Richards & Anor, R (on the application of) v Pembrokeshire County Council

Harbour authority powers cannot be used to impose a parking scheme whose main purpose is town-centre congestion control or pedestrian safety. The directions must have a main purpose connected with harbour management or operation; benefits to harbour access which are merely collateral are insufficient.

The contemporaneous directions, decision and report are the primary sources for identifying purpose. Ambiguous wording may be clarified by credible and authoritative evidence, but exceptional circumstances are required before later evidence can supply new reasons. A decision affecting potentially private land must consider the resulting interference with property rights. A reduction in parking spaces alone does not make a parking scheme irrational.

The appellants owned a house divided into flats at Castle Hill, Tenby, adjoining Castle Terrace. Pembrokeshire County Council adopted parking directions under the Tenby Harbour Byelaws 1995, made under the South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975 and powers derived from the Harbours Act 1964.

Moses J had decided the judicial review proceedings on 9 October 2003. The appellants appealed, arguing that the directions were beyond the statutory harbour powers, irrational, and unlawful because they affected possible private property rights on Castle Terrace. The central issues were the proper statutory purpose of the directions, the admissibility of later evidence about the Council’s reasons, and the need to consider interference with private rights.

Appeal allowed. Lord Justice Neuberger delivered the judgment of the Court.

1. Validity of the 1975 Order. The appellants had abandoned their direct challenge to the inclusion of Castle Hill in the harbour estate. The Court did not finally determine the effect of section 44(3) of the Harbours Act 1964, although it observed that constitutional considerations might require such a preclusive provision to be read narrowly. It also noted the possible significance of Article 6 of the Convention and Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147.
2. Improper purpose. Powers under section 14 and Schedule 2 of the Harbours Act 1964 had to be exercised for harbour management or operational purposes. On a fair reading of the directions, the Council’s decision and the report, the principal concerns were congestion and pedestrian safety in the wider town centre. Any benefit to harbour access was collateral. The directions were therefore ultra vires.
3. Reasons and later evidence. The primary sources for the Council’s reasons were the directions, decision and report. Applying the reasoning in R v Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area ex p B E Barrett Limited [1949] 2 KB 17 and R v Westminster City Council ex p Ermakov [1996] 2 All ER 302, ambiguity could be clarified by credible evidence, but exceptional circumstances were required before evidence could introduce different reasons. Evidence from Council officers did not establish what the Cabinet had considered and could not supply new lawful grounds after the stated reasons had been found ultra vires.
4. Irrationality. The Court agreed with Moses J that a parking scheme was not irrational merely because it reduced the number of physically available parking spaces. Regulation was intended to prevent congestion, blocked streets and danger to pedestrians.
5. Private property. The Court could not determine ownership of Castle Terrace or whether it was a highway. However, the Council had to consider the cogent possibility that restrictions would interfere with the appellants’ private property rights recognised by Article 1 of the First Protocol. Its failure to consider that material factor vitiated the directions insofar as they affected Castle Terrace.

The appeal was allowed on the improper-purpose ground and on the failure to consider possible interference with private property rights.

• Court of Appeal (Civil Division). On 29 July 2004, the appeal was allowed on the improper-purpose and private-property-rights grounds.
• High Court of Justice (Queen’s Bench Division, Divisional Court). Moses J gave the decision appealed from on 9 October 2003.