Floyd v Redcar & Cleveland Borough Council

On 25 January 1982 the respondent’s predecessor counsel entered into a section 38 agreement with McLean Homes North East Limited. McLean Homes had purchased a large parcel of land, of which Roxburgh Close now forms part, in order to build a residential development with associated amenities. A plan showing the property owned by McLean and intended to be developed was annexed to the section 38 agreement. It shows the intended footways in yellow. Recital 4 of the section 38 agreement is in these terms:

“The Developer has submitted to the Council plans for the erection of certain dwellinghouses upon the property and proposes to construct on the property such roads as are shown coloured brown on the said plan and such footways as are coloured yellow on the said plan and also to lay combined foul and surface water sewers and drains to serve the said dwellinghouses [illegible word] the position shown by red and blue lines on the said plan and [illegible word] that the roads and footways shall on completion become highways maintainable at the public expense and that the said sewers shall become public sewers vested in the Authority.”

The executive provisions in the agreement then obliged McLean to construct the “works”. The works were required to conform to the plan: see Clause 2(1). They were also to be properly “sewered levelled paved flagged metalled channelled kerbed lighted and otherwise made good”: see Clause 2(2). Once the works were completed as required by the agreement, a provisional certificate might be issued by the council’s borough engineer: see Clause 6. Then Clause 8(1) provided:

“The Council shall adopt the said Works as maintainable and repairable at public expense as from the date of the expiry of the period of twelve months from the issue of the provisional certificate mentioned in Clause 6 hereof and the Borough Engineer shall at the request of the Developer issue a final certificate of satisfactory completion and maintenance”

I may break off there. The plan attached to the section 38 agreement indicated that there would be a footway on the outside edge of the quadrant, which therefore on being satisfactorily completed would, by force of the agreement once a provisional certificate had been given, come to be adopted as a highway maintainable at the public expense. However, the development as built deviated very considerably from what was contemplated in the agreement. Mr Smith, the respondent’s sustainable transport manager, gives a number of instances. What is important for present purposes is that the footway, which would have passed over the point where the appellant had his fall, was not constructed as a distinct or marked footway: see paragraph 6 of Mr Smith’s first witness statement. The whole quadrant area was simply paved across. It is right, however, that the area marked in yellow as a footway on the agreement plan has indeed been used to pass and re-pass by pedestrians.

However, on 11 October 1984 the Borough Engineer’s department produced a drawing, which apparently identifies a strip along the edge of the quadrant as being part of the adopted highway. This drawing was attached to a report to the Highways and Works Committee of the council, which made a number of recommendations. Under the heading “Adoptions” it identified:

“The following roads, footways, associated footpaths, grass verges, street lighting and sewers have been satisfactorily completed under a Section 38 Agreement and are now recommended for adoption.”

The recommendation went to the local authority or its Highways and Works Committee. Though the documentation in the bundle before us is not complete, it is plain that the recommendation was accepted. We have part of the minutes of the Highways and Works Committee, which replicates the wording of the reference to Roxburgh Close. And so, on the face of it, the area where the appellant fell was adopted by the local authority following the section 38 agreement. But Mr Smith’s first witness statement, paragraphs 4 to 5, says that the 1984 plan or drawing is wrong. There simply was and is no footpath at the point in question. Moreover later, on 23 July 1987, an interim memorandum suggested that the relevant land was not adopted. Further memoranda, in my judgment, take the matter no further.

The learned Recorder said this on the last page of his judgment, page 41 of bundle:

“Therefore, despite the arguments of claimant’s counsel about the events of 1987 the critical question remains: was the area where the claimant fell actually adopted in 1984? I am driven by the evidence to the conclusion that it was not. In my judgment for a footpath to be adopted it is required to exist as a footpath and not a strip of land which, at best can only be described as an area originally intended to be constructed as a footpath, but which wasn’t. I accept that, according to the original plan, the parties intended that the strip of land on the edge of the quadrant would be dedicated and adopted but that was conditional on there being a footpath being constructed on it. No such footpath was constructed and therefore, in my judgment, no adoption took place.”

I certainly accept that an adoption of a highway or footpath as being maintainable at the public expense, if done through the medium of section 38(3) of the statute, must follow the section 38 agreement that is made. In section 38(3) it is, I think, a premise of adoption by the highway authority that there be a particular road or way proposed to be constructed, and in fact constructed, pursuant to a section 38 agreement. In this case the section 38 agreement shows a considerable degree of detail as to what was required in relation to what is generally called “the works” including the footways. The works were to be adopted by the highway authority only after issue, under paragraph 6, of a provisional certificate by the Borough Engineer and the contemplation of the agreement is plainly that the certificate should certify that the works conform with the agreement and, in particular, with the attached plan. Here, as I have said more than once, there never was any distinct footpath at the place in question and as shown in the section 38 plan the layout of the development differed from the agreement plan in a whole series of respects.

However, the relevant area of the quadrant serves and has, so far as I know, always served as a footway. It covers the area expressly demarcated on the section 38 agreement plan as a footway. We are told there was a provisional certificate. The Borough Engineer was clearly satisfied in 1984 that the footway should be adopted pursuant to the section 38 agreement. There is nothing to suggest that he misapprehended either what had been in the section 38 agreement or what was now on the ground. It is in my judgment important to have in mind that the terms of the section 38 agreement confer upon the Borough Engineer a great deal of control over the procedures which are provided for by the agreement. It is his decision, not least, to issue the provisional certificate.

The Borough Engineer in this case recommended adoption in 1984 on the footing of the plan that was then prepared. In my judgment, given all these facts (and I say nothing about any other case), the council, acting as it did on the recommendation of the Borough Engineer, were entitled to regard the agreement as substantially complied with and accordingly to adopt the works referred to in the recommendation. That seems to me to make for certainty and clarity. I quite accept there might be a case where the distance between the section 38 agreement and what is purported to be adopted under it would be so great that there is in truth no statutory adoption. I do not consider this was such a case.

For all these reasons I would allow the appeal.