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KENT COUNTY COUNCIL v. CURTIS [1998] EWHC Admin 639
Monday, 15th June 1998
QUEEN’S BENCH DIVISION (DIVISIONAL COURT)
B e f o r e:
LORD JUSTICE SIMON BROWN and MR JUSTICE HOOPER

Obstruction of the Highway, Section 137(1) of the Highways Act 1980 ; whether obstruction was reasonable; Section 28 of the Town Police Clauses Act 1847; what constitutes a danger

1. LORD JUSTICE SIMON BROWN: Kent County Council appeal by way of Case Stated from the adjudication of the Thanet Justices, sitting at Margate Magistrates Court on 20th January 1998, dismissing two informations laid against the Respondent on 23rd September 1997. Those informations alleged that the Respondent:

(a) On 26 August 1997 without lawful authority or excuse, wilfully obstructed the free passage along the highway known as Royal York Mansions, The Parade, Margate, Kent. Contrary to Section 137(1) of the Highways Act 1980 and

(b) On 26 August 1997 to the danger of passengers did place a show board on the footway known as Royal York Mansions, The Parade, Margate, Kent. Contrary to Section 28 of the Town Police Clauses Act 1847 .

2. The Justices found the following facts:

“2a) The respondent was at all material times the occupier of shop premises situated at 12 Royal York Mansions, The Parade, Margate, that were known by the sign ‘Peter’s Fish Factory’.

b) On 26 August the respondent, in connection with his business, caused a show board to be placed on the pavement near his premises to advertise his shop (as indicated in the photographs marked as exhibits SE4 & 5 appended to the case).

c) The shop is well known locally, having received a number of awards. It is common knowledge within the area that this show board has been displayed outside the shop for many years, although the location of it had changed. This is because of an improvement scheme undertaken a few years ago, that sited a parking area and fence immediately opposite his shop.

d) The Highways Authority, through the Thanet 3. District Council, established a system of licensing for the display of such boards in the Thanet area, and wrote to the respondent in May 1997 to advise him of the need to apply for a licence.

e) The respondent submitted an application (exhibit SE1) for such a licence on 20 May 1997, but by letter dated 19 August 1997 (Exhibit SE3) the respondent was notified that his application had been refused.

4. The notification contained a warning about the display of show boards. The informations relate to an allegation one week after the date of the refused notification.”

5. The Appellant’s letter of 19th August 1997, refusing the Respondent’s application, stated:
“The reason for this decision is that your application submitted exceeds the limits stipulated by this Authority.”

6. The “limits stipulated” were to be found in the Appellant’s advice sheet and, so far as material, were these:
“The Authority is prepared to allow tradespeople to place goods or advertising boards on the highway up to one metre from the edge of their property, providing that there is at least two metres of available footway for the public.”

7. The Respondent’s application failed simply because, following the reconfiguration of the roadway outside his shop, he was quite unable to place an advertising board on the highway within one metre from the edge of his property in such a way as to leave at least two metres of available footway. It left two metres of available footway only when put in the position he in fact placed it.

8. The Justices in the Case Stated then summarise the parties’ respective contentions, identify all the authorities to which they were referred in argument, and continue, in paragraph 6, as follows:
“6. We were of the opinion that:
a) In placing the show board the respondent was continuing a very long standing practice, which was called into question only when the Local Authority recently adopted a licensing system. This system had been used by the respondent in an attempt to regularise his use of the show board, but as the Licensing Authority had placed strict limits upon their own ‘discretion’ to grant a licence, this particular application failed.

b) We felt strongly that this decision amounted to unfair treatment of the respondent in as much as the location of the show board could not be within the limits laid down by the Licensing Authority, and be of any value to him.The frontage of his shop was encircled by a parking area, but more significantly by a fence, which itself was bordered by a stone bench. These features, which were added only a few years ago as part of an improvement scheme, prevented the respondent from displaying the board in an area that would achieve the publicity he required, but be within the geographical limits specified by the Licensing Authority.The line of sight from the main road to the area immediately outside the premises was in itself obstructed by the improvements, and it was clear to us that this would make the geographical limits set by the licensing criteriainappropriate to these premises, at least in advertising terms.

c) In what was obviously an attempt to mitigate the impact of these circumstances the respondent chose to site the show board at the end of the fence. Had he sited it on the footpath directly opposite his premises it would have significantly reduced the width of the pavement, particularly as the stone bench seat had also narrowed it. The chosen site attracted the necessary publicity without restricting the width of the pavement to the same extent. We regarded the approach taken by the respondent as reasonable to attempting to mitigate the effect of an excessively rigorous, self imposed restriction by the Licensing Authority.

d) We found ourselves attracted by the concept of De Minimus (sic) as it was clear to us that the respondent had actively tried to site the board in an area that would cause least inconvenience. The extent to which the free passage was affected was minimal, bearing in mind that the show board was placed next to the end of a fence, at the point at which the payment area became wider. The overall width of the pavement area being reduced by only a matter of inches as a result.

e) For all these reasons we came to the conclusion that the respondent had acted reasonably, and that accordingly his use of the highway was also reasonable. We also concluded that the actual impact upon members of the public using the pavement was minimal. This led us to conclude that the respondent did not obstruct the highway, and we dismissed that information.

f) We were at a loss to understand what element of danger was alleged to attach itself to the location of the show board. There was no evidence led by the appellant as to any actual or indeed potential danger associated with this activity, nor was any apparent to us from the evidence given by any witness. We could see no inherent danger to users of the pavement, indeed it seemed to us there was more danger associated with the location of the stone bench seat that was opposite the shop, than there was associated with the show board. The bench seat was low and could be easily missed by those not concentrating, rendering the unsuspecting liable to sufficient injury if they were to fall over it. The show board by comparison was tall and therefore far more obvious. Indeed to those approaching from the direction of the stone bench it was partially obscured behind the fence.

g) Whilst we recognise that there was no need for the appellant to demonstrate actual danger, we did feel that it was necessary for some link to be established between the location of the show board and the potential for danger. We felt that it was necessary for the appellant to demonstrate how this board in this position could amount to a danger. Without this it is open to construe any street furniture as a potential danger, thereby rendering a number of public utilities and authorities liable to prosecution.

h) We also took the view that the alleged unlawfulness in the location of the board had no bearing upon the actual or potential danger, even though this seemed to be a major plank of the appellants case. Whilst a finding that the board was sited unlawfully may have implications for the appropriateness of the site, this was far removed from saying that unlawfulness itself was equated with danger.

i) We accepted that it would be possible for us to imply danger from an inappropriate location, but in our view this particular location did not give rise to such an implication. In these circumstances it was too remote to say there was a potential danger per se in the location of the board.j) The appellant had chosen to allege
(under Section 28 of the Town and Police Clauses Act) (sic) only that there was a danger, and not that there was either an obstruction or annoyance. In the absence of any direct evidence to establish actual or potential danger we concluded that there was no evidence at all upon which we could properly convict the respondent. Accordingly we dismissed that information.”

9. Two questions are posed for the opinion of the High Court:

“1. Were we right in concluding that on the facts found by us that our decision to dismiss the information under the Highways Act was correct?

2. Were we right in concluding that on the facts found by us that our decision to dismiss the information under the Town Police Clauses Act was correct?”

10. Before turning to the argument now advanced on those questions, I should next set out subparagraphs (k), (l) and (m) at paragraph 6 in the Case Stated. Those subparagraphs indicate a change of view onthe part of the Justices with regard to question (1), formed after receipt of further advice from their clerk following the Justices being asked to state a case: “

k) Upon receipt of the request to state a case we have received further advice from our Justices’ Clerk. Having regard to the advice that he has offered we now accept that our decision in respect of the allegation that the respondent caused an obstruction is incorrect. We accept that our feelings that the respondent has suffered an injustice persuaded us to consider his case in a benevolent light. We do now accept that our misgivings as to the rigidity of the Licensing Authority, and the injustice the respondent has suffered do not provide him with a sufficient defence.

l) in the light of the explanation given to us as to the effect of the cases of:
Woolverton U.D.C. -v- Willis (1962) 1 All ER 243 Torbay Borough Council -v- Cross (1995) 159 JP 652 Nagy -v- Weston (1965) 1 All ER 78
we now accept that the use of the highway could not be reasonable, especially as the policing of the show board was in defiance of a refusal to grant a licence. We further accept that the partial narrowing of the pavement created by the pavement created by the show board did restrict access. As the De Minimus (sic) principle should only apply in circumstances of ‘fractional obstructions’ this degree of restriction is sufficient to constitute a obstruction.

m) In the circumstances we invite the High Court to answer question one (the obstruction charge) in the negative. We however believe that our decision to dismiss the information under the Town Police Clauses Act was correct.”

11. I am, I confess, troubled by these last three paragraphs. It seems to me that, once the Justices have reached and pronounced their decision upon the informations, they are (subject only to section 142 of the Magistrates’ Courts Act 1980 (the slip rule) and the requirement where appropriate to state a case) strictly functus officio and they ought neither to receive nor to act upon any further advice from their clerk.

12. Amongst other objections to the course they took is that the Justices have now stated fresh conclusions which the Respondent himself might well wish to challenge but which he is in no position to do so given that these conclusions arise, for the very first time, by way of a change of mind in the stated case. Accordingly, I propose to disregard what the Justices say that they “now accept”, and to confine my consideration of the appeal within the findings made and opinions expressed by the Justices at the time.

13. I turn now to the two informations:
(1) Section 137 of the Highways Act 1980 .

14. The Justices came to two separate conclusions upon this information. They found first, that “the overall width of the pavement area being reduced by only a matter of inches”, “the extent to which the free passage was affected was minimal” so that it was de minimis . In the result they concluded, “that the respondent did not obstruct the highway”. Secondly, they found that “the Respondent had acted reasonably and that accordingly his use of the highway was also reasonable”.

15. Miss Clayton, for the Appellant County Council, challenges both these conclusions. As to the first, she relies upon a number of well-known authorities, most notably those listed in paragraph 6(l) of the Case Stated, in contending that the obstruction here, albeit exceedingly limited, was nevertheless sufficient to constitute an obstruction and beyond that properly capable of being categorised as de minimis . I, for my part, have no difficulty in accepting that submission.

16. I have greater difficulty however with her challenge to the second of the Justices’ conclusions, namely their conclusion that the use of the highway here was not an unreasonable use. That this is an issue of fact properly for the Justices when considering an information under Section 137 cannot be doubted. As Lord Parker CJ said in Nagy v Weston [1965] 1 WLR 280 at 284:
“...there must be proof that the use in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends upon all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and of course whether it does in fact cause an actual obstruction as opposed to a potential obstruction.”

17. At one stage in her argument, Miss Clayton appeared to be contending that once, as here, a local authority expressly refuse an application to place an advertisement board on the footway, the Justices cannot properly regard the subsequent placing of the board on the footway in defiance of that refusal as other than an unreasonable use of the highway. Ultimately, however, I understood her to stop short of contending that as an absolute proposition of law, and certainly, for my part, I would unhesitatingly reject it. Where, as here, a local authority have refused such an application on grounds which, to my mind, cannot properly be explained by considerations of safety, it seems to me that the board owner, if he believes that he can display his board without obstruction and without danger, is entitled to take his chance, as this Respondent did.

18. Miss Clayton sought to contend that the rigid criteria imposed by the Appellant authority were indeed properly justified by considerations of safety. For my part, however, I cannot accept that submission. There seems to me no good reason why a board placed more than one metre from the edge of the board owner’s property should necessarily, on that account, be said to be unsafe. As stated, it was only because he was unable to comply with that particular requirement that this Respondent was refused the permission sought.

19. I see nothing unlawful in the manner in which the Justices originally directed themselves with regard to the issue of reasonableness, and despite their apparent change of mind following advice upon this issue, I see no possible reason why their dismissal of the section 137 information was not perfectly lawful.

(2) Section 28 of the Town Police Clauses Act 1847 .

20. To make good this charge, the Appellant Authority had to establish that the show board was a danger to “passengers” i.e. to those using or who might use the footway. As the Justices expressly recognised, “there was no need for the Appellant to demonstrate actual danger” in the sense that it was unnecessary for the Appellants to show that any particular passer-by had actually been in danger. It was, however, clearly necessary to find that the show board realistically gave rise to a potential danger. This indeed is perfectly well illustrated by the authority upon which Miss Clayton seeks to rely, West Riding Cleaning Co., Ltd v Jowett (1938) 4 K.B.D. 21. There, Lord Hewart, L.C.J. agreed with the stipendiary magistrate’s conclusion that the cleaning of a window by standing on the sill over a public street along which passengers passed and repassed constituted a “danger to passengers” which “though not grave was sufficient and sufficiently proved to constitute danger within the meaning of the Act”.

21. In short, although it was not necessary here for the Appellants to prove that the show board constituted a grave danger, it was undoubtedly necessary for them to prove that it constituted a danger in a realistic sense.

22. The Justices here reached the clear conclusion that it did not. As emerges from a number of their conclusions expressed in subparagraphs (a), (g), (h), (i) and (j) of paragraph 6 of the Case Stated, the Justices formed the view that this board did not constitute any sort of danger, actual or potential, inferential or otherwise. How then does Miss Clayton seek to impugn this decision? First, she takes issue with what she contends to have been the fundamentally wrong approach by the Justices with regard to the evidence as a whole. She fixes upon the Justices’ statement, that “there was no evidence led by the appellant as to any actual or indeed potential danger associated with this activity...”, and submits that the Justices there betrayed their failure to have regard to the very fact of the presence of this board on the footway in determining whether or not it created a danger.

23. In my judgment, that is fundamentally to misread this decision. As that very sentence continued:
“...nor was any [danger] apparent to us from the evidence given by any witness.”

24. It seems to me perfectly plain that the Justices did indeed have regard to the evidence overall, including the very fact of the location of the board on the footway, in determining that it did not constitute any form of danger.

25. Next, the Appellants criticised the Justices for:
“their failure to take into account the reason for the local authority’s refusal of the respondent’s application to place an advertising board on the highway,”
namely, so the Appellants submit, on the grounds of safety. As I have already indicated, however, I, for my part, cannot see how safety can be said to have been the basis for refusing the Respondent’s application in the present case.

26. Next, Miss Clayton criticises the Justices for having considered the possible consequences of their decision for other public utilities and authorities. This of course is a reference to paragraph 6(g) in which the Justices say that the Appellant had “to demonstrate how this board in this position would amount to a danger”, otherwise “...it is open to construe any street furniture as a potential danger, thereby rendering a number of public utilities and authorities liable to prosecution.”

27. As Miss Clayton points out, such public utilities and authorities might well have available to them the defence of lawful authority and the Justices ought not therefore to have been concerned on their account. In my judgment, however, that consideration, needless though no doubt it was, cannot sensibly be said to have infected or indeed affected the Justices’ central conclusion that this particular board in this particular position did not actually endanger anyone actually or potentially.

28. Finally, Miss Clayton criticises the Justices for what she describes as “the comparative exercise they undertook as to the varying degrees of dangerousness associated with the show board and the stone bench located closeby”.

29. Here again, I, for my part, accept it was unnecessary for the Justices to have engaged in any such exercise, but the fact that they did so does not, in my judgment, indicate that the Justices must necessarily be taken to have found some degree of dangerousness on the part of the show board itself. As I have indicated, on many different occasions within their stated conclusions, the Justices have shown that they found to the contrary.

30. It follows from all this, that I would answer both questions posed for this Court’s opinion in the affirmative, albeit perhaps i.e. formulating the questions so as to ask whether, on the facts found, the Justices were entitled to have dismissed these respective informations? In my judgment, they plainly were. Accordingly, I would dismiss this appeal.

MR JUSTICE HOOPER: I agree.