Hockerill College, R (on the application of) v Hertfordshire County Council

Under section 118B of the Highways Act 1980, a highway authority has a broad discretion whether to make a special extinguishment order. The statutory process is staged, but the issues at the making and confirmation stages may overlap. The authority may consider confirmation-stage matters when deciding whether to make an order, and need not apply an arguable-case threshold at the initial stage. However, it must decide the initial question of expediency rather than the broader question whether an order should ultimately be confirmed. If it gives reasons, they must be proper, intelligible and adequately particularised. A decision based on an unparticularised need for further security works, and on the view that the order would not itself provide a complete solution, was unlawful.

The Governors of Hockerill College sought judicial review of Hertfordshire County Council’s refusal to make a special extinguishment order under section 118B of the Highways Act 1980 in respect of a public footpath crossing the school grounds.

The council’s officers had recommended making an order for part of the footpath, but the Development Control Committee refused it, citing the path’s use, the availability of access to local facilities, unresolved perimeter-security issues and the fact that extinguishment alone would not provide a complete solution. The central issues were the scope of the council’s discretion, the relationship between the order-making and confirmation stages, and the adequacy of the committee’s reasons.

1. The claim succeeded. The council’s decision was unlawful and was quashed. The matter was remitted to the council for reconsideration. The defendant was ordered to pay the claimants’ costs, with £15,000 payable on account.
2. Section 118B establishes a staged process. At the first stage the council must decide whether it appears to it that stopping up the highway is expedient for the statutory protection purposes. If satisfied, it retains a discretion whether to make an order. Later confirmation or submission stages involve further statutory considerations.
3. The stages must be kept distinct, although there may be substantial overlap between the matters relevant at each stage. The council may consider matters in section 118B(8) at the initial stage, and there is no requirement to identify an arguable case that an order would ultimately be confirmed. Nevertheless, the first-stage decision must remain a decision on expediency, not a determination of the broader question whether the order should ultimately be confirmed.
4. The committee’s reasons showed that it had treated matters concerning alternative access and security, which were principally relevant to section 118B(8), as reasons for refusing the initial order-making decision. Its view that an order would not provide a total solution also indicated that it had applied an excessively broad approach to the question before it.
5. The committee’s statement that further security works were required was inadequately particularised. The school could not identify what works were required or why they had to precede an order. Proper and adequate reasons were required, particularly after the committee had chosen to give reasons and the officers had reached a different conclusion.
6. The decision did not create a legitimate expectation that the order would be made. The final decision remained for the committee. On reconsideration, the council was required to act in accordance with the judgment but remained free to reach either outcome within its lawful discretion.

First-instance judicial review in the Administrative Court. Permission to appeal was refused by the judge, although the time for seeking permission from a Lord or Lady Justice was extended to 14 days after receipt of the approved judgment.