Clifton & Hotwells Improvement Society v Secretary of State for Transport [2005] EWHC 2254 (Admin)

Case No CO/1396/2005[2005] EWHC 2254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 21 October 2005
Before
MR JUSTICE WILKIE
Between
THE CLIFTON AND HOTWELLS IMPROVEMENT SOCIETYClaimantTHE SECRETARY OF STATE FOR TRANSPORTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Katherine OLLEY (instructed by Lovells) for ClaimantPaul BROWN (instructed by The Treasury Solicitor) for Defendant
JudgmentMR JUSTICE WILKIE :
[1]This is a statutory appeal pursuant to section 287 of the Town and Country Planning Act 1990 (“The 1990 Act”) to quash the defendant’s decision dated 12 January 2005 to make an order pursuant to section 247 of the 1990 Act. That section provides, inter alia, as follows:(1) The Secretary of State may by order authorise the stopping up or diversion of any highway if he is satisfied that it is necessary to do so in order to enable development to be carried out: (a) in accordance with planning permission granted under Part III…(2) Such an order may make such provision as appears to the Secretary of State to be necessary or expedient for the provision or improvement of any other highway.” The procedure for making orders under section 247 is governed by section 252 of the 1990 Act which provides for a local inquiry in the circumstances which arose here. It is common ground that upon a statutory appeal seeking an order quashing the Secretary of State’s order the claimant must satisfy the criteria for a successful application of judicial review. In particular, in this case, the applicant’s case is that the decision of the Secretary of State was irrational and that he failed to have regard to certain relevant matters but had regard to certain irrelevant matters.[2]The statutory appeal was initially commenced by the claimant which is a registered charity within the local community through its chairman Mr Brian Worthington. At that point certain procedural matters were being raised but Miss Olley, who has ably presented the appeal on behalf of the claimant, has indicated that these matters are not being pursued. The order in question namely: The Stopping Up of Highways (City of Bristol) number SW1 (Order 2005), orders the stopping up of “two areas of highway (footway), a total of 10.6 square metres” “adjacent to the public toilets, Suspension Bridge Road, Clifton, in the City of Bristol” “in order to enable development to be carried out in accordance with the planning permission granted under part 3 of the Act to Clifton Suspension Bridge Trust by Bristol City Council on 10 June 2003”. The development referred to is described in the schedule to the notice of the making of the order as the “Erection of a two storey building to accommodate a visitor centre, ancillary staff facilities, and public lavatories for the Clifton Suspension Bridge at the public toilets Suspension Bridge Road, Clifton, Bristol….” The inspector, in his report, described the off site highway works required by the associated section 106 agreement. They involved “building over a narrow area of footway to permit construction of the visitor centre…re-surfacing and outward extension of the footway into the carriageway (thus narrowing it) and erection of railings at the toe of the footway…formation of an uncontrolled, lit pedestrian North/South crossing point, involving drop kerbs….construction of a lay by…widening and elongation of the central carriageway refuge”.[3]The background to the matter is that the Clifton Suspension Bridge was opened in 1864, is a Grade 1 listed building and is Bristol’s leading tourist site. The Clifton Suspension Bridge Trust was established as a charity by Act of Parliament in 1952. In 1998 the trust opened a visitor centre for the bridge in accommodation in Clifton Down Road about 0.8 kilometres east of the bridge. The lease of these premises will not be renewed when it expires. On 10 June 2003 planning permission was granted by Bristol City Council for a proposed new visitors’ centre on the site of the existing public toilets in Suspension Bridge Road. The decision to grant planning permission was controversial but has not been challenged. Because the proposed visitors centre extends onto an area of footpath lying within the highway, construction of the facility required the stopping up of some 10.6 square metres of highway. Accordingly, on 15 September 2003 the trust applied for an order under section 247 of the 1990 Act. The draft order was published on 14 November 2003 and some sixty one duly made objections to it were received. A public Inquiry into the objections was held over three “very full” days on 18, 19 and 24 May 2004. The inspector carried out unaccompanied site visits on 18 and 19 May and a further visit on 25 May when he was accompanied by representatives of both the trust and the objectors. In his report dated 22 November 2004 the inspector recommended that the order be made and by decision letter dated 12 January 2005 the Secretary of State accepted the inspector’s recommendation and made the order.[4]At the Inquiry the applicant for the order called evidence from five different witnesses expert in traffic planning, traffic engineering, and civil engineering. They included a Mr Anderson who had conducted what is described as a “stage 2 safety audit” on the road scheme in the area of the bridge. The objectors called evidence from, amongst others, Mr Baker, of Mark Baker consulting engineers. His evidence was initially contained in a report dated December 2003 but was amplified at the inquiry itself.[5]The following issues of substance were investigated at the inquiry and have been advanced in the course of this appeal:(a) The question whether the reconfiguration of the footway required as a result of the closing order meant that the footway was of an inadequate width having regard to the enhanced pedestrian flow involved as a result of the development and operation of the visitor centre;(b) Whether, in the light of the development, the narrowing of the northern carriageway width in conjunction with the marginal enhancement of the size of the central reservation and the provision of railings on the footway would so compromise public safety that the disadvantages or loss likely to arise to the public as a result of the stopping up outweigh the advantages to be conferred by making the order.(c) Whether the risk to public safety arising from problems of visibility for those on the new central reservation whether looking westward or eastward were such, whether on their own or in conjunction with the aforesaid matters, as to cause the balance to be against making the stopping up order.(d) An issue which was advanced at the inquiry and raised in the appeal, but not pursued at the appeal hearing, was the question whether the narrowing of the northern carriageway leading away from the bridge was such as to compromise the safety of cyclists sufficiently, whether on its own or in conjunction with the aforesaid matters, as to cause the balance to be against the making of the stopping up order.[6]In addition, on appeal, a point has been raised that the inspector, in setting out a schedule of material at the conclusion of the report has failed to identify, and in the body of the report has failed to mention four proofs of evidence, two in particular from Dr Mary Dixon and Ms Heidi Wood. This has given rise to the impression that the inspector failed to have regard to the contents of these proofs. On this point the inspector in his evidence on the appeal has pointed out, as is the case, that these proofs of evidence were contained within a bundle of documents submitted by the appellant which was, in turn, listed as item O in his list of documents. These were proofs of evidence from persons who did not appear at the inquiry and were not read or taken as read but rather were submitted as part of a larger bundle of documents. He has indicated that he read them and took them fully into account in his report. I have no reason to doubt the truth of what he says and therefore I reject this particular ground of appeal without further consideration.[7]I now turn to deal with the individual matters already referred to.[8]The first point concerns the width of the footway once the stopping up order had been made and the consequential realignment of the footway and highway has been completed. The inspector dealt with this at paragraphs 7.8 and 7.9 of his report. First he noted that the proposed width of the footway outside the proposed visitor centre would in fact be wider than the footway outside the existing public toilets. This was common ground accepted by both the applicants for the order and the objectors. He further pointed out that the width of the proposed footway ranging between 3.45 to 4 metres and averaging 3.7 metres would exceed the Department for Transport standard for schools which, as a general guidance, suggests that footway widths should normally be of at least 3 metres outside entrances to schools and similar community buildings. In so doing, he rejected a contention of behalf of the objectors that the more appropriate standard should be that applicable to shops. He acknowledged that the usable width of the footway would be constrained by railings and by benches built into the visitor centre, a point made by the objectors. He pointed out that, even with the benches incorporated into the structure, the available width of footway would be no less than at present and, with the addition of railings, he expressed himself unconvinced that there would be any adverse effect on road safety. He was fully aware of the fact that it was contended by the objectors that the footway is regularly used by pupils from Clifton College to reach their sporting facilities on the opposite side of the bridge as he referred to this contention at paragraph 5.4.2.14 of the Report. In my judgment there is nothing in the conclusions of the inspector concerning the width of footway or the provision of benches or railings on or at the boundary of the footway which makes his conclusion that he was unconvinced that there would be any adverse effect on road safety irrational or in any way unlawful.[9]As for the width of the highway, it was an essential part of the scheme that the northern carriageway would be reduced in width to three metres which is the same width as the southern carriageway. He states in paragraph 7.10 that he heard no evidence from any of the five expert traffic engineering witnesses to suggest that there would be significant danger if both carriageways were three metres wide. Accordingly, in my judgment, there was nothing irrational or unlawful in him reaching the conclusion that the narrowing of the northern carriageway in itself imperilled public safety. He dealt in paragraph 7.11 with the impact of the narrowing of cyclists emerging from the bridge. He concluded that whilst there was little doubt that they would feel under pressure from frustrated following motorists they had two options – to pull over into the proposed lay by at the eastern end of the bridge to allow motorists to pass or, where that was not their choice or was not an option because the lay by was full, they could “press on and allow the vehicles to overtake on reaching a wider carriageway”. This, as a conclusion has not been attacked at the hearing of the appeal. In my judgment wisely so as there is nothing irrational or unlawful in the conclusion which the inspector reached on this issue.[10]The next issue concerned the central reservation. Under the scheme the width of the carriageway central reservation would be increased from its present size of 1.25 metres to 1.4 metres. The inspector concluded that there would still be some inconvenience for wheelchair users and pram/pushchair pushers who would have to turn while waiting for a gap in the traffic. That is the present position where the central reservation is narrower. A number of points have been made, however, as to the way in which the inspector dealt with this issue at paragraph 7.12 of the decision. The first is that he bore in mind that “there have been no reported personal injury accidents at the existing ‘pedestrian crossing’ and I am not persuaded that the proposed wider central reservation would be any less safe than the existing, notwithstanding the “modest” numbers who would be attracted to the proposed visitor centre”. It is said that the inspector misled himself by taking account of non existent accident statistics in respect of a “pedestrian crossing” which does not exist. It is clear from the way in which the inspector described the site at paragraph 2.2 of the report that he was well aware of the fact that there was no formal pedestrian crossing at the central reservation. Furthermore, he has said as much in his evidence on the appeal. In that evidence he points out that he visited the site and was able to see the layout of the highway and in particular the central reservation immediately opposite the public toilets. Furthermore it was part of the objectors’ own evidence to the inquiry recorded at paragraph 5.4.2.3 that, “given the highway characteristics, namely narrow carriageways, narrow central carriageway, narrow footways and pedestrian desire lines which cross Suspension Bridge Road, there is significant pedestrian vehicular conflict and the risk of accidents is high.” In my judgement he is not to be characterised as having misdirected himself or acted in any way irrationally by taking the absence of any personal injury accident statistics relating to this informal pedestrian crossing into account in assessing the overall danger to public safety of the proposed arrangements.[11]Relevant to this particular issue, and to others, there is a criticism that the inspector was irrational or misdirected himself in describing the anticipated increased level of pedestrian traffic passing by or using this development as “modest”. The undisputed figure is that there are of the order of ½ a million pedestrians who cross the Clifton Suspension Bridge each year. This is a measure of its attraction as Bristol’s major tourist attraction. I have been told by counsel for the appellant on instructions that the present figure of visitors at the current visitors centre is of the order of 12,000 per annum. The evidence before the inspector for the applicants was that the predicted usage of the visitors centre was 24,000 visitors per annum which equates to about 90 visitors a day if open 5 days a week throughout the year. That was a figure which was not accepted by the objectors who put, in cross-examination, that the figure might well be significantly higher. The inspector dealt with this aspect of the evidence at para 4.4.2.2 in his report and he says this:
“Even if the daily numbers were double that, the objectors expert witness regards the resultant flows as ‘modest’”
. In this context, in my judgment the inspector cannot be criticised for adopting the description of “modest” as an apt description of the numbers who would be attracted to the proposed visitors centre. Accordingly, insofar as the appeal is based on the alleged irrationality of that assessment, it must fail.[12]A further point in respect of the central reservation is the way in which the inspector called in aid the fact that “the highway works have passed a stage 2 safety audit”. It is said that this is a misdescription by the inspector of that document. The arguments in support of this are set out at paras 32 to 34 of the claimant’s skeleton argument. I shall return to certain aspects of the safety audit later but, in relation to this particular argument, the point is made that the safety audit identified a number of problems all of which were considered of sufficient importance to require action and some of which were considered to be more important than others. Whilst that is undoubtedly true, the inspector, in dealing with the safety audit, identified only two problems in the immediate vicinity of the proposed visitor centre and indicated that both of these had been addressed namely: to cut back overhanging vegetation and to amend the design of the refuge to include safety kerbs. (Paras 4.4.2.7and 8 of the Report). The inspector dealt with this aspect of the matter as follows at para 4.4.2.9 where he records as part of the submissions made by the Trust the following:
“Not all of the recommendations of the safety audit (although they extended beyond the immediate vicinity of the application site) were accepted but that should not be taken to imply that pedestrian safety has been compromised. The key conclusions of the independent safety audit which were taken on board by the HA were: “There have been no reported personal injury accidents at the existing ‘pedestrian crossing’ at the application site and with an insignificant increase in pedestrian traffic that is unlikely to change; but to accommodate any increased flow the central refuge island should be increased in width from approximately 1.2 metres to 1.4 metres and safety kerbs incorporated in the eastern end of the carriageway central refuge””
. Furthermore it is the fact that Mr Baker the expert for the objectors did not rely on any unimplemented safety audit recommendations in support of his contentions at the inquiry.[13]In my judgment, therefore, the inspector, in concluding as he did that “I am not persuaded that the proposed wider central reservation would be any less safe than the existing, notwithstanding the “modest” numbers who would be attracted to the proposed visitors centre” was irrational or in any way acted unlawfully in reaching that conclusion.[14]I now turn to the issue which has been the main argument advanced in support of the appeal. It concerns the issue of visibility of and by pedestrians on the central reservation. This was dealt with at para 7.13 in the report in the following terms:
“Clear westward visibility from the refuge on the central carriageway reservation would be in the order of 20 to 30 metres. That would not comply with the appropriate DFT standards (5.4.2.10). It is obvious that visibility would be impaired by queuing traffic in peak flows, at least for children and those in wheelchairs although I believe that able bodies adults would suffer little reduction in visibility. Moreover, and self evidently, queuing traffic might make it easier to cross the blocked carriageway. However visibility could be improved by moving the crossing westwards (5.4.2.10).”
This paragraph contains no assessment of the dangers posed by what it describes. In paragraph 7.16 he set out his overall conclusions in the following terms:
“From careful analysis of the determining considerations, I am satisfied that the highway works associated with the proposed visitor centre would not significantly compromise public safety. I recognised that the proposed visitor centre and siting are perhaps not ideal. But I am mindful that planning permission has been granted by BCC. Furthermore, I recognise that in an imperfect world pragmatic solutions are inevitable. I am also mindful that the highway works have passed a stage 2 safety audit and that there is no opposition from the highway authority. The existing characteristics and use are at the very least unusual and possibly unique. The outcome may not be ideal but it is workable. So on the grounds of public safety I am able to conclude that the very small area of footway to be stopped up may be regarded as surplus to requirements and I am thus content to advise that the proposal would not be detrimental to public safety.”
The first matter to be dealt with is what is said by the defendant to be a misapprehension by the appellants as to the way in which paragraph 7.13 is structured. I have the advantage of the inspector’s evidence before me in which he explains that he was well aware that, for a person on the central reservation crossing northward and therefore looking westward, there would be no queuing traffic because the traffic on that carriageway would be driving away from the constriction provided by the toll booths and the entrance to the bridge. By way of contrast a person on the central reservation proposing to cross southward, and thereby looking eastward, would, in all likelihood, at peak times be confronted with queuing traffic moving towards the bridge and the toll booths and thereby would suffer the restriction visibility described in the latter part of para 7.13. I accept that explanation. Accordingly, the suggestion that the inspector was acting irrationally or misdirecting himself in suggesting that visibility problem looking westward would be partly resolved by the fact that there would be queuing traffic is not sustainable. In my judgment there is nothing irrational or lacking in common sense in his description of the lack of visibility for a person moving southward and looking eastward in circumstances where the queuing traffic itself provides something of an obstruction to visibility, particularly for those who are not of full height or who are not able bodied. The conclusion that he draws, that stationery traffic is easier to negotiate than traffic which is free flowing, is not one which, in my judgment, can be characterised as irrational or unlawful.[15]The main issue, however, concerns those travelling northwards and looking westward. It is for those persons that it is acknowledged that clear visibility is limited to 20 to 30 metres which does not comply with the appropriate DfT standards. This is not disputed that it is a shortcoming in the design of the scheme. It appears to have been raised only for the first time at the inquiry hearing itself. It certainly does not play any part in the report of Mr Baker for the objectors dated December 2003. It is, however, apparent that it was an issue of some significance at the inquiry hearing. The inspector has described, at paras 9 to11 of his evidence on the appeal, the extent to which it featured in evidence and, in particular, in the cross-examination of the expert witnesses called by the applicants. It is also true that the stage 2 audit upon which the applicants relied was a desk top exercise and was not one which took on board the potential visibility problems from the central reservation. What is, however, not in dispute is that, although everyone was agreed that one possible solution to the shortcoming in the visibility was moving the crossing westwards, the five experts called by the applicants, namely; for the highway authority and the independent author of the stage 2 safety audit each maintained their support for the stopping up order notwithstanding the shortfall from the appropriate DfT standard in this respect. The defendant says that, in the light of that weight of expert evidence addressing, as it did, this issue, it cannot be said that the inspector was irrational in concluding, as he did in para 7.16 :
“The existing highway characteristics and use are at the very least unusual and possibly unique. The outcome may not be ideal but it is workable. So on the grounds of public safety I am able to conclude that the very small area of footway to be stopped up may be regarded as surplus to requirements and I am thus content to advise the proposal would not be detrimental to public safety.”
In so doing and in concluding that the highway works associated with the proposed visitor centre would not significantly compromise public safety the inspector was not saying that this would only be the case if the pedestrian crossing were westwards. This was a conclusion to which he was coming on the proposal before him which did not involve any such change.[16]The gist of the appellant’s case is that the inspector was confronting a situation in which there was an unanswered safety issue, an unfilled gap in the safety arrangements, and that in such a situation it was irrational of him to advise approval of the order. I do not accept this contention. I conclude that the Inspector was entitled rationally and as a matter of judgment, to accept the views of the preponderance of the traffic experts to the effect that, in this particular location, the fact that the visibility fell short of DfT standards, did not so compromise public safety as to outweigh the advantages would flow from implementation of the planning permission.[17]The Secretary of State having received the inspector’s report accepted his advice and made the order. The only issue upon which the Secretary of State did not accept the advice was the suggestion that visibility could be improved by moving the crossing westwards. This was because the suggestion was not before the Secretary of State as part of his consideration of that application. This squares with the fact that the view expressed by the inspector was in respect of the scheme as it existed and not as it might be were the pedestrian crossing to be moved westwards. The Secretary of State was faced with the inspector’s report which, concerning the scheme as it was, advised that the order sought be made. In my judgment the Secretary of State was entitled, in the exercise of his discretion, to accept that advice and to come to the conclusion, which he did, in paragraph 15 that he “…on balance agrees that any disadvantages or loss likely to arise as a result of the stopping up are not sufficiently serious to outweigh the advantages to be conferred by the proposed order.”[18]It follows that this appeal must fail. The Secretary of State for Transport must decide whether, having regard to the nature of the proposed development, the disadvantages and losses are sufficiently serious for him to refuse to make the closure order sought. That is a matter for his judgment. (Vasiliou v Secretary of State for Transport and another 1991 2 All ER 77 at page 86F). There is nothing irrational or in any way unlawful in the decision to which the Secretary of State came following upon his receipt of the inspector’s report which, in turn, contained advice which was neither irrational nor reached in any way which was unlawful.