R (on the application of Governors of Hockerill College) v Hertfordshire County Council

Public right of way – Special extinguishment order (SEO) – Claimant applying for SEO on footpath crossing school grounds – Defendants resolving not to make order – Claimant applying for judicial review – Whether defendants applying proper procedure for determining whether SEO appropriate – Application grantedThe claimant school applied to the defendant local authority, pursuant to section 118B of the Highways Act 1980, for a special extinguishment order (SEO) regarding a footpath that crossed its land. The aim was to protect its pupils and staff from the threat of violence, harassment, alarm or distress arising from unlawful activity or any other risk to their health and safety.Following correspondence between the parties, the defendants resolved not to make the SEO under section 118B(8) of the 1980 Act on the ground, inter alia, that the footpath was well-used, providing, as it did, local access to other schools and a hospital to which local residents would be forced to drive if the footpath were to be extinguished. Moreover, further security work would be required because an SEO alone would not provide a total solution to the problem. Accordingly, the defendants concluded that the stopping-up of the footpath (as part of the highway) was not expedient for the purpose of protecting pupils and staff under section 118B(1)(b) of the 1980 Act.The claimant applied for judicial review contending, inter alia, that the defendants had failed properly to distinguish between the different stages in the procedure under section 118B.Held: The application was granted.The procedure, under section 118B, had to be approached in stages. The defendants first had to determine whether it was expedient, within section 118B(1), to stop up the highway. It was necessary for them to strike a balance between strong and legitimate competing interests; the defendants had a wide balancing discretion. They were entitled to have regard to the factors set out in section 118B(8) when considering the question of expediency since it would be pointless to carry on the first stage if the application for an SEO were to fail at a subsequent stage: R (on the application of Hargrave) v Stroud District Council [2002] EWCA Civ 1281; [2003] 1 P&CR 1 and R (on the application of Manchester City Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 3167 (Admin) applied.However, in the instant case, the overall impression from the defendants’ stated reasons was that they had looked at the broad question of whether the SEO should be made in fact rather, than the more limited question of expediency, which they were required to consider at the first stage under section 118B(1).Furthermore, it was not clear what the defendants had meant by their conclusion that further works were required to make the premises more secure for the safety and well-being of pupils. Without more, that was an unhelpfully unparticularised statement that put the headmaster in an invidious position. It would make no sense for the claimant to spend public money taking pointless measures before an SEO was made. Accordingly, the order would be quashed and the matter remitted to the defendants to be reconsidered.Robert Pearce QC (instructed by Nockolds, of Bishops Stortford) appeared for the claimant; Simon Pickles (instructed by the legal department of Hertfordshire County Council) appeared for the defendants.Eileen O’Grady, barrister