter to the policy and objects of the Act,
then our law would be very defective if persons aggrieved were not entitled to
the protection of the court. So it is necessary first to construe the Act.
Perhaps for
the sake of completeness I should also refer to the decision of the Court of
Appeal on March 13 1979 in Meade v Haringey London Borough Council,
which was the ‘schools’ decision, as yet unreported. We have a transcript, and
at page 11 of the transcript, in the judgment of the Master of the Rolls,
appears this passage: ‘But if the public authority flies in the face of the
statute, by doing something which the statute expressly prohibits, or by
failing to do something which the statute expressly enjoins, or otherwise so
conducts itself–by omission or commission–as to frustrate or hinder the policy
and objects of the Act, then . . . it is acting ultra vires.’
It is at this
point that, in my judgment, the Surrey County Council have fallen down. One can
see how it happened. They were influenced by the so-called hardship to the
frontagers in having to remove their summer houses and wattle fences and so on,
though the extent of those hardships seems from the photograph to have lost
nothing in the telling. They were alarmed by the length of time and the amount
of money which legal proceedings would involve. But as to the length of time,
this argument started at the latest in 1969, and
of proceeding is taken, and some form of proceeding must be taken, it is all
going to cost money. They were impressed by the simplicity of the solution
which was apparently provided by the new and alternative path.
What it seems
to me they did not realise, or if they realised it they disregarded it, was the
fact that, looked at objectively, they were acting in the interest of the
frontagers, in the interest of the people who had in fact obstructed this
public footpath, and not in the interest of those who should have been enjoying
the use of the right of way over the footpath. It seems to me no reasonable
local authority could have so acted if they truly had in mind the ambit of
their duty under section 116. What they have in fact attempted to do is to
adopt a course of action, that is to say proceedings under section 110, a
proceeding which is most likely to result in the extinguishment of the footpath
without any hope of successful appeal on the part of the parish council or the
villagers. This method of procedure avoids the necessity of having to prove
that the new path is shorter or more commodious, which they would have had to
show were they to proceed under section 111 rather than section 110. In other
words, if the old path were open, free for access, as ex hypothesi it
should be, and if one started from that basis, it seems to me the Surrey County
Council could not succeed. As it is, the parish council, the Clandon Society
and the villagers are left with the barren possibility of persuading the
minister, in the teeth of opposition from the county council at that, that it
is not expedient to confirm the proposed extinguishment order. The frontagers
have, therefore, by their skilful manoeuvring, or the skilful manoeuvring of
their solicitor, engineered a situation, or brought about a situation, which
might be a kinder way of putting it, where the Surrey County Council are in
effect playing their game for them.
That does not
seem to me to be the duty of the local authority as set out in section 116. Mr
Sullivan, in a meticulous speech putting forward the suggestions of the Surrey
County Council, submitted a number of points to which I will make a brief
reference, and I hope he will not think I am discourteous if it is only brief.
He suggests,
first of all, that, if there is the slightest chance that the existence of the
public right of way will be disputed, then the whole of the county council’s
duty under section 116 disappears. The court subjected him to some fairly close
questioning on that point, and it seems to me that he was driven to the
position of having to rewrite subsection (6) of section 116 in order to make
good his point on that. That argument did not impress me.
Then he makes
the point, or endeavours to make the point, that the county council were acting
reasonably in endeavouring to compromise the matter in the way that they did.
He suggests the outcome of the section 124 proceedings could not be predicted
with absolute certainty. Very few things can be predicted with absolute
certainty, but so far as certainty does exist in litigation, in so far as one
is entitled to rely on the opinions of counsel instructed by the frontagers and
by the Surrey County Council, it seems to me that certainty is as nearly
attainable in this case as it can be.
He points to
the expense and protracted nature of the litigation. I have dealt with that. He
suggests that, on all these matters, coupled with the debated width of the
right of way, the county council were entitled to take the somewhat
pusillanimous attitude which they undoubtedly did. That adds to the
consequences to the landowners who have to remove their summer houses and so
on.
Those points
do not seem to me to outweigh the other considerations in the contrary sense
which I have already detailed.
Then, finally,
he urges the court in its discretion not to grant an order of mandamus because,
he said, it is contrary to principle to compel anyone to institute legal proceedings
by way of an order of mandamus. He drew to our attention the case of R v
Southampton Port Commissioners (1870) LR 4 HL 449 and he cited in
particular a passage at p 485, which is in the speech of Lord Chelmsford, as
follows:
As to the
form of the mandamus, it appears to me that it may be supported upon the ground
that it is not to be construed so as necessarily to import a command to
institute legal proceedings. The words are not to take the necessary and legal
measures and proceedings for enforcing and recovering payment, but for
obtaining and recovering. The distinction is rather fine, but I think it admits
of the construction that the defendants are merely ordered to take proper
measures for obtaining payment, but are not commanded absolutely to bring an
action.
In the present
case there is no command to institute proceedings. It may be necessary to
defend the proceedings brought by way of injunction and declaration by the
frontagers. It may be necessary possibly to counter-claim in those proceedings.
But what the order of this court is aimed at securing is the performance by the
county council of their duties under section 116, namely, the removal of these
obstructions. That duty may carry in its train all sorts of subsidiary
necessary actions. What they are it is impossible to foretell, but for those
various reasons, and I am afraid rather rudely brief, my view is that the
submissions made by Mr Sullivan do not avail against the duties plainly set out
in section 116.
I would grant
this application.
Agreeing,
ACKNER J said: Send Parish Council (the applicants) pursuant to section 116(6)
of the Highways Act 1959 represented to the respondents, the Surrey County
Council that the footpath from Highcotts Lane to Dedswell Drive, West Clandon,
Surrey, was a highway being one as to which the local authority have the duty
imposed by subsection (3) of section 116 and that it had been unlawfully
stopped up or obstructed.
Subsection (3)
reads:
Without
prejudice to subsections (1) and (2) of this section, it shall be the duty of
the council which is a highway authority to prevent, as far as possible, the
stopping-up or obstruction of highways for which they are the highway
authority. . . .
Such
representations having been made, what is the result? The answer is to be found in the self-same
subsection (6): ‘. . . it shall be the duty of the local authority, unless
satisfied that the allegations are incorrect, to take proper proceedings
accordingly.’
It has never
been suggested in this case that the Surrey County Council were satisfied that
the representations to which I have referred were incorrect.
The
allegations having been made and the proviso not availing, the county council
then have to accept and act upon them. Mr Sullivan’s first submission was that,
as it could be said that there was a dispute as to the footpath being such a
highway and, therefore he urged, a doubt as to the validity of the assertion,
then there is a discretion in the county council as to whether or not to take
any action at all.
He sought to
reply for that proposition upon one case in this court, R v Lancashire
County Council, ex parte Guyer (1977) 76 LGR 290. I need not go in any
depth into that case. Suffice it to be said that it is a decision purely on the
obligation of the county council in relation to section 116(3). It does not
relate to this case where the representations were made not by an individual
but by a parish council.
What Mr
Sullivan in his careful submission seeks is the redrafting of subsection (6) so
that it reads in this way: ‘Where a highway, being one as to which the local
authority have the duty imposed by subsection (3), then, if the council of a
parish represent that the highway has been unlawfully stopped up or obstructed.
. . .’ If Parliament had intended that
to be the effect of subsection (6), then it could have, with the simplicity
which I have suggested, so expressed its intention. It failed to do so.
Mr Sullivan’s
next main submission was that there was discretion in the council and it
involved a discretion to compromise any proceedings or actions it had
initiated. I accept that there must be some discretion arising out of the words
‘proper proceedings’ taken together with the duty of the council under
subsection (3) to prevent ‘as far as possible’ the stopping-up or obstruction
of highways. So I accept that in a proper case a proper compromise of
proceedings may be made. But such a compromise must be intended to promote the
policy and the object of the Act. The compromise which was here suggested, on
the contrary, would have resulted in the objects of the Act being frustrated.
It would have extinguished the highway and provided something else in
its place–a pathway which is clearly open to the various criticisms that have
been referred to in the affidavits.
On the
available material, including in particular the photographs exhibited to the
third affidavit of the clerk to the appellants, it appears to me that the
respondents have been overimpressed by the frontagers’ plea of hardship. In a
sentence, the county council has, in my judgment, in effect shut its ears to
the parish council’s application made pursuant to the provisions of section
116(6). It has thus refused to exercise its discretion and, in my judgment,
mandamus accordingly lies.
LORD WIDGERY
CJ also agreed.
The court
ordered mandamus to issue as prayed, with costs against the county council. A
stay of proceedings pending a possible appeal was refused.
