Gee, R (on the application of) v London Borough of Lewisham [2008] EWHC 1286 (Admin)

Case No CO/8248/2006

[2008] EWHC 1286 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 22nd May 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BLAKE

Between

THE QUEEN ON THE APPLICATION OF ANDREW GEEClaimant

Between

LONDON BOROUGH OF LEWISHAMDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr S Butler (instructed by Messrs Marsh Brown and Co) appeared for Claimant

Mr M Lewis (instructed by London Borough of Lewisham Legal Department) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BLAKE: This is an application for judicial review and the relief sought is a mandatory order requiring the defendant council to make a decision on an application made by the claimant for a crossing over the footway adjacent to the public highway so that he can use a garage for his motor vehicle as a means of access to the public highways. The defendants essentially submit that this relief has become, and indeed already was, academic by the time that permission was granted because a decision has been reached and communicated in writing. To resolve the contentious matters, it is now necessary to explain the history of this matter.

[2]The claimant has a house and an associated garage and in March 2005 he applied for permission to access his garage with his motor vehicle from the public highway in Upper Brockley Road, London SE4 1TG. The actual application that he made is not exhibited because no copy of it was kept by the claimant and the copy that was sent to the defendant council's department has long since been archived. I have been invited to infer that it was probably an application made in standard form from the defendant council's website and I have also been invited to infer that such a standard form was probably in the same form as the form which is presently available, a copy of which has been supplied to the court. If both assumptions are correct, it would appear that this is a very simple form referring to section 184 of the Highways Act, to which I will turn in due course, giving name, address and dimensions of either a parking space or details about conservation area and multiple occupancy and that is it. There is a reference to a crossover in the notes, guidance and terms and conditions and there is in the terms and conditions attached to the present electronically available form the following:

"5. An officer of the council will inspect the proposed crossover site and advise the applicant of any circumstances that may constitute a danger to road users, such as walls or fences, which impair visibility or if the site is too close to a junction. The officer may suggest ways in which visibility could be improved."

And at 7 the notes of guidance says as follows:

"If your application is accepted, prior to construction commencing, the position of the crossing will be indicated by the Council using white marks. If you disagree with the location of the marks please contact the named officer."

[3]It has been pointed out by the claimant that there is available, certainly at the moment, elsewhere on the Council's website some information about dropped kerbs and crossovers. The information is in the following terms:

"If you need to cross over the footway in order to get your vehicle into your driveway, then you must, by law, have a crossover constructed. A crossover is an area of lowered pavement and kerbs which is used to give access for vehicles from a road across the pavement and onto a driveway or parking area on a private property."

[4]It is now necessary to read section 184 of the Highways Act, around which argument has focused, and I will read into this judgment the following sections:

"(1) Where the occupier of any premises adjoining or having access to a highway maintainable at the public expense habitually takes or permits to be taken a mechanically propelled vehicle across a kerbed footway or a verge in the highway to or from those premises, the highway authority for the highway may, subject to subsection (2) below, serve a notice on the owner and the occupier of the premises - (a) stating that they propose to execute such works for the construction of a vehicle crossing over the footway or verge as may be specified in the notice; or (b) imposing such reasonable conditions on the use of the footway or verge as a crossing as may be so specified. ... (5) In determining whether to exercise their powers under subsection (1) or (3) above, a highway authority shall have regard to the need to prevent damage to a footway or verge, and in determining the works to be specified in a notice under subsection (1)(a) or (3) an authority shall have regard to that and the following other matters, namely - (a) the need to ensure, so far as practicable, safe access to and egress from premises; and. (b) the need to facilitate, so far as practicable, the passage of vehicular traffic in highways. ... (11) Any person may request the highway authority for a highway maintainable at the public expense to execute such works as are specified in the request for constructing a vehicle crossing over a footway or verge in the highway, and the authority may approve the request with or without modification, or may propose alternative works or reject the request; and in determining how to exercise their powers under this subsection an authority shall have regard to the matters mentioned in subsection (5) above. (12) An authority to whom a request under subsection (11) above is made shall notify the person making the request of their decision and if they approve, with or without modification, the works proposed in the request or propose alternative works, they shall supply him with a quotation of the cost of the works as approved or proposed by them, and he may, on depositing with them the amount quoted, require them to execute those works."

[5]It is common ground between the claimant and the defendant that a person who drives a vehicle over a footway is committing an offence unless the footway has been modified to an extent approved by the highway authority that would allow him to do so safely. It was further common ground in this application that the problem facing the claimant, Mr Gee, was that in 2005 there was a raised pavement over the highway that would have to be traversed in apparent breach of the Highways Act by any vehicle entering the claimant's garage. The difference in height between the kerb and the highway has been referred to as an intrusive ridge. That is the problem that Mr Gee is faced with, which restricted, or strictly speaking prevented, him using his garage at all.

[6]He therefore applied, in one form or another, for a vehicle crossover under section 184 of the Highways Act 1980. What now follows is a summary of the response to it. It appears from an exhibit to a statement of Mr Brian Humphries of the defendant's highway authority, recently submitted in connection with these proceedings, and a print out of action taken in respect of this particular job, that in June 2005 there was telephone response to the claimant's application. The entry for 21st June reads:

"rang Mr Gee and explained crossover is currently refused due to being on a junction."

And on 22nd June a conversation between officials of the Council "who confirmed he had rang and informed customer of refusal due to the location and health & safety reasons". That note also refers to planning issues.

[7]From photographs that the court has been supplied with, it can be seen that the location of Mr Gee's garage in Upper Brockley Road is also at the corner of a junction and the original configuration of the turning immediately adjacent to the garage was a broad entry curve that would allow vehicles to turn into the road where the garage is at some high speed and doubtless that was the health and safety concern that prevented immediate approval of the claimant's desire for modification of the footway to enable his vehicle to cross it.

[8]Following the telephone exchanges recorded in the action sheet to which reference has been made, there was a letter sent by a Ms Payami of Lewisham. It was originally sent, the court has been informed, on 25th July 2005, although the present printout has a contemporary date of its last printing. The letter is in the following terms:

"Dear Mr Gee Following your recent discussions with officers I am writing to explain the current position relating to your application for a crossover. As you may be aware your property falls within an area where the Council has [been] carrying out traffic calming and our Traffic team have proposals for introducing further measures in your road. It is therefore necessary that your proposed crossover is incorporated into these measures, thus avoiding modifications to an installed crossover later on in the year."

[9]Thereafter there is no evidence of matters progressing until the early part of the following year, 2006, when Mr Gee, no doubt becoming a little impatient as to what was going on, instructed his solicitors. There is a letter of 22nd February 2006 referring to the letter that I have just recited of 25th July and asking for a response as to what was happening. There then follows, on 28th April 2006, a letter of some significance in the overall history of this matter. It is a letter from the claimant's solicitors to Mr Humphries of the highway maintenance department of the defendants and it refers to a conversation that had taken place in response to the original letter and some chasing phone calls. The letter says:

"In particular, on each occasion that we have spoken on the telephone as referred to above, you have assured us that you would confirm to us in writing the steps that have been taken so far by the Local Authority and the proposed course of action to resolve the situation. You accepted that the Council had a duty to provide proper vehicular access for our client so that he could use his garage for the purpose that it was intended and that it was incumbent upon the Local Authority to find a solution for our client to access his garage properly. You have stated that the solution would involve changing the road layout. This was so that the bend next to the garage, instead of being angled at 45 degrees would become angled at 90 degrees. This would have the effect of slowing the traffic down and making it safe for our client to access his garage. You further advised that because the road level would be raised in order to achieve the new road layout it should be unnecessary for there to be a dropped kerb which would reduce the cost to our client."

The letter continues that they were seeking, I think, written confirmation of those matters.

[10]There are then chasing letters in July to which the claimant receives the doubtless maddening pro forma card from the defendants, on more than one occasion, with a tick box saying:

"Your comments have been noted", tick; "

Necessary action will be taken", tick; and indicated to whom this has been sent. The claimant was hoping for somewhat more than that by way of response.

[11]Eventually, in October 2006, this application for judicial review was lodged. It was sent by way of service on 10th October and the deemed date of service was 12th October. However, it now appears that by that time, probably at some point in the summer of 2006, the court has been informed possibly June or July, the works briefly described in the letter of April 2006 had been carried out. There is available to the court photographs showing the junction and the footway adjacent to the garage before and after and, as that document indicated, the turn has been amended so it is a much sharper 90 degree turn. There are now double yellow lines. I understand further that there is a 20mph speed limit and there are road markings in the sense of a white line with a bar on each end, which measures the area of access to the garage that the claimant wants to use. Moreover, the gap or the drop in the intrusive ridge that was formally created by the kerbstone has been diminished, not by cutting away at the kerbstone and replacing it with a dropped kerb, leaving the level of the road the same, but by increasing the height of the tarmacked road surface. So that it is level with the pavement, eliminating the intrusive ridge that was the source of the initial problem that prevented Mr Gee using the garage without risk of violation of the Highway Act 1980. The application to the court makes no reference to the fact that these works had been done, although it would have been apparent to anyone in the locality that they had been done. The claimant has himself provided the photographs of before and after, and during the works there were road markings as to the nature of the variations.

[12]The claim form sought the relief of a mandatory

[13]The letter of 10th November 2006 and the attendance note recording an apparent agreement between the parties was not added to the papers in the application for judicial review. That application was considered by Owen J on 6th March 2007 and permission was granted for the unsurprising reason that the defendant ought to respond within a reasonable period of time. Service of the permission decision was effected by letter dated 7th March from the claimant's solicitors to the defendants. They asked for safe receipt to be acknowledged. There was a letter generated by the defendant on 9th March, referring back to the consent order and suggesting that the way forward was to provide details of the costs as previously requested in November so a consent order could be drawn up for submission. On 18th April, the claimant's solicitor wrote again to the defendant saying they have not heard a response to their letter of 7th March, therefore suggesting that they had not received the letter of 9th March. The correspondence file continues with a letter which I am told would have been dated a few days after 18th April 2007, and says in response to the letter from the claimant's solicitors:

"Thank you for your letter of 18 April. You will recall that I set out the Council's position on that in my letter of 9 March (attached). Would you please let me have a response to that."

I have been told by counsel for the claimant today, that the claimant's solicitors have no record of receiving that, in which case there was no further action taken on this matter.

[14]Eventually, a year later, the case came into the warned list and that led to a flurry of activity, the claimant, making a further witness statement, saying that there had been still been no response to his application; the defendant putting in a witness statement of their own, exhibiting the correspondence; and then came skeleton arguments from counsel suggesting either that response was outstanding or that response had been given and, in any event, the matter was academic.

[15]There has now been full exploration with counsel as to what is alleged still to be live in this case, although it took a little time to understand exactly what it was. First, I observe that there appears to be no dispute between the counsel that section 184 does not define a crossing over the footway or verge in any particular form but simply notes that a local authority may require works for construction of such a vehicle crossing as may be specified in a notice and, by contrast, section 184(11) enables a person to request a highway authority to execute works that are specified. As long as a person is given authority to cross a public footway by some form of approved modification to the footway at its interface with the highway, then in my judgment no offence is committed and there is no risk to safety or viability of access by the intervention of an intrusive ridge that would otherwise exist, causing a bumpy crossing and indeed an unauthorised bumpy crossing.

[16]It is unlikely that whatever application was made by Mr Gee was an application for a particular form of crossing over the footway, although it might very well be that, absent any other consideration, he might have expected the approval of that application to have been in terms of a special kerb stone reducing the level of the footway as opposed to works increasing the level of the highway. But it was apparent to him from the conversations and the letters that he received in 2005 that his application could not be approved on that basis alone because of the location of the junction. It therefore would have to be proceeded with in the context of traffic management works by the local authority. Those traffic management works are matters which are broader than, and thus to some extent outside the ambit of, the section 184 application ambit, although interconnect with it because a local authority cannot approve an application for a footway crossing if their crossing would create risk to health and safety and safe access and egress from the premises and safe vehicular passage to traffic on the highways.

[17]Reliance is placed by the claimant on section 184(12), which indicates that a request ought to be responded to. In my judgment the context of subsection (12) is very much who is to pay for works that the claimant requests should be undertaken. Before he can be asked to pay, there should be a response to the works proposed and the supply of a quotation and an indication whether the application is being approved, refused or modified and then, as indicated, he may, by depositing the amount quoted, require them to execute those works.

[18]In this case, as was intimated in the manuscript note at the end of the November 2006 telephone conversation between the solicitors, there was emerging a second issue which was namely whether the claimant could safely manoeuvre in and out of his garage with the various traffic calming measures that the local authority had submitted. In that manuscript note, the defendant council expressed its view orally to the claimant's solicitor that that was a separate issue. I agree with that conclusion. The claimant, understandably, has been concerned in his application and his section 184 application in correspondence to remove the intrusive ridge. That could not be done in isolation, given the location of the garage, but it was eventually done by removing the ridge by building up the highway. The claimant may or may not have any point as to whether the resulting modifications of the highway creates a risk or a danger to him when he is manoeuvring his vehicle into his garage, but that had nothing to do with the proposals that he was making for removal of the intrusive ridge so that he was not committing an offence in breach of the Highways Act.

[19]I fully accept that there was a duty on the defendant council to respond to the claimant's application within a reasonable period of time and to formally give consent in writing to whatever modifications to the existing interface between highway and footway were necessary to remove that intrusive ridge. The claimant helpfully points out that decisions under the Highways Act need to be in writing and that is not contested. I do not accept, however, that the formalities for responding to applications to authorise the very fact of traversing a footway with a vehicle required a detailed statement in writing of all the traffic management scheme that the defendant council proposed to undertake in the context of its highway management powers, and in the broader context of permitting the garage to be used, to enable the claimant to challenge those works on general health and safety grounds. The interconnection between section 184(5) and sections 184(11) and (12) are simply that the Council can refuse or modify on health and safety grounds but that affords the claimant no special locus as a specially interested party in terms of challenging highway modifications. That is not to say that the claimant may have a case for challenging modifications to the highway if it created a risk or obstruction or a nuisance to him as an occupier of adjacent land. However, that is not what this application for judicial review is concerned with or was ever concerned with and, to some extent, the complaint about highway safety has unfortunately piggybacked on a perfectly straightforward application for consent to use the modified footway lawfully for vehicle access.

[20]As the correspondence has made plain, in particular the claimant's solicitor's letter of 28th April 2006, the local authority made fully plain all the works that they intended to carry out and they did carry those works out within two months. There has not been any challenge to those works, either then or subsequently, and it is far too late in the day to challenge those works now on the ground that they are unsafe as a matter of public law discretion. Of course, if they create a nuisance in common law, the claimant will be advised as to his rights in that respect. But not a shred of evidence has been presented to substantiate that those works are causing real risk or nuisance to his use of the garage. I now address the central submission, namely has there been a response by the defendant council to this application. In my judgment, there had not been a sufficient response to this application before these proceedings were instituted in October 2006 and that, given that the claimant needed the written authority of the highway authority to traverse the footway with his vehicle to get onto the highway, he was entitled to have such a written response as contemplated by section 184. Equally, in my judgment, he eventually received such a response on 10th November 2006 pursuant to the telephone conversation of the previous day between the two solicitors. That letter made it plain that the footway can now be used as a legitimate crossover and therefore the period of uncertainty and waiting from March 2005 to November 2006 was at an end. Insofar as the claimant had to bring these proceedings to get such an acknowledgment of his right to use the footway for that purpose, he would, as was recognised in the correspondence and the offer of the Council, be entitled to his reasonable costs of so doing. However, after November 2006 the position has changed and the benefit to the claimant, or his legal rights to anything more, has been somewhat obscured. Having reviewed the matter with some care with the assistance of counsel for the claimant, I have concluded that he was not in law entitled to anything more. It is not necessary to characterise the November letter any further than as a sufficient response to the application originally made in March 2005, the whole point of which was that the claimant ought to be authorised to traverse the highway by modification of the interface with the footway. I accordingly conclude that the claimant is not today in May 2008 entitled to a mandatory order requiring a decision to be made and communicated to him. He was, as I have indicated in this judgment, entitled to a decision when he launched these proceedings and to this extent this judgment is declaratory of his rights but it does not require any further formal relief to give effect to them. For those reasons, the application for the mandatory order, which is the only relief sought in this claim form, is dismissed.

[21]MR LEWIS: I am obliged, my Lord. On behalf of the Council, I would apply for the Council's costs of resisting the application, my Lord. Your Lordship has, I think, a summary schedule from both parties.

MR JUSTICE BLAKE: I do not think I have yours, as a matter of fact.

[23]MR LEWIS: I am sorry about that. In that case, my Lord --

MR JUSTICE BLAKE: To add to the history of non-communication which this case --

[25]MR LEWIS: If I give your Lordship my copy. (handed) It is in the total of £5,650, my Lord.

MR JUSTICE BLAKE: And this arose from the period from...?

[27]MR LEWIS: Yes, that is a very important point that I was just going to say, my Lord, that it would otherwise give credit for the earlier period, but I understand -- it is only from my instructing solicitor's involvement in this matter from 15th May, my Lord, so it does not involve --

MR JUSTICE BLAKE: Of 2008?

[29]MR LEWIS: Yes, my Lord, not costs before then. It is basically only in relation to these proceedings before your Lordship in that case.

[30]MR JUSTICE BLAKE: Right. Mr Butler: principle, quantum.

[31]MR BUTLER: Three issues. May I refer you to rule 54.9, please, in the White Book.

MR JUSTICE BLAKE: Yes.

[33]MR BUTLER: My Lord, firstly, "where a person served with the claim form has failed to file an acknowledgment of service in accordance with rule 54.8", which the defendants did in this case, and it is (b), may not take part in a hearing to decide permission unless permission -- but, provided he complies with rule 54.14 or any other direction by the court, he may take part in a hearing, with is today, of a judicial review. Subsection (2) is:

"Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs."

[34]May I refer your Lordship to 54.14 please?

MR JUSTICE BLAKE: Yes.

[36]MR BUTLER: My Lord, in order to be satisfied of an award of costs, the defendant and any other person served with a claim form who wishes to contest that claim must file and serve the detailed grounds for contesting it and any written evidence within 35 days of service of the order giving permission. That means when the honourable Owen J gave permission in March 2007 the defendants were obliged, within 35 days, to actually file and serve their defence and response to it and any additional evidence.

MR JUSTICE BLAKE: Yes.

[38]MR BUTLER: And for those reasons alone under the rules, there is no discretion provided for under rule 54.14 or in fact -- there is a discretion, of course, for your Lordship pursuant to rule 54.9 but I would invite your Lordship, when taking those matters into account, that the claimant should be entitled to his costs up to the date of the letter in November 2006, because the claim form had to be issued by the claimant in order to achieve a response by the defendant in November. I have to make an observation --

[39]MR JUSTICE BLAKE: I am minded to order you receive the costs of that application, as they were agreed, and so you shall have them, subject to anything else that occurs.

[40]MR LEWIS: I do not resist that.

[41]MR JUSTICE BLAKE: I think you are being asked to respond to the defendant's costs from 15th May to today.

[42]MR BUTLER: It is, my Lord, yes. I say this, I am astonished at both parties' actions. The blame is both parties'. Both parties have a duty to update the court during an application for permission and should have done so before the honourable judge made a decision in March 2007, but, saying that, we are here today, but, my Lord, they have clearly breached -- they have not complied with the rules and they are not even permitted to put any evidence or response to your Lordship today --

[43]MR JUSTICE BLAKE: Well, I seem to have heard them without prior protest and I am grateful that I have heard them and I did not get the impression that you were prejudiced. Indeed, you were relying upon evidence which they supplied. As far as the crucial documents are concerned, that was sufficient for me to determine the merit of your legal submissions and I am afraid I very much take the point that there was apparently agreement in November 2006 and that the defendant's correspondence files suggest, at least, that is what they responded to and that the matter just seems to have gone into the ether thereafter.

[44]MR BUTLER: My Lord, may I say this: the witness statement served by the defendant, and my learned friend's skeleton argument, focused on one issue, that is the letter dated November 2006, that that in itself was a determination and a reason not to actually grant the relief sought by the claimant in these proceedings.

MR JUSTICE BLAKE: Yes.

[46]MR BUTLER: And your Lordship has concluded that the response made by the local authority -- is not entitled to a decision to be made or communicated to him but that the response made by the local authority in itself was not a decision but was given in consent, which he was required to obtain --

[47]MR JUSTICE BLAKE: I know what I have decided. Now, what do you say about costs?

[48]MR BUTLER: My Lord, that the defendants, who breached the rules pursuant to CPR 44, where there has been a failure to comply with those rules, should not be entitled to costs. There has been a blatant failure to comply. He has assisted your Lordship and I accept that and I was not going to object at the late stage, the day before the hearing, for your Lordship not to hear that or read the evidence, but they should not be entitled to their costs after 15th May 2007 and, appearing here today, it is their own conduct that has brought them here --

[49]MR JUSTICE BLAKE: Right, I have your submission and, if I were to rule against you on that submission, what do you say about quantum?

[50]MR BUTLER: Would your Lordship prefer to see the claimant's cost schedule first before addressing on quantum on that matter?

[51]MR JUSTICE BLAKE: Well, I think I have seen yours, but I think yours is a rolled up sum, is it not, throughout the whole period?

[52]MR BUTLER: It is.

[53]MR JUSTICE BLAKE: It does not break down to before and after. Obviously, you can see why I am considering this --

[54]MR BUTLER: Your Lordship may wish to assess the claimant's entitlement to costs, because one may just basically cross over with the other, otherwise it would have to be assessed.

[55]MR JUSTICE BLAKE: I am not sure that I can, since you have not broken it down into before November and after November. So what do you say about the application that is made for the costs of some £5,000 since 15th May?

[56]MR BUTLER: Well, my Lord, I can say no more than the breaches of the rules; they failed to acknowledge service at any stage in these proceedings; they turn up two days before the hearing and raise concerns; their own solicitor acknowledges in the memo that your Lordship has made reference to that a consent order should have been filed; the duty is upon both parties, if that is the case, to submit one to the court: they failed to do so and in those circumstances they should not be entitled to receive their costs and the claimant should be entitled to costs, limited to those costs incurred up to 10th November 2006.

[57]MR JUSTICE BLAKE: I have already said -- I think what I shall indicate now, to short cut further debate, that I will make an award of costs on this application, that the defendant pay the claimant the reasonable costs of the application from these proceedings until 10th November 2006. But, since I am not sure I can readily make a summary assessment of what those reasonable costs are, they would have to be taxed if not agreed. Having heard you, I think, on the principle, I accept that the defendants did not file an acknowledgment of service and that meant they lost the opportunity to object to the grant of permission, which is possibly unfortunate in this case, since I imagine that that would have prevented this court taking on a case which it probably did not need to further pursue, and so the matter has lingered on. I accept, furthermore, that, after they were served with the grant of permission, they did not seek to inform the court promptly or at all as to the matters which had happened and that that is a failure that can be reflected in the discretion about costs. However, I am equally persuaded that there was agreement that the matter could be resolved on the basis set out in the memo of 9th November and I take account of that agreement also -- it is not a part 36 offer but nevertheless it is agreement which I do take into account in awarding costs.

[58]I therefore propose to make an order requiring the claimant to pay the defendant's costs incurred in appearing today in resistance to this application. The defendant has sought costs in the total sum of £5,650, which in the circumstances does not seem to be unreasonable and excessive, but, having regard to the fact that they might have short cut the matter by filing this way back in 2007, I am going to reduce that costs to £4,000 and those are the sum of costs that I propose to make, subject to that part of the order.

[59]MR BUTLER: My Lord, is that inclusive of VAT or exclusive?

MR JUSTICE BLAKE: Well, I think these are all --

[61]MR BUTLER: My learned friend has VAT registration.

[62]MR JUSTICE BLAKE: Yes, they are all inclusive sums, and someone else can have the happy task of calculating what it breaks down to. So I am making an adjustment downwards but I an not eliminating their claim of costs. So that means you have your costs in an undetermined sum until 10th November and from that sum is to be deducted £4,000 or, if your costs do not amount to it, then the difference has to be paid by you. But, in the absence of any detailed information about what your reasonable costs were up until then, I am not sure I am going to embark upon that exercise now. I certainly will direct that the payment of costs by the claimant to the defendant be stayed until there is an opportunity to work out what your costs are and so they can proceed by set off or superfluity, but beyond that at this stage in the afternoon I am not going to --

[63]MR BUTLER: I am most grateful to your Lordship. That is a sensible approach. The parties can hopefully sought that out between themselves.

[64]MR JUSTICE BLAKE: I suspect that arguing about what reasonable is might cost more than what would reasonably be expected.

[65]MR BUTLER: It normally does. My Lord, I am instructed on one further matter, very briefly, and that is for permission to appeal on the aspect that, for the purpose of section 184 of the Act, the local authority are not required to make a decision and no decision has to be communicated to Mr Gee following receipt of an application. He is not entitled to one and --

[66]MR JUSTICE BLAKE: I refuse that application. You will have to go to the Court of Appeal and I do not accept that that is the way that this judgment has been formulated. Your client was entitled to a response to the application made and I have indicated that that was the response. What I have not grappled with, as I have concluded it is not necessary to do so, is to whether anything more than what he actually got -- sorry, what I have not grappled with is precisely how he might have characterised the decision of 10th November, but it was a response and a sufficient response. You can go to the Court of Appeal if you wish to.

[67]MR BUTLER: My Lord, in those circumstances, could I kindly ask for 21 days from the approval of your Lordship's judgment, because we are into 21 days under the rules.

MR JUSTICE BLAKE: You just want an extension of time to go to the Court of Appeal?

[69]MR BUTLER: 21 days to run, yes, from your Lordship's approving his judgment.

[70]MR JUSTICE BLAKE: Yes, I suppose that would follow. Do you have any observation upon that?

[71]MR LEWIS: No, only this, my Lord, but I cannot remember whether the general time limit for appealing to the Court of Appeal has not been foreshortened to less than 21 days.

MR JUSTICE BLAKE: In judicial review?

[73]MR LEWIS: Rule 4 of Part 52, appellant's notice -- sorry, it is 21 days, my Lord.

[74]MR JUSTICE BLAKE: Yes. I will direct that time will run from the perfection of the judgment.

[75]MR BUTLER: I am grateful.

MR JUSTICE BLAKE: Is there any other matters outstanding?

[77]MR BUTLER: My Lord, no. (pause)

[78]MR JUSTICE BLAKE: Just to inform you, I have to fill out the pro forma for refusal of permission to appeal.

[79]MR BUTLER: I apologise.

[80]MR JUSTICE BLAKE: I will read out what I have written:(1) no reasonable prospect of success;

(2) response of the 10th November was sufficient to respect the claimant's rights;

(3) no point of principle and disproportionate to pursue.

[81]Right. Does someone want the speeches in the case of Edwards?

[82]MR LEWIS: I am obliged, my Lord.

MR JUSTICE BLAKE: Thank you.

order

"... to compel the performance of a statutory duty. It is submitted that a statutory duty must be performed without unreasonable delay. The defendants have failed to act reasonably and therefore should be ordered to fulfil its duty without further delay". The terms of the mandatory order that the claimant sought is to order the defendants to notify the claimant of their decision in accordance with section 184(12) of the Highways Act 1980, the terms of which have already been noted. On receipt of this claim form, the defendant local authority did go into action, but again by way of telephone, and there was a conversation between the legal department and the defendant and the claimant's solicitor. The defendant's solicitor made a note of that conversation, which appears has been disclosed to the claimant, because it was provided in a trial bundle. It is dated 9th November 2006. I will read the pertinent parts of that note. It is in handwriting from the defendant's solicitor: "Phoned CM [that is the identity of the claimant's solicitor] to indicate the Council would not be contesting this matter as clearly it should have made a decision on his client's application. Advised CM that I had arranged for Highways to write to his client issuing consent for the crossover and that this would probably occur today. Suggested that all that needed to happen was for CM to 1. provide details of costs to date, in order that the Council could consider them; and 2. draw up a consent order for submission to the court. CM agreed." It then continues: "He then went on to explain that redesign of the junction/one way restrictions made it difficult for his client to manoeuvre while parking in garage without breaching one-way restrictions. Said this was separate matter to the JR, and that I'd ask Highways to contact his client about it." There are some further internal action notes of the defendant highway department that I need not read. The outcome of that conversation was that, on 10th November 2006, Ms Payami (it being noted this is a same person who wrote the letter of July 2005, to which reference has been made) wrote to the claimant in the following terms: "You will be aware that the Council has recently carried out a number of traffic management works outside your property to address safety concerns. These were discussed with you some months ago. Whilst these works were carried out the footway outside your garage was reconstructed to crossover standards and can now be used as a legitimate crossover. I trust that this is satisfactory."