Trail Riders Fellowship and others v Powys County Council

Local authority – Byways – Liability to maintain – Third applicant making formal complaints against defendant local authority for failing to maintain byways – Magistrates dismissing complaint – Appeal to Crown Court pending – Defendants making permanent traffic restriction orders over byways – Claimants applying to quash orders – Whether defendants having regard to duty under section 122 of the Road Traffic Regulation Act 1984 – Whether defendants improperly referring to pending appeal in decision making – Application granted The claimants challenged the decisions of the defendant local authority to make a traffic regulation order in May 2013 over each of two byways in the county. The defendants were both the traffic and highway authorities for the county and the orders had the effect of prohibiting the use of the byways by motor vehicles, motor cycles and horse drawn vehicles. The first and second claimants were national organisations with the respective objects of preserving the full status of vehicular green lanes and the rights of motorcyclists to use them and driving, protecting and researching the country’s heritage of unsurfaced public highways. The third claimant was an individual who had been using one of the byways for over 20 years and was a representative of the second claimant. Some years before the present application, the third claimant had served notices on the defendants under section 56 of the Highways Act 1980, requesting them to repair the two byways. In April 2005, the defendants made the first of a number of temporary traffic restriction orders (TROs) in respect of both byways. In 2011, the third claimant served further section 56 notices and made formal complaints which were dismissed by magistrates. The third claimant appealed to the Crown Court but the case was stayed pending a decision on the present application. In March 2012, the defendants had issued their motorised access strategy which set out the strategy regarding the maintenance and regulation of byways. A study of unmade byways open to all traffic in the county was then undertaken by the defendants’ engineer who assessed their suitability for use by local traffic all year round while being sustainable so that future care could be kept to a manageable standard. Reports were then submitted to the defendants regarding the future of the two byways in question recommending that ordinary traffic on both byways be confined to pedestrians, cyclists and equestrians. In May 2013 permanent TROs for motorised and horse drawn vehicles were sealed in relation to both byways. The claimants applied to quash the orders contending, inter alia, that the decision to make them had been influenced by the legal proceedings issued by the third claimant. Held: The application was granted.(1) The statutory regimes for making TROs and for repair of the highway were separate. The legal character of the duties to which traffic and highway authorities were subject in that regard was qualified and absolute respectively, as were the remedial possibilities for those objecting to the performance (or non performance) of those duties. In practice the traffic authority might not be the highway authority. Parliament had set out in the Road Traffic Regulation Act 1984 the duties and factors to be considered in the making of a traffic regulation order, an experimental traffic regulation order and a temporary traffic regulation order. The issue of the repair duty entered only indirectly, as with the duty in section 122 to secure the expeditious, convenient and safe movement of vehicular and other traffic, including pedestrians. The section 122 duty was qualified, requiring the duty to secure the expeditious, convenient and safe movement of traffic to be balanced against the factors in section 122(2), such as the effect on the amenities of the area and, in the context of making a traffic regulation order, the purposes identified in section 1(1). It was of a different character to the duty to maintain the highway laid down in the Highways Act 1980 Act. In the present case, it was clear that the defendants had had regard to their duty under section 122, although the matter could have been better articulated. Furthermore, the court rejected, as without legal foundation in statute or authority, the proposition that with a TRO a total prohibition on vehicular traffic should very much be the exceptional case. (2) However, the defendants should have been kept informed of the Crown Court appeal and of the issues arising in respect of it. They could not have been under a duty to render themselves ignorant of the Crown Court appeal, with the carriage of those proceedings left entirely to the judgment of their officers. The quoted words – “and therefore any decision that goes against the proposal of this report will put that defence in jeopardy” – had been most unfortunate. The court could not rule out that members of the defendants’ committee had been influenced in their decision to make the orders on the improper consideration that doing so would benefit the defendants position in the appeal, or that not doing so would jeopardise it. The decision to seal the orders came in the middle of the appeal, and could be seen as a reaction to the events in court. Accordingly, the orders had to be quashed. Adrian Pay (instructed by Brian Chase Coles) appeared for the claimants; Emyr Jones (instructed by Powys County Council’s Legal Department) appeared for the defendants. Eileen O’Grady, barrister