Richards, R (On the Application Of) v Pembrokeshire County Council

Walk up Penniless Cove Hill towards the castle. Turn left towards Castle Square. You are in the walled town of Tenby. To your right is a raised terrace, separated from the square by a substantial stone retaining wall. The Claimants own No.3, one of three adjoining houses fronted by the raised terrace. Beneath lies the harbour

On 29th January 2003 the Pembrokeshire County Council passed the Pembrokeshire County Council (Tenby Harbour) (Controlled Area) (Vehicle Use) Terms and Directions 2003 ("the Directions"). They were made pursuant to the byelaws relating to Tenby Harbour dated 21st December 1995. The byelaws themselves were made under the South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975. In this application for judicial review the Claimants challenge the power of the Council to make the 2003 Directions. They contend that the Directions are outwith the power conferred by the 1975 Revision Order and the Harbours Act 1964. They further contend that the Directions are Wednesbury unreasonable and contrary to Article 1 of the First Protocol of the European Convention on Human Rights.

The Claimants bought No.3 Castle Square in 1976. It is, like the other two houses, divided into holiday flats. At No.3 the Claimants retained one for themselves, and the other two are used for holiday lettings. The history of parking on the raised terrace shows that parking was controlled by those with either the freehold or leasehold interests in the three properties. In the statement of facts relied upon in support of the claim, it is said that the raised terrace is used for the stationing of vehicles associated with properties behind it. The centre of the raised terrace stands about six feet above the level of Castle Square beneath. The Claimants, since approximately 1978, had lockable chains across both ends of the raised terrace installed upon it, so that, by and large, vehicles other than those associated with No. 1, No. 2 and No.3 Castle Square have not been able to enter on to it. It should, however, be observed that at both the northern end and at the southern end the terrace slopes down to meet the level of the junction of Castle Square. In about 1988 it became apparent that the chains were becoming damaged or left unlocked, allowing others to park there. In those circumstances, on 22nd February 1989 the Claimants wrote to South Pembrokeshire District Council, the predecessors of the defendants, indicating that they intended to put a collapsible barrier at each end of the boundary of the road. (I shall turn later to the response of the Council, as it is relevant to questions of ownership.) In fact, it did not prove necessary to put up a collapsible barrier. Between 1976 until 1993 the Council introduced concrete paviours onto the raised terrace, but maintenance was carried out by the Claimants. There were at that stage still locked chains at either end of the raised terrace. Subsequently, the Claimants erected bollards, which were dug in and laid into paviours in 1995 without any complaint from the Council.

It is important to observe in relation to that history of parking being controlled by the Claimants that the Council did not assert ownership over the terrace. Nor did they assert that the terrace was a public highway. Proprietary interests over the roadway consisting of the raised terrace appear to have been uncertain: (see, in particular, the conveyance relating to No.2 in 1991, which conveyed "together with (so far as the vendors can grant the same) a right of way at all times and for all purposes over the roadway...". In September 1971 when the claimants made the usual preliminary enquiries before buying No.3 Castle Square, the Council responded to the question as to whether the roadways were maintained at public expense, "No", and in relation to whether there had been any resolution as to the maintenance of the road, "No".

On 22nd February 1989 the claimant, Mr Richards, wrote to the defendants' predecessors as follows:

The response from South Pembrokeshire District Council was on 13th March 1989:

On 17th November 1992 South Pembrokeshire District Council wrote to a firm of solicitors, concerning someone else who was interested in parking problems in Castle Square, as follows:

On 1st November 1995 the Council made a proposal to provide bollards in each of 15 spaces and to offer specific bays to property owners for an annual charge in Castle Square, but it appears that the proposal was dropped. The Claimants objected, in a telefax message dated 10th November 1995, to having to pay for bollard allotment, as it was described, on property which the claimants considered to be theirs. On 5th March 1996 South Pembrokeshire District Council took the view that there would be no objection to a proposal to provide bollards on the raised terrace, but warned that the decision would be taken without prejudice to the ownership of the land or ability to manage that section in the future.

A Highways Committee meeting recorded on 1st October 1996 that it was agreed that a small section of Castle Square should be bollarded off by adjacent owners

On 30th January 1997 the Highways Committee resolved that:

On 14th April 1997 a proposal was referred to for providing seven bays in Castle Terrace, recording that the scheme was not, in fact, put into place but advising that it might be re-examined in the future. In such circumstances, the views of the occupiers were sought.

On 29th January 1998 the Highways Committee, under the heading "Management of Castle Square Tenby", recorded that the outcome of a previous meeting in November 1997 was that:

On 2nd April 2001 occupiers of property in the harbour area were advised as follows by the Head of Infrastructure Management:

The Highways and Transportation Committee recorded on 17th January 2002 that:

On 23rd January 2002 the claimants wrote to the Council, referring to the fact that they had been free to manage parking within the area of the raised terrace themselves and contesting the jurisdiction of the Council over the area where it was proposed to control parking. The Council wrote to the Claimant on 17th May 2002 identifying the area where it was proposed to provide parking bays and providing a map (which is at my page 60 of the bundle) showing seven parking bays. The idea at that time was to provide them for specific vehicles. The Claimant responded, referring to earlier correspondence in respect of which the Council had not asserted that there was a public right of way. The letter concluded as follows:

The response from the Council on 21st June 2002 said:

The decision to introduce the Directions was made on 28th June 2002. The decision showed a map, similar to the one I have referred to, with seven bays in the raised area. The recommendation was framed as follows:

Mr John Price, Traffic Manager of Pembrokeshire County Council, says at paragraph 11 of his statement:

The essential argument advanced by the Claimants is that the Council has used powers conferred for the purposes of harbour management for the control of parking within the Town Centre because the Council appreciated that it had no proprietary rights over the raised terrace and that the raised terrace was not a highway. It was, thus, driven to use harbour powers for a purpose which has nothing to do with the management of the harbour. Harbour powers are conferred for the purposes of the operation of the harbour, and not for controlling parking in the raised terrace, which does not impinge upon the operation of the harbour.

Since the issue of the proceedings considerable dispute has arisen over the proprietary rights on or over the raised terrace and as to whether the raised terrace is a public highway. It was agreed, rightly in my view, that this court cannot resolve such factual disputes in these proceedings. The case continued on the question of the statutory power to make the Terms and Directions and on the basis, in relation to the other grounds advanced, that there was a live question which persists as to such proprietary rights.

The Directions were made pursuant to the 1995 byelaws. Those byelaws were themselves made pursuant to the 1975 Revision Order. The 1975 Revision Order was made pursuant to the Harbours Act 1964 ("the 1964 Act").

That Act was subsequently amended, but not in any respect material to this application. By section 14:

Section 57 of the Act defines "harbour" as follows:

Schedule 2 of the 1964 Act identifies the objects for whose achievement harbour revision orders may be made. By paragraph (1):

By section 44(1) of the Harbours Act 1964, as amended by the Documents and Harbours Act 1966:

It is apparent from Schedule 2 of the 1964 Act that a revision order must relate to the management of the harbour or operations on the harbour or harbour land. Further, harbour land itself must be occupied for the purposes of activities carried on in the harbour.

The South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975, Article 2, identified the "harbour" as being:

Article 5 conferred general powers on the Council in respect of the harbour as follows:

The byelaws made on 21st December 1995 identify the "inner" and "outer" harbour in paragraph 2 and the "harbour estate" in words which follow the revision order. Byelaw 23 reads:

Mr Vivian Chapman, in a clear and forceful argument, accepts that the claimants cannot challenge the 1975 Revision Order or, consequently, the byelaws, insofar as they include within the harbour the peninsular known as Castle Hill and thus the raised terrace. But he contends that, nonetheless, it is unlawful for the Council to seek to control parking on the raised terrace. It did not purport to do so for the sake of management of operations in the harbour, as defined in the 1964 Act, and such parking control, he contends, has nothing to do with the operation of the harbour as defined in the 1964 Act. Indeed, both the Revision Order and the Byelaws identify the harbour in a more restricted way than the harbour estate. In those circumstances, he contends, the Council had no power under the Byelaws to make the 2003 Directions.

The Council's first response is to point out that such a contention is not referred to in the grounds of claim and was made only for the first time in the skeleton argument after the Council had pointed out the inability to challenge the Revision Order 1975, in consequence of section 44. Accordingly, the Claimants have proposed an amendment to the claim in which they contend, under paragraph 17A that:

I accept, as Mr Chapman accepted, that strictly this point was not taken earlier. The earlier arguments were based on unlawful actions under the Revision Order, and what, in effect, was being argued was that the Revision Order, in its geographical description of the harbour estate, was outwith section 57.

The Terms and Directions, as I have said, are at present suspended. In my view, the argument advanced before me and set out within the proposed amendment is sufficiently close not to take the Council by surprise. Nor, in the light of evidence (to which I shall turn shortly) from the harbourmaster, is the Council prejudiced. I conclude that the Claimants should be allowed to argue the point. Accordingly, I allow the amendment of which a draft was annexed to the application of 24th September 2003.

It is plain that the byelaws fall within the power conferred for the purposes of making directions within the harbour: see Article 22(j) of the Revision Order. By virtue of Article 2 the "harbour" includes the harbour estate, which itself included the peninsular known as Castle Hill and thus the raised terrace. But, contends Mr Chapman, even if the byelaws control parking within the geographical area of the harbour, they must, nevertheless, be made for the purposes identified within Schedule 2 of the Act, namely for the purpose of managing the harbour or the activities thereon: see paragraphs 3(a) and (c) of Schedule 2 of the 1964 Act. The application of the byelaws, through the instrument of the Terms and Directions, is unlawful, contends Mr Chapman, because it seeks to regulate parking for the purposes of traffic control within the inner town or walled town of Tenby generally. Such control has nothing to do with the management or operation of the harbour.

The submissions of the Claimant start with the difficulty of the definition of "the harbour" within the Revision Order and the byelaws. Since no challenge was made to the jurisdiction of the harbour authority under the Revision Order, it must be assumed that the limits of the Council's jurisdiction, as harbour authority, pursuant to paragraph 6 of Schedule 2, were set as being desirable in the interests of securing the improvement, maintenance or management of the harbour as defined in section 57 of the 1964 Act: see section 14(2)(b) of that Act. Moreover, it profits the Claimants nothing to complain that control of car parking on Castle Terrace has nothing to do with the management of the harbour when the harbour is identified in the Revision Order and the byelaws as including the terrace itself. Nonetheless, I am prepared to accept that directions made under paragraph 23 and 25 of the byelaws must not be made for some purpose other than that for which the power to make such directions was conferred. The plain purpose is to control traffic within the harbour area for the better management of the harbour. Were it to be shown that the Terms and Directions had nothing to do with the management of the harbour but were rather made for some manifestly and demonstrably ulterior purpose, then it may well be that the directions would be unlawful. Indeed, although no formal concession was made by Mr Rhodri Williams for the Council, he was not disposed to argue to the contrary.

Article 22 of the Revision Order is headed "Byelaws as to the harbour". Each and every sub-article concerns specifically the operation and management of the harbour, as defined in the 1964 Act, save possibly (c), (i) and (j). But, construed in the context of the heading and the other Articles, it is plain that the byelaws must relate and are expected to relate to the operation of the harbour as defined in section 57. Moreover, the Revision was made for the express purposes identified in section 14(2)(b), which focuses on the harbour as broadly understood and defined in section 57. But those observations do not necessarily assist the Claimants. The geographical description of "the harbour" and "the harbour estate", identifying the limits of the harbour authority's jurisdiction under the Revision Order, carry with them an acknowledgment that the areas close to, but not actually part of, the harbour may have a direct effect on the operation of the harbour, particularly nowadays, when it is a hub of leisure activities and water sports, made even more attractive by its beautiful location in Tenby. I am quite satisfied that it was open to the Council to take the view that control of parking on the raised terrace but a short distance from the harbour, joining as it does Castle Square at both ends, has a direct effect on the operation of the harbour.

The harbourmaster is now unfortunately called a Harbours Manager. He is Mr Carl Evans. Between paragraphs 6 to 10 of his witness statement he describes the difficulties in parking control in the area and the importance of such control, particularly in relation to access, for example, to the all-weather lifeboat station and for the purposes of fuel deliveries. In paragraph 14, he says:

The importance of clear and ready access to the harbour needs no emphasis. I can well understand the direct effect of congestion due to parking on roads near to the harbour. The knock-on effect is obvious, should only some of those roads be outwith Council control. It is trite to observe that those judgments are not for me but for the Council, provided it is acting within the powers. I acknowledge that the decision to make the Directions, to which I have already referred, refers only to pedestrian safety in the Town Centre. But the Town Centre is itself part of the harbour area. The decision was made in the context of the discussion as a whole. The decision and early discussions refer to the harbour area. I am satisfied that the Council regarded the whole of what is shown in various maps not merely as the Town Centre but rather as a harbour area, as they described it, for example, in the discussions recorded on 17th January 2002 which led to the making of the Terms and Directions.

I conclude that the Council was entitled to use powers conferred for the purposes of management of the harbour to control parking nearby. It was entitled to take the view that such control was likely to have a direct effect on the access to the harbour itself. The order was not made outwith the Council's powers.

It was further contended that it was irrational to make an order relating to the raised terrace. The order reduces parking spaces from 14 to 7. It deprives the owners of the opportunity to park outside their own property with no countervailing public advantage. Parking has successfully been controlled by the owners for some 25 years without any disruption to access to the harbour itself. I ought to observe that such parking has been double parking, preventing the terrace being used by vehicles passing over and down to Castle Square (see in particular the letter from the Council dated 21st June 2002).

I am quite unable to conclude that the decision of the Council to make those directions was irrational. It sought to improve control of the parking and it regarded that as necessary for the purpose of improving access to the harbour and circulation in the harbour area.

Finally, it was contended that the directions infringed the rights of the Claimants enshrined in Article 1 of the First Protocol. But unless and until any proprietary right, such as to constitute a possession, is established, the Claimants cannot begin to establish any such breach. The meaning of "possession" is autonomous, but the mere assertion of such rights in these proceedings cannot amount, in my view, to a possession, even though certain claims in relation to possessions may arguably be regarded as themselves possessions (see Pressos Compania Naviera SA v Belgium [1995] 21 EHRR 301).

It is a matter of some controversy as to the extent to which a claim may be a possession. But in this case no claim has been made which the claimants have been able or have sought to make on the evidence. The claim to ownership remains one of mere assertion, which this court is unable to resolve. Those assertions do not amount to possessions, and no issue accordingly under Article 1 arises.

I recognise my decision will be of some considerable disappointment to the Claimants. They have made sensible and reasonable protests. But, for the reasons I have given, this application fails.

MR WILLIAMS: My Lord, in those circumstances, I ask for an order that the claim be dismissed and that the Council be awarded its costs. We did tentatively agree last time that those costs would be subject to detailed assessment. I am happy for that to occur, although I do have a schedule, if you Lordship wishes to deal with it.

MR JUSTICE MOSES: Yes. One thing at a time.

MR CHAPMAN: Obviously I cannot say anything about the order that my learned friend proposes, save that it ought also to deal with the interlocutory matters which your Lordship mentioned during the course of the judgment, which would be that I should have permission to amend my detailed statement of grounds as asked in the application notice.

MR JUSTICE MOSES: Yes.

MR CHAPMAN: That the time limit be abridged to validate the application notice.

MR JUSTICE MOSES: If I just give you permission to amend those terms, as I did in the body of the judgment, surely everything else follows.

MR CHAPMAN: Yes. Could I also have permission to rely on the witness statements.

MR JUSTICE MOSES: Yes.

MR CHAPMAN: Because I think you did refer to them.

MR JUSTICE MOSES: Yes, I did.

MR CHAPMAN: But, subject to that, there is nothing I can say.

MR JUSTICE MOSES: Yes. I shall dismiss the application with costs. What do you want to do about an assessment. Do you want to have it?

MR CHAPMAN: I think a detailed assessment, if not agreed.

MR JUSTICE MOSES: Very well then.

MR CHAPMAN: So far as permission, unless my learned friend has anything else on the terms of the order.

MR WILLIAMS: No. I am entirely happy about it.

MR CHAPMAN: So far as permission to appeal is concerned, I have an application. In my submission the point that we have put forward is a very arguable point. Your Lordship has decided against me on the grounds that the Council could have, within the scope of their powers, made traffic regulation orders in relation to the raised terrace for operation purposes. But I would like to have the opportunity to argue that in fact they did not do so, bearing in mind the reasons that they actually gave. In my submission that is an arguable point.

MR JUSTICE MOSES: But the legal point, in a sense, is almost -- I put it in fairly tentative terms -- you have won but lost on the facts.

MR CHAPMAN: Well, what I say about the facts, of course, is that the facts which your Lordship relied on were the facts which were asserted, as it were, after the event; whereas before the event, in accordance with the various passages which you read out during your judgment, these particular grounds were not asserted.

MR JUSTICE MOSES: No, I follow.

MR CHAPMAN: So I would like to argue, if possible, before another court.

MR JUSTICE MOSES: I am afraid you must ask their Lordships for permission. I do not think any point of principle really arises. Is there anything else?

MR CHAPMAN: No, my Lord.

MR JUSTICE MOSES: Thank you all very much.