The Times 12 December 2014
Regina (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council
Before Lord Dyson, Master of the Rolls, Lady Justice Gloster and Lady Justice King
Judgment October 31, 2014
A highway authority could lawfully enter into an agreement with a developer or other party that, after a road had been adopted as a public highway and thereby became maintainable at public expense, the other party would continue to pay a sum towards its maintenance.
The Court of Appeal so held, dismissing the appeal of the claimant developer, Redrow Homes Ltd, against the decision of Mr Michael Fordham, QC, sitting as a deputy judge of the Queen’s Bench Division ([2013] EWHC 3734 (Admin)) on the developer’s claim for judicial review of the requirement of the defendant highway authority, Knowsley Metropolitan Borough Council, that an agreement between the parties for the adoption of roads as public highways maintainable at public expense pursuant to section 38 of the Highways Act 1980 should provide for the developer to pay the costs of future maintenance of street lighting, to make a declaration that, on the proper interpretation of section 38(6), an agreement under section 38 could in law provide for the party other than the highway authority to pay a sum referable to the expenses of highways maintenance after the date on which it became maintainable at the public expense.
Mr Michael Barnes, QC, for the developer; Mr Paul Tucker, QC and Mr John Hunter for the highway authority.
THE MASTER OF THE ROLLS said that in February 2011 the developer had been granted outline planning permission to carry out a development of 525 dwellings on land at Huyton near Liverpool. The first phase included estate roads constructed by the developer. The normal course with such developments was that the roads when constructed became public highways maintainable at the public expense, usually by agreement between the developer and the local highway authority under section 38 of the 1980 act.
Both the developer and the highways authority wished in principle that that should occur. The highways authority said that it would not enter into an agreement unless it contained a provision that the developer paid £39,000, a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The developer said that no such provision could lawfully be included in a section 38 agreement.
Section 38(6) of the 1980 act was expressed in wide and unqualified terms. On its face, it permitted an agreement between a developer and a highways authority containing “such provisions as to the dedication as a highway of any road . . . the bearing of the expenses of the construction, maintenance or improvement of any highway . . . to which the agreement relates and other relevant matters as the authority making the agreement think fit.”
It could hardly be wider in its scope, in particular, nothing in the language of section 38(6) drew a distinction between what was permitted in respect of the periods before and after the road became a highway maintainable at public expense.
His Lordship rejected the developer’s submission that in fact section 38(6) was subject to the restriction that it only permitted an agreement for the construction, maintenance and improvement of a road or way before it became a highway maintainable at public expense.
First, as a matter of ordinary language, the phrase “maintainable at the public expense” connoted that the highway authority would be liable as a matter of public law to maintain the highway without indicating how the authority was required to discharge that liability. The authority could carry out the maintenance itself or make an agreement for a developer to carry out the work. It could choose to pay for the maintenance out of public funds or obtain the funds from the developer or a combination of the two.
Whichever course was adopted, the highways authority remained liable and the highway continued to be maintainable at the public expense. The use of the phrase “maintainable at the public expense” was far too slender a foundation for an argument that the apparently wide and unqualified words of section 38(6) should be given the restrictive meaning for which the developer contended rather than their plain, natural and ordinary meaning.
Second, it could be seen from such provisions as sections 44 and 278 of the 1980 Act that an act of private maintenance or an act of the provision of expenses was not inconsistent with the concept of a highway being maintainable at the public expense.
Third, section 38(1) read together with section 53 showed that parliament could not have intended to preclude the possibility of an agreement for maintenance by a developer after the dedication of a highway.
Lady Justice Gloster and Lady Justice King agreed.
Solicitors: Mr Graham Cope, Ewloe, Flintshire; Borough Solicitor, Knowsley Metropolitan Borough Council, Huyton.