Richards & Anor, R (on the application of) v Pembrokeshire County Council [2004] EWCA Civ 1000

[2004] EWCA Civ 1000

Case No C1/2003/2273/QBACF

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN’S BENCH DIVISION - DIVISIONAL COURT)

(Mr Justice Moses)

CO/1760/2003

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29 th July 2004

Before

THE PRESIDENT

LORD JUSTICE SEDLEY

LORD JUSTICE NEUBERGER

Between

THE QUEENAppellant

PEMBROKESHIRE COUNTY COUNCILRespondent

V R Chapman Esq (instructed by Messrs John Collins & Partners) for Appellants

Rhodri Williams Esq (instructed by Pembrokeshire County Council) for Respondents

Hearing Hearing dates : 15 th/16 th June 2004

Judgment

[1]This is the judgment of the Court in an appeal brought by Mr Paul Richards and his wife Mrs Gillian Richards (“the appellants”) against a decision of Moses J, given on 9th October 2003. Both the appellants and the respondents, Pembrokeshire County Council (“the Council”), are agreed as to the core issue on the appeal. It is whether, in adopting the Pembrokeshire County Council (Tenby Harbour) (Controlled Area) (Vehicle Use) Terms and Directions 2003 (“the Directions”) the Council acted lawfully within the powers derived from s14 of, and schedule 2 to, the Harbours Act 1964 (“the 1964 Act”), at least so far as the Directions extended to a raised terrace in front of a house owned by the appellants at Castle Hill in Tenby.

The facts

[2]The old and picturesque town of Tenby was of a somewhat irregular shape. Roughly speaking, its northern and eastern extremities were bounded by the coast, and its southern and western extremities were bounded by old walls. Tenby Harbour is and was on the town’s northern boundary. With the passage of time, the town has substantially expanded outside the wall to the west (along the coast and inland) and the south. The old town is often known as the “walled town”.

[3]Between the northern and eastern sea-bound boundaries is a substantial promontory known as Castle Hill. Historically, it appears to have been walled off from the rest of the old town. Castle Hill includes streets and private houses, a small park, castle ruins, a museum and a lifeboat station. In particular, it includes Castle Square, which has an irregular shape, and over which motor vehicles and pedestrians pass. Immediately to the east of Castle Square is a raised terrace or roadway called Castle Terrace. On the east of Castle Terrace are three houses which, going from north to south are 3, 2 and 1 Castle Square respectively (“the three properties”). The appellants own the freehold of 3 Castle Square (“No 3”). It is divided into three flats, two of which are let out by the appellants on holiday lettings, and one of which they retain for themselves.

[4]The Directions were made pursuant to byelaws relating to Tenby Harbour, dated 21st December 1995 (“the 1995 Byelaws”). These byelaws were made under the South Pembrokeshire District Council (Tenby) Harbour Revision Order 1975 (“the 1975 Order”), which was itself made pursuant to the 1964 Act.

[5]Before Moses J, the appellants contended that the Directions were unlawful on three grounds, namely: i) they were outwith the power conferred by the 1975 Order and/or the 1964 Act, because they were not made for what may be called a harbour operational purpose; ii) they were unreasonable, in the sense that no reasonable council could have made the Directions on the grounds given for making them; iii) they infringed the rights of the appellants under Article 1 of the First Protocol of the European Convention on Human Rights (“Article 1 of the First Protocol”).

[6]Before us, and at our invitation, the appellants canvassed a further argument which had been abandoned below, namely that, despite certain preclusive provisions of the 1964 Act, they were entitled to challenge the lawfulness of the 1975 Order in so far as it extends to Castle Hill.

[7]The history of parking on Castle Terrace, in summary form, is as follows. Parking has been in practice controlled by those who occupied the three properties, at least since about 1970, although there is evidence to suggest that such control was exercised earlier. From about 1978, two years after the appellants purchased No 3, there were lockable chains across each end of Castle Terrace, so that, at least in general, no vehicles other than those associated with the three properties have been able to enter on to it. By around 1988, because the chains were becoming damaged or being left unlocked, members of the public sometimes - perhaps frequently - parked on Castle Terrace. The appellants wrote to the South Pembrokeshire District Council, the statutory predecessors of the Council, indicating that they intended to put a collapsible barrier at each end of Castle Terrace. This did not in fact happen.

[8]On 22nd February 1989, the appellants wrote to the Council referring to the fact that their tenants at No 3 were “experiencing tremendous parking problems immediately in front of our house”. The appellants added that, when they purchased No 3 (which was in 1976), “we were led to believe that we owned the road right up to the wall [ie Castle Terrace] and we have a permanent right of way”.

[9]In its reply, dated 13th March 1989, the Council stated that “it would appear that the land in front of your property up to the wall [ie Castle Terrace] is not regarded as being in Council ownership”, and that “no public right of way is registered over the land”. In that letter, the Council offered to paint “Keep Clear” at the junction of Castle Terrace and Castle Square, albeit on a “rechargeable basis”. It appears that the owners of the three properties then erected and maintained lockable bollards at either end of Castle Terrace.

[10]Thereafter, albeit in a somewhat spasmodic fashion, the Council gave consideration to the possibility of introducing some sort of parking or traffic management scheme over Castle Square. Thus, in November 1995, the Council wrote proposing to put up bollards at Castle Square and to provide “property owners” with “specific bays” at a cost of £90.00 per annum. The Council also suggested the erection of “lockable bollards” at each end of Castle Terrace, with a view to providing seven parking bays at a similar rate “by private agreement”.

[11]On 26th March 1998, a report to the Council’s Highways Committee referred to “an attempt to control the parking in Castle Square and adjacent non-highway land” (emphasis added). The latter land appears clearly to be Castle Terrace.

[12]By 2001, the Council’s intentions had become more focused. On 2nd April 2001, the occupiers of property in the harbour area were advised by the head of the Council’s infrastructure management that the Council had “resolved to examine the introduction of more control over vehicles” because of “problems of congestion in the Castle Square and other parts of the harbour area”.

[13]On 17th January 2002, the Council’s Highways and Transportation Committee was told in a report from Council officers that:

“The current proposal is to use the 1995 Tenby Harbour Byelaws to create Terms and Directions for the allocation of parking bays to specific users.”

This report also contained “background” which, in paragraph 1.5(c) recorded against “Police” the following:

“No objections, notes that enforcement is a Council matter as the area is non-highway.”

In paragraph 1.5(v) of the same report, it was noted that the appellants had suggested “individual bollarded spaces be provided in Castle Square …”.

[14]On 23rd January 2002, the appellants wrote to the Council referring to the fact that they had been free to manage parking on Castle Terrace themselves, and contesting the jurisdiction of the Council to exercise parking control over it. The Council replied reiterating their intentions. The appellants responded by saying that, while they were willing to co-operate in principle, they were “not prepared to give up title of our part of Castle Terrace directly in front of our property”.

[15]In a letter dated 21st June 2002 addressed to Mr Richards, the Council reiterated its “proposal … to treat the elevated section of Castle Square (ie Castle Terrace) the same as Castle Square itself”. It suggested that each of the three flats owned by the appellants in No 3 would be offered a single parking permit, and went on to state that “the aim of the proposal was to make all parking in the harbour area only available to permit holders. The exception being six disabled bays. The proposal should reduce trips by general motorists round the Walled Town to the harbour seeking a parking space that is not usually available.”

[16]On 28th June 2002, the Cabinet of the Council considered a report from the Director of Transportation and Environment (“the Report”). Part 4 was headed “Control of Parking, Tenby Harbour Area”. Paragraph 4.1 stated that the Policy and Resources Committee of the Council “agreed to consult on the introduction of mainly residents’ parking in the harbour area”. The Report then went on to describe public reaction to the proposals, and then in paragraph 4.12 said:

“The aim of the revised Terms and Conditions would be define all parking in the Harbour Car Park and Harbour Area as permit parking only, except for the six disabled bays. The measure should remove the current practice of motorists entering the Walled Town in search of a parking space in the Harbour Area. The Terms and Condition will allow council employees to enforce the parking conditions as the area is non-highway and not under Police Control.”

[17]Four recommendations were contained in Part 5 of the Report, the fourth of which was:

“That the proposals for the control of parking in the Tenby Harbour Area shown on the attached plan and involving mainly residents parking be implemented under the terms of the Tenby Harbour Byelaws 1995 with a charge of £100 per annum being set for a Resident’s Parking Permit and £5 per annum for a Harbour User’s Permit, these prices being subject to revision from time to time in line with inflation.”

The area shown on the “attached plan” included the south-western part of Castle Hill, ie the part nearest the town centre, and included Castle Square and Castle Terrace.

[18]The “Reason for the Recommendations” was:

“To improve pedestrian safety and control of traffic and parking in the town centre.”

[19]On 28th June 2002, a meeting of the Cabinet of the Council took place. At the meeting, the Report was considered and all the recommendations contained in Part 5 of the 2002 Report were adopted as a recorded “Decision”, the “Reason for Decision” being recorded as the “Reason for the Recommendations”.

[20]As a result of the Decision, the Directions were prepared and adopted. The Directions extended to part of Castle Hill, including Castle Square and Castle Terrace. They provided for a total of 52 car parking spaces, of which seven were on Castle Terrace. The Directions were to come into force on 1st March 2003. However, owing to these proceedings, their operation has been suspended, at least in part.

[21]The properties in respect of which the parking permits would be provided were described in paragraph 2 of the Directions. There were 38 such properties which were described as :

“Each self-contained residential property listed in the Schedule of Properties within The Harbour shall be entitled to one parking permit.”

The Schedule identified three flats at No 3, so that there was to be one permit for each flat. The relevant legislative material The 1964 Act

The relevant legislative material

[22]We now turn to the provisions of the 1964 Act. Section 14 provides: “(1) Subject to the provisions of this section and to the following provisions of this Act, there may, in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, be made by the appropriate Minister an order (in this Act referred to as a 'harbour revision order') for achieving all or any of the objects specified in Schedule 2 to this Act. (2) Subject to the next following section, a harbour revision order shall not be made in relation to a harbour by the appropriate Minister- ... (b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea. (3) A harbour revision order may include all such provisions as appear to the appropriate Minister to be requisite or expedient for rendering of full effect a provision of the order framed to achieve any of the said objects and any consequential or incidental provisions appearing to him to be requisite ... ." ... (b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea.

[23]Section 57 of the 1964 Act contains definitions. “Harbour” is defined as follows: “… except where used with reference to a local lighthouse authority, means any harbour, whether or natural or artificial, and any port, haven, estuary, tidal or other river or inland waterway navigated by seagoing ships, and includes a dock, [or] wharf...” “Harbour land” is defined in these terms: “‘harbour land’ means land adjacent to a harbour and occupied wholly or mainly for the purposes of activities there carried on.” “Harbour operations” are also defined, amongst others, as being: “(b) the berthing or dry-docking of a ship; (c) the warehousing, sorting, weighing or handling of goods on harbour land or at a wharf; (d) the movement of goods or passengers within the limits within which the person engaged in improving, maintaining or managing a harbour has jurisdiction or on harbour land." “‘harbour land’ means land adjacent to a harbour and occupied wholly or mainly for the purposes of activities there carried on.” “(b) the berthing or dry-docking of a ship; (c) the warehousing, sorting, weighing or handling of goods on harbour land or at a wharf; (d) the movement of goods or passengers within the limits within which the person engaged in improving, maintaining or managing a harbour has jurisdiction or on harbour land."

[24]Schedule 2 to the 1964 Act identifies the objects for whose achievement harbour revision orders may be made. They include: “(1) Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed ... (2) Regulating (in whole or to a less extent) the procedure of, or of any committee of, the authority ... (3) Varying or abolishing duties or powers conferred on the authority by a statutory provision of local application affecting the harbour, being duties or powers imposed or conferred for the purpose of- (a) improving, maintaining or managing the harbour; ... (c) regulating the carrying out by others in connection with the harbour of harbour operations or the carrying on by others of activities on harbour land. (4) Imposing or conferring on the authority, for the purpose aforesaid, duties or powers (including powers to make byelaws), either in addition to, or in substitution for, duties or powers imposed or conferred as mentioned in paragraph 3 above. ... (6) Settling (either for all purposes or for limited purposes) the limits within which the authority are to have jurisdiction or altering (either for all purposes or for limited purposes) such limits as previously settled.” (a) improving, maintaining or managing the harbour; ... (c) regulating the carrying out by others in connection with the harbour of harbour operations or the carrying on by others of activities on harbour land. ...

[25]As

the judge said below, in paragraph 26 of his judgment:

“It is apparent from Schedule 2 to 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.”

[26]By section 44 of the 1964 Act:

“(1) A person who desires to question any such order as follows, namely a harbour revision ... order on the ground that there was no power to make the order or that a requirement of this Act was not complied with in relation to the order, ... may, within six weeks from the date on which the order becomes operative ... , make an application for the purpose to the High Court; … (3) Except as provided by this section a harbour revision ... order shall not, either before or after it is made, be questioned in any legal proceedings whatever....”

The 1975 Order

[27]The 1975 Order is, of course, a harbour revision order within the meaning of the 1964 Act. Article 2 identifies the “harbour” as being:

“(a) the area the limits of which are referred to in article 4 (Harbour limits) of this Order and (b) the harbour estate.”

[28]The limits of the harbour are shown in various maps and are described in words in Schedule 1 to the order pursuant to Article 4 of the 1975 Order. The “outer harbour” is a large expanse of sea off the north coast of Tenby (and coastal land to the west of Tenby) and bounded on the south east by Castle Hill. The “inner harbour”, where boats are normally moored, is a much smaller area, within the outer harbour. The “harbour estate” is defined in Schedule 1 to the 1975 Order as follows:

“... the docks, piers, wharves, quays, berths, roads, railways bridges, sheds and other works and conveniences, and the lands, buildings and property of every description of whatever nature, which are for the time being vested in, occupied or administered by the Council for the purposes of the harbour and includes the peninsula known as Castle Hill.”

(emphasis added) The only land, as opposed to sea, included in the “harbour” is (a) the whole of the Castle Hill promontory and (b) the north tidal shore of, and to the west of, Tenby.

[29]Article 5 confers general powers on the Council in respect of the harbour as follows:

“(1) The Council may, subject to the provisions of this Order take such steps, from time to time as they consider necessary for the improvement, maintenance and management of the harbour and the facilities afforded therein or in connection therewith.”

[30]Article 22 is headed:

“Byelaws as to harbour.”

It is in these terms: “(1) Subject to the provisions of this Order the Council may make in relation to the harbour byelaws for all or any of the following purposes- (a) for regulating the exercise of the powers vested in the harbourmaster: (b) for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the harbour; (c) for regulating the conduct of all persons in the harbour, …; … (j) for prohibiting the use of or regulating the movement, speed and parking of vehicles within the harbour. (a) for regulating the exercise of the powers vested in the harbourmaster: (b) for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the harbour; (c) for regulating the conduct of all persons in the harbour, …; … (j) for prohibiting the use of or regulating the movement, speed and parking of vehicles within the harbour.

The 1995 Byelaws

[31]The 1995 Byelaws identify the “inner” and “outer” harbour and the “harbour estate” in words which, in each case, follow the 1975 Order. Byelaw 23 provides:

“No person shall knowingly cause a vehicle to enter or remain within the limits of the harbour except with the permission of the Council or the harbourmaster and in accordance with the terms of that permission.”

[32]Byelaw 25 reads:

“All persons in charge of any vehicle brought within the limits of the harbour shall obey all duly authorised directions which may be given by the harbourmaster and conform to all signs, directions and notices erected or displayed relating to the parking and movement of vehicles and will pay such charges as may be levied by the Council.”

The issues

[33]Both below and before us, the case advanced on behalf of the appellants has been subject to a degree of variation and addition, as Mr Rhodri Williams, who appears on behalf of the Council, has fairly complained.

[34]In logical order, the arguments which have been raised before us are best summarised as follows: i) The 1975 Order was ultra vires the 1964 Act, at least to the extent that it purported to extend to Castle Hill, because Castle Hill could not lawfully have been designated as part of the harbour estate, in light of the definitions in s57. ii) Even if the 1975 Order cannot now be challenged on this basis, the Directions, made under the 1995 Byelaws, were ultra vires insofar as they affected Castle Hill for a purpose which was not related to harbour operations. iii) The Directions were unlawful, because the policy behind them was demonstrably flawed. iv) The Directions were unlawful at least insofar as they included Castle Terrace, which is and was arguably private property.

The first argument: the vires of the 1975 Order

[35]The first argument had been touched on, and indeed, raised, in the original written application for judicial review made by the appellants. However, any attack based on the vires of the 1975 Order, resting on the argument that Castle Hill should never have been included as part of the harbour or harbour estate, was abandoned by the time of the hearing before the judge, with his apparent approval. That abandonment appears to have been attributable to the provisions of s44(3) of the 1964 Act, whose preclusive terms could be said to have long ago shut out any possible challenge to the vires of the 1975 Order.

[36]In this connection, we refer to the fact that “harbour land” is defined in the 1964 Act as only extending to land “occupied wholly or mainly for the purposes of activities … carried on” in the harbour. It is therefore well arguable, as we see it, that Castle Hill, other than its western and north-western coastline, which can fairly be said to be part of the harbour, could and should not have been included within the ambit of the 1975 Order. However, that is the argument that was abandoned by the appellants before Moses J.

[37]In light of the decision in R -v- Secretary of State ex p Ostler

[1977] QB 122

, there is plainly considerable force in the point that s44(3) of the 1964 Act now precludes any such challenge to the validity of the 1975 Order. However, the advent of the Human Rights Act 1998, and in particular the consequent introduction into English Law of

Article 6 of the European Convention on Human Rights

, may have an impact on the continuing effectiveness of the reasoning in Ostler. Even if it does not, it may be that the reasoning in Smith -v- East Elloe District Council

[1956] AC 735

(which drove the decision in Ostler) had been rendered obsolete by the reasoning in Anisminic Limited -v- Foreign Compensation Commission

[1969] 2 AC 147

. But that point is very probably not open in this court: see R -v- Cornwall County Council ex p Huntington

[1994] 1 All ER 694

[38]Although we indicated at the opening of this appeal, after brief preliminary argument, that we would be prepared, if appropriate, to hear full argument on the question, we informed the parties at the end of their initial submissions that this would not be necessary. If we had heard argument on this point, it would have been necessary to reconvene for a further day’s hearing because Mr Williams was, quite understandably, not in a position to argue the point, and it would also have been right to give the Welsh Assembly and one or more government departments notice of the point to enable them to make representations in respect of it. Given our conclusion on the second and fourth arguments and the general principle of proportionality, as applied to the issues in this case, we considered that it would have been inappropriate to involve the parties in the expense and delay involved in such a course. The second argument: an improper purpose The stated reasons

The second argument: an improper purpose

[39]We now turn to the contention that the Directions were adopted for a legally improper purpose. This was the argument upon which the judgment of Moses J, and the discussion before him, concentrated. As Mr Vivian Chapman, who appeared for the appellants, contended, and indeed, as the judge found, because the Directions were made under the 1995 Byelaws, which in turn were promulgated pursuant to the 1975 Order, the Directions could only be justified if they could be shown to have been adopted for one or more of the purposes identified in Schedule 2 to the 1964 Act, in other words, for harbour operational purposes. The thrust of the case advanced on behalf of the appellants is that the Directions were not in fact adopted, at least primarily, for the operational purposes of the harbour, but for a different primary purpose, namely to alleviate the congestion, and improve pedestrian safety, in the centre of Tenby. This would, as a matter of principle, be a perfectly legitimate, and indeed normal, reason for promulgating directions for parking control in a town. However, Mr Chapman submitted that it cannot be justifiable in the present case, because, crucially, the Directions were adopted, not under the highways legislation but under the harbour legislation. (We will indicate, when dealing with the fourth argument, why the highways legislation could not be relied on by the Council.)

[40]When considering this argument, it is self-evident that one can refer to the Directions and the Decision. It must also be right that one can refer to the Report, because it was the material document before the Council Cabinet which made the decision, and the Cabinet expressly gave as its reasons for adopting the Directions the reasons set out in the Report for its recommendations.

[41]The reasons given by the Council for adopting the Directions were, as mentioned above, pedestrian safety and control of traffic and parking “in the town centre”. We accept that the expression “town centre” is vague, and that, although it is geographically at the extremity of the town, Castle Hill could legitimately be included within it. On the evidence before us, we consider that the expression “town centre” would, on any view, include the old, walled, town, in which, for instance, the main shopping street appears to be situated. Of course, were it not by the sea, Tenby would be unusual in having its “centre” at one end, but it is by no means surprising that its centre should in practice be at its north-western end, in light of its geography (being bounded by the sea), and its history (the much smaller old town having been on the sea).

[42]However, the part of the “town centre” which is also the harbour estate would be a relatively small proportion of the town centre. This is particularly true if, for the reasons given in paragraph 36 above, most of Castle Hill must be excluded from the ambit of “harbour estate” when considering the Directions’ validity. If “town centre” is limited to the old, walled, town, the proportion which is part of the harbour or harbour estate (excluding most of Castle Hill) would represent less than 10%, possibly less than 5%, of the area and no more than 25% of its perimeter. Accordingly, a general statement of concern about traffic in “the town centre”, without qualification, is, in our view, too broad to justify the argument that the primary, or even a primary, reason for the Directions was based on harbour operational considerations. The point is reinforced by the reference in the Reasons to the concern about pedestrians safety.

[43]The only relevant provision (other than the Reasons) in the Directions, the Report or the Decision to which we have been referred is to be found in paragraph 4.12 of the Report, where the purpose of the Directions is described as to ensure the removal “of motorists entering the walled town in search of a parking space in the harbour area”. While this contains express reference to “the harbour area”, it appears to us that the natural meaning of this phrase is that the principal concern of the Council was in connection with motorists entering the walled town. In other words, while the motorists were described as searching for parking space in the harbour area, the problem which was identified was the presence of such motorists in the walled town generally. Once again, this does not appear to us to identify what could fairly be called a harbour operational matter. The notion that the main concern was not harbour operational matters is again reinforced by the reference to pedestrian safety in paragraph 4.12.

[44]We accept that common sense strongly suggests that there would be some benefits to the harbour, at least so far as access to and egress from the harbour area are concerned, as a result of better control of traffic and parking. However, we consider that, on a fair reading of the stated reasons, particularly in light of the relatively extensive area of “the town centre”, the contents of paragraph 4.12 of the Report and the reference to pedestrian safety, the effect on harbour operation, while not negligible, was ultimately a collateral consequence of the decision to adopt the Directions. In order to be intra vires, it appears to us that the Directions would have to have, as one of their main purposes, if not as their main purpose, the management and operation of the harbour. We do not think one can fairly spell this out of the Directions (to which neither party has referred for this purpose), the Decision, or the Report.

[45]The Council nevertheless contends that, even if this conclusion was otherwise correct, it does not serve to invalidate the Directions. This argument proceeds on the basis that the 1995 Byelaws and the Directions are within the ambit of the 1975 Order, that the 1975 Order has to be treated as within the powers given by the 1964 Act, and accordingly the whole of Castle Hill must be treated as part of the harbour estate. Even if that proposition is right in law it is not of assistance to the Council.

[46]As explained when considering the first argument, both the judgment below and the main argument before us proceeded on the assumption that the preclusive provision of s44(3) of the 1964 Act had the effect of shutting out any possible challenge to the vires of the 1975 Order after the expiry of six weeks from the date upon which that order became operative. In our view, there is a powerful case for saying that it would be unacceptable if: i) a statute giving power to make an order having the force of law should preclude the order from being challenged after six weeks; while also ii) any uncorrected and uncorrectable excess of power in the order might then be reproduced in byelaws made under it, without any redress. As we see it, there is much to be said for the view that the corollary of the validity of the first proposition, if the rule of law is to mean very much, must be a negation of the second proposition.

[47]In other words, for what are ultimately constitutional reasons, it may be said that a preclusive provision such as s44(3) of the 1964 Act is to be read as narrowly as possible. Assuming that it does today preclude judicial review of the 1975 Order itself, it may not necessarily preclude judicial review of instruments made under that order. Such instruments derive their ultimate authority not from the 1975 Order, but from the 1964 Act, and it is therefore against the statutory powers that they may need to be tested. Were it not so, an excess of power - however gross - in the contents of an order such as the 1975 Order would, after six weeks, become entrenched, notwithstanding that (indeed, because) nobody within those six weeks had acquired a sufficient interest to challenge them. In such circumstances, such an excess of power could freely proliferate in byelaws and other instruments made in reliance on the ultra vires elements of the order concerned.

[48]Even if the Council is right in its contention that the whole of Castle Hill must be treated as part of the harbour for the purpose of the Directions, we would still be of the view that the Reasons represented an improper purpose for the adoption of the Directions. The harbour would then still represent no more than 15% of the total area of the old, walled, town and about 30% of its perimeter. The fact that Castle Hill must be assumed to be part of the harbour estate or area does not alter the fact that the Directions were adopted for reasons which were, on a fair reading, concerned with pedestrian safety and traffic congestion in an area far larger than the harbour estate. In other words, the assumption that the harbour includes Castle Hill cannot validate a traffic management scheme adopted for the actual purpose of improving safety, amenity and access in a much larger area which, as it were, happens to include the harbour area.

Fresh Evidence?

[49]However, that is not necessarily conclusive of the second issue. The Council adduced evidence before the judge, and (with our permission) more evidence before us, with a view to seeking to justify the contention that, in reality, the Directions were adopted and recommended because of harbour operational considerations falling within Schedule 2 to the 1964 Act.

[50]The Council’s evidence before the judge in this connection was relatively attenuated, but, to be fair to the Council, this was because the argument now under consideration was only raised very shortly before the hearing. The Harbours Manager, Mr Carl Evans, stated in his witness statement before the judge that:

“Vehicular access and parking has been a notorious issue both within Tenby town and the harbour area. One of the main areas of concern was Castle Square, where access was compromised to the all-weather lifeboat station and the Castle Hill peninsula and to and from … Castle Terrace. I have received numerous informal complaints from residents, harbour users, statutory bodies and visitors with regard to access and parking issues. I have therefore exercised vehicular control over the Castle Square area many times during my employment. This has involved closing areas to traffic access or suspending parking bays to allow access for RNLI fuel deliveries, building works to nearby buildings, highway drain and surface maintenance and for event infrastructure. Since my employment in 1993 I have repeatedly reported problems with parking to [the Council].”

Since my employment in 1993 I have repeatedly reported problems with parking to [the Council].”

[51]Because the argument presently under consideration had only been advanced by the appellant shortly before the trial, on the appeal we thought it would be right to permit the Council to adduce further evidence in connection this issue. That evidence included a further statement from Mr Evans, which, in the main, contained further comments and copies of documents to support the thrust of the evidence which we have quoted from his first witness statement. In his second statement, he referred to complaints received from “the ambulance service and HM Coastguard” in relation to access problems in the harbour area as a consequence of traffic congestion and parking, and the fact that “numerous commercial Tenby Harbour users experienced access and trading issues as a result of indiscriminate parking”. He also said that “if traffic management issues were not addressed at the main entrance to Tenby Harbour … and the lower part areas of Castle Square were not under control as proposed under the [Directions] any management would be jeopardised and as a clear unobstructed vehicular route along the other harbour limit roadways to this area could not properly be enforced”.

[52]The Council’s further evidence also included a witness statement from Mr John Price, the Council’s Traffic Manager, who stated that the expression “town centre” in the Recommendation and in the Decision was “being used in the broad sense of the centre of the town of Tenby” and not just the commercial and shopping centre of Tenby. He also stated: “The need to control parking in the harbour area was a long-standing problem and arose because motorists would come down to the harbour area in search [of] parking spaces. This led to traffic congestion in the harbour area and indiscriminate parking which in turn caused the Harbour Master problems” (referred to in the evidence of Mr Evans).

[53]Although it is fair to record that the evidence is to some extent challenged by the appellants, it would be hard to say, at least on the basis of that evidence, that the Council would have been acting unlawfully when making the Directions if it had been primarily concerned about the consequences of congestion and parking in the harbour area on the proper functioning of the harbour, and operations connected with the harbour, such as the lifeboat station. It is true that, taking the evidence as a whole, the Council would appear to have been motivated by concerns as to congestion in Tenby outside the harbour area (even if the harbour area must be assumed for present purposes to include Castle Hill). However, as we see it, that would not, by any means necessarily, render the decision to adopt the Directions unlawful. Provided that concern about congestion and other problems outside the harbour area did not represent the real reason for the decision to adopt the Directions, and reflected merely a collateral benefit, even an important collateral benefit, resulting from the adoption of the Directions for the benefit of the operation of the harbour, the decision would very probably not be objectionable. The evidence of Mr Evans and Mr Price, if admissible, may, therefore, enable the Council to defeat the second argument, in circumstances where, in the absence of that evidence, that argument must prevail.

[54]The question which therefore arises is whether it is open to the Council, as a matter of principle, to rely upon their witness statements. In R -v- Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area ex p B E Barrett Limited

[1949] 2 KB 17

, a goods vehicle licensing authority refused to grant an application made under the Transport Act 1947, on the basis that it had been made under the wrong section of that Act. On an application for judicial review of its refusal, the licensing authority put in affidavit evidence giving other reasons for the refusal. Lord Goddard LCJ said at 22:

“[W]here a tribunal, of whatever nature, has given a decision and expressed it in language from which the court can ascertain what the decision was, the court will not accept affidavit evidence to say that the tribunal meant something different from that which it said in its judgment. If there is an ambiguity, as sometimes happens, in a decision which is given, the court can send it back … in order to clear up the ambiguity and to ascertain what the magistrate meant; but, where the language of the tribunal in which it expressed its judgment, is clear and there is no ambiguity, it would be quite wrong for this court to entertain affidavit evidence or other matter to try and explain that the tribunal, whether it is justices or any other tribunal, meant something different from what it said. In our opinion, to do so would open up a very undesirable line of argument, because it might necessitate conflicting affidavits on such a matter. The litigants, who hear the decision, have to decide from what the tribunal says, whether they have a right to come to this court or not. When they come to this court, the court can only look at what the tribunal says, and cannot entertain affidavits … which would suggest that the tribunal meant something different from what it has said.”

Humpreys and Birkett JJ agreed with that observation: see at 27 and 29.

[55]That case produced a subsequent division of opinion in this court, in Breen -v- Amalgamated Engineering Union

[1971] 2 QB 175

, a case involving an attack on the decision of a district committee of a trade union, on the ground of a breach of natural justice. At 192G to 193C, Lord Denning MR effectively held that the reasoning in Barrett applied, quoting and applying the reasoning in the judgment of Lord Goddard CJ. Edmund Davies LJ (with whom Megaw LJ agreed) took a different view: see at 197F-198A. He said this:

“The Master of the Rolls has held that it would be unfair to allow individual members of the district committee to go back on the stated reasons for their decision. But the fact is that they were so allowed and in these circumstances the questions that arise are: (1) As a matter of law, should that evidence have been excluded? … As to (1), I have to say that I know of no rule of law which demands exclusion of evidence as to what actually happened in the district committee ….”

[56]In R -v- Westminster City Council ex p Ermakov

[1996] 2 All ER 302

, Hutchinson LJ, after a full review of the authorities, in a judgment with which Thorpe and Nourse LJJ agreed (see 317d) gave some guidance on the attitude to be adopted by the court to an application to adduce evidence to add to, vary or explain contemporaneous published reasons given for a housing application decision reached by a local authority. At 315g to 317b, he set out seven conclusions, of which the following appear to be potentially relevant for present purposes:

“(2) The court can, and, in appropriate cases, should, admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should … be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction … (3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. … (4) … in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. ….”

[57]It must be mentioned that, at 316h, Hutchison LJ emphasised that “all that I have said is with reference only to the provisions of s64 of the [Housing Act 1985]”, which is concerned with the notification which a housing authority is obliged to provide, together with reasons, when it concludes that an applicant for housing is intentionally homeless. Even without Hutchison LJ’s qualification that his conclusions were intended to be limited to the statutory provision before him, it would obviously be unsafe to assume that this court’s conclusions, in relation to a local authority’s right to adduce further evidence of its reasons in relation to a decision under one statutory provision, should apply equally in relation to a decision under a wholly different statutory provision. In the present case, for instance, there is no statutory provision which required the Council to give reasons for the adoption of the Directions, whereas the housing legislation under consideration in Ermakov did require the provision of reasons contemporaneously with the communication of the decision: see at 309b-c. Having said that, much, albeit by no means all, of the reasoning advanced by Hutchison LJ for the conclusions he reached in that case apply with equal force in a case such as the present.

[58]With the assistance of these two decisions, it appears to us that the principles to be applied to determining the reasons for the Decision in this case are as follows. First, the primary source for identifying the reasons for the decision to adopt the Directions must be found in the Directions, the Decision, and the Report, as already mentioned. Secondly, where there is any ambiguity in the reasons, that ambiguity can be resolved by reference to evidence, provided that that evidence is credible and authoritative. This makes it inherently unlikely that evidence of the relevant debate or discussion would normally be admissible. It also means that reasons which could have been, but were not, in the decision-makers’ minds are immaterial. If, however, as Lord Goddard said, the court can remit an ambiguous decision for an explanation or resolution of the ambiguity, it must be right, when the matter comes before the court in the first place, that any ambiguity can be explained at that stage. Thirdly, it would require exceptional circumstances before the court was prepared to entertain evidence of any other nature to enable reasons to be given for a decision.

[59]In the present case, it seems to us that evidence as to what was meant by the “town centre” in the Decision and Recommendation must be admissible. The expression is an imprecise one to outsiders, but will have had a clear signification for the Council’s officers and Cabinet members. The evidence of Mr Price in this connection is clear and is consistent with the thrust of the other evidence.

[60]As mentioned, the officially stated contemporaneous reason for the recommendation and adoption of the Directions, in the Report and the Decision respectively, was concern about the safety of pedestrians and the congestion of traffic and unsatisfactory parking in a relatively large area, which must be taken as including at least the whole of the old, walled, town including Castle Hill. The evidence of Mr Price appears to us to indicate that “town centre” may also include a significant area to the west, ie, continuing west along the harbour shore, as well as inland, southwards from the harbour shore. If anything, therefore, the Council’s extraneous evidence as to the meaning of “town centre” assists the appellants on their second argument.

[61]The evidence which we have been given concerns the experience and aims of the Council’s Harbours Manager and the Traffic Manager. There is nothing in the evidence to suggest that the matters they now rely on formed part of the reasoning of members of the Council Cabinet in adopting the Directions. The central question, if further evidence is admissible at all, is not what officers of the Council thought or took into account, but what the Cabinet took into account on 28th June 2002.

[62]Further, the evidence of Mr Evans and Mr Price in these proceedings inevitably concentrates on the importance of the Directions from the point of view of harbour operation, because, perfectly properly, they wish to present all the evidence available to them to justify the contention that the Directions were made for harbour operational purposes. There is very likely to be other evidence, and possibly a great deal of other evidence, which could be produced in order to show that there may have been other factors, perhaps more important factors, justifying the Decision on grounds which were not connected with harbour operational purposes.

[63]In our judgment, therefore, it would be inappropriate as a matter of principle, unfair on the appellants and inconsistent with authority, if the evidence of Mr Evans and Mr Price were to be admitted in order to afford new and arguably lawful grounds for the Directions, when the stated reasons for recommending and adopting the Directions are ultra vires.

[64]In these circumstances, differing from the judge (who appears to have been addressed with rather different arguments on the point), we are of the view that the appellants’ second argument succeeds.

The third argument: irrationality

[65]So far as the third argument raised by the appellants is concerned, we entirely agree with the judge that there is nothing in the contention that the adoption of the Directions was irrational. Mr Chapman concentrated on the point that, as a result of the Directions, there would be fewer parking places than before. If that were a reason for objecting to the parking management scheme embodied within the Directions, it must be doubtful whether any parking management scheme would be upheld. Save perhaps in a most unusual case, we would have thought it almost self-evident that the introduction of a parking management scheme in a particular area would result in a reduction of the number of physically available parking spaces in that area. The whole point of such a scheme is to introduce order and regulation so as to avoid congestion, blocked streets, and danger to pedestrians, resulting from overparking and bad parking. There is no suggestion that there is anything exceptional about the scheme envisaged by the Directions in the present case, and therefore we have no hesitation in upholding the judge’s conclusion on this third argument.

The fourth argument: invasion of private property rights

[66]Mr Chapman contends that it was wrong for the Council to have adopted the Directions, insofar as they related to Castle Terrace for two reasons, which have force only when they are put together. His first reason is that the Council did not believe, at least when it adopted the Directions, that Castle Terrace was a highway. As we have mentioned, the advice to Cabinet appears to state in terms that it was not a highway, the council took that view in correspondence with the appellants, and there is nothing to suggest that it was, other than a suggestion that a public right of way may have been obtained by prescription.

[67]By itself, that would not matter, since at least one of the reasons for invoking the 1964 Act, instead of the road traffic legislation, was that the harbour legislation did not depend on the existence of a highway. It is at this juncture, therefore, that Mr Chapman’s second argument comes into play, namely that, in deploying its harbour operational management powers, the Council was obliged to have regard to the private rights of the appellants. Although the argument in this connection (which was put before the judge on a rather different basis) was advanced on Article 1 of the First Protocol, it seems to us that, even without the introduction of the Convention into domestic law, this point would probably be good.

[68]Neither Moses J (as he said) nor we are in a position to decide who owns Castle Terrace (and in particular that part of Castle Terrace which adjoins No 3) nor whether its surface is a highway. It is quite clear that the appellants had and have cogent arguments to support their contention that(a) Castle Terrace is owned by them (and by the freehold owners of Nos 1 and 2) and

(b) no public rights of vehicular passage exist over Castle Terrace. From the material already quoted, it would seem that the Council in the past indicated pretty clearly that it did not own Castle Terrace, that it did not suggest that anyone other than the adjoining freeholders owned Castle Terrace, and that it did not contend for a right of way, whether public or otherwise, over Castle Terrace. Further, the record of the police observations suggests that no part of Castle Point is regarded as public highway, and that was, of course, relayed to the Council’s Highways and Transportation Committee in January 2002.

[69]In these circumstances, it was, in our judgment, incumbent on the Council to have regard to the fact that, imposing parking restrictions on Castle Terrace might well be, and indeed on the basis of the views its officers had expressed, would be, an interference with private property rights of the appellants. We say nothing of what might have legitimately followed if parking restrictions had been imposed by the Council after giving such a fact due consideration. What in our view vitiated the decision of the Council to adopt the Directions, insofar as they affected Castle Terrace, was its omission to take a material factor into account. That factor was that if Castle Terrace was private land over which no highway ran, the effect of the Directions would be to invade a private right, which was a right recognised by the Convention, without compensation, and without proper, and possibly any, regard to whether or not such an invasion was justified.

Conclusion

[70]In these circumstances, we would allow the appeal on two grounds. The first is the second argument, namely that, assuming that the 1975 Order was valid, the reasons for adopting the Directions were not reasons significantly concerned with the operation or management of the harbour. The second ground is the fourth argument, namely, at least insofar as the Directions affected Castle Terrace directly, no, or at any rate no proper, consideration was given to the fact that the adoption of the Directions might invade a property right of the appellants without adequate justification and without compensation.