Case No: CO/2255/2001
Neutral Citation Number: [2001] EWHC Admin 616
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 31st  July 2001

B e f o r e :

THE HONOURABLE MR JUSTICE SCOTT BAKER
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	ALAN KIND		Appellant	
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	NEWCASTLE-UPON-TYNE COUNCIL	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Mr Alan Kind appeared in person 
Mr Ian Ponter (instructed by Legal Services Division, Newcastle City Council for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Scott Baker:
1.	This is an appeal by way of case stated by Mr Kind from a decision of Judge Moir sitting with two justices in the crown court at Newcastle-upon-Tyne on 15 March 2001. Judge Moir allowed an appeal from the Newcastle-upon-Tyne justices who on 4 August 2000 had made the following order namely:
	“The unmade defective and disturbed parts of the thoroughfare which runs from Dinnington, past Carrs Grange Farm, to the Dinnington to Horton Grange Road, be repaired to its full width between enclosures specifically by repairing the metalled margins of carriageway in such a manner that not only the HGV’s and other vehicles pass along it but can also pass each other with safety. Such repairs to be completed by 31 March 2001.”

2.	Mr Kind’s costs of £976.95 were to be paid by the Respondent council within 28 days. In the crown court Mr Kind (at that point the unsuccessful Respondent) was ordered to pay £2000.00 towards the council’s costs.
3.	The highway with which this case is concerned is known as Prestwick Carr. It is an unclassified road in a rural area and is primarily single track and used for farm access. Traffic is generated by the local community and also includes some heavy goods vehicles and taxis which go to and from Newcastle airport. It is not a busy road. Both cyclist and walkers use it. 
4.	Mr Kind wants the road repaired so that it can be safely used by pedestrians, cyclists and horse riders. He says it is used as a rat run (although there was no finding about this) and that there is no width for HGV’s to pass cyclists and others safely. In particular he wants reinstatement of the justices’ order which in reality amounts to widening the carriageway.
5.	On 22 October 1999 Mr Kind, as he was entitled to, served a notice on the Newcastle City Council, the Respondent to the present appeal, under Section 56(1) of the Highways Act of the 1980. On 11 November 1999 the council confirmed to Mr Kind that Prestwick Carr was a highway maintainable at public expense by it as highway authority for the area.
6.	On 14 April 2000 Mr Kind laid a complaint at Newcastle-upon-Tyne Magistrates Court pursuit to Section 56(4) of the Highways Act 1980 seeking an order requiring the council to put Prestwick Carr into proper repair.
7.	On 4 August 2000, following a hearing, the justices made the order I have mentioned above. The council appealed, as it was entitled to, under Section 317 of the Highways Act 1980. The appeal was heard at the crown court on 8 December 2000 and 15 March 2001. The court visited Prestwick Carr.
8.	The questions for the opinion of the High Court are these:
	“(i) whether the crown court erred in finding that not all of the highway need be kept in repair;
	(ii) whether the crown court erred in finding that the effect of the justices’ order was to require the council to perform works of improvement rather than repair;
	(iii) whether the crown court erred by considering the present day character of the highway in determining its state of repair.”
9.	The crown court’s findings of fact included the following:
•	the highway included all of the areas between enclosures;
•	the quality of surface between the enclosures along Prestwick Carr was variable;
•	the central metalled part of the highway between the white lines painted onto it was suitable for all traffic to pass along;
•	other parts of the highway, for example the verges, were not suitable for the traffic to pass along;
•	Prestwick Carr was in a reasonable state of repair to serve the ordinary traffic making use of it;
•	to embark on the programme required by the justices’ order would involve significant upgrading and improvement, altering the character of the road.
10.	The crown court directed itself that the character of the highway is relevant when considering whether or not it is out of repair and that the appropriate question to ask is whether or not it is reasonably passable for the ordinary traffic of the neighbourhood.
11.	By Section 41 of the Highways Act 1980 the responsible authority, in this case the council, has a duty to maintain the highway. The extent of the obligation was considered by the Court of Appeal in Burnside v Emerson [1968] 1WLR 1490. Diplock L.J. said at 1496H:
	“The duty of maintenance of a highway which was, by section 38(1) of the Highways Act 1959, removed from the inhabitants at large of any area, and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.”
12.	Section 44 of 1959 Act was, for present purposes, in the same terms as Section 41 of the 1980 Act.
13.	More recently, Lord Hoffmann said in Goodes v The East Sussex County Council [2000] 1WLR 1356 at 1366:
	“In the case of the duty to repair, the road either satisfies the objective tests formulated by Diplock L.J. in Burnside v Emerson [1968] 1WLR 1490, 1497 or it does not. The requirements of that objective test may become more exacting with the passing of the years, but the court (or in former times the jury) can examine the highway and decide whether it meets the test or not.”
14.	Mr Ponter, for the council, submits that the crown court’s approach was plainly correct and that this is apparent from paragraph 4 (a) of the stated case:
	“In assessing whether or not a highway is out of repair the appropriate question to ask is whether or not it is reasonably passable for the ordinary traffic of the neighbourhood.”
15.	The crown court thus asked itself the correct question as defined by Diplock L.J. in Burnside and affirmed by Lord Hoffmann in Goodes. Whether or not Prestwick Carr met the required standard was a question of fact for the crown court. The Administrative Court will not interfere with a finding of fact unless it was one to which no crown court, properly directing itself, could reasonably have come. Not least of the hurdles Mr Kind faces in this regard is that the Crown Court had the benefit of going to see the highway.
16.	The findings of fact that I have referred to above all seem to me to be relevant to the character of the highway. Such findings are relevant in assessing whether the highway meets the necessary standard of repair.
17.	Mr Kind’s complaint is as to the crown court’s treatment of the verges. Having found that the highway comprised the whole area between enclosures i.e. including the verges, it noted that while the metalled part of the highway was suitable for all traffic to pass along the other parts were not. The finding that the verges are not suitable for all traffic does not amount to a finding that Prestwick Carr is out of repair. As Mr Ponter pointed out, the critical finding is at 4(m) in the case. Prestwick Carr is in a reasonable state of repair to serve the ordinary traffic using it. This is the application of Diplock L.J’s test in Burnside. Mr Kind wants the road repaired including the verges. He complains that the margins are not suitable for pedestrians, cyclists and horse riders. In my judgment, and Mr Kind accepts this, he is seeking to put a gloss on the words of Diplock L.J. so that they would read “put the road in such good repair as renders it reasonable passable across the length and breadth of the highway for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.”
18.	The crown court had to look at the whole highway. This it did. It correctly found that the highway included the whole of the width between the enclosures, but that does not mean that the council had an obligation to level everything and make all parts of it like a motorway, flattening banks so that vehicles could pass over them. The question was whether the highway as a whole was reasonably passable for ordinary traffic. In this regard the character of Prestwick Carr was of critical importance and the crown court clearly had this well in mind – primarily a single track road used for farm access. In truth, what Mr Kind is interested in is only the verges. I cannot accept his submission that the facts of Burnside are so different from the present case that it is dangerous and erroneous to take the “simple principle” of Burnside and apply it to this case. He says that Burnside was a case where a driver hit floodwater and was injured, but that there was no issue about the width of the road or the comparative condition between different sections of it. In my judgment, however, Diplock L.J correctly stated the principle to be applied and that principle was endorsed by Lord Hoffmann in Goodes.
19.	There is in my judgment no inconsistency between the finding that Prestwick Carr is in a reasonable state of repair to serve the ordinary traffic using it and the finding that the verges are not suitable for all traffic to pass along. The mere presence of verges, because they form the part of the highway, does not require the highway authority as part of its maintenance obligation to extend the metalled carriageway over them. Whist it may be desirable for the metalled part of the road to be wider, that is irrelevant in assessing the road’s state of repair.
20.	Having found that it was satisfied with the state of repair of the highway, the Crown Court was justified, in concluding that the effect of the justices’ order essentially requiring a widening the metalled carriageway amounted to improvement rather than repair. 
21.	Mr Kind has clearly gone to a great deal of effort in researching the law relating to highways. He has presented his case with clarity and with economy. The greater part of his analysis of the law is uncontroversial, indeed accepted by Mr Ponter. Where, however, his argument fails is in his attempt to restate the principle enunciated by Diplock L.J in Burnside. The crown court’s findings of fact are not in my judgment open to challenge. Judge Moir correctly stated the principle to be applied and then applied to the facts found. 
22.	The answer to the questions are therefore as follows:
i)	The crown court was correct in holding that not all of the highway need be kept in repair.
ii)	The crown court was correct in finding that the effect of the justices’ order was to require the council to perform works of improvement rather than repair.
iii)	The crown court was correct in considering the present day character of the highway when determining its state of repair.
23.	 The appeal must therefore be dismissed. At the conclusion of the hearing in Liverpool I heard submission as to costs Mr Kind should pay the council’s costs of this appeal which I assess at £3344.43.