Sisters of the Sacred Heart of Mary Ltd & Ors v Royal Borough of Kingston Upon Thames

Section 11(1) of the Maldens and Coombe Urban District Council Act 1933 confers statutory rights on frontagers and persons with their express or implied permission to use convenient scheduled roads to reach or leave the relevant premises. The rights apply regardless of whether the premises are used domestically or intensively for institutional purposes.

The Council’s power to manage the roads and erect barriers is limited by the requirement that it must not substantially interfere with those statutory rights. A code-operated barrier which prevents or significantly impedes a wide range of authorised visitors may therefore be restrained, even if it would address through-traffic. The Council may nevertheless apportion reasonable costs of a lawful barrier and related litigation costs under section 11(2).

The claim concerned the Council’s proposal to control vehicular access to private roads on the Coombe Estate by an unmanned, code-operated barrier. The Claimants operated three schools and a training centre accessed through the scheduled roads. They contended that the barrier would substantially interfere with their statutory rights and those of persons visiting with their permission.

The Council relied on its management powers under the Maldens and Coombe Urban District Council Act 1933. It also sought declarations concerning payment from the Coombe Estate reserve fund and recharging frontagers. The issues were the scope of the statutory rights, whether the proposed barrier unlawfully interfered with them, and whether the associated costs could lawfully be apportioned.

1. Statutory rights. Section 11(1) of the Maldens and Coombe Urban District Council Act 1933 gives each owner and occupier of premises fronting or abutting a scheduled road, and any person with that frontager’s permission, a right to use such scheduled roads as may be convenient to go to or leave the premises. Permission may be implied and need not be given in advance or expressly. The right applies irrespective of the purpose or intensity of the premises’ use.
2. The statutory right extends, by implication, to a corporate claimant’s agents. More importantly, it extends to the wider class of licensees, including pupils, parents, course attendees and delivery personnel.
3. The 1933 Act extinguished and superseded pre-existing rights of way over the scheduled roads. The Claimants therefore could not establish additional rights by prescription under section 2 of the Prescription Act 1832 or by lost modern grant, since there had been no capable grantor after the Council acquired the roads.
4. Interference. The Council’s power under section 11(2) to erect and maintain gates, stiles or posts had to be exercised consistently with section 11(1). The proposed electronic barrier would substantially interfere with the statutory rights because, in common circumstances, unannounced visitors, persons attending unexpected events, out-of-hours users, contractors, delivery personnel and others would be prevented or significantly impeded from using the convenient third entrance. Alternative entrances did not answer the objection. The wishes of a majority of residents were not the legal test.
5. The practical complexity of distributing and changing codes, dealing with visitors lacking prior notice, managing queues and resolving competing electronic instructions demonstrated that the proposed code-operated barrier could not lawfully be implemented without a gatekeeper. The Claimants were entitled to an injunction restraining its implementation.
6. Financing. The unlawful financing argument failed. Section 11(2) imposed no limit by reference to the cost of replacing a manually operated barrier. The Council could apportion the costs of a barrier, including gatekeeper costs, provided that the power was exercised consistently with the statutory rights. It could also debit the reserve fund and recharge the Claimants with the reasonable costs of the litigation. The declaration was granted for those costs, but refused for the costs of installing and operating the proposed automatic barrier without a gatekeeper.