Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council

Council relocating market to two streets – Council making order restricting traffic on relevant streets on market days – Applicant applying for order to be quashed – Whether council entitled to make order – Road Traffic Act 1984 – Judge refusing application – Appeal dismissed The appellant was a small, independently-owned brewery that owned properties in and around two streets, Kirkgate and Westgate, in Tadcaster, North Yorkshire. The respondent council wished to relocate the “Thursday Market” in Tadcaster from its existing location on the central car park to Kirkgate and Westgate. In March 1999 the council granted planning permission to themselves for the relocation. Save for a requrement that the development be begun within a period of five years, the only condition attached to the permission was that “before the market is first brought into use, a scheme for the erection of the market stall shall be agreed in writing with the local planning authority and thereafter the said scheme shall be implemented in its entirety”. The validity of the planning permission was not the subject of any challenge. In December 1998, under section 1 of the Road Traffic Act 1984, the council issued a proposal to make a traffic regulation order imposing a prohibition on motor vehicles in parts of Kirkgate and Westgate during the operation of the market, and revoking a one-way-only traffic flow over a part of Kirkgate during the same hours. The statement of reasons said that an order was required for: (i) the avoidance of danger to road users; (ii) the facilitation of vehicular and pedestrian passage; and (iii) the preservation or improvement of amenities in the immediate area. In October 1999 the council, purporting to act under sections 1 and 2 of the 1984 Act, made an order giving effect to the proposal. The appellant’s application for the order to be quashed was refused. On appeal from that decision, the appellant submitted that the order was beyond the powers of section 1(1)(a) of the 1984 Act. In support of that contention, it was submitted that the avoidance of danger did not justify the order, since there could be no danger if the order was not made. The appellant contended that any danger would arise only from the relocation of the market, and that busy traffic would, in practice, render such a relocation impossible were the order not made. It was further submitted that the council ought to have followed the alternative procedures for altering traffic rules available under section 249 of the Town and Country Planning Act 1990. The appellant contended that that section, which empowered local planning authorities to apply to the Secretary of State to make an order providing for the extinguishment of any right of persons to use vehicles on a highway, provided the safeguard of a public inquiry, and the potential for compensation for those affected. Held: The appeal was dismissed. 1. The order was within the powers of the 1984 Act. It was clear from the wording of section 1(1)(a) that it contemplated a power to take preventative action: it might be used to prevent the “likelihood” of danger arising, and it was not necessary to wait until danger had in fact arisen. Many situations might arise in which the implementation of a grant of planning permission was likely to create highway dangers. Highway authorities were not required to wait until the project was completed before making the necessary traffic regulation order, even if the project could not be carried out safely, or at all, without such an order. 2. The existence of the procedure under section 249 of the 1990 Act did not limit the scope of the powers conferred by section 1 of the 1984 Act. The two powers overlapped, but there was no express prohibition in the 1990 Act upon the exercise of powers under the 1984 Act where planning objectives were also involved, and no such prohibition should be read into it. The 1990 Act procedure contemplated and empowered action by a local authority and the Secretary of State, although consultation with the highway authority was required under section 249(8). That procedure did not circumscribe the powers conferred upon the highway authority in the 1984 Act. Peter Village and James Strachan (instructed by Pinsent Curtis, of Leeds) appeared for the applicant; Stephen Sauvain QC and Colin Crawford (instructed by the solicitor to North Yorkshire County Council) appeared for the respondents. Thomas Elliott, barrister