Guest post by Philip Grant in a personal capacity
Willesden
Magistrates’ Court. (Image from the Courts Service website)
At the
end of my
previous guest post about Brent’s application to stop-up two areas of highway, just
to the south of Engineers Way near the Olympic Steps, I said that I would see the
Council in Court on Thursday 16 April – and I did! Brent was represented by a
barrister from Landmark Chambers, supported by the Council’s top Transport
Officer and a Senior Engineer, and by Quintain’s Head of Planning (it was
Quintain who had asked Brent to apply for the Section 116 Highways Act 1980
Order). I was represented by – me!
I
arrived early for the 2pm hearing, and had an amiable discussion with the Brent
team and their barrister, who had sent me, late that morning, a four page “Applicant’s
submission” document and a fifteen-page copy of a decided Highways Act court
case (R. v Leeds City Council, ex parte Spice) which they would be quoting from
in support of the application. I don’t know whether they thought this would
intimidate me, but I assured them that I had plenty of experience in dealing
with Statute and Case Law from my working life.
Heading
from the front page of the “Spice” High Court Judgment document.
The
Magistrate hearing the cases listed for Court 4 did not appear until around
2.30pm, but it was not because he was having a long lunch. It turned out that
he had also only received the latest documents from Brent Council that morning!
When we got to “our” Case 6, around 3pm, he asked me whether, in the
circumstances, I would like an adjournment, so that I could consider these
extra documents, and a one centimetre thick “Application Statement” (“AS”) which
Brent had submitted to the Court on 7 April. I was only passed a copy of this by
the barrister at the start of the hearing. I thanked him for the offer, but
said that I was happy to proceed, as it was in everyone’s interests for the
matter to be resolved without further delay.
Brent
Council’s “Application Statement” document.
The barrister
presented Brent’s application, setting out that the Council had complied with
all of the procedural requirements for giving notice, and stating that the
Section 116 Order was needed so that responsibility for maintaining the old
areas of unnecessary highway could pass to Quintain, who had since developed
the land. She referred to photographs in the AS showing the locations of the
highway, including those for the eastern hatched area pictured here:
The “eastern
area” photos from Brent’s Application Statement.
The
barrister’s presentation went on for around twenty minutes, and then the
Magistrate asked several questions. One was about the assurance which Quintain
had entered into with Brent, which was claimed to reinforce the Section 106 planning
condition which allowed public access to the land which was the subject of the
application. He was particularly concerned with the wording in the final
sentence of Quintain’s letter of 30 March 2023, a copy of which was at tab 11
in Brent’s AS. That sentence said:
‘Although
the land will be stopped up, Quintain can confirm that it will remain open to
the public and remain free for people to pass and repass over but for the
avoidance of doubt there is no intention by Quintain to re-dedicate the land as
highway and public access would be on a permissive basis only.’
Quintain’s
30 March 2023 letter (with personal names deleted for privacy).
The
Magistrate felt that ‘on a permissive basis only’ suggested that the public
would only have a “licence” to cross the land, not a firm legal right. Quintain’s
Head of Planning said that was not what they intended – the company simply
wished to ensure that parts of the public space could be closed off for
maintenance on the occasional day when this might be necessary. There was a
short break while a revised final sentence was drafted, which satisfied the
Magistrate’s concerns.
I was
then invited to present my case objecting to the application. I asked whether
the Magistrate had a copy of the photographs evidence document, which I had
sent to the Council in January, and had emailed a copy to
the Court Office the previous week. He looked in his online case file and said
that he had a copy, which he felt would be very useful. I then set out my arguments,
that the application was wrong in law.
Extract
from the application Plan, showing the hatched areas.
Although
I agreed with the Council that it was sensible to resolve the residual problem
of who was responsible for maintaining the hatched areas of land, they did not
need a Section 116 Order to do that. The proposed Order dealt with the land as
it is now, and it was necessary for the public to continue to have ‘a right to pass
and repass, either on foot or dependent on suitability in a vehicle’ over this
land. The draft Order sought the Magistrate’s authorisation to stop-up this
highway ‘for the purpose of all traffic and all public rights of way [to be]
extinguished.’ But he could only sign the Order if the area of highway was
unnecessary.
Two ‘key
principles’ from Brent’s “Applicant’s Submission” to the Court.
I took
the Magistrate through the photos I’d taken in January, one by one, and
referring to the “Applicable Test” section of Brent’s submission, asked whether
highway, such as Olympic Way East, was ‘unnecessary for the sort of purpose for
which Justices would reasonably expect the public to use that particular way’?
One of
my evidence photographs, showing a car crossing the hatched area into Olympic
Way East.
I also
made the point that if the Magistrate did sign the Order which Brent had
prepared, it would create two completely contradictory situations for the
hatched areas. Under the planning condition and the Quintain letter of
assurance the public had the right to cross that land. Under the proposed Order
the public’s legal right to cross those small areas of land would be
extinguished. Although the public would see no practical change in their use of
the land for now, it could create a legal nightmare in future. Public use of
the hatched highway areas was necessary, and it was the Section 116 Order which
was unnecessary.
The
Magistrate asked me whether I was aware of Section 142 of the Road Traffic
Regulation Act 1984. I admitted that I had not read or considered it. He said
that it was possible for a road not to be a “highway”, and from looking at my
photos it appeared to him that Olympic Way East was not a highway, but a ‘road
to which the public has access’. Similarly, the footway areas, such as that in
front of the Olympic Steps, were not highway, but public space to which people
had access.
The
Magistrate said that he would retire to consider his decision, but would come
back and give it verbally when he had done so. We waited in Court 4 for at
least half an hour until we rose as he returned at around 4.30pm. In summary,
he agreed with Brent that the legal status of highway was not necessary for the
two hatched areas, so he would sign a copy of the Plan. However, he commended
me for my public spiritedness in standing up for the legal right of the public to
cross and recross those areas, and said that he would not sign the Order
authorising the stopping-up of those unnecessary areas until its wording had
been changed, to remove the reference to extinguishing all public rights of way.
Both
sides left the Court satisfied with the outcome, and Council Officers emailed
me a revised draft of the Order the following morning, inviting my comments or
agreement. I recommended tidying up the wording over ‘highway maintainable at
the public expense’, and suggested that to avoid any confusion over the
previous and present uses of the hatched areas they should be described as ‘disused’
and ‘now being part of .…’ I’m pleased to say that my suggestions were accepted,
and you can see the difference between the original and final versions of the
Magistrate’s Order here:
Opening
paragraph of the Section 116 Order document.
Closing
section of the Section 116 Order document.
If the
Notice last December about Brent’s application for a Stopping-up Order had included
the final wording, I would not have objected to it. So much time and effort,
over the past few months, for myself and Council Officers, could have been
avoided. I think this underlines the point I made in my
March 2026 guest post, that if Brent had (as it used to) a General
Purposes Committee consisting mainly of experienced back-bench councillors, who
could take the time to question Officers and get things right, rather than
Cabinet members rushing through an agenda at 9.30am ahead of a 10am Cabinet
meeting, the Council could avoid making some of its bad decisions.
There
have been too many bad decisions made by Brent Council over the past decade or
more, some of them wasting millions of pounds. I hope that the elections on 7
May will see a change in the balance of power, and bring in a majority of
councillors willing to work together, across party lines where necessary, to improve
scrutiny and decision-making. Scrutiny at Brent Council has been ineffective
for too long, mainly because too much power has been in the hands of the same
Leader.
I have
done what I can, on a variety of issues, to try to hold Brent Council to account,
including as an honorary member of Martin’s unofficial “Committee” for around a
dozen years, but it is time for official and effective scrutiny to pass
back to elected councillors, where it belongs. I hope that readers will
consider that when they decide who to vote for in May’s local elections.
Philip Grant.
