derbyshire cc -v- high peak magistrates' and marlow

Neutral Citation Number: [2013] EWHC 1762 (Admin)

Case No: CO/11044/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

33 Bull Street

Birmingham B4 6DS

Date: 27/06/2013

Before :

MR JUSTICE KENNETH PARKER

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Between :

DERBYSHIRE COUNTY COUNCIL Claimant

- and -

HIGH PEAK MAGISTRATES' COURT Defendant

- and –

MS KATE MARLOW Interested Party

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Paul Stinchcombe QC (instructed by Derbyshire County Council) for the Claimant

David Lock QC and Philip Williams (instructed by Nigel Davis Solicitors) for the Interested

Party

Hearing dates: 22 May 2013

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Approved Judgment

Judgment Approved by the court for handing down. Derbyshire CC -v- High Peak Magistrates' and Marlow

Mr Justice Kenneth Parker :

Introduction

1. This is an application for judicial review of the judgment on costs of District Judge

Davison, sitting in the High Peak Magistrates’ Court (“the Defendant”), by which,

consequent to the application by Ms Marlow (“the Interested Party”) for an Order

under section 130B of the Highways Act 1980 that the Council remove an obstruction

to New Mills Footpath No. 84, he ordered the Council to pay the Interested Party’s

costs of the application.

Statutory Framework

2. I set out the statutory framework in an Annex to this judgment.

The Factual Background

3. New Mills Public Footpath 84 descends a steep hillside, passing Noonsun Farm and

Noonsun Cottages, one of which is owned and occupied by Ms Marlow (2 Noonsun

Cottages). The public have the right to pass over Footpath No. 84 on foot. There are

also private vehicular rights over the footpath for the benefit of certain properties,

including that owned by Ms Marlow. The Council’s duties in relation to the removal

of obstructions relate to the protection of public rights of way on foot. There was

evidence before the District Judge that the relevant obstruction did cause significant

prejudice to the public, and that at least one member of the public had complained.

4. In about 2002 the then owner of Noonsun Farm carried out re-development works to

his property, improving his own vehicular access but affecting Footpath No. 84 by:

i) Raising land levels in the area by depositing materials on the footpath and

significantly re-grading it;

ii) Installing a flight of steps with hand railings in the footpath;

iii) Installing a retaining wall;

iv) Erecting a field gate and post at the top of the flight of steps to provide access

to an adjacent field.

5. Ms Marlow purchased her property in 2005 and first complained to the Council about

the obstruction in 2007. The Council sought to advance proposals for further works

to remedy the effects of the alterations.

6. These endeavours were not successful and on 29 October 2007 Ms Marlow was

compelled to serve a first notice on the Council under section 130A of the 1980 Act.

Initially, the Council did take action in favour of Ms Marlow by serving a notice on

the persons responsible for the obstruction, under section 130A(6). However, having

served the notice, and having taken that position in unequivocal terms, the Council

then changed its position. The Council contended that the works had not

“significantly” interfered with the exercise of public rights of way by foot over the

footpath, as required by section 130B(4)(c) of the 1980 Act. The application was at


that point, therefore, withdrawn by Ms Marlow on a basis that at the end of the day

was not to be pursued by the Council in circumstances that will be described shortly.

7. In 2010 in Herrick v. Kidner and Somerset County Council [2010] EWHC 269

(Admin) (“Herrick”), Cranston J. decided that the requirement, under section

130B(4)(c) of the 1980 Act, that works must “significantly” interfere with the

exercise of public rights of way meant that such works should not interfere with the

right of a member of the public to have unrestricted access to the whole, or any part

of, the highway.

8. Ms Marlow drew Herrick to the Council’s attention and the Council’s Acting County

Secretary responded to Ms Marlow on 14 May 2010 in the following terms:

“It is clear that the works which were carried out in 2001 in this

footpath without any highway authority authorisation, involved

a hand gate and fencing across the footpath which introduced

an obstruction which physically narrowed the footpath

available for public use. My current understanding is that the

gate itself was removed some time ago but that a physical

narrowing to some extent caused by the surrounding structure

currently persists. The general position in the light of the

Somerset case is that any unauthorised works on the footpath

which narrow the width available for the public to use (except

by a trivial amount under the de minimis exception) are

unlawful obstructions which should be subject to effective

action by the Council as highway authority to restore the width

available for use. ” (My emphasis)

9. The Council undertook investigations, the outcome of which was communicated to

Ms Marlow in a further letter from the Acting County Secretary, dated 29 October

2010, which stated as follows:

“The Council has this week received advice from Counsel

concerning the alterations to this footpath which were caused

by the works which were carried out in 2001. Taking into

account the advice, the Council continues to regard the

alterations as having caused an unlawful obstruction to the

footpath.” (My emphasis)

I note that the Council had specifically taken advice from Counsel on its legal

obligations. If that advice was thought to have more general and important potential

consequences for the Council, it could of course have sought further advice, in

particular, about the meaning of “obstruction” and whether the conclusions of

Cranston J could realistically be challenged in another case. The Council did not take

any such precautionary steps.

10. The letter of 29 October 2010 then set out the Council’s proposal for a period of

consultation, after which, it was stated that:

“… if the Director of Environmental Services is not satisfied

that full accessibility for footpath users had been restored or


that this would not be accomplished under a suitable scheme

within a reasonable time, then he would serve a statutory

Highways Act Notice on the landowners to require substantial

removal of the highway obstruction.” (My emphasis)

11. Ms Marlow served a second section 130A notice on the Council on 1 November

2010. In response the Council itself served notices on Mr and Mrs Broughton-Law

(the landowners) and Ms Marlow on 3 December 2010, containing the following

“description of obstruction”:

“… an unauthorised restriction (via a set of unauthorised

concrete steps approximately 1 metre wide) in the right to pass

and re-pass over the footpath at its western side. It results from

the situation of the steps in combination with (1) a deposit of

material which has raised the surface level causing a very steep

gradient over the footpath in the vicinity of the steps; (2) a

stone retaining wall across the footpath to the east of the

bottom of the steps; and (3) a gatepost supporting a bar gate at

the eastern side of the top of the steps.”

12. The notice set out what, if any, action the authority proposed to take in relation to the

obstruction in accordance with section 130A(6). The Form said:

“This authority proposes to take the following action in relation

to the obstruction:

To refrain from taking formal enforcement action

through its Director of Environmental Services until

after Monday 31st of January 2011, to encourage a

suitable scheme for restoration of accessibility for users

of Footpath 84 to be put forward by then.

If a suitable scheme for restoration of accessibility for

users of Footpath 84 is put forward by 31st of January

2011, to state reasonable time limit for the carrying out

of the scheme.

If a suitable scheme for restoration of accessibility for

users of Footpath 84 is not put forward by 31st of

January 2011, and it is not then apparent that such

restoration is not otherwise about to be achieved, to take

formal enforcement action after that date in order to

achieve the removal of the obstruction”

13. Thus the Council’s Notice at that stage formally committed the Council to taking

enforcement action against the landowners over whose land Footpath 84 ran if a

suitable scheme for restoration of accessibility was not put forward by 31st January

2011. A notice was also served on Ms Marlow explaining that this was the course

that the Council proposed to follow.


14. Again it was open to the Council at that stage to take advice on “obstruction”,

“significance” and any other relevant legal matter. However, the Council proceeded

on the unequivocal basis that there was an unlawful obstruction.

15. The period stipulated in paragraph 12 above was extended on the Council’s initiative

to 30 March 2011, pending a response from High Peak Borough Council’s Planning

Department on the acceptability of an alternative suitable scheme.

16. However, the revised 30 March 2011 deadline passed with no scheme of works

emerging from the landowner. In the evidence before the District Judge, and before

this Court, there is then simply a deafening and quite astonishing silence about what

happened within the Council between 30 March 2011, when, it is necessary to recall,

the Council was adopting the unequivocal position, following Counsel’s advice, that

there was an unlawful obstruction that needed to be removed, and 29 June 2011. On

the evidence – or lack of it – nothing in any event was said to Ms Marlow between

these dates to indicate that the Council – once again – was changing its position. It

appears that Council had gone to new Counsel, Ms Ruth Stockley, who, differing

from the earlier advice, had advised the Council that there were good grounds for

resisting Ms Marlow’s application. There was a preliminary hearing fixed for 29 June

2011 before the District Judge in respect of Ms Marlow’s still pending application.

Ms Stockley appeared before the District Judge on behalf of the Council at that

hearing on 29 June 2011, and, minutes before the hearing began, Ms Stockley told Ms

Marlow that the Council had shifted from the unequivocal position it had adopted in

March 2011, and would now be resisting Ms Marlow’s application. Ms Marlow was

not legally represented, understandably not having any reason to anticipate the

Council’s (further) change of position.

17. Ms Stockley had also advised the Council that it should apply to strike out Ms

Marlow’s application, and that application to strike out was made. This strike out

application was misconceived, as the District Judge correctly found, but he did decide

two points of law at the next hearing which in fact took place only much later on 8

May 2012. The points of law were:

i) The alleged obstruction was not an obstruction to which section 130A applied

because the works did not constitute a “structure” for the purposes of section

143 of the Highways Act 1980; and

ii) The alleged obstruction was not an obstruction to which section 130A applied

because the works did not comprise a “thing deposited on the highway” for the

purposes of section 149 of the Highways Act 1980.

18. The District Judge in a judgment of 8 May 2012 found against the Council on both

points. I have considered that judgment, and I must say, to put the matter at the

lowest, that the Council’s case was less than impressive and was rightly rejected by

the District Judge.

19. The Council was ordered to pay Ms Marlow’s costs. The Council did not seek to

appeal the decisions as to substance or costs. However, the taking of these new

preliminary points had thrown up a further unmeritorious obstacle to Ms Marlow’s

endeavours to obtain a satisfactory remedy.


20. For the purposes of the above preliminary hearing, Ms Stockley had produced a

Skeleton Argument on behalf of the Council which flagged what would now be put

forward in the Council’s defence (if it lost, as it did, on the two preliminary points

above), namely:

i) Notwithstanding Herrick, the alleged obstructions did not “significantly”

interfere with public rights of way, as required by section 130B(4)(c) of the

1980 Act; and

ii) The Court in any event should not in its discretion grant any relief to Ms

Marlow, even if her application was successful.

21. It is necessary to bear in mind that that was the position adopted by the Council on 8

May 2012. Even though she had succeeded on the two “preliminary points”, Ms

Marlow plainly had to prepare herself for the final hearing which was fixed for 3 days

beginning 16 July 2012 on the basis that the Council would be vigorously resisting

her application on the two grounds referred to above. At that juncture she had no

reason to believe, particularly given the history of the contest, that the Council would

retreat from its announced stand, and she, as a private individual, remained exposed to

the uncertainty and anxiety of this continuing litigation against a public authority.

Furthermore, it should be noted that the Council’s primary ground of resistance

referred to above was predicated upon the proposition that the conclusion of Cranston

J in Herrick was wrong and, even if it was followed by the District Judge (as was

almost inevitable), there was presumably a good chance of success in the Court of

Appeal. Indeed, that proposition had been the reason for the Council’s volte face on

29 June 2011 (see paragraph 16 above). But on 14 March 2012, nearly two months

before 8 May 2012, the Divisional Court had specifically endorsed the conclusion of

Cranston J in Herrick. In Kind v Northumberland County Council [2012] EWHC 603

(Admin), Moore-Bick LJ, with whom King J agreed, stated:

“14. The nature of a highway and of the public’s right to the

use and enjoyment of it were considered in some detail by

Cranston J. in Herrick v Kidner [2010] EWHC 269 (Admin),

[2010] 3 All E.R. 771. Having considered a number of

authorities, including Director of Public Prosecutions v Jones

[1999] 2 A.C. 240 and Hampshire County Council v

Gillingham (unreported, 5

April 2000), he summarised the

principles to be derived from them in paragraph 33 of his

judgment as follows:

“. . . first, members of the public are in general entitled to

unrestricted access to the whole and each part of a highway;

secondly, their right to such access is principally to pass and

repass but it is also to enjoy other amenity rights; thirdly ,

those other amenity rights must be reasonable and usual and

will depend on the particular circumstances; fourthly, any

encroachment upon the highway which prevents members of

the public from the enjoyment of these access and amenity

rights is an unlawful obstruction; fifthly, the law ignores de

minimis, or fractional obstructions; and sixthly, a highway


authority cannot deprive itself of the power to act against an

unlawful obstruction by refraining from exercising its

statutory powers against it, or by purporting to give it

consent.”

15. In the present case the Council did not seek to persuade the

court that that summary of the relevant principles was incorrect

and in any event I respectfully agree with it. The very nature of a

public highway is such that the right to use and enjoy it extends to

the whole of its width at every point along it. Accordingly,

anything that interferes with that right to more than a minimal

extent constitutes an obstruction which the highway authority may

be called upon to have removed. In section 130 of the Act and

elsewhere a distinction is drawn between “stopping up” and

“obstructing” the highway, the former being used to describe steps

taken to close off the whole width of the highway so as to render

passage impossible.” (My emphasis)

22. Ms Stockley appeared for Northumberland County Council in Kind and was

obviously aware of the decision of the Divisional Court. It is rather difficult in these

circumstances to understand how the Council was, on 8 May 2012, continuing to

resist Ms Marlow’s application, and going forward to a final hearing two months later

in July 2012, on the primary footing that Herrick was incorrect, unless, of course, the

Council had received firm and cogent advice (presumably from Ms Stockley) that

there was a realistic prospect of persuading the Court of Appeal that both the High

Court and the Divisional Court were wrong on this point. I have not seen any such

advice, nor did the District Judge.

23. Following the preliminary hearing, the parties sought to negotiate a settlement of the

main application. Pending final agreement of that Consent Order, however, the two

submissions raised by Ms Stockley in her Skeleton on behalf of the Council remained

in issue. These were elaborated upon in a “Revised Skeleton On Behalf of Derbyshire

County Council Including as to Costs”, prepared in advance of any order finally being

agreed, and in case such agreement was not reached.

24. As part of the negotiations a site meeting took place on 18 June 2012. Highway

design engineers from the Council, the landowners and the owners of 3 Noonsun

Cottages as well as the parties and their legal representatives attended. At the

meeting, and not long after it began, an officer of the Council told Jacqueline Mann,

the solicitor acting on behalf of Ms Marlow, that the Council was planning to do

works to FP84 to “put it back to how it was”, in other words, the Council was

intending to concede Ms Marlow’s application in full. However, in a witness

statement in the proceedings, Ms Mann observed that the Council’s failures to

communicate its position (which itself involved a further volte face) before the site

meeting meant that resources had been unnecessarily expended in preparing for the

meeting, liaising with independent highway design engineers, and so on.

25. The dispute was resolved by an agreed order dated Friday 13 July 2012, the last

working day before the case was due to come to trial on 16 July 2012. In the course

of the negotiations on the Consent Order, and by an open letter dated 21 June 2012

from the Council’s Assistant Director, the Council accepted liability for Ms Marlow’s


costs and proposed that the following wording be included in a Consent Order: “The

Respondent do pay the Applicant’s reasonable and proportionate costs of this action

on a standard basis …” By a further letter in the same negotiations, dated 28 June

2012, the Council proposed the inclusion of the words “reasonable and proportionate”

in the above formulation.

26. The letter of 21 June 2012 was written by a legal officer of the Council, an

experienced solicitor, who might reasonably have been expected to know what was

the legal position in respect of costs. In any event before writing to agree to pay Ms

Marlow’s costs, the Council, if in doubt, could have sought external legal advice as to

its liability to costs if it continued to resist Ms Marlow’s application and failed. It

appears that in fact Ms Stockley had been asked about that question, but said that she

did not have the expertise to answer. The Council, it appears, did not then pursue the

question further with external counsel before writing in the terms that it did, namely

unequivocally to agree to pay Ms Marlow’s costs. It seems to me that Ms Marlow

was entitled to assume that the Council’s offer to pay her reasonable costs had been

based on an informed and correct understanding of what the Council’s liability would

be if it resisted and failed.

27. However after making the offers, it appears that the Council then took further advice

that led it on 5 July 2012 to write to Ms Marlow’s solicitor saying that it no longer

agreed to pay any of Ms Marlow’s costs. This was a further change of position by the

Council. Hence the necessity arose for the one day hearing before the District Judge

to establish the Council’s legal liability to pay costs.

The Jurisdiction of the Magistrates’ Court as to Costs

28. Section 64 of the Magistrates Court Act 1980 provides:

“On the hearing of a complaint, a magistrates' court shall have

power in its discretion to make such order as to costs –

(a) on making the order for which the complaint is made, to

be paid by the defendant to the complainant;

(b) on dismissing the complaint, to be paid by the

complainant to the defendant,

as it thinks just and reasonable; but if the complaint is for an

order for the variation of an order for the periodic payment of

money, or for the enforcement of such an order, the court may,

whatever adjudication it makes, order either party to pay the

whole or any part of the other's costs.”

The Principles as to Costs

29. In this claim there was considerable debate between the parties as to whether the

normal costs rule (“the loser pays”) applied to Ms Marlow’s application or whether

the Council benefited from the more favourable approach to costs discernible in what

was described as “regulatory” cases. I proceed on the assumption that the approach in

the “regulatory” cases applies. It is not necessary for me to decide this question. My


principal concern about the application of the more favourable approach would be that

in the present context the member of the public is seeking to vindicate a public right

(even if, contingently, he or she, as in this case, might derive significant advantage

from a successful claim); and a cost approach that significantly tilted the balance in

favour of a public authority might deter the bringing of justified proceedings brought

in the public interest to vindicate a public right. Part of the rationale for the approach

in regulatory cases is to create incentives that promote the public interest.

30. In any event the parties were largely agreed that, if the approach in regulatory cases

was followed, the following principles applied:

i) The usual rule in civil litigation that costs in principle should follow the event

does not apply: see R(Cambridge City Council) v. Alex Nesting Limited

(supra, at paragraph 12); and R(Perinpanathan) v. City of Westminster

Magistrates Court (supra, at paragraph 41).

ii) Financial prejudice (to the successful party) does not as such lead to an Order.

However, substantial hardship to such party may be taken into account: see

R(Cambridge City Council) v. Alex Nesting Limited (supra, at paragraph 12);

and R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at

paragraph 41).

iii) “As a matter of strict law” the power to award costs is not confined to cases

where the regulatory authority acts unreasonably and in bad faith, the fact that

the regulatory authority acts reasonably and in good faith is plainly a most

important factor: see R(Cambridge City Council) v. Alex Nesting Limited

(supra, at paragraph 11).

iv) The above applies to situations where a regulatory authority opposes relief just

as it does to a regulatory authority pursuing a claim; in both cases, there is no

presumption that the regulatory body pay the other party's costs: see

R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at

paragraph 76).

v) In assessing whether a regulatory body has acted reasonably, it would be

wrong to invoke the wisdom of hindsight or to set too exacting a standard: see

R(Perinpanathan) v. City of Westminster Magistrates Court (supra, at

paragraph 77).

The Function of this Court

31. In Crawley Borough Council v Stuart Attenborough, Angela Attenborough [2006]

EWHC 1278 (Admin) Scott Baker LJ said:

“9. The magistrates gave the following reason for their

decision:

“We were entitled to make an order as to costs in accordance

with our discretion as we had considered all the

circumstances concerning the facts and the history of the


case and awarded costs against Crawley Borough Council as

were just and reasonable given the variation made.”

And a little earlier in the main paragraph of the case, setting out

the basis for their decision, they said:

“There is no real problem relating to noise nuisance from the

interior of the Royal Oak Public House having heard the

evidence of Mr Petrou and Mr Burns and visiting the

premises itself.”

10. We have been referred also to my decision in the R v

Stafford Crown Court ex parte Wilf Gilbert (Staffs) Ltd [2001]

LLR 138, in which I made reference to the general rule that

there is no obligation to give reasons for a decision on costs,

citing Eagil Trust Co v Pigott-Brown [1985] 3 All ER 119 and,

in particular, a passage from Griffiths LJ's judgment at 122A. It

seems to me very doubtful whether that decision has survived

the new Criminal Procedure Rules which have loosened the

opportunity to appeal on costs decisions.

11. Be that as it may, the justices did give reasons for their

decision in the present case, the reasons to which I have

referred. For my part I think, first of all, there is no obligation

on justices in cases of this kind to go in detail into the reasons

for their decision, and it is sufficient that they have made it

clear that they appreciated the principle under which they were

operating. Secondly, I make the general observation that it

seems to me highly undesirable that the courts should do

anything to encourage satellite litigation on questions such as

costs.

12. It is plain from section 181 and also, so far as material,

section 64(1) of the Magistrates' Courts Act 1980 that in a case

of this kind the justices have a very wide discretion in what

costs order they see fit to make. They will, after all, have heard

the appeal, which in this case took something in the region of

two days.

13. Mr Miller submits that they went wrong because they

ordered the local authority to pay all of the appellant's costs

without making a finding that the local authority had behaved

unreasonably. In my judgment, he is seeking to import into the

magistrates' discretion something that the statute does not

specifically say…” (Emphasis added)

32. Furthermore, the Court of Appeal has repeatedly emphasised the width of the

discretion exercised by Judges in relation to costs and the reluctance of the appeal

court to interfere with the exercise of that discretion. The principles to be applied by

the Court of Appeal in dealing with appeals solely on matters of costs were set out in


Adamson v Halifax Plc [2003] 1 WLR 60. Sir Murray Stuart Smith said at paragraph

16:

“Costs are in the discretion of the trial judge and this court will

only interfere with the exercise of that discretion on well-

defined principles. As I said in Roache v News Group

Newspapers Ltd [1998] EMLR, 161, 172:

“Before the court can interfere it must be shown that the

judge has either erred in principle in his approach, or has left

out of account, or taken into account, some feature that he

should, or should not, have considered, or that his decision is

wholly wrong because the court is forced to the conclusion

that he has not balanced the various factors fairly in the

scale.”

That statement was approved in AEI Rediffusion Music Ltd v

Phonographic Performance Ltd [1999] 1 WLR 1507, 1523, per

Lord Woolf MR. Although that decision was before the CPR

came into force, it is clear that the court applied the same

principle in relation to interfering with the trial judge's

discretion”

33. In Islam v Ali [2003] EWCA Civ 612 Auld LJ said at paragraphs19 and 20:

“19. It is, as both counsel have acknowledged, a wide

discretion, and the Court of Appeal should only interfere with

the judge's exercise of it if he has “exceeded the generous ambit

within which reasonable disagreement is possible”, a familiar

passage taken now from the judgment of Brooke LJ in Tanfern

v Cameron McDonald (Practice Note), 1 WLR 13 , 11, at

paragraph 32, citing Lord Fraser in G v G (Minors) CA [1985]

1 WLR 647 , 652.

20. Another way of putting it, with a more direct focus on

costs, is that the Court should only intervene where

“… the judge has either erred in principle in his approach, or

has left out of account, or taken into account, some feature

that he should, or should not, have considered, or that [the

exercise of] his discretion is wholly wrong because the court

is forced to the conclusion that he has not balanced the

various factors fairly in the scale.”

34. Accordingly, even if the reviewing court has concerns about the procedure adopted by

the Judge or considers that there are aspects of the decision about which the reviewing

court has reservations, this will not result in the reviewing court interfering with the

costs order unless these reservations “undermin[e] .. the integrity of his decision”:

see Martin Coyne v DRC Distribution Limited [2008] EWCA Civ 488 at paragraph72.


The Judgment of the District Judge

35. The District Judge held that this was a “regulatory” civil case to which the principles

referred to above applied. He then took into account “the conduct of this case as a

whole, both pre-litigation, and up until the close of business on Friday last, 13 July

2012, the date that the Consent Order was finally agreed and signed by both parties”.

36. The judge then found:

“I am satisfied that the documentary evidence I have

considered throughout this case, particularly the statements of

Ms Marlow and her solicitor, Ms Mann, together with the

plethora of correspondence which has passed between the

Applicant, her legal adviser and the Respondents, in so far as it

relates to the conduct, care and control, decision making or on a

number of occasions the lack of decision making, and

misleading statements in written communications – enables me

to conclude with some ease, that the Respondents have

undoubtedly acted unreasonably in the exercise of their

statutory administrative duties.

I do not find that the Respondents have acted dishonestly or in

bad faith, but that they have acted unreasonably, causing

unnecessary delay and significant additional costs, consistently

throughout the life of this case.

Furthermore, the financial prejudice to Ms Marlow of this

Court making no order for costs in her favour would be

significant and in my view unconscionable in all the

circumstances. Ms Marlow has persevered and stood out as a

beacon of commitment and reasonableness to her cause,

identified in her application, and in my view she must be

reasonably compensated for the costs she has necessarily and

properly incurred in successfully bringing these proceedings

against what I regret to say has been an intransigent and

misleading public authority.

In my judgment this matter could, and should quite properly

have been settled months, if not years ago, at relatively modest

cost to the Respondents, and it is not now incumbent on them,

or in any way reasonable for them, to seek to avoid their just

and reasonable responsibilities to Ms Marlow in terms of costs.

In so far as the third of the Bradford case propositions is

concerned, in relation to encouraging public authorities to make

and stand by honest, reasonable and apparently sound

administrative decisions, made in the public interest, without

fear of exposure to undue financial prejudice if their decision is

successfully challenged – what we have in this case is a public

authority which has dragged its feet for a considerable period of

time, and altered its position in important matters of principle,


at times, supporting and indeed virtually encouraging Ms

Marlow in her pursuit of seeking the removal of the unlawful

obstructions, only to alter their position, contest this matter and

then just days before a three day scheduled contested hearing

sign a Consent Order in effect agreeing to all that the applicant

has sought from day one. Similarly, the Respondents have

changed their stance in relation to this very issue of the

Applicant’s costs, just a matter of a few days ago, despite high

level internal legal advice from its own legal officers clearly set

out in recent correspondence from Ms Kay Riley, an officer of

the Respondents dated 21 June 2012 contained in the evidential

bundle prepared for today’s hearing, which expressly stated as

part of the draft Consent Order that:

“the Respondent’s do pay the Applicant’s reasonable and

proportionate costs of this action on a standard basis, or

failing agreement to be subject to detailed assessment

proceedings”

Nevertheless by letter of 5th

July 2012 the Respondents had

once again totally altered their stance in relation to the principle

of meeting the Applicant’s reasonable costs, and stated:

“… we are therefore writing to inform you that the Council

will not agree to meet any of your costs”.

In my judgment this is a case where the Derbyshire County

Council have at all material times had it within their own power

to remedy the unlawful obstruction(s), subject of this

application by Ms Marlow – yet they have manifestly failed to

act reasonably and proportionately, and having regard to all the

circumstances of this long running case, this is a matter which

is eminently suitable for a positive exercise of my discretion to

award costs to Ms Marlow, payable by the Respondents, which

are just and reasonable, and not punitive, in accordance with

the statutory power set out in Section 64 of the Magistrates’

Courts Act 1980.”

The Claimant’s Case

37. I may summarise the Council’s case as follows.

38. The Council’s case was that it had, in good conscience and in good faith, acted

entirely reasonably in dealing with a situation which had been foist upon it and of

which it was not the author, such that, in proper application of the principles

established in the above authorities, the Council should not be ordered to pay the

Interested Party’s costs.

39. In particular, and covering the entire period from the first complaint received by the

Council to the hearing on 17 July 2012:


i) The works to Footpath No. 84 were carried out by a third party, the former

owner of Noonsun Farm, without any prior communication with or approval

from the Council.

ii) When, in 2002, the Council was consulted by the local planning authority on

the retrospective planning application in 2002, the Council recommended that

an advisory note be included in any Decision Notice to draw attention to the

need to have regard to existing public rights of way on foot along the footpath.

iii) When, in 2007, the Interested Party first raised the issue of the works with the

Council, the Council sought to advance proposals, during 2007, for further

works to overcome the effects of the alterations.

iv) When the Interested Party first served notice on the Council under section

130A of the Highways Act in 2007, she withdrew proceedings.

v) When the Council was served with the second notice under section 130A,

following the judgment in Herrick, the Council signalled its intention to

refrain from taking formal action pending endeavours to encourage a suitable

scheme to come forward by 31 January 2011, extended to 31 March 2011.

This was entirely reasonable and in good faith given the following:

a) The footpath, as altered, was entirely usable and safe for passage on

foot.

b) The remedial works required by Ms Marlow would be on the private

land of the current owners of Noonsun Farm who were not responsible

for the works.

c) The works would require the removal of the improved access to that

property, engaging Article 1 of the First Protocol of the ECHR and the

right of the occupiers to the enjoyment of their property.

vi) Thereafter, and from 29 June 2011, and when the Council raised the question

as to whether section 130A was properly engaged, given sections 143 and 149

of the same Act, it was acting entirely reasonably and in good faith as

demonstrated by the following:

a) They were issues of importance, never previously considered, the

determination of which were of public importance and have wide-

ranging consequences in the County and beyond.

b) That they were reasonably arguable is properly reflected in fact that the

District Judge ordered an uplift of 100% on the Interested Party’s costs

of that hearing.

c) The points were heard as a preliminary point of law precisely because

of their potential to save costs at a subsequent substantive hearing.

Having lost on those preliminary points on 8 May 2012, the Council continued to act

entirely reasonably and in good faith in seeking to agree a Consent Order, whilst


reserving its right to make its two remaining submissions should those endeavours

fail.

40. The District Judge had, similarly, to address the following matters as to financial

prejudice, noting, per Lord Bingham’s entreaty in City of Bradford Metropolitan

County Council v. Booth (supra), the need to protect public authorities from

“exposure to undue financial prejudice”:

i) The Interested Party’s Schedule of Costs in the sum of nearly £200,000 was

incurred in a Magistrates’ Court case, scheduled to last just 3 days at the most,

in which the Interested Party was only able to assert her right to use Footpath

No. 84 on foot, and when perfectly reasonable footpath access was available at

all times.

ii) The costs which Ms Marlow incurred were exacerbated by an uplift of 100 per

cent pursuant to a CFA into which Ms Marlow had voluntarily entered into,

when she knew, or ought to have been advised, that, pursuant to the authorities

set out above, she was always at risk of non-recovery even if successful.

iii) Ms Marlow had elected to pursue the Council in respect of its exercise of

regulatory powers when, at all times, legal redress was available in respect of

her private rights (including vehicular access) in private litigation and in which

the ordinary rule that costs follows the event would have applied.

iv) Finally, to order the Council to pay Ms Marlow’s costs would:

a) Have a chilling effect on any highway authority reasonably seeking to

exercise its regulatory powers over highways by promoting an

alternative to removal of the obstructions where that alternative might

be in the public interest; and

b) Have a chilling effect, also, on the willingness of any highway

authority legitimately, and reasonably, to raise important points of law

in opposing the relief sought by an Interested Party under section 130B

of the 1980 Act.

Decision

41. The rather lengthy recitation of the facts in this somewhat extraordinary case enables

me to state my decision relatively briefly. I start from the premise that Ms Marlow

eventually succeeded in her application, after a very lengthy, hard fought and at times

frustrating contest with the Council. As the District Judge observed, this relatively

small scale dispute could have been resolved at an early stage, allowing both

substantial private and public resources to be more productively expended, and saving

very considerable private and public costs. In those circumstances, in my view, the

Council would need to make out a strong case indeed why it should not, as a matter of

public policy, pay the costs of a private litigant, asserting a public right, who for

reasons of justice would ordinarily be awarded her costs.

42. Far from making out such a case, the Council, in my view, in responding to Ms

Marlow’s efforts to remedy what she maintained was a plain violation of a public


right of way, did not act in a manner that could reasonably be expected of a public

authority in that position. In essence, the District Judge also reached that conclusion.

In this judicial review it would be sufficient to defeat the claim if the District Judge

had a rational basis for reaching the conclusion that in essence he did. Not only did

he have such a rational basis; it was the only rational conclusion open to him, for the

following reasons.

43. On 29 October 2007 (that is, nearly 4 years before Ms Marlow’s claim was conceded

and before any significant legal costs had been incurred) the Council agreed to take

action in her favour. That was the first opportunity to resolve the matter in a timely

and cost efficient manner. The Council created an expectation that it would be so

resolved. However, the Council changed its position. It needed nonetheless to

recognise that it had created such an expectation at the outset, and to be sensitive to

the fact that Ms Marlow had not pursued her application in the light of the Council’s

change of position.

44. Following Herrick, the Council essentially accepted the merits of Ms Marlow’s claim.

It did so in unqualified and unambiguous terms. It had taken expert legal advice, and

told Ms Marlow that it had done so. For the second time, and in the strongest possible

way, it created an expectation that effective action would be taken in Ms Marlow’s

favour. As I remarked earlier, if the Council were concerned about the more general

potential consequences of Herrick, and had reservations about the legal advice that it

had received, then that was the time to explore the question further, before writing to

Ms Marlow in the unqualified and unambiguous manner that it did. As it was, Ms

Marlow must then have thought that she had achieved her objective.

45. The Council extended the period of compliance to 30 March 2011 (see paragraph 15

above). Again that was a strong signal to Ms Marlow that the Council was resolutely

maintaining the position that it had earlier adopted, in her favour.

46. So far as the evidence before the District Judge and this Court is concerned, there

followed what I have already described as a deafening and astonishing silence for

nearly 3 months, until 29 June 2011. According to the evidence, Ms Marlow had no

inkling that the Council was about yet again to perform a volte face, and strenuously

to contest the substance of her application. That absence of notice was consistent

with the fact that she turned up at the preliminary hearing on 29 June 2011 without

legal representation. Minutes before the hearing began she was told by opposing

counsel that the Council would now be resisting her application. It does not require

great imagination to grasp the distressing effect that this announcement, made in the

circumstances in which it was made, without notice, defeating an expectation that on

this occasion had been maintained over a lengthy period, must have had on her.

Furthermore, she was now for the first time confronted with two new legal

“preliminary” points, putting aside the entirely new stand in respect of Herrick. The

preliminary points failed. I have considered the judgment of the District Judge. The

points were not impressive, but they threw a further obstacle in the path of resolution

of the application.

47. The Council did not renege from the position that it announced on 29 June 2011,

namely, that Herrick was wrong. The final hearing was scheduled to consume 3 days

of judicial time in July 2012. Ms Marlow, and her legal team, had to prepare the case

on the basis that, notwithstanding the success on 8 May 2012 in respect of the


preliminary points, that substantive hearing would proceed. Indeed, new (leading)

Counsel produced a supplementary skeleton argument, contesting Ms Marlow’s

claim. However, as set out earlier, Kind had been decided in March 2012, and it is

unclear with what real justification the Council was maintaining that Herrick was

wrong and was compelling Ms Marlow to prepare for a substantive trial in which the

correctness of Herrick would be an important issue.

48. When the Council finally accepted that after all it would not contest Ms Marlow’s

application, it did so in a way that unnecessarily incurred further inconvenience (see

paragraph 24 above). The Council then first agreed to pay Ms Marlow’s reasonable

and proportionate costs, but later withdrew that offer in the circumstances that I have

explained. The Council could have taken outside legal advice before again raising an

expectation that, after receiving such advice, it defeated.

49. My strong impression in this case is that throughout the Council simply failed to take

into account the expectations that it was creating, and how its frequent changes of

position would inevitably affect Ms Marlow. Seen from its own perspective, the

Council may have thought that each individual decision that it took was justified.

However, like the District Judge, I have to look at the picture more broadly, and over

the whole period of the disputed matter, and to take due account of the impact of the

Council’s decision making on the citizen litigant. When the scenario is examined in

that way, the Council’s conduct fell significantly short of what could reasonably be

expected of a public authority in the present context, and it would represent a serious

injustice if the Council were not liable for Ms Marlow’s reasonable and proportionate

costs incurred in pursuing her application to its successful conclusion.

50. It was also contended that the District Judge did not deal seriatim with the points

made to him by the Council. However, on authority, he was not required to do so. He

had to state succinctly why he concluded that it was fair and reasonable that the

Council should pay Ms Marlow’s costs. He did so, and in terms that made it plain

why the Council had lost on that question. I have set out the matter more extensively

and have given more elaborate reasons. However, the gist of my decision is basically

the same as that given by the District Judge.

51. Another large issue now looms. I have done no more than decide that the decision of

the District Judge as to the Council’s liability to pay costs is a lawful one. The

Council strongly contests the amount of costs that are claimed. I was invited by Mr

Paul Stinchcombe QC, on behalf of the Council, to give some guidance to the District

Judge as to how he should approach a contest between the parties about the amount of

costs. However, I have no jurisdiction to do so on this judicial review, I did not hear

full argument on the point and in any event it would not have been appropriate to hear

any such argument. I appreciate that the District Judge may find himself in a

somewhat unenviable position, but it is not one that I can properly anticipate or seek

to regulate.


ANNEX

1. Section 130 of the Highways Act 1980 provides, as far as is relevant:

“(1) It is 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

.....

(3) Without prejudice to subsections (1) and (2) above, it is the

duty of a council who are a highway authority to prevent, as far

as possible, the stopping up or obstruction of—

(a) the highways for which they are the highway authority,

and

(b) any highway for which they are not the highway

authority, if, in their opinion, the stopping up or obstruction

of that highway would be prejudicial to the interests of their

area.”

2. Section 130A(1) of the Highways Act 1980 provides:

“(1) Any person who alleges, as respects any highway for

which a local highway authority other than an inner London

authority are the highway authority—

(a) that the highway falls within subsection (2) below, and

(b) that it is obstructed by an obstruction to which this

section applies,

may serve on the highway authority notice requesting them to

secure the removal of the obstruction from the highway.”

3. Section 130A(6) provides as follows:

“(6) A highway authority on whom a notice under subsection

(1) above is served shall, within one month from the date of

service of the notice, serve—

(a) on every person whose name and address is, pursuant to

subsection (5) above, included in the notice and, so far as

reasonably practicable, on every other person who it appears

to them may be for the time being responsible for the

obstruction, a notice informing that person that a notice

under subsection (1) above has been served in relation to the

obstruction and stating what, if any, action the authority

propose to take, and


(b) on the person who served the notice under subsection (1)

above, a notice containing the name and address of each

person on whom notice is served under paragraph (a) above

and stating what, if any, action the authority propose to take

in relation to the obstruction.”

4. Section 130B provides as follows:

“(1) Where a notice under section 130A(1) above has been

served on a highway authority in relation to any obstruction,

the person who served it, if not satisfied that the obstruction has

been removed, may apply to a magistrates' court in accordance

with section 130C below for an order under this section.

(2) An order under this section is an order requiring the

highway authority to take, within such reasonable period as

may be fixed by the order, such steps as may be specified in the

order for securing the removal of the obstruction.

(3) An order under this section shall not take effect—

(a) until the end of the period of twenty-one days from the

day on which the order is made; or

(b) if an appeal is brought in respect of the order within that

period (whether by way of appeal to the Crown Court or by

way of case stated for the opinion of the High Court), until

the final determination or withdrawal of the appeal.

(4) Subject to subsection (5) below, the court may make an

order under this section if it is satisfied—

(a) that the obstruction is one to which section 130A above

applies or, in a case falling within subsection (4)(a)(ii) of

that section, is one to which that section would apply but for

the obstruction having become used for human habitation

since service of the notice relating to it under subsection (1)

of that section,

(b) that the way obstructed is a highway within subsection

(2) of that section, and

(c) that the obstruction significantly interferes with the

exercise of public rights of way over that way.

(5) No order shall be made under this section if the highway

authority satisfy the court—

(a) that the fact that the way obstructed is a highway within

section 130A(2) above is seriously disputed,


(b) on any other grounds, that they have no duty under

section 130(3) above to secure the removal of the

obstruction, or

(c) that, under arrangements which have been made by the

authority, its removal will be secured within a reasonable

time, having regard to the number and seriousness of

obstructions in respect of which they have such a duty”

5. In Herrick v Kidner [2010] PTSR 1804 Cranston J observed:

“In my view the mischief at which sections 130A to 130D was

directed was the position of members of the public prior to the

enactment of the 2000 Act. Before that a member of the public,

concerned about the obstruction of a footpath, could complain

to the highway authority. In some circumstances that complaint

could no doubt be given added force by a campaign involving

councillors and others. But if the highway authority refused to

budge, the legal remedies available to an aggrieved member of

the public were time consuming and expensive.”

6. Those legal remedies were identified by the judge at paragraph 42 to include an

application for judicial review by a member of the public against the highway

authority. Such an action would, as the judge observed, involve the applicant having

to deal “with all the procedural and legal hurdles which that entailed”. Thus the

application to the Magistrates Court was intended to be a simpler, more cost-effective

and quicker route for a member of the public to force a highway authority to comply

with its statutory duties.

7. Part II of the Magistrates’ Court Act 1980 is headed “Civil Jurisdiction and

Procedure”. Section 51 provides:

“Where a complaint relating to a person is made to a justice of

the peace, the justice of the peace may issue a summons to the

person requiring him to appear before a magistrates' court to

answer to the complaint.”

derbyshire cc -v- high peak magistrates' and marlow

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