Guest Post by Philip Grant in a personal capacity
The meeting where submission of the Stopping-up Order application was approved.
(Note the date!)
UPDATE: Brent Council have put off the Court hearing for their Stopping-up Order application, but the main Officer involved still seems determined to go ahead with it. He wrote on 15 January:'The current position is that we have asked Willesden Magistrates Court to vacate the date next Thursday. We had originally only booked a one hour slot at 2pm, but in light of your objections, it was considered that more time would be likely to be needed for the magistrates to consider the matters at hand. Once we have been provided with a new date for the Magistrates’ Court, we will reissue the S116 Stopping Up Notice ....'
The full text of the email, and my response to it, are available in the comments section below ("For Information 3, and 4") for anyone who wishes to read them.
In a guest post on 1 January I asked: Why does Brent want to Stop-up “highway” near the Olympic Steps? I have had a couple of email exchanges with Council Officers about this matter since then, the full texts of which are included as “FOR INFORMATION” comments under that article (along with several comments from WM readers).
In the latest response, from a mid-ranking Council Officer on 8 January, it was suggested that if I had wanted to challenge the application for Brent’s proposed Stopping-up Order, I should have sought a Judicial Review of a decision made by Brent’s General Purposes Committee nearly four years ago! That was nonsense – any member of the public has the right to be heard when the application is actually made to the Magistrates’ Court.
The hearing is scheduled for 2pm on Thursday 22 January. But as I’m convinced that even making the application is a mistake, and unnecessary (and I can be very persistent when I feel strongly about something), I have tried one final attempt to make Brent Council see sense. As I had failed to convince them with words, I decided to use pictures as well. This is the text of the email that I sent on the morning of Monday 12 January to Brent’s Public Realm Director, Chief Executive and Director of Law (and I have asked Martin to include the “pictures” attachment below this post):
This is an Open Email
Dear Mr Whyte, Ms Wright and Ms Henry,
I have tried, in my emails of 2 and 8 January, to persuade Council Officers in words why Brent Council need not, and should not, pursue this Section 116 Highways Act Stopping-up Order application.
I realise that it must be frustrating when an ordinary resident seeks to tell Officers that they are "going down the wrong road", but when I can see that the present course is wrong, and that there is a right way, I feel I have a civic duty to draw this to your attention.
If my words cannot persuade you, I hope that my pictures will, so please look at the attached document. It shows that the areas of highway, which the proposed Order seeks to remove the legal right for pedestrians and vehicles to cross over, are in everyday use by the people of our borough and visitors to it.
Does Brent Council really want to embarrass itself in Court, by claiming that these areas of highway are unnecessary?
I realise that Brent
Council, and Quintain Limited, wish to resolve an outstanding problem over
these areas of land as "adopted public highway", and Highways Act
1980 does provide the right way to do that. It is Section 256, not Section
116:
[From Highways Act 1980 on www.legislation.gov.uk ]
I sincerely hope that reason and good sense can now prevail, and that the Council will withdraw its Stopping-up application from the Willesden Magistrates' Court list for Thursday 22 January. I look forward to receiving your reply, in good time before that date. Best wishes,
Philip Grant.
24 comments:
If Philip Grant wins this, this will certainly go down in the history books. Brent’s way or the highway…?
FOR INFORMATION 1:
This is the full text of the first response to my open email above, which was sent to me this morning by Brent's Team Leader (Development Control, Transport Planning):
'Dear Mr. Grant,
Thank you for your recent e-mails of 8th January and 12th January.
Firstly, stopping up under section 247 of the Town and Country Planning Act was not considered as an option as the two land parcels in question were not directly affected by the development. We have explained this in our previous email.
Secondly, prior to the application to the Magistrates’ Court, we have considered all options and sought legal advice in processing this stopping up and following that legal advice, it was decided to apply via section 116 of the Highways Act 1980.
Thank you for your suggestion on applying for the stopping up under section 256 of the Highways Act 1980, which is concerned with land exchanges for the straightening or otherwise adjusting the highway where the land to be exchanged adjoins or lies near the highway where the highway authority owns land which it proposes to convey to a third party in exchange for a conveyance of land from that third party. Whilst we are proposing to adopt land on the north side of the bollards, the freehold of both the land to be adopted and the land to be stopped up belongs to Quintain and the Council does not own adjoining or nearby land. Therefore, an exchange under S256 cannot be proposed because Quintain is the freehold owner of all the land involved. In any event, even if S256 could be used, it would have the same outcome as S116 by stopping up the highway.
I understand your concern over extinguishing right of way rights on foot or by vehicles to these small parcels of land. However, this must be considered in the context of the large areas of privately owned public realm that is managed by Quintain, including the land immediately adjacent to the areas proposed to be stopped up. Through the relevant planning permissions Quintain (and any subsequent landowner) is required to keep all of these areas open and accessible to the public. Therefore, should the Magistrates’ Court confirm the S116 order, the impact on public access or rights would be the same as the adjacent private owned public realm, but the burden on the Council finances to maintain the highway would be removed.
We can therefore confirm that we will still be proceeding with the application to the Magistrates’ Court on 22nd January.
I trust this is of help. Kind regards,
Team Leader - Development Control
Transport Planning'
Team Leader - Development Control
Transport Planning
FOR INFORMATION 2:
Following the email I received at "For Information 1" above, I had several short emails from Brent's Director of Law.
One appeared to confirm what I had been told by the Team Leader (etc.):
'Dear Mr Grant,
I understand that the client department have been liaising with an external law firm who was able to clarify the advice provided.
Director of Law.'
However, later I received (perhaps by accident - reply all?) the following:
'All,
There will be a meeting with the external law firm to discuss this matter. Kind regards,
Director of Law.'
That was a bit more encouraging! I replied to all of the Brent Council Officers this afternoon, with my actual email addressed to the two who had written to me. This is the full text:
'Dear Mr F and Ms H [names shortened],
Thank you for your emails, in reply to mine this morning. I note the position as set out by Mr F, and also that there will be a meeting with the external law firm (hopefully paid for by Quintain Limited!) to discuss the matter.
The key point to remember in that meeting is that the Court can only make the Order the Council is applying for if the Magistrates are satisfied that the area of highway shown on the Plan is unnecessary.
The evidence shows that the opposite is the case - those two areas of highway are necessary for members of the public to cross, either on foot or in a vehicle, as appropriate.
The matter you have been trying to resolve through a Section 116 application is the residual "adopted public highway", so that the Council no longer has any financial liability to maintain it, and Quintain Limited can maintain it to the same standard as their other areas of public realm at Wembley Park.
As I understand that both Brent and Quintain Limited are willing for the rights and responsibilities in respect of those two areas of land to pass from the former to the latter, I'm sure that lawyers for the two parties could resolve the problem through a written agreement between them.
It is the proposed Stopping-up Order, not the highway, which is unnecessary. I look forward to hearing that the application has been withdrawn. Best wishes,
Philip Grant.'
Love Phillip Grant, he is relentless
This proposal seems to make a lot of sense by tidying up the highways boundaries to match the back edge of pavement line. It will also make the maintenance responsibilities clear.
I appreciate Phillip Grants civic guardianship role but perhaps this isn’t the best battle to fight?
Thank you for your comment, Anonymous (13 January at 10:40).
I agree that it makes sense to tidy up the highway boundary and to clarify who is responsible for the maintenance of the two areas of land.
What I don't agree with is the way in which Brent Council (and Quintain) are proposing to do it. They don't need a Stopping-up Order, just a simple agreement between the two of them to transfer the rights and responsibilities over those two small areas of land.
An Order under Section 116 Highways Act is not the right way, because the areas of highway are not unnecessary. if the Order were to be made, it would permanently extinguish the legal right of people to pass across those areas of land, on foot or in a vehicle.
Thank you for your comment, Anonymous (12 January at 19:15), but I think you are exaggerating.
I doubt whether a "win" would be worthy of an entry in the history books, but I hope it would make Council Officers, and the elected politicians they advise, more willing to listen to members of the public who have legitimate points to raise (rather than external lawyers or consultants, whose main concern might only be how much in fees they can generate from the Council).
Let Philip Grant scrutinise the matter, he’s doing better than some councillors. And oh, wasn’t it Brent Council who didn’t even know if they owned Olympic Way when it came to the resurfacing of it, and if they were responsible for Zone X (which caused a lot of issues, as written in the government report after the Euros).
@Philip Grant - what is the status of the land nextto the areas brent are stop up that are used by the public. Are these highway?
Thank you for your question Anonymous (13 January at 14:00).
All of the land around the two areas which Brent is seeking to stop-up is owned by Quintain, but it is also highway.
"Highway" is defined as ‘a way over which members of the public have a right to pass and repass, either on foot or dependent on suitability, in a vehicle motorised or otherwise’.
Public highway can exist over private land, as it does in this case - you can walk over the paved area between Engineers Way and the Olympic Steps, or drive a car into Olympic Way East or out of Olympic Way West (I think the sections on either side of the steps are one way).
The footpath on the south side of Engineers Way, between the road and the line of safety bollards, is "adopted public highway", which Brent Council is responsible for maintaining, even though the underlying land is owned by Quintain.
The two areas that Brent is seeking a Stopping-up Order for were historically "adopted public highway", but they want to transfer responsibility for it to Quintain, and Quintain apparently wants that too, and it does make sense to do that.
It is just the way to achieve that which is the point of difference (hopefully for not much longer) between me and Brent Council.
I hope my explanation has made the position clearer for you.
@philip grant thank you for the explanation. so if this is allowed the land becomes the same as all the other quitain land surrounding it - private highway which they must let people walk on because their planning permission says so?
The "Reply all" does make me laugh! Query whether Brent Council has waived privilege over their legal advice and/or would be prepared to share that advice.
Also, advice does not equate to actual legal position. It is simply advice.
Dear Anonymous (14 January at 07:39), thank you for your follow up point.
If the Order was to be made, the two areas would still, in practice, remain public highway over private land, the same as the other areas of Quintain's land between there and the Stadium.
You might think, in that case, why am I bothering to oppose the Order?
First, on principle, because the Council's application claims that the two areas are unnecessary as highway, when that is clearly not the case.
The second reason is that an Order would, in law, permanently extinguish the right of people to cross those necessary areas of highway.
That might not matter now, but in future the owner of the land could try to enforce the Order, which would leave Brent Council having to fight an expensive legal battle, to try and maintain a right which they had foolishly applied to have taken away in 2026!
(Reminder: Quintain and Brent Council had a long argument in the past over whether Olympic Way was adopted public highway. In 2012, they reached a compromise agreement, that they would defer a costly legal battle over that, and for 25 years they would share various rights, responsibilities, income and expenses over Olympic Way.
When that agreement was made, Quintain was a publicly quoted British company. Now it is owned by a big U.S. hedge fund. Would you gamble on them not pitting their lawyers against a poor little English local council when the agreement runs out in 2037?)
FOR INFORMATION 3:
In the interests of openness and transparency, I am continuing to make all of my correspondence with the Council on this matter publicly available, so that anyone who is interested can read what has been said.
In preparation for the advertised Court hearing on 22 January, I visited the Magistrates' Court office on Tuesday to get some details, but they could find nothing on their records for that date about Brent's application. I sent this email to the Officers at Brent handling this matter on 14 January:
'Dear Mr W or S P,
Please let me know the Case Number under which your Engineers Way highway Stopping-up Order application is being dealt with at Willesden Magistrates' Court.
I asked at the Court Office yesterday afternoon, in preparation for the possible hearing on Thursday 22 January, but they could not find the case on their calendar for that date.
If that is because Brent Council has withdrawn its application, or the hearing of the application has been moved to another date, please let me know. Thank you.
Philip Grant.'
I received this reply today:
'Dear Mr. Grant,
Thank you for your e-mail. The current position is that we have asked Willesden Magistrates Court to vacate the date next Thursday. We had originally only booked a one hour slot at 2pm, but in light of your objections, it was considered that more time would be likely to be needed for the magistrates to consider the matters at hand.
Once we have been provided with a new date for the Magistrates’ Court, we will reissue the S116 Stopping Up Notice and I will separately inform you of the new date and time. We understand that there are delays in getting cases heard at the Magistrates Court, but we are hopeful that a new date will be provided relatively soon, although we still need to be able to provide 28 days’ notice of the new date.
Regards,
Team Leader - Development Control'
I will publish my response as "For Information 4" below.
FOR INFORMATION 4:
Further to "For Information 3" above, this is the email reply that I sent to Brent Council Officers (including the Chief Executive and Director of Law) on 15 January:
'Dear Mr F,
Thank you for your email of 15 January. I hope that someone at Brent would have notified me that the Section 116 application hearing had been adjourned from 22 January, without my having to contact the Council for the Magistrates' Court case number (which has still to be supplied).
The one hour slot at the Court which the Council had booked for this application might well have been enough, as presenting my objection is unlikely to have taken more than 10 minutes. Five minutes to present the evidence that the two areas of highway are not "unnecessary". Another five to show that the assurance given by Council Officers, that if the Order is granted: 'all existing pedestrian and vehicular access will remain unchanged', and that the reason for the proposed Order is that the highway is: 'no longer required as "adopted public" highway', underlines the fact that the two areas of highway are necessary.
I can understand how frustrating it must be when, after you have been dealing with the matter for four years or more, someone comes along to say you are "going down the wrong road". But that road is a dead end, as I have tried hard to explain to you and your colleagues.
Getting a new date for the Court hearing, then going through the process of reissuing a Section 116 Stopping-up Order Notice, is a further waste of your own and your colleagues' time and effort, and a waste of the Court's time, when such an Order requires the areas of highway to be "unnecessary", and that is clearly not the case.
I firmly believe that a simple agreement between Brent Council and Quintain Limited is all that is needed to transfer the rights and responsibilities over those areas of highway from one to the other, and that can be done without resorting to Section 116 Highways Act 1980.
I will be disappointed if we have to settle this in the Magistrates' Court, but I'm determined to see it through to that end if forced to do so by the Council's inability to see what is obvious from the facts. Best wishes (for an early resolution),
Philip Grant.'
I can't see Brent Council waiving legal privilege over the advice they've been given, so it would be pointless in submitting an FoI request for that advice.
However, if an elected councillor were to ask to see the advice, I think they might be entitled to do so. Unfortunately, it would be a breach of the Members Code of Conduct if they then shared that information with any members of the public!
@philp grant - thanks for the further info yesterday 15.34. this is very complicated. if quintin decide to stop access to there private highway area arent the proposed stop up areas of public highway useless - they dont go anywhere and all you could do is walk around a small area of highway?
Waste of taxpayers’ money - interested to see outcome.
What was the conclusion of this?
Dear Anonymous (4 February at 12:38), I'm sorry for not adding the latest correspondence (now For Information 5 & 6 below!), but I have been quite busy with other matters.
As indicated in the Update at the top of my guest post, hearing of the Council's application was adjourned (at Brent's request), and there is still no conclusion, and no date set for when it will be.
FOR INFORMATION 5:
I received this email from Brent's Director of Regeneration and Climate on 23 January:
'Dear Mr Grant,
Thank you for your correspondence regarding the proposed Section 116 stopping up at Engineers Way, Wembley. The correspondence has been passed to me for response as this subject sits within my area of responsibility, i.e, Transport Policy – Development Control. I appreciate you taking the time to set out your concerns and I want to respond directly and helpfully to these.
The stopping up is being progressed under Section 116 of the Highways Act 1980, which requires the Council, as highway authority, to be satisfied that the land in question is no longer necessary for highway purposes, with the final decision resting with the Magistrates’ Court. This process does, by its nature, carry an element of risk, but it is well established that where a highway authority has properly assessed the position and concluded the land is not required, the Court will give significant weight to that judgement.
That said, the removal of any public highway right is treated seriously and is not undertaken lightly. This proposal was considered by “General Purposes Committee in March 2022”, and the subsequent delay has been procedural rather than substantive, largely reflecting court backlogs rather than any change in position or urgency.
You have suggested whether alternative statutory mechanisms might apply. For clarity:
Section 247 of the Town and Country Planning Act 1990 cannot be relied upon retrospectively and, in any event, was not applicable previously as the stopping up was not necessary to enable development.
Section 256 of the Highways Act is not considered appropriate in this case. Aside from the practical issue that there is no land available for exchange, it would not address the core concern raised, namely that the land is currently ‘public highway’. Land exchange does not resolve the question of whether the area practically fulfils this function.
In practical terms, the stopping up would not result in the land becoming inaccessible or closed to the public. The area would remain open as part of the surrounding public realm, consistent with the existing layout and as required by planning permissions. Engineers Way itself would continue to function as a vehicular highway with footways on either side, providing a clear and usable public route for pedestrians and vehicles. The stopping up order was requested by Quintain as the two areas incorporate a line of hostile vehicle mitigation bollards which were installed by them and will be maintained by them. If they remain in public highway this will be an ongoing burden on the Council. The staggered nature of the former highway land does not serve any purpose as highway maintainable at public expense and does not directly connect any other ‘public highway’ in a continuous route. Notwithstanding this the stopping up does not in any way impede public access to the Olympic Steps or to the access roads: Olympic Way East and West. The stopping up process will not in any way change the layout of the public realm that is currently in place. All existing pedestrian and vehicular access will remain unchanged and accessible.
On that basis, there is a reasonable and evidence-based view that the specific areas proposed to be stopped up are no longer required as public highway.
The effect of the stopping up is primarily to regularise responsibility for maintenance and public liability, transferring this to the adjoining landowner, rather than to alter how the space is experienced or used by the public.
[Continued as 5A]
FOR INFORMATION 5A:
Email from Brent Council on 23 January continues:
'You have suggested that maintenance responsibilities might simply be transferred to Quintain through a “licence”. However, there is no provision set out in the Highways Act for the transfer of maintenance responsibilities away from the Highway Authority. Even if there were, the need to continuously renew and monitor the terms of the licence would introduce an ongoing administrative burden and cost to the Council, whilst also giving rise to complications over liability in the event of an accident to a third party.
As required by law, your objection will be properly considered by the Magistrates’ Court once a new hearing date is confirmed, and the statutory notice process will be repeated. You are, of course, entitled to present your views directly to the Court.
I hope this clarifies the Council’s position and the reasoning behind the approach being taken. Thank you for your time on this matter and please feel free to come back to me if you have any questions.
Yours sincerely,
Director of Regeneration and Climate'
FOR INFORMATION 6:
I replied to Brent's Director of Regeneration and Climate on 28 January, as follows:
'Dear Mr A,
Thank you for your email, which does helpfully set out in one place information on the Council's position previously provided to me by several other Officers.
I can see that Brent Council wants to solve a residual problem over 'highway maintainable at the public expense'. However, I believe it has fallen into the trap of trying to do that by seeking to use Section 116, which applies to "highway" in its widest sense.
The "highway" covered by Section 116 is defined in common law as ‘a way over which members of the public have a right to pass and repass, either on foot or dependent on suitability, in a vehicle motorised or otherwise’. It is public highway, rather than just 'highway maintainable at the public expense'.
As the draft Section 116 Order prepared by the Council for magistrates to sign states: 'the said area of highway be authorised to be stopped up for the purposes of all traffic and all public rights of way are extinguished over the said area of highway.'
You have said (as have other Officers before you):
'In practical terms, the stopping up would not result in the land becoming inaccessible or closed to the public. The area would remain open as part of the surrounding public realm, consistent with the existing layout and as required by planning permissions.'
However, in legal terms, a Section 116 Order would extinguish the rights of way of the public, on foot or by vehicle, to pass across those two small areas of land. It would create two completely opposite situations, one a right to pass over the land under planning permissions, and the other a total and permanent extinguishment of that right. That contradiction would be a recipe for future legal problems for Brent Council, and for the borough's residents and visitors!
Please don't try to claim that this scenario could never happen. I'm aware of the previous legal disagreements between Brent Council and Quintain over the highway status of Olympic Way. In order to avoid costly legal battles, a 25-year "truce" was agreed, which I believe expires in 2037.
When that agreement not to go to Court was signed, Quintain was a publicly listed British company, which hopefully would ensure that it acted reasonably. As far as I am aware, Quintain is now owned by a U.S. investment fund, through a Caribbean tax haven company, with a potentially more aggressive legal team which might see a single, poorly funded, London Borough as a soft target, should they wish to exploit that legal mismatch.
The way to ensure that this potential situation can not arise is to avoid a Section 116 Order.
That can happen in one of two ways. Either Brent Council withdraws its application for the Order, or we go before the Magistrates' Court, where I can show in evidence that these two areas of highway are not "unnecessary". Magistrates can only authorise an Order under Section 116 if they are satisfied that the highway in the application 'is unnecessary'.
It must be perfectly obvious to anyone at Brent Civic Centre, if nothing else, that it is necessary for vehicles to drive into and out of Olympic Way East and Olympic Way West, across land which the proposed Order would stop-up!
[Continued at For Information 6A]
FOR INFORMATION 6A:
My latest email to Brent concludes:
'It is a sensible solution to this residual problem, which both the Council and Quintain wish to resolve, for the rights and responsibilities for the "hatched" areas of land on the Plan to pass from Brent to Quintain, while the narrow stippled strips become areas of new highway which Brent is responsible for maintaining, in order to straighten the highway boundary.
I have suggested that the problem can be dealt with by a simple written agreement (I can't see where you got the idea of a "licence" from, but I have never suggested that). That would meet the Council's objective: 'to regularise responsibility for maintenance and public liability, transferring this to the adjoining landowner, rather than to alter how the space is experienced or used by the public.' It does not need to be achieved through a Section 116 Order.
I sincerely hope that someone in authority at Brent Council can see the good sense of this advice, which I have tried my best to pass on to your colleagues for the past month. If the Council cannot accept it, then we will have to let the Magistrates' Court decide on the respective merits of our differing views. In that case, please ensure that I am advised, as soon as possible, of the new date for the hearing of Brent's application. Best wishes,
Philip Grant.'
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