Respondents seeking stopping-up order of byway open to all traffic – Magistrates allowing respondents’ application – Whether respondents properly complying with notice procedure – Whether magistrates’ decision lawful – Highways Act 1980 Part I Schedule 12 para 2 – Appeal dismissed
Pursuant to section 116 of the Highways Act 1980, the respondents, Dorset County Council, applied for an order that: (1) all motor vehicle rights of way over a byway open to all traffic at Cheselbourne, Dorset, be stopped up, subject to the retention of a bridleway; and (2) all highway rights over land identified on an attached plan be stopped up, to reduce the width of the highway to 3 m. A notice was placed at either end of the byway, which indicated the day when the application was to be heard by the magistrates and the terms of the order applied for. The notices indicated that “a plan showing the extent of the order applied for may be inspected free of charge during normal working hours at the County Services Legal Office”. On 24 October 1997 the justices expressly found that no plan was contained with the notice, but there had been “substantial compliance” with Part I Schedule 12 to the Highways Act 1980. The justices found that the byway was not necessary for the purpose of vehicular access and allowed the respondents’ application. The appellant appealed that decision two grounds: first, that the respondents had not complied with the notice requirements of Part I Schedule 12 para 2 to the Act, in that they had failed to produce a plan with the notice, and, in those circumstances, an order should not have been made; and, second, that the justices had taken immaterial considerations into account, inter alia, the effect of continued use of the byway on the environment.
Held: The appeal was dismissed.
1. Both sides accepted that, in order strictly to comply with Schedule 12 para 2 to the Act, a plan should have been incorporated with the notice. However, the justices’ finding that there had been “substantial compliance” reflected the approach in Ramblers Association v Kent County Council (1990) 60 P&CR 464 and was a finding of fact peculiarly within their province.There may be cases in which a plan was of particular importance in identifying the specific area to be stopped up. In such a case, failure to identify an area could be fatal. However, it did not matter in every case whether every aspect complied literally with the precise wording of Part I Schedule 12. The critical question was whether there had been substantial compliance. The justices had not erred in finding that there had been and that the notices met the requirements of the Schedule.
2. Neither the justices’ findings of fact nor their reasoning indicated that they had used the two-stage test, namely: (1) whether the byway was unnecessary; and (2) if it was, whether they should exercise their discretion to authorise the order. There was some indication that they had in fact elided those two stages. The considerations of wider public interest, environmental concerns and the views of petitioners were all matters that could be taken into consideration under the discretion stage of the test, once the issue of necessity had been resolved in favour of the respondent. Therefore, such considerations were immaterial if considered in relation to the question of necessity. Although there were difficulties in the way the justices had expressed themselves, the answer on the facts as found by the justices was inevitable, namely that the byway was unnecessary for vehicular traffic. Therefore, the decision was to stand: Maile v Manchester County Council (1997) 74 P&CR 443 considered.
Douglas Edwards (instructed by Bevan Ashford, of Bristol) appeared for the appellant; Martin Strutt (instructed by the solicitor to Dorset County Council) appeared for the respondents.
Sarah Addenbrooke, barrister
