Spice & Ors, R (on the application of) v Leeds City Council

Under sections 116 and 117 of the Highways Act 1980, a highway authority deciding whether to make a stopping-up application must consider the highway functions performed by the relevant land. Passing and re-passing are important, but they are not the exclusive considerations. The authority must also consider matters such as amenity, verge protection, safety, visibility and access for third parties. It must apply the same broad evaluative approach whether acting on its own initiative or responding to a request under section 117. The statutory scheme does not compel an authority to promote an application which it considers inconsistent with its continuing duty to protect public highway rights. The impugned refusal was quashed because the authority had acted unlawfully, but the court rejected the claim that it was bound to make the requested application.

The claimants owned the subsoil beneath a vegetated strip forming part of a publicly maintainable highway in Leeds. They requested that the council apply to the magistrates under sections 116 and 117 of the Highways Act 1980 for the strip to be stopped up as unnecessary. The council accepted that its refusal was legally flawed because it had failed properly to consider use for passing and re-passing and had taken account of an irrelevant potential compensation claim. It consented to the decision being quashed.

The claimants nevertheless sought a mandatory order requiring the council to make the application and challenged the approach proposed for reconsideration. The central issues were whether the authority’s inquiry was confined to passing and re-passing, and whether a good arguable case required it to accede to the request.

1. The impugned decision was quashed. The Development Technical Board decision of 8 December 2004, based on the report of 30 November 2004, was unlawful for the grounds accepted by the council. The remaining grounds and the claim for a mandatory order were rejected.
2. Section 130 of the Highways Act 1980 places the duty to assert and protect public rights of use and enjoyment on the highway authority. Sections 116 and 117 do not provide a mechanism by which the authority can be compelled to seek closure of a highway which it considers should remain open. The authority must support the application it makes and should not be forced to advance a complaint which it considers should fail.
3. The relevant inquiry is what highway function is performed by the part of the highway concerned and whether that function is unnecessary. Passing and re-passing provide the starting point, but not the complete inquiry. Depending on the circumstances, the authority must consider amenity, verge protection, trees and fences, safety, visibility and access for third parties.
4. The authority must also consider whether, despite a function being unnecessary, other reasons mean that stopping up should not occur. It must consider the factors relevant to the magistrates’ eventual decision. The same approach applies when the authority acts on a section 117 request as when it initiates an application under section 116.
5. The statutory scheme does not require the authority to act merely because there is a good arguable case, nor does it prevent the authority from consulting adjoining owners and assessing objections before deciding whether to apply. Such preliminary consideration is consistent with its statutory responsibility and avoids an unnecessary court process.

Costs were awarded to the claimants up to 8 August 2005 and to the defendant thereafter from 16 August 2005, with the costs sent for detailed assessment.