Derwent Holdings Ltd v Liverpool City Council

Edge Lane provides direct access from the M62 to the east into the centre of Liverpool. It is thus an, if not the most, important gateway to the city. It was unattractive and congested and in the early 2000s it was appreciated that regeneration work was needed both to Edge Lane itself to make it more attractive and traffic friendly and to the areas surrounding it. To this end and as part of a regeneration exercise for other parts of the city, the first interested party (LLDC) was established by the Urban Regeneration Agency, English Partnerships, Northwest Regional Development Agency and the defendant. A company called 2020 Liverpool Limited (2020) was incorporated to carry out various services on behalf of the defendant and a number of Council employees were transferred to be employed by 2020. 2020 was owned by the defendant and a consultancy firm called Mouchel Ltd.

In September 2003 LLDC provided Mouchel with a design brief entitled:

“Edge lane Highway and Environmental Improvement Consultant’s Brief.”

In the introduction, it was described thus:-

“This is the detailed project brief for services required for the design and supervision of the highway, environment, landscape and infrastructure works to improve the road corridor known as Edge Lane … in the Eastern Approaches Strategic Investment Area (SIA) in Liverpool.

The commission includes but may not be limited to the improvements to the carriageway, footway, landscape and junctions along the corridor …”

In paragraph 2.5 there is reference to the Master Plan which was ‘designed to establish a comprehensive development and investment framework for the area’. There had already been considerable consultation with interested parties including local businesses and land owners and it was said that the ‘proposed strategy has been widely embraced by those consulted’.

The claimant is one such land owner. It owns a Retail Park which abuts Edge Lane mainly to its south. The Park itself covers some 50 acres. In the Consultant’s Brief this is said:-

“The existing Retail park owner intends to remodel the estate, expanding the Park into Rathbone Road recreational Ground. The Retail Park straddles either side of Edge Lane and new or modified access arrangements will be required on the highway.

The Retail Park’s owners proposals must therefore be taken fully into consideration in the design for Edge Lane. The proposals will also dramatically alter the streetscape of Edge Lane and this must be accounted for in the urban design/landscape proposals for Edge Lane.”

The Brief recognised the need to engage with site owners. To this end the claimant and its predecessors in title as owners of the Retail Park have engaged in discussions with LLDC with a view to substantial development of the land which it owns or may acquire.

The claim as formulated is against the making by the defendant of a Traffic Regulation Order (TRO) the relevant effect of which has been to create a central reservation in Edge Lane which makes it impossible for traffic travelling in an easterly direction to turn right into three access roads to the Retail Park. The TRO was made pursuant to powers conferred by sections 1, 2 and 84 of and Schedule 9 to the Road Traffic Regulation Act 1984 (the 1984 Act). The abolition of the ability of eastbound traffic to turn right into the roads in question has left one access only and the need to make a U-turn at that junction in order to access two of the other roads (Binns Road and Henry Street). Access to the third (Douro Place) which lies to the east of the surviving access road (Montrose Way) would involve a U-turn further to the east.

This claim was lodged on 18 July 2007. This was substantially more than 3 months after the making of the TRO. Furthermore, Schedule 9 to the 1984 Act contains provisions for an application to be made to the court. Paragraph 35 provides:-

“If any person desires to question the validity of or of any provision contained in an order to which this Part of this Schedule applies on the ground –

(a)

that it is not within the relevant powers, or

(b)

that any of the relevant requirements has not been complied with in relation to the order,

He may within 6 weeks from the dates on which the order is made make an application for the purpose to the High Court …”

Paragraph 34(2) defines the relevant requirements to mean ‘any requirement of or of any instrument made under any provision of this Act with respect to such an order….’

It is perhaps not surprising that, faced with those statutory provisions, McCombe J refused permission on the papers on the ground of delay. The claimant renewed its application asserting that it had not been informed either of the proposal to make the TRO or that it had been made and that the allegation that businesses on the Retail Park had been notified was incorrect. Further, the fact that there were works being carried out in Edge Lane did not indicate that there were to be permanent closures of the relevant access points since it was known that works lasting up to 12 months were to be carried out but the extent and in particular the final result of those works was not known. When the matter in due course came before Forbes J on 7 July 2008, the claimant was asserting that the defendant had deliberately and in bad faith avoided notifying it of the TRO so that the defendant would not be faced with any objections which it knew were likely to be made. Forbes J ordered that there should be a ‘rolled-up’ hearing and that four named witnesses should attend for cross examination. He further ordered that the claimant should lodge an amended claim form particularising its allegations of bad faith.

It was not disputed that the claimant was unaware of the proposal to make or existence of the TRO until 20 June 2007 when, following a meeting on 18 June 2007, attended by a structural engineer on behalf of the claimant and representatives of 2020 and Mouchel, the permanent closure of the gaps was referred to. The claimant took immediate steps to discover what had happened and, following a pre-action protocol letter on 27 June 2007 which was responded to formally on 6 July 2007, this claim was lodged. While delay was not abandoned, it was not argued before me as a reason to refuse permission assuming that a claim was despite the provisions of Paragraph 37 of Schedule 9 to the 1984 Act arguable. As will become clear, I am satisfied that the claim is arguable and so I granted permission, waived all subsequent procedural steps and treated the hearing as the hearing of the substantive claim.

Since this case depends on an alleged breach of the procedural requirements to notify the claimants that the TRO was to be or had been made, I should set out the relevant statutory provisions. Section 1 of the 1984 Act provides, so far as material:-

“1(1) The traffic authority for a road outside Greater London may make an order under this section … in respect of the road where it appears to the authority making the order that it is expedient to make it –

(a)

for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of such danger arising; or …

(c)

for facilitating the passage on the road or any other road of any class of traffic (including pedestrians); or …

(f)

for preserving or improving the amenities of the area through which the road runs …”

A TRO may contain any provision ‘prohibiting, restricting or regulating the use of a road, or of any part of the width of a road, by vehicular traffic …’ (s.2). Thus, subject to some restrictions which are immaterial, the powers conferred are very wide and, as may be expected, include provisions that traffic can only proceed in particular directions (s.2(2)). In exercising their functions under the Act, s.122 provides that local authorities must:-

“… so … exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic …”

Section 122(2) provides, so far as material:-

The matters referred to on subsection (1) above … are:-

(a)

the desirability of securing and maintaining reasonable access to premises …

(d)any other matters appearing to the local authority to be relevant.”

The procedural requirements are contained in the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996 (1996 No.2485). Regulation 7 deals with publication of proposals. It provides so far as material:-

“(1)

An order making authority shall before making an order –

(a)

publish at least once a notice … containing the particulars specified in Parts I and II of Schedule 1 in a newspaper circulating in the area in which any road … to which the order relates is situated …

(c)

take such other steps as it may consider appropriate for ensuring that adequate publicity about the order is given to persons likely to be affected by its provisions and, without prejudice to the generality of this sub-paragraph, such other steps may include –

(ii)

the display of notices in roads or other places affected by the order; or

(iii)

the delivery of notices or letters to premises, or premises occupied by persons, appearing to the authority to be likely to be affected by any provision in the order.”

Regulation 17 requires the authority within 14 days of making an order to publish in a local newspaper the fact that it has been made and its provisions and to take the same steps as are required by regulation 7(1)(c) to draw it to the attention of those affected by it. A notice under Regulation 7 must contain inter alia:-

•

“A statement that all objections and other representations relating to the order must be made in writing and that all objections must specify the grounds on which they are made.

•

The date by which objections to the order and other representations must be made and the address to which they should be sent.”

See Paragraphs 8 and 9 of Schedule 1 to the Regulations.

The claimant is a company registered and based in Bermuda. It has substantial property interests in a number of towns and cities in the United Kingdom, mainly consisting of retail developments. It has retained a company called Fairhurst Property Services Ltd (Fairhurst), which is based in the Isle of Man and so is closer to the U.K., to deal with day to day management matters. Mr Christopher Barr, who was one of the witnesses who gave live evidence before me, is the Director of Fairhurst who was involved with the Retail Park and the discussions with the City Council and its agents in connection with the Master Plan to which I have already referred. Mr Willers, a director of the claimant, has an office in the same building as Mr Barr and they try to ensure that one or other will always be available at least to open the post so as to be able if necessary to deal with any matter raised. That system unfortunately was ineffective at a crucial juncture in September 2006 when Mr Barr had fallen ill and spent some time in hospital and Mr Willers did not see some correspondence which was opened and put into a file by another employee. However, none of the correspondence would have made them aware of the TRO.

The relevant dates leading up to the making of the TRO are important. It is also material to note that the claimant had been involved in litigation with the Council in 2005. Because it was an offshore company, the claimant had published in the Land Registry entry relating to the Retail Park a contact address of solicitors in Liverpool. In discussions in relation to the Master Plan it was known to the Council that the solicitors in question, DWF, were acting on the claimants’ behalf. Notwithstanding this, the Council attempted to serve a notice under the Building Act on Fairhurst instead of DWF and as a result the claimant was not notified and the first it knew of the action to be taken was when contractors on behalf of the Council moved onto the site. Proceedings were taken which concluded in the claimants’ favour when it was awarded damages and costs through a Tomlin Order on 26 April 2006. Thus the Council were aware that there were difficulties in ensuring that the claimant was aware of action to be taken by it.

An element of the regeneration proposals for the eastern approaches involved TROs to cover the length of Edge Lane. The one in question was known as EL Phase 2 (South Bank Road to Rathbone Road Junction). A Mr Whitehead, an employee of 2020 transferred from the Council, had noted in a response to the proposed scheme in November 2005:-

“The making of TROs offers the opportunity for all stakeholders to consider the proposals before being implemented. This is undertaken both at a voluntary stage to provide a background to the scheme and iron out any misunderstanding and then at a statutory level.”

The claimant was clearly one such stakeholder.

In December 2005, Mr Chris Founds, the Divisional Manager within the Project, Programme and Performance Management Team at 2020 and the Overall Design and Construction Project Manager for Mouchel who gave evidence before me, sent an e-mail to the Council stating:-

“I have been liaising closely with colleagues in 2020 who are progressing the TRO on behalf of the City Council. It looks like we may be faced with quite a few objections from some of the residents to the north of Edge Lane regarding right turning access from side roads. For my understanding, do you know what level and type of consultation has been done previously? I know we discussed consultation at our meeting earlier this week, it may be prudent to adopt a structured pre-consultation for EL2 and ELW, before we progress the formal TRO process. This might allow us to make any minor changes to the design and gauge the climate, without the potential of formal objections.”

At a meeting, which included representatives of the fire service and police, on 24 January 2006, the police officer observed that the closure of Binns Road had already been looked at and received strong objections from local businesses. He thought it would be ‘preferable to close this junction as part of the Edge Lane works.’ It was also said to be preferable to close the junction of Douro Place but an alternative route giving access to the area would have to be discussed with local businesses. Further, it was noted that the junction with Tapley Place (which gave access to a part of the Retail Park to the north of Edge Lane) was to be closed with the approval of all present at the meeting. The closure of the gaps was, it seems, approved by the emergency services.

An outline project brief for the TRO was produced in March or April 2006. It was prepared by a Mr Bob Dunn of the Council. It contained this question:-

“Will the scheme contribute towards Accident Reduction or Casualty Savings? ”

The answer given was ‘No’. Mr Dunn later in an e-mail in November 2006 stated:-

“There are currently no safety grounds for closing any of these gaps. The closure is mainly for aesthetic reasons and also to enable traffic movements. The fact that the other gaps are being closed will possibly change the drivers’ use of the road and this could result in changes to the movements at gap openings such as this.”

This e-mail resulted from a meeting with two businesses in Henry Street and so the ‘gap opening such as this’ referred to that gap. However, Mr Dunn’s observations related to all the proposed closures. In the light of this, it is a little curious to find Mr Founds stating in an e-mail to Mr Dunn on 6 December 2006, in connection with the Henry Street gap closure:-

“It has been explained to the businesses that turning manoeuvres are catered for nearby and our justification is safety.”

This may reflect observations of Mr Whitehead, who was involved in 2020 with progressing the TRO, in an e-mail of 3 April 2006 in which he said:-

“With regards to the permanent TROs we have both signed up to the closure of the gap in the central reservation on the grounds of both safety and capacity and I would suggest that this would be the preferred option for Mouchel and LCDC.”

This was not altogether accurate. In reality, safety was not a ground for making the TRO although, no doubt, the result of closing a gap and thus avoiding a turn across traffic would avoid a danger. But there is an obvious safety concern in having to cater for a U-turn, although traffic light control will assist. But, as is apparent from s.1(1)(c) and (f) of the 1984 Act, improvement of traffic flow and so called aesthetic reasons are proper grounds for making a TRO.

The response to the outline project brief of 5 May 2006, which was prepared by Mr Whitehead, noted that one requirement was:-

“Production of consultation letters to be issued to all relevant stakeholders including Emergency Services, Councillors and local residents detailing the proposals for the TRO.”

Since the claimant was a relevant stakeholder, it is surprising in the circumstances that no consultation letter was sent to it. Letters were sent to local councillors, to the emergency services and to bodies concerned with different forms of transport on 23 June 2006 stating that the proposed TROs were an integral part of promoting the aspirations of the Council to “develop a boulevard concept which improves the sense of arrival into Liverpool City and enhances the image of Edge Lane as a place to invest in, work in and live in.” An additional benefit would be increase in driver predictability and reduction of driver delay when encountering right/U turning traffic.

The person within 2020 who was to deal with the mechanics of serving the TRO was Mr Tilby. He had considerable experience in dealing with TROs and was, he said, very familiar with the requirements of the Regulations. He had to decide who should be consulted and what form of advertising for the proposed TRO should be undertaken. He was not informed of the existence of the claimant and was unaware that it was the owner of the Retail Park. He accepted when cross-examined that, if he had been aware that the Retail Park was owned by the claimant, it would have been consulted. He did not, he said, try to discover who was the owner and it did not occur to him that it would be owned by one person. He asked no questions of anyone nor was he aware of the litigation with the Council resulting from a failure to notify the claimant of works to be carried out nor of the discussions over the Master Plan. In particular, he was, he said, unaware of the observations in the Design Brief of September 2003 which I have set out in Paragraph 3 above.

Mr Tilby considered what consultation was needed. He did not think it necessary to go beyond the emergency services and those concerned directly with various forms of traffic (the Freight Transport and Road Haulage Associations, Merseytravel and the Cycling Touring Club). He decided that there should be consultation with occupiers of all premises fronting onto Edge Lane. There were a considerable number of residential properties to the north of Edge Lane and these were included. In addition, he said that the consultees were to include businesses in the Retail Park. The form of consultation was by means of a leaflet drop with which was enclosed a stamped addressed envelope to encourage responses to the question whether the recipient was or was not in favour of the proposals. Mr Tilby said that he considered whether it would be appropriate to consult freehold owners but determined it would not be necessary. He was aware that those particularly interested as landowners would sometimes through agents request that they should be notified of any development or other proposal which might affect them. There was no such request on file and so Mr Tilby did not go beyond what was regarded as usual for TROs, namely that frontagers only need be expressly notified.

It was suggested that Mr Tilby had deliberately failed to notify the claimant because he had been instructed not to in order to avoid any delay which might otherwise have resulted from possible objections. This Mr Tilby denied. I am satisfied that he was telling me the truth. He had not been given any information about the claimant’s involvement as owner of the Retail Park. He approached the exercise of consultation and notification under the Regulation as one which involved no special factors. He was not given the information that he should have been given. As he himself recognised, if he had been aware of the claimant’s ownership of the Retail Park and involvement in the Master Plan, he would have sent it a letter drawing attention to the proposed TRO.

Mr Founds, as a Project manager concerned with the improvement of Edge Lane and its environs, was naturally aware of the claimant’s ownership of the Retail Park and that the claimant would be affected by the TRO proposals. He left it to Mr Tilby as the expert to deal with the procedural steps to obtain the TRO. He did not inform him of the claimant’s existence and he was unaware of Mr Tilby’s lack of knowledge of the claimant. He did not, he said, keep Mr Tilby in the dark deliberately in order to try to avoid objections being raised. However, he accepted that if he had been responsible he would have thought it right to notify the claimant. He should in my view have informed Mr Tilby of the claimant’s position so that it could be notified.

Some 300 leaflets were prepared and the distribution took place on 30 June 2006. The response was 20 of which 11 supported and 6 opposed: the balance apparently showed no preference. This was a return of 6.6% which, according to Mr Tilby, was not untypical. But significantly such responses as were received came from residents to the north of Edge Lane. There were no responses from any businesses. Mr Barr subsequently sought to discover from the businesses who should have received a leaflet whether they had. None had and many would have objected if they had realised what was proposed. This evidence was not contradicted by the defendant. Thus, while I do not doubt that Mr Tilby believed that his instructions to leaflet all the businesses in the Retail Park had been understood and would be carried out, they were not. The employee responsible has been made redundant since (I was not told why) and has not provided a statement or given evidence. Mr Sauvain recognised that, as he put it, it was unfortunate that he could not show that the businesses had been leafleted as they should have been. There had been a failure in this respect, but that did not mean that the Council or anyone on its behalf had acted in bad faith.

On 19 July 2006 the officials responsible formally approved the proposal to make the TRO. Before the relevant committee gave its final approval, a meeting was held at Frankie & Benny’s restaurant on the Retail Park which representatives of many of the businesses on the Park attended. No representative of the claimant was notified. Large scale plans were available showing the proposed closure and Mr Founds was adamant that all present should have been aware what was proposed. If they were not, there must have been a breakdown of communication within the businesses. That each should have suffered the same breakdown is improbable. As will become apparent when I consider the evidence of what was told to a particular business representative at and after a subsequent meeting, I am not persuaded that those concerned were informed that the gap closures were to be permanent. They knew that works to improve Edge Lane were in train and that those works were expected to last for up to 12 months. While they were being carried out, the gaps could not be used; they were in fact being coned off. But it was not appreciated that a TRO which would prevent right turns permanently was envisaged. I accept that Mr Founds and his colleagues at the meeting did not deliberately conceal that that a TRO was proposed; no doubt those attending could have spotted that if they had looked closely at the plans and other documentation. But I am satisfied that there was no attempt to ensure that all were aware of what was intended. Liverpool was to be one of the Cultural Cities of Europe in 2008. The desire was that the Edge Lane improvement should be in force by then and so any delay in the implementation of the TRO was to be avoided if possible. Objections would mean delay. Thus it was hoped that objections would not materialise so that the minimum was done which, it was believed, would comply with the requirement to consult and the provisions of the Regulations. That minimum, while not descending to concealment, would mean that no positive disclosure other than that considered necessary to avoid any legal challenge would take place. As will become apparent, subsequent actions to which I will refer in this judgment support that analysis of the approach of the defendant and those acting on its behalf.

The proposed TRO was approved by the defendant’s relevant committee on 24 August 2006. The report to the committee had stated:-

“Primarily the gaps in the central reservation along Edge Lane are recommended for closure to create the boulevard concept and to avoid driver delay along the route when encountering right / U turning traffic.

Whilst the accident statistics for each location over the last 3 available years are minimal, vehicles undertaking those manoeuvres do come into conflict with traffic in both directions and cause delays.”

There then followed an analysis of accidents at each of the sites. Consultation was dealt with in paragraph 6. This was said:-

“6.1

A consultation was undertaken in June 2006 to gauge the feeling of the local community to the proposed closures and removal of the ‘no waiting at any time’ restrictions. This consultation was sent to 350 properties in the whole area including the entire retail park and the residential properties north of Edge Lane. Of these 350 letters sent out, 20 responses have been received. Of those 20 responses 10 have been in favour, 6 have been against the proposals and 3 people were undecided.

6.2

As part of this consultation, letters were also sent to all emergency services. Merseyside Police and Merseyside Fire Service had no objections to the proposed closure of the gaps.”

There is a discrepancy between the figures given by Mr Tilby (300 letters sent out) and those in the report. The claimant suggested that there was something sinister in this. I do not think so; it is consistent with a degree of lack of care in the way in which the exercise was conducted. The committee approved the proposal and so the next stage was to comply with the procedural requirements of the Regulations in notifying those likely to be affected by the proposed Order. A notice was placed in the local newspaper. Mr Tilby decided that it was not necessary to send any further leaflets to residents or occupiers. The only extra measure he took was to instruct the same employee who had been responsible for the leafleting to affix notices to lamp posts in Edge Lane. Mr Tilby told me that his instructions normally involved saying that notices should be affixed to every lamp post on each side of the relevant road and he had no reason to think that he had not given those instructions in this case. Whether or not he did, the evidence called on behalf of the claimant persuade me that it did not happen, although there is evidence that at least one notice was attached on the north side of Edge Lane.

On 19 September 2006 Mr Basnett, a legal assistant in the defendant’s Planning and Environment Unit, informed those concerned including Mr Founds and Mr Whitehead, who was working under Mr Tilby, that the TRO, of which a copy was sent, could become operative on 1 November 2006 if no objections were received by the expiry of the statutory objection period on 24 October 2006. According to Mr Williams’ signature on the appropriate form, (he was the employee deputed to affix the notices in Edge Lane), that was done on 24 September 2006.

On 9 October 2006 a meeting was held to discuss with representatives of businesses in the Retail Park the Edge Lane improvements. It commenced with a presentation by Councillor Bradley, representing the defendant. Mr Founds was present. Gap closures were discussed. In particular, there were discussions with representatives of two businesses in Henry Street, Thomas Cook Ltd and Floors 2 Go. In addition, representatives of two businesses in Tapley Place spoke to Mr Founds. I heard evidence from Mr Vizor, who had represented Floors 2 Go. He had not seen any leaflet and had not at any time appreciated that there was to be a TRO which would mean that the Henry Street gap would be permanently closed. He was aware following the meeting in August that there would certainly be a closure of the gap while works to improve Edge Lane were being carried out and he believed they could take up to 12 months. On 20 September he wrote to a Mr Linley, who set up the 9 October meeting in due course, a letter in which he observed that a year long disruption caused by closure of the gap would damage his business which, as its name suggests, was such that customers would usually need transport of their own to carry away their purchases. Following the 9 October meeting, Mr Vizor wrote to Councillor Bradley. In that letter dated 12 October 2006 he said:-

“The gap through the carriageway divide is to be permanently removed according to the existing plans. The difficulties this will cause were discussed at some length.”

A reply came by e-mail from Mr Founds on 18 October. This dealt with his concern that the commencement of any closure due to road works should be after Christmas. At the end, this was said in relation to the permanent closure:-

“In respect of the other issue of the gap closure and ‘U’ turns this is still being reviewed and you will be contacted once this is complete.”

This was, submits Mr Chaisty, misleading. It suggested that no final decision had been made whereas the TRO was being put into effect. On 24 October 2006, a further letter was sent to Mr Vizor by Mr Barrow, the Senior Project manager of LLDC. He stated:-

“With respect to the gap in the carriageway divide, it was explained to you and Ms Taylor (Thomas Cook) that our proposals are to close the gap and that provision is being made for a U-turn facility at Montrose Way …

I can also confirm that a senior member of the site team will contact you to discuss the above …”

While that does not say anything in itself to suggest that there could be a change, when read with Mr Founds’ e-mail it is easy to see why Mr Vizor did not appreciate that permanent closure would be effected because a TRO was in place.

Mr Founds told me that he informed Mr Vizor of the existence of the proposed TRO and that he should make a formal objection if he wished to challenge the closure of the gap. Mr Vizor denied this. His reference to permanent closure in the letter of 12 October was put to him. He did not, he said, realise that the proposed TRO meant that that would happen if he did not formally object. He thought it was a proposal which might be changed if he registered his concerns. If he had realised that there was a TRO, he would undoubtedly have made a formal objection.

Mr Founds said he recalled being cornered by Mr Vizor and Ms Taylor and the two representatives of businesses in Tapley Place. Mr Sauvain relied on the fact that the Tapley Place businesses did make formal objections and the representatives had seen at least a notice in the street. This obviously supports the contention that some notices must have been affixed by Mr Williams. While that may well be so, it is clear that very few were in place since no other representative seems to have seen one and, other than the two Tapley Place businesses, no other formal objection was received. Thus on 25 October 2006, Mr Founds e-mailed Mr Barrow in the following terms:-

“The 28 day objection period for the TROs, in order to close the central reserve gaps along Edge Lane Central, came to an end yesterday.

As expected we have received two objections from the businesses within Tapley Place, following discussions we had at the business breakfast. We have received no other objections for any of the other remaining gaps … Great news!”

If Mr Founds had made it clear to Mr Vizor that if he wanted to challenge the permanent closure he must make formal objections it is a little strange that no reference to that was made in the e-mail. The absence of any comment coupled with the e-mail of 18 October is consistent with Mr Vizor’s evidence that it was not made clear to him that there was a proposed TRO in place. The Tapley Place businesses had obviously told Mr Founds that they had seen the notice in the street. Thus he knew they were aware of the TRO and the need to make formal objections. I do not accept Mr Found’s evidence that he told Mr Vizor of its existence or of the need to make a formal objection.

It is instructive to note further correspondence with Mr Vizor. On 6 November 2006, Mr Vizor wrote to Mr Barrow in the following terms:-

“Thank you for your letter of 24 October 2006, the contents of which have been duly noted.

The details set out in your letter do not completely reflect the discussions which took place during and immediately after the breakfast meeting. That is to say that further consideration and investigations were to be pursued with a view to permitting the gap to remain in place. Your letter suggests that this is not the case and instead you refer more to the steps you propose to take to mitigate the impact the gap closure will have on the business.

As you are well aware, we are very anxious about this matter. There is no doubt that by closing the carriageway divide the business conducted from the premises will reduce considerably. Every possible effort must therefore be made to retain the divide.

I shall be obliged if you would kindly review this matter urgently. I am sure that Thomas Cook the adjoining occupiers at Henry Street will be equally concerned about this matter.

I look forward to hearing from you in due course.”

The TRO had been made on that day so that the 6 week period to challenge it had begun to run. On 24 November 2006 there was a meeting attended by Mr Vizor and the manager of Thomas Cook. A minute of this meeting records in relation to the closure of the gap:-

“It was explained to the businesses that the principle that had been applied on the Edge Lane Corridor regarding the gaps in the central reserve was that they would be closed unless controlled dedicated right turn lanes could be provided. Under this brief the gap at Henry Street would be closed.

Both businesses were unhappy with this situation and David Vizor requested that as a result of the Business Breakfast meeting, where Councillor Bradley had promised that the proposed gap closures would be re-examined, he would request evidence as to why the gap could not remain at Henry Street. He proposes to communicate directly with LLDC.”

It is to say the least surprising that Mr Vizor was not told it was too late since the TRO had already been made.

On 27 November 2006 Mr Vizor wrote to a Mr Nelson of Mouchel confirming his view that at the breakfast meeting (that is to say, the meeting on 9 October 2006) ‘it was the clear understanding of all who discussed this … that the retention of the gap would be fully investigated.’ He maintained his objection to closure. On 27 November 2006 Mr Founds e-mailed Mr Barrow saying that Mr Vizor had misconstrued what had been said at the meeting but that ‘we need to collectively agree on a way forward in relation to the option of keeping the gap open’. He continued:-

“I believe that we maintain the position we discussed last Thursday, which is to close the gap and formalise the approach along this route supported on safety grounds?”

That was the decision reached but it is significant that it was not apparently suggested that Mr Vizor should be informed that the TRO had been made. In the meantime, no reply was made to Mr Vizor’s letter of 27 November and he sent a chasing letter on 14 December. On 19 December the 6 weeks period for challenge to the TRO expired. I have no evidence that the existence of the TRO was given more than the minimum publicity required by Regulation 17.

Mr Chaisty submitted that the dates on which the letters from Mr Vizor were dealt with showed that he was deliberately not given a definitive answer until the time for challenge to the TRO had expired. This was done to ensure that he did not make any formal objection which might have delayed the TRO. There can in my view be no doubt that Mr Vizor was not dealt with in a transparent fashion. While I do not think that those responsible, particularly Mr Founds, acted in a way which they knew to be contrary to their obligations to consult or give information in accordance with the Regulations, I am satisfied that Mr Vizor was misled into believing that the closure of the gap might be reconsidered. The decision taken was that no more than was believed to be required by way of provision of information should be given in the hope that no objection would be made. It was known that Mr Vizor and Thomas Cook were unhappy with the proposal but the letter of the law required an objection to be in writing to the solicitors to the defendant: that is what the notices said. So it was that the objections were not recorded. It is to be noted that the Tapley Place objections led to a speedy decision to maintain that gap and modify the TRO accordingly. That reaction is consistent with the desire to ensure that there should be no delay.

Mr Vizor pursued his concerns at a meeting on 29 January 2007. On 5 March 2007 he sent an e-mail to Councillor Bradley in which he complained that nothing further had been heard and he now understood that a ‘final’ decision had been made to close the gap. A briefing note was prepared for Mr Bradley which stated that a thorough consultation had been undertaken with all residents and businesses along the corridor and the Council’s required process had been followed to obtain the necessary TRO. It was said that the process had involved sending more than 200 letters to all affected businesses and residents and that 20 responses had been received from residents of which 16 supported the proposals and only 4 were against. On 16 April 2007 Mr Burchnall, the assistant Executive Director Regeneration Services of the defendant, wrote to Mr Waugh, the Chief Executive of LCDC, stating that had the businesses lodged objections to the TRO, it was “highly likely that they would not have been confirmed and that a decision would have been taken some time ago to provide a dedicated turning lane”. He continued:-

“It is clearly regrettable that the businesses did not understand the process sufficiently and did not make their views known earlier.”

He continued that it was the Council’s view that a dedicated right hand turning lane must now be provided and the gap should not be closed. Mr Waugh’s response in a letter of 23 April 2007 was to say that if there was to be such a provision the Council should pay for it (an estimate of £85,000 was given), there would be a delay of some 6 weeks in completion of the Edge Lane works and the Council must accept responsibility for any resulting safety difficulties. He concluded the letter thus:-

“With respect to your final comment, I would reiterate that the project team, LLDC management, and the LLDC Board disagree with your assertion that to make the change you propose is the correct decision. In our view there is no strong evidence to suggest that these two businesses will close as a result of the Edge Lane improvements and that the units will be unlettable. The landlords have not registered any concerns in this regard and are supportive of the project as they recognize the major benefits that will be brought to their premises. The change you propose would only be in the immediate interests of the two occupiers – businesses which operate quite successfully in dual carriageway locations on other places – and may well cause both the project and the Council difficulties with other businesses in the area that have accepted that the existing and approved design may affect their current access arrangements but will have a major and positive medium and long term impact on both their premises and the urban environment in which they operate.”

The observations about the landlords’ support were simply wrong. The claimant had not been consulted and at that time was unaware of the TRO and the resulting permanent closure of the gaps. As its reaction when it did find out indicates, it was not in the least supportive.

It is accepted that the claimant was unaware of the TRO until June 2007. But Mr Sauvain has submitted that it ought to have known and that its ignorance resulted from the failure of those it employed to look after its interests to give it the necessary information. Mr Barr told me that Fairhurst employed a firm of agents called Harcourt Ltd. who paid regular visits to all Derwent’s properties and who were obliged to report to Mr Barr any material matter which might affect Derwent. Neither Derwent nor Fairhurst would take the local press and there was no reason why Harcourt should do so unless there was reason to expect some particular development. Harcourt would visit the Retail Park sites at least once every week or ten days and Mr Barr himself would visit every 3 months or so. Unfortunately, he was seriously ill and required hospital treatment in September 2006, but that would not have affected any of Harcourt’s information being passed on to Derwent and in particular Mr Willers. Mr Barr said that he was satisfied that if there had been notices in the vicinity of the Park or tenants had received leaflets either Harcourt or the caretaker of the Park would have drawn them to his attention. While I accept that there must have been at least one notice near Tapley Place, I am satisfied that the publicity was insufficient. There was a failure to comply with the requirements of the Regulations in that Derwent as a body likely to be affected by the TRO should have been notified and in any event the targeting and notices were otherwise insufficient.

There was some discussion as to what bad faith involved. It seems clear to me that those responsible were concerned to do as little as they could to comply with the law. The hope was that no objections would be made to delay the TRO and so the improvement of Edge Lane in aesthetic terms. There was no intention to break the law, but the way Mr Vizor was treated is most unimpressive. To establish bad faith I think the claimant would have to show that there was a deliberate or at least a reckless approach to the disclosure obligations. Those responsible must have known that they were acting in breach of the law or not have cared whether they were or not. I do not think that is established. While I understand why the claimant’s advisors thought that bad faith must be established, as will become clear I do not believe that it must. The failure to comply with the procedural requirements of the regulations so that the claimant was unaware until too late of the existence of the TRO gives them a remedy. That remedy would not be different if bad faith were established.

I must now consider what remedy can be given.

The claim sought an order quashing the TRO alternatively a declaration that Paragraph 37 of Schedule 9 to the 1984 Act was incompatible with the ECHR. If Paragraph 37 applied to uphold the validity of a TRO even when due to failure by the relevant authority to comply with the requirements to give notice to a person affected by it so that that person could not have complied with the 6 week period within which any challenge would be brought, it was submitted that that was so unfair as to require some form of redress. How could a challenge be made if through no fault of his a person affected was unaware of the order’s existence? Since it was recognised that there was authority to which I shall have to refer which might make it difficult to dispute the application of Paragraph 37, the allegation of bad faith was raised. While I have decided that there was no bad faith, the evidence available to the claimant, particularly in relation to Mr Vizor, gave it at least grounds to put the argument forward.

The most important authority is Smith v East Elloe District Council [1956] A.C. 736. That case concerned a compulsory purchase order which the claimant alleged had been made in bad faith. The order had been made in 1948 but it was not challenged until some 6 years later, by which time the Order had not only been put into effect but the applicant’s property had been demolished and a housing development had been constructed over the land which she had owned. She sought damages for trespass, an injunction to restrain trespass on her land and a declaration that the CPO had been wrongfully made and in bad faith. The Act under which the CPO had been obtained contained provisions which were in virtually identical terms to Paragraph 37. The House of Lords held that the jurisdiction of the Court was ousted. It also decided that the paragraph in the same terms as paragraph 35 of the 1984 Act gave no opportunity to a person aggrieved to question the validity of a CPO on the ground that it was made or confirmed in bad faith. Viscount Simonds, after observing that a court would not look with sympathy at any ouster clause, said this (at p.751):-

“What is abundantly clear is that words are used which are wide enough to cover any kind of challenge which any aggrieved person may think fit to make. I cannot think of any wider words …”

There was, he said, no justification for saying that bad faith would make any difference. But an individual would not be without any remedy. At p.752 he noted:-

“… the bad faith of and upon which an aggrieved person relies is that of individuals, and this very case shows that, even if the validity of the order cannot be questioned and he cannot recover the land that has been taken from him, yet he may have a remedy in damages against those individuals.”

And, I would add, against any body responsible in law for the acts of any such individuals.

Since CPOs (and the same applies to TROs) have a wide effect, it is important that unless challenged within a limited time their validity should not be able to be impugned. No doubt for private law claims fraud may enable a period of limitation to be disapplied, but the same is not the case for public law claims. Smith v East Elloe was applied by the Court of Appeal in R v Secretary of State for the Environment ex p. Ostler [1977] 1 QB 122 where a similar allegation of bad faith was raised. It was argued that the decision in Anisminic v Foreign Compensation Commission [1969] 1 A.C. 147 had cast doubt on the continuing validity of Smith v East Elloe. The Court of Appeal disagreed, although the reasoning of the three members of the court does not altogether march in harmony.

It is submitted that the present case is different inasmuch as the bad faith and failures to comply with the procedural requirements led to an inability to challenge within time. Further, Article 6 of the ECHR was engaged and there was a breach in denying access to the court for a remedy. Mr Palmer argued on the basis of some Strasbourg jurisprudence that the making of the TRO did not engage the claimant’s civil rights. I am prepared to assume without deciding the point that it did, but in order to show a breach it must be established that the claimant was in the circumstances deprived of access to the court ‘in such a way or to such an extent that the very essence of the right is impaired’: see de Geouffre de la Pradelle v France [1992] ECHR 12964/67 at paragraph 28. For reasons which will become apparent, that is not the position with the legislation in question.

As Mr Sauvain pointed out, since Paragraph 35 allows a challenge to an order on the ground that ‘any of the relevant requirements has not been complied with’, it must contemplate the possibility that proper notice was not given. It does not seem to me to matter why the notice was not given. The effect on the person aggrieved is the same. Thus I do not think, consistently with the House of Lords’ approach in Smith v East Elloe, that bad faith will, if established, overcome the ouster clause. It exists because of the importance of bringing certainty to the order made and that applies as much to a TRO as it does to a CPO: see R(Deutsch) v London Borough of Hackney [2003] EWHC 2692.

There is a remedy. The validity of the order is not in issue in a claim for damages, if damage was sustained, where there was a failure to comply with the procedural requirements. I do not decide that a claim will lie merely if there has been a breach. It may. But bad faith, if proved, will undoubtedly give rise to a claim based on misfeasance in public office and aggravated or even exemplary damages may follow. Equally, a declaration that procedural requirements were not complied with will not challenge the validity of the order. It will enable the claimant to apply to the defendant to modify the order and in effect to consider the objections that would have been made. Mr Burchnall’s views in his letter of 16 April 2007 to Mr Waugh should be noted in this regard.

I should add that I was told that the defendant was willing to consider any application to modify, but would only put modifications into effect if the claimant agreed to pay for them and if persuaded that they could properly be made without adverse results. Since I have concluded that the defendant council was at fault, it must consider properly any application to modify on its merits and must bear the cost of any modifications which would have resulted had the objections been made at the material time.

In the circumstances, I am satisfied that even if Article 6 applied its very essence is not impaired. Accordingly and even if I had found bad faith I would not have considered Paragraph 37 to be incompatible with the Convention.

I will hear Counsel on the precise nature and terms of any remedy.