![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Richards & Anor, R (on the application of) v Pembrokeshire County Council [2004] EWCA Civ 1000 (29 July 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1000.html Cite as: [2004] EWCA Civ 1000 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - DIVISIONAL COURT)
(Mr Justice Moses)
CO/1760/2003
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE NEUBERGER
____________________
THE QUEEN (on the application of P Richards & G Richards) |
Appellant |
|
- and - |
||
PEMBROKESHIRE COUNTY COUNCIL |
Respondent |
____________________
Rhodri Williams Esq (instructed by Pembrokeshire County Council) for the Respondents
Hearing dates : 15th/16th June 2004
____________________
Crown Copyright ©
Lord Justice Neuberger:
The facts
i) they were outwith the power conferred by the 1975 Order and/or the 1964 Act, because they were not made for what may be called a harbour operational purpose;ii) they were unreasonable, in the sense that no reasonable council could have made the Directions on the grounds given for making them;
iii) they infringed the rights of the appellants under Article 1 of the First Protocol of the European Convention on Human Rights ("Article 1 of the First Protocol").
"The current proposal is to use the 1995 Tenby Harbour Byelaws to create Terms and Directions for the allocation of parking bays to specific users."
This report also contained "background" which, in paragraph 1.5(c) recorded against "Police" the following:
"No objections, notes that enforcement is a Council matter as the area is non-highway."
In paragraph 1.5(v) of the same report, it was noted that the appellants had suggested "individual bollarded spaces be provided in Castle Square …".
"the aim of the proposal was to make all parking in the harbour area only available to permit holders. The exception being six disabled bays. The proposal should reduce trips by general motorists round the Walled Town to the harbour seeking a parking space that is not usually available."
"The aim of the revised Terms and Conditions would be define all parking in the Harbour Car Park and Harbour Area as permit parking only, except for the six disabled bays. The measure should remove the current practice of motorists entering the Walled Town in search of a parking space in the Harbour Area. The Terms and Condition will allow council employees to enforce the parking conditions as the area is non-highway and not under Police Control."
"That the proposals for the control of parking in the Tenby Harbour Area shown on the attached plan and involving mainly residents parking be implemented under the terms of the Tenby Harbour Byelaws 1995 with a charge of £100 per annum being set for a Resident's Parking Permit and £5 per annum for a Harbour User's Permit, these prices being subject to revision from time to time in line with inflation."
The area shown on the "attached plan" included the south-western part of Castle Hill, ie the part nearest the town centre, and included Castle Square and Castle Terrace.
"To improve pedestrian safety and control of traffic and parking in the town centre."
"Each self-contained residential property listed in the Schedule of Properties within The Harbour shall be entitled to one parking permit."
The Schedule identified three flats at No 3, so that there was to be one permit for each flat.
The relevant legislative material
The 1964 Act
"(1) Subject to the provisions of this section and to the following provisions of this Act, there may, in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, be made by the appropriate Minister an order (in this Act referred to as a 'harbour revision order') for achieving all or any of the objects specified in Schedule 2 to this Act.
(2) Subject to the next following section, a harbour revision order shall not be made in relation to a harbour by the appropriate Minister-
...
(b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea.
(3) A harbour revision order may include all such provisions as appear to the appropriate Minister to be requisite or expedient for rendering of full effect a provision of the order framed to achieve any of the said objects and any consequential or incidental provisions appearing to him to be requisite ... ."
"… except where used with reference to a local lighthouse authority, means any harbour, whether or natural or artificial, and any port, haven, estuary, tidal or other river or inland waterway navigated by seagoing ships, and includes a dock, [or] wharf..."
"Harbour land" is defined in these terms:
"'harbour land' means land adjacent to a harbour and occupied wholly or mainly for the purposes of activities there carried on."
"Harbour operations" are also defined, amongst others, as being:
"(b) the berthing or dry-docking of a ship;
(c) the warehousing, sorting, weighing or handling of goods on harbour land or at a wharf;
(d) the movement of goods or passengers within the limits within which the person engaged in improving, maintaining or managing a harbour has jurisdiction or on harbour land."
"(1) Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed ...
(2) Regulating (in whole or to a less extent) the procedure of, or of any committee of, the authority ...
(3) Varying or abolishing duties or powers conferred on the authority by a statutory provision of local application affecting the harbour, being duties or powers imposed or conferred for the purpose of-
(a) improving, maintaining or managing the harbour;
...
(c) regulating the carrying out by others in connection with the harbour of harbour operations or the carrying on by others of activities on harbour land.
(4) Imposing or conferring on the authority, for the purpose aforesaid, duties or powers (including powers to make byelaws), either in addition to, or in substitution for, duties or powers imposed or conferred as mentioned in paragraph 3 above.
...
(6) Settling (either for all purposes or for limited purposes) the limits within which the authority are to have jurisdiction or altering (either for all purposes or for limited purposes) such limits as previously settled."
"It is apparent from Schedule 2 to the 1964 Act that a revision order must relate to the management of the harbour or operations on the harbour or harbour land. Further, harbour land itself must be occupied for the purposes of activities carried on in the harbour."
"(1) A person who desires to question any such order as follows, namely a harbour revision ... order on the ground that there was no power to make the order or that a requirement of this Act was not complied with in relation to the order, ... may, within six weeks from the date on which the order becomes operative ... , make an application for the purpose to the High Court;
…
(3) Except as provided by this section a harbour revision ... order shall not, either before or after it is made, be questioned in any legal proceedings whatever...."
The 1975 Order
"(a) the area the limits of which are referred to in article 4 (Harbour limits) of this Order and
(b) the harbour estate."
"... the docks, piers, wharves, quays, berths, roads, railways bridges, sheds and other works and conveniences, and the lands, buildings and property of every description of whatever nature, which are for the time being vested in, occupied or administered by the Council for the purposes of the harbour and includes the peninsula known as Castle Hill." (emphasis added)
The only land, as opposed to sea, included in the "harbour" is (a) the whole of the Castle Hill promontory and (b) the north tidal shore of, and to the west of, Tenby.
"(1) The Council may, subject to the provisions of this Order take such steps, from time to time as they consider necessary for the improvement, maintenance and management of the harbour and the facilities afforded therein or in connection therewith."
"(1) Subject to the provisions of this Order the Council may make in relation to the harbour byelaws for all or any of the following purposes-
(a) for regulating the exercise of the powers vested in the harbourmaster:
(b) for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the harbour;
(c) for regulating the conduct of all persons in the harbour, …;
…
(j) for prohibiting the use of or regulating the movement, speed and parking of vehicles within the harbour.
The 1995 Byelaws
"No person shall knowingly cause a vehicle to enter or remain within the limits of the harbour except with the permission of the Council or the harbourmaster and in accordance with the terms of that permission."
"All persons in charge of any vehicle brought within the limits of the harbour shall obey all duly authorised directions which may be given by the harbourmaster and conform to all signs, directions and notices erected or displayed relating to the parking and movement of vehicles and will pay such charges as may be levied by the Council."
The issues
i) The 1975 Order was ultra vires the 1964 Act, at least to the extent that it purported to extend to Castle Hill, because Castle Hill could not lawfully have been designated as part of the harbour estate, in light of the definitions in s57.ii) Even if the 1975 Order cannot now be challenged on this basis, the Directions, made under the 1995 Byelaws, were ultra vires insofar as they affected Castle Hill for a purpose which was not related to harbour operations.
iii) The Directions were unlawful, because the policy behind them was demonstrably flawed.
iv) The Directions were unlawful at least insofar as they included Castle Terrace, which is and was arguably private property.
The first argument: the vires of the 1975 Order
The second argument: an improper purpose
The stated reasons
i) a statute giving power to make an order having the force of law should preclude the order from being challenged after six weeks; while alsoii) any uncorrected and uncorrectable excess of power in the order might then be reproduced in byelaws made under it, without any redress.
As we see it, there is much to be said for the view that the corollary of the validity of the first proposition, if the rule of law is to mean very much, must be a negation of the second proposition.
Fresh Evidence?
"Vehicular access and parking has been a notorious issue both within Tenby town and the harbour area.
One of the main areas of concern was Castle Square, where access was compromised to the all-weather lifeboat station and the Castle Hill peninsula and to and from … Castle Terrace.
I have received numerous informal complaints from residents, harbour users, statutory bodies and visitors with regard to access and parking issues.
I have therefore exercised vehicular control over the Castle Square area many times during my employment. This has involved closing areas to traffic access or suspending parking bays to allow access for RNLI fuel deliveries, building works to nearby buildings, highway drain and surface maintenance and for event infrastructure.
Since my employment in 1993 I have repeatedly reported problems with parking to [the Council]."
"The need to control parking in the harbour area was a long-standing problem and arose because motorists would come down to the harbour area in search [of] parking spaces. This led to traffic congestion in the harbour area and indiscriminate parking which in turn caused the Harbour Master problems" (referred to in the evidence of Mr Evans).
"[W]here a tribunal, of whatever nature, has given a decision and expressed it in language from which the court can ascertain what the decision was, the court will not accept affidavit evidence to say that the tribunal meant something different from that which it said in its judgment. If there is an ambiguity, as sometimes happens, in a decision which is given, the court can send it back … in order to clear up the ambiguity and to ascertain what the magistrate meant; but, where the language of the tribunal in which it expressed its judgment, is clear and there is no ambiguity, it would be quite wrong for this court to entertain affidavit evidence or other matter to try and explain that the tribunal, whether it is justices or any other tribunal, meant something different from what it said. In our opinion, to do so would open up a very undesirable line of argument, because it might necessitate conflicting affidavits on such a matter. The litigants, who hear the decision, have to decide from what the tribunal says, whether they have a right to come to this court or not. When they come to this court, the court can only look at what the tribunal says, and cannot entertain affidavits … which would suggest that the tribunal meant something different from what it has said."
Humpreys and Birkett JJ agreed with that observation: see at 27 and 29.
"The Master of the Rolls has held that it would be unfair to allow individual members of the district committee to go back on the stated reasons for their decision. But the fact is that they were so allowed and in these circumstances the questions that arise are: (1) As a matter of law, should that evidence have been excluded? … As to (1), I have to say that I know of no rule of law which demands exclusion of evidence as to what actually happened in the district committee …."
"(2) The court can, and, in appropriate cases, should, admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should … be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction …
(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. …
(4) … in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. …."
The third argument: irrationality
The fourth argument: invasion of private property rights
Conclusion