Highway — Request to highway authority to apply for stopping-up order — Factors to be taken into account when deciding whether to make application — Extent of discretion to refuse to make application
The claimants owned properties in a cul-de-sac and shared the ownership of the subsoil beneath the access road. The surface of the road, which had the status of an adopted highway, was vested in the defendant highway authority. In addition to the road, the adopted highway comprised a bush-covered strip of land that the defendants had never maintained. The claimants requested the defendants, under section 117 of the Highways Act 1980, to make a section 116 application to the magistrates for a stopping-up order in respect of that strip on the ground that it was unnecessary as a highway. The defendants refused to make the application.
The claimants brought judicial review proceedings to quash that decision. The defendants accepted that their decision had been legally flawed and agreed that it should be quashed. They proposed, as a consequence, to reconsider the section 117 request. The guidance of the court was sought as to the approach that should be taken when dealing with section 117 requests, and the extent of any discretion to refuse to make a section 116 application.
The claimants contended that: (i) in deciding whether to make an application, the defendants should have regard only to the necessity or otherwise of the relevant part of the highway for the purpose of passage and repassage by the public, leaving other matters for the consideration of the magistrates; (ii) if that were wrong, and the defendants were entitled to take other considerations into account, they would be obliged to make the application wherever there was a good arguable case for stopping up. The defendants argued that: (i) their powers were not so restricted; (ii) the responsibility for enforcing public rights over highways lay with them; and (iii) they ought not to be forced to make an application to stop up a highway that they wished to keep open.
Held: The claimants’ contentions were rejected.
In deciding whether to make a section 117 request, highway authorities should consider all the factors that would be considered by the magistrates on a section 116 application. They were not obliged to make such an application wherever there was an arguable case for stopping-up. The questions to be answered under both sections were: (i) what was the function being performed by the relevant part of the highway?; (ii) was it unnecessary that that function should be performed by that part?; and (iii) if so, did any other reasons arise as to why a stopping-up order should not be made? The relevant highway function was not confined to passage and repassage, but could include purposes such as amenity or safety. Wider issues of public interest fell within the third question, and although they could not justify a section 116 application where the highway in question was necessary, they could be taken into account in deciding whether an unnecessary highway should still remain open.
Highway authorities and not the magistrates had the duty to enforce public rights over highways. The purpose of section 116 was that should a highway authority no longer wish to keep a highway open, the magistrates could decide if that decision was correct, thereby allowing affected members of the public to have their say and acting as a check upon the closure of highways. The purpose of section 117 was to allow people to ask the highway authority to make an application that the authority otherwise might not have made. Although section 117 was, in a sense, unnecessary, because the authority had the power to make an application without such a request, it did enable the cost of such an application to be placed upon the requester in circumstances where the stopping-up would benefit him or her and the highway authority were indifferent on the subject. Highway authorities should not be placed in a position where they were required to make an application that they opposed, or ordered to stop up a highway that they wished to keep open, thereby placing the function of highway authority in the hands of the magistrates.
George Lawrence QC and Ross Crail (instructed by Chadwick Lawrence Solicitors, of Huddersfield) appeared for the claimants; Stephen Sauvain QC and Martin Carter (instructed by the legal department of Leeds City Council) appeared for the defendants.
Sally Dobson, barrister
