R (on the application of Spice and others) v Leeds City Council

[2006] EWHC 661 (Admin), LTL 27 February 2006

27th February 2006

High Court


The claimants owned and occupied three of twelve houses in a cul-de-sac in Leeds known as The Laurels, which was an adopted highway. They requested the defendant, in its capacity as highway authority, to apply to the magistrates for an order stopping up part of the highway under section 116 of the Highways Act 1980, on the basis that it was unnecessary as a highway. The part in question (of which they owned the sub-soil) lay between the made-up road and the rear boundary fence of another property. It was covered with a dense growth of laurel shrubs and had never been maintained by the defendant. The defendant refused to make such an application. The claimants challenged its refusal by way of judicial review. Before trial, the defendant accepted that its decision not to accede to the request was legally flawed, in that (among other things) it had failed to give proper consideration to whether the strip in question was needed for public passage; and that the decision should be quashed. However, the matter proceeded to trial so that the court could also adjudicate on the continuing dispute between the parties about the proper approach for the defendant to adopt on reconsidering the claimants’ request.

A highway authority has a broad discretion in deciding whether to accede to a request under section 117 of the Highways Act 1980 to apply to the magistrates for an order under section 116 of that Act stopping up a highway, and is not confined to considering whether the relevant highway is necessary for public passage. It should consider all the factors which would in due course be relevant to the magistrates’ consideration. In deciding whether a highway is ‘unnecessary’, the starting point is whether it is used for public passage, but it is also necessary to consider whether it is performing any other highway function, relating (for example) to safety, amenity, or access for third parties.

This case provides guidance for highway authorities considering how to respond to requests made under section 117 of the Highways Act 1980 to apply to the magistrates for orders under section 116 of that Act stopping up (and, by analogy, diverting)highways; and also alerts persons proposing to make such a request to the range of issues which may have to be addressed.

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