IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION CLAIM NO: 0BF90710
B E T W E E N
John Edward Pusey
Cherry Lynne Pusey
Somerset County Council
1. Heathpoult Farm, Wheddon Cross, Somerset has been owned and occupied by the claimants from about 1990. It is a 3 bedroom house with extensive outbuildings set amongst some 15 acres of land. The premises are adjacent to a crossroads involving an unclassified road on to which the property fronts and the B3224 which, although a B road, is quite busy. The land lies in the parish of Cutcombe and the whole area is part of the Exmoor National Park. There is a good aerial photograph of the property and crossroads at page 309 of the bundle and a useful map showing the road layout at page 5407.
2. On the unclassified road on the opposite side of the road to their property is an area of land which I shall call "the strip". It has been measured by the claimant's expert Mr Baker - see paragraph 4 of his report. The strip is 90 metres long and runs parallel with the unclassified road. Its surface is comprised of compacted gravel. It lies about 6 metres from the boundary of the claimant's property and commences some 15 metres or so from the junction.
3. This strip of land forms part of the highway. To that extent therefore for the purposes of the highways legislation, its ownership is vested in the defendants. I should add that it is common ground that the strip is indeed part of the highway.
4. In fact if not in law, the strip has been used as a lay-by. Until about 1996 it was also used as a "chipping landing" that is a place where the defendants stored gravel and grit. Since 1993 the claimants have been complaining about the use of the strip. On 29 September 1993 they wrote to the defendants and their letter is at page 3214 of volume 2 part 1. The letter was sent against the background of the defendants then considering the position of closing the site as a chipping landing and their, that is the claimants' general concerns about the use of the area.
5. Before going on to consider the events after 1993, I should say a brief word about the history of this strip of land. I am satisfied by the evidence of Mr Rawle (page 3027) a hale and hearty octogenarian farmer to the effect that the strip now used as a lay-by has existed for many years and certainly extends back until before the Second World War and that apart from its use as a chipping landing it has also served as a lay-by during that time.
6. Let me examine fairly briefly the history of matters between 1993 and 1997. In doing so I shall inevitably touch upon some of the complaints of the claimant as well as the stance adopted by the defendants and the attitude of local people and in particular local parish councillors. Much of the material is set out in volume 2 part 1.
23 5 94 - 3218 - the claimant says the position is getting worse - it should be noted that at this point the strip was still being used as a chipping landing.
15 2 95 - 3224 - the claimant write to Mr Yeomans, the Area Highway Manager. They say "many large lorries and cars are attracted to park on the site and we do not wish to invite overnight parking, litter, trespass and vandalism which has been experienced. You may not consider the lay-by to be a problem for high way users but this gives no recognition of the problems these people cause for us".
7 11 95 - 3234 - the minutes of the Exmoor National Park Planning Sub Committee - they granted planning permission to allow a new chipping storage area at Kennisham Hill - on its completion the existing chipping landings including Heathpoult Cross would close and the land be grassed over.
29 7 96 - 3244 - the claimants to Mr Yeoman - "since planning consent was given for a chipping site at Kennisham Hill your department has failed to comply with the planning condition requiring the landings to be returned to verge. Instead you appear to have anticipated the outcome of your proposed appeal to create substantial parking space at Heathpoult Cross by landscaping the open space rather than leaving the site partially filled... This has encouraged litter, fly-tipping, overnight parking and an increasing number of people using the site openly as a toilet."
5 8 96 - 3246 - defendant to claimants - "the filling of the landings was stopped in consultation with Exmoor National Park until our recent planning application is determined I do not propose to do any more work to them. The Highway Authority was put in a difficult position with the opposition to fulfilling the planning requirements although unfortunately it was not able to please everybody."
6 2 97 - 3260 - defendants to the National Parks Authority - the Highway Authority started to fill the landings as per the condition imposed by the planning authority when it gave approval for the Kennisham landing. Filling of the landings stopped following local objections and the site meeting where Exmoor National Park asked for a new application to be submitted. The Highway Authority have applied for a lifting of the existing conditions and are awaiting a decision as to what they wish to happen in the future."
4 3 97 - 3269 - minutes of the defendant's planning committee - note in particular 3273 - "the county secretary and solicitor reported that the application to lift conditions on this permission had been withdrawn. The imposition of the condition had not been an appropriate course of action as the landings were part of the highway and any closure required could be achieved by other means. Members offered general support for the use of these areas as lay-bys and considered that the size and sighting was a matter for the Highways Authority.
7. It is necessary now to explain the local opposition. On 27 February 1996 a meeting of the Cutcombe Parish Council took place - see bundle 4 part 2 at page 5002 and following. On 27 February 1996 the clerk to the Parish Council wrote to the defendants explaining the concerns of local people in respect of plans to grass over the strip. "As explained, this spot has provided a very useful and convenient to park during the years it has served as a highways department site for gravel etc... it also provides somewhere for lorry drivers to leave a trailer occasionally for a short time instead of taking a large articulated vehicle home through local villages and narrow roads. It can also be used for off loading to a smaller vehicle." On 26 April 1996 the clerk wrote to local councillors saying "You will recall that there was an outcry from local residents when it was seen that the lay-bys were being filled in with the apparent intention of grassing over the verges." (5004) On 14 March 1997 (5005) the clerk to the Parish Council wrote to the SCC Highways Manager referring to the annual Parish meeting which had taken place a few days earlier, this letter sets out fully the views of the local Parish Council. Set against the complaints of the claimants already referred to this letter broadly defines the battle lines between the claimants on the one hand and many local residents on the other. The upshot of the foregoing was that the strip remained in its existing condition minus the chippings and was clearly capable of use as a lay-by.
8. I shall now briefly consider the period from 1997 to 2007. In truth matters continued in much the same vein. A complaint by the claimants to the Local Government Ombudsman about the defendants' handling of the situation in the mid 90's was rejected - see the letter of the 21 August 1997 at page 4731 in volume 4 part 1. By 2000, the defendants were considering the possibility of relocating the lay-by to another near by site. There was discussion of this proposition at a meeting of the Highways Planning Board on 16 February 2000 - the minutes are in volume 2 part 1 starting at page 3378. At page 3379 the various objections are set out. It should be noted that Mrs Pusey attended the meeting and spoke at it. The objections were as follows:
"The proposed new lay-by would not be as safe in Highway terms as that which currently existed (and the reasons were then set out).
There had been no reported accidents at the lay-by during the whole time of its use.
The lay-by had existed for over 100 years without causing trouble to either users or pedestrians until Mr and Mrs Pusey moved to the farm 9 years go. Mr and Mrs Pusey's property was situated on the opposite side of the road from the existing lay-by it was also screened by a hedge.
In addition to a significant number of local residents, both Cutcombe and Exton Parish Councils objected to the proposed relocation.
Reference was made to an investigation undertaken by the Ombudsman in 1997 and his decision to support the County Council's right to retain the chipping landing.
Question was made of the extent of ownership of the site of the proposed lay-by.
There had been a number of occasions when Mr and Mrs Pusey had attempted to prevent persons using the lay-by. Further points were made in this regard.
It was unacceptable that Mr and Mrs Pusey could secure the relocation of the lay-by against the wishes of the local community simply because they were prepared to pay for it."
9. I should add that the strength of local objection to moving the site is clearly shown by the letters and documents at pages 5021 to 5030 in volume 4 part 2. It was resolved not to relocate the lay-by. The proposal had to be reconsidered because of the absence of an important councillor from the above mentioned meeting. The matter was therefore reconsidered at a meeting which took place on the 23 April 2001. The relevant documentation starts at page 3476 and following in volume 2 part 1. It is clear that the arguments for and against moving the lay-by were rehearsed. Again of particular interest was the strength of local opposition to any movement of the site. At 3498 and following there is an extensive note of what took place at a local meeting held prior to the meeting referred to above. Mrs Pusey attended that local meeting. She had also sent copies of a video which she and her husband had made showing activity at the site which had clearly been seen by other people who attended the meeting. The decision of the Executive Board is set out at page 3506. They confirmed the decision not to move the lay-by.
10. In about the year 2005, the council decided to clear out the lay-by. The claimants instructed solicitors in connection with this. Ultimately they made a complaint to the Ombudsman. The defendant council delayed the work until the Ombudsman had reported. He did report on 2 February 2006. His decision is at page 4863 of bundle 4 volume 2. The complaint was rejected. It is clear that the claimants were rehearsing arguments made on earlier occasions and which they repeat in these proceedings.
11. The current proceedings were issued on the 14 May 2010. The particulars of claim are set out between pages 53 and 56 of bundle 1. In paragraph 5, it is alleged that -
Since at least February 2001 the defendant as the relevant Highways Authority has caused or committed the strip to be used in such a manner as to cause a nuisance. In particular it has allowed it to be used at anti social hours during evenings, nights and early mornings, has allowed its use regularly to cause unreasonable noise and vibration and has allowed its use to unreasonably cause vehicle exhaust fumes to be emitted which intrude upon and materially interfere with the claimant's use and enjoyment of their land. The noise is particularly intrusive and includes sudden bangs, rumblings and thuds. In addition the defendants' maintenance employees, contractors and third parties and the operators or passengers of the vehicles parked or stationary on the strip have directed verbal abuse and other threatening and intimidating offensive and rude behaviour towards the claimants.
Further particulars are given in paragraph 7. In paragraph 9 particulars are given of the defendants' alleged failure to control the site. The allegations in paragraph 9 boil down to an assertion that the defendants failed to close the strip off to traffic. For the sake of completeness I should add that paragraph 10 asserts negligence against the defendants. This was not pursued in argument. In my view that was a correct decision. This case can only be brought in nuisance if it can be brought at all.
12. I shall now deal with the claimant's evidence. The witness statement of Mr Pusey is set out between pages 301 and 309 of volume 1. He supplemented that evidence quite extensively in the hearing before me. He repeated that his complaints boil down to excessive noise, fumes and smells, concerns about security, foul language, urination and concerns about security. He described how they had made video recordings and DVDs. He also explained how the diaries were kept. A compilation DVD covering the period 12 March 2006 to the 16 March 2007 was played to me. It was agreed that I should view this as a sample of the recordings that had been made. I should add that a full viewing of all the videos would take almost literally hundreds of hours. I summarise the extracts as follows:
12 March 2006 - car in lay-by - occupant urinates - horn of car is sounded
20 March 2006 - 2 lorries in the lay-by one of which is an oil tanker - one of the lorries does a 3 point turn in the road
22 March 2006 - 2 white vans in the lay-by and there is a transfer of an item from one van to another
28 March 2006 - a white van and a flat-bed truck are in the lay-by - the flat-bed truck does a 3 point turn into the claimant's driveway
18 April 2006 - 2 vehicles in the lay-by both of which do a 3 point turn
19 April 2006 - flat-bed lorry and flat-bed trailer are present for quite a lengthy period of time
27 April 2006 - a red lorry parks - the driver urinates behind the lorry
24 May 2006 - a large lorry is parked and there is some engine noise
30 May 2006 - a large lorry does a 3 point turn and then stops in the lay-by
31 May 2006 - a yellow lorry probably belonging to Somerset County Council is in the lay-by there seems to be some evidence of washing the lorry
27 July 2006 - fumes from a parking lorry are recorded or referred to
20 June 2006 - A flat-bed truck does a 3 point turn by the lay-by. It is probably a Somerset County Council vehicle. It is joined by another Somerset County Council vehicle which also does a 3 point turn.
1 September 2006 - a large lorry is in the lay-by - it is joined by a flat-bed lorry - it is carrying a yellow digger type implement which is unloaded in the lay-by
12 September 2006 - a big lorry reverses from the main road into the lay-by - a Land Rover and horsebox pull up behind
September 2006 - a man urinates against the side of the claimant's boundary - a cattle lorry does a 3 point turn
9 October 2006 - there is a flat bed truck in the lay-by
24 October 2006 - there is a large cattle lorry in the lay-by
26 October 2006 - there are vans in the lay-by
30 October 2006 - there is a large timber lorry in the lay-by
5 November 2006 - there are 2 cars in the lay-by, 1 man urinates
25 November 2006 - there is a van and 2 cars in the lay-by - there is a transfer of a motorbike into the van - it is suggested that this may be evidence of buying and selling taking place at the site
28 November 2006 - a small coach pulls up - someone may or may not have got out to urinate
10 January 2007 - a large lorry does a 3 point turn in the lay-by
20 January 2007 - this is a night time view - a car does a handbrake turn in the vicinity of the lay-by (the claimant asserts that this happens every 2 months or so)
2 February 2007 - there is a large at the junction which then reverses into the lane and then into the lay-by
4 March 2007 - there is a lorry and a trailer and Range Rover - cattle are unloaded from the lorry
March 2007 but undated - a large lorry is shown in the lay-by - this was shot by a handheld camera - the lorry is noisy
16 March 2007 - again this is shot with a handheld camera - it shows a big lorry in the lay-by with a degree of noise
I also watched a DVD called DVD1. What that purports to show is set out reasonably accurately in an index at pages 5440 and 5441 of the bundle. In respect of certain entries I make the following comments. Entries 1 to 19 relate to vehicles referable to the defendants. The lorry shown on the 13 March 2008 was quite noisy. Likewise the lorry shown on the 3 February 2009 was quite noisy. I agree that the entry for the 8 April 2009 shows the lorry with the driver urinating and some abuse emanating from the driver. But it is clear that the claimants spoke to him prior to his abuse. The 3 road sweepers on site on 16 June 2009 were quite noisy. Entries 23 to 47 relate to vehicles other than those belonging to the defendants. The entry for the 21 February 2007 does show a lorry driver urinating on the site and being abusive again however this was in response to an approach from the claimants. The entry for the 21 February 2010 suggests a van driver defecating on the site. It is true but the person concerned was substantially hidden behind his vehicle. The entry for the 17 September 2010 shows a cement mixer on site and the driver dumping waste from the rear of his lorry which I agree was quite noisy. The claimants kept a diary covering events between July 2005 and September 2010. These recorded in some minute detail activities on the lay-by. There was shown to me an entry for 1 day in October 2010 setting out the entirety of activity for that day. In respect of the diaries the claimants say that this is not a record of every movement and should be regarded as a sample only of what was going on. I am slightly sceptical about this assertion. In my view it is clear that they obsessively recorded as much as they possibly could in respect of any vehicle using that lay-by. In connection with the diaries it is worth noting that the defendants have prepared a précis of the diary covering the period July 2005 to September 2010. It is accepted on both sides that this précis is broadly accurate although no doubt there are some errors and omissions. My summary of the précis is as follows:
For 2005 there were 29 instances of urinating and 7 instances of swearing. Only 9 vehicles are shown to be occupying the site between 6 and 7 in the morning and 11 o'clock and midnight and only 3 vehicles on the site between midnight and 6 o'clock in the morning. The police were called on 2 occasions and there was fly-tipping on 3 occasions.
For 2006 there were 57 instances of urinating, 6 instances of swearing, there were 10 vehicles present between 6 o'clock and 7 in the morning and 11 o'clock and midnight and 6 vehicles between midnight and 6am. The police were apparently called or complained to on some 9 occasions.
For 2007 there were 44 instances of urination, 1 of swearing, 7 vehicles present between 6 and 7 in the morning and 11pm and midnight and 1 vehicle present between midnight and 6am. The police were apparently called or alerted on 27 occasions.
For 2008 there were 91 instances of urination, 14 instances of swearing, 32 vehicles present between 6 and 7 in the morning and 11pm and midnight and 5 vehicles between midnight and 6am. The police were called on some 12 occasions.
For 2009 there were 171 instances of urinating, 14 of swearing and some 78 vehicles present between 6 and 7 in the morning and 11pm and midnight with 4 vehicles present between midnight and 6am. There were 5 complaints to the police and 31 complaints to Somerset County Court.
For the period between January 2010 and the September 2010 there were 142 instances of urinating, 6 instances of swearing, 49 vehicles present between 6am and 7am and 11pm and midnight and 2 vehicles between midnight and 6am. The police were called on 11 occasions and apparently complaints were made to Somerset County Court on 17 occasions.
It is important to stand back and look dispassionately at the foregoing evidence. The reality is that there are 365 days in the year and 24 hours in the day. Set against that background it cannot be said that the usage of this lay-by was particularly great. Even in the case of people stopping and using the lay-by to urinate it does not work out even in the worst years at much more than once every 2 days or thereabouts. Any such stop will inevitably be of short duration. No doubt on many occasions people went behind their cars. In spite of what the claimants say I am quite satisfied that visibility from their property is somewhat limited particularly in Spring, Summer and Autumn when their hedges are in full bloom. I accept that there is a partial view from the driveway but the reality of the situation is that for many of these instances the claimants have to make a special trip to the bottom of their driveway in order to actually see what is going on. I regret to say that this is to some extent an indication of the obsession which they have developed with the use of the lay-by. Likewise the lorry use which is shown in the video and DVD and which is referred to in the diaries is not in my view excessive. The numbers involved are comparatively small. Much of the time the lorries are not in the lay-by for any significant period. As we shall see when we look at the evidence of the claimant's expert the noise, although intrusive is not in fact in my judgment excessive.
As is apparent from the foregoing analysis of the diaries, a recurring complaint on the part of the claimants relates to the use by Somerset County Council vehicles of the strip of land. In volume 2 at part 1 at page 3201 there is a lengthy chronology of dealings and complaints between the claimants on the one hand and Somerset County Council on the other. The claimants object to County Council vehicles using the strip of land.
13. An interesting objective assessment of the number of vehicles using the strip is provided by the claimant's expert Mr Baker whose report is dated 14 November 2010 and which is set out between pages 3101 and 3175. He monitored the site for some 17 days between the 28 August and the 14 September 2010. There were some breaks in the monitoring but in my view none of sufficient length to affect the core validity of his findings in relation to the usage of the strip. During that time a total of 105 vehicles used the strip. This is less than 7 vehicles per day. Of those 105 vehicles 69 were cars, 23 were vans and light goods vehicles and heavy goods vehicles numbered 14. The majority of visits only lasted up to 5 minutes. One third of the vehicles did do a 3 point turn in the vicinity of the strip but very few of these came into the driveway of the claimant's premises. In respect of 47 of the vehicles there was no activity at all. In respect of 30 vehicles at least 1 door from the vehicle was opened. One lorry, the delivery lorry, emitted diesel smoke. But the fumes from other vehicles was not usually identifiable. Although Mr Pusey in his cross examination asserted that he felt that the Baker findings in respect of vehicle numbers were "not fair" I am quite satisfied that they do in fact provide an interesting snapshot over a significant period of time which very much helps put matters in perspective. Property analysed I do not believe that the report or evidence of Mr Baker provides any strong support for the view that either the usage of the strip or any noise emanating there from can properly characterised as a nuisance in the sense of significantly interfering with the claimant's use and enjoyment of land. I think I can properly summarise the contents of his report as follows:-
Noise from the strip is different in character to ordinary road noise
The noise from the strip is intermittent in nature.
No fixed standard of comfort can apply to a determination of a nuisance
This area generally experiences low background levels of noise
Where noise does emerge over the background level, the greater the noise the more likely the complaint
The decibel level is one factor albeit a significant one in a setting whether or not noise is unreasonable
None of the guidelines to which he refers namely two British standard document and the World Health Organisation guidelines are directly applicable
The character of the noise from the strip differs substantially to noise from other road uses albeit that both give similar decibel levels
At paragraphs 8.2, 8.3, 8.4 and 8.5 he deals with noise levels at the premises. With great respect to him I do not find these to be of great help and to some extent they are misleading. In paragraph 8.4 he deals with daytime measurements. He has a reading of 41 decibels as the measured source noise at the dwelling. It should be noted that this reading came from 1 minutes worth of activity shortly before 3:30 in the afternoon on the 10 September 2010 when a substantial lorry was at the site. He records the background noise level as 30 decibels - it is apparent from the footnote that this was the lowest background daytime noise recorded during the monitoring period. In fact as is clear from paragraph 5.3 of his report the typical levels of background daytime noise are 39 decibels. It follows therefore that the difference between the measured noise level and the background noise level set out in paragraph 8.4 is in fact misleading and the difference between the maximum and the background is significantly less than therein set out. The night time measurements are even more misleading. These are set out at paragraph 8.5. The measured source of noise at the dwelling is shown as 51 decibels. However this figures as is apparent from the footnote relates to a daytime measurement of 1 minute on 10 September and not a night time measurement. It is apparent that no night time noise measurement approaching 51 decibels was in fact recorded during his surveillance of the site.
Whilst I fully accept the decibel level is not the only measure of the intrusive nature of noise the fact remains that the graphs produced by this expert do not support any assertion that for any significant period of time are decibel levels significantly above the general background decibel level.
It is not I think necessary to refer at any length to the evidence for the defendants in respect of factual issues. For the sake of the record I record that I read the proofs of evidence and heard evidence from Mrs MacManus, Mrs Stevens, Mrs Alison, Mrs Cressey, Mr Norman, Mr Webber, Mr Rawle (already referred to), Mr Matravers, Mr Yeomans and Mr Peake. The locals amongst those witnesses all asserted that there was a need for the lay-by and all denied having seen any offensive behaviour associated with the lay-by nor indeed any excessive use of the lay-by by other vehicles. However, one of the points raised by the defendants in their pleadings is that to some extent the claimant's have brought any abusive behaviour upon themselves. It is not necessary to go into this in any significant detail. I have already pointed out so far as the video is concerned that where abuse was shouted this was clearly in response to the presence of the claimants out of their property. However it is necessary to highlight the evidence of Mrs MacManus and Mrs Stevens. Mrs MacManus is the mayor of Haverhill in Suffolk. At Christmas time 2005 she and her husband and a disabled passenger stopped in the lay-by. She says that they were shouted at by the claimants including phrases such as "you are on private property." She was sufficiently disturbed by the incident to write a letter on the 13 January 2006. Mrs Stevens at page 3025 in volume 1 is a local. As with other locals she has never seen anything unusual or untoward happening in respect of the lay-by. She describes an incident in December 2005 on a cold day when the roads were icy. The school bus would not have be able to have picked her children up. She drove her children to the crossroads with a view to meeting the school bus there. She parked in the lay-by to wait for the bus. She noticed another mother doing the same thing. She became aware of Mr Pusey taking photographs of her and then coming across the road and accusing her and the other mother of causing a public disturbance. Apparently Mr Pusey demanded that she switch off her car engine and told her that this was "her first warning" she was sufficiently upset by the whole matter as to complain to the police. Although of course the claimant should not have to put up with abusive behaviour there is I fear as I have indicated some evidence that by their own actions they provoke a response. The evidence of the 2 woman to whom I have just referred provides compelling support for that view.
14. Viewed objectively the complaints of the claimants are extremely exaggerated. The evidence does not suggest excessive use of this lay-by. The evidence does not suggest excessive noise emanating from the lay-by. The evidence does not suggest excessive fumes coming from the lay-by. No doubt having people stop at the lay-by to relieve themselves can be upsetting but as is apparent from the analysis of the diaries these incidents when put in context of a 365 day year and a 24 hour day cannot be regarded as excessive. On the facts therefore I am not satisfied that activities on the lay-by can or do amount to an unreasonable interference with the claimant's use and enjoyment of their own land.
15. If am wrong about that I turn now briefly to consider the law in relation to whether even if there was a nuisance these defendants could be liable in respect of it. Since the famous case of Sedleigh Denfield v O'Callaghan  AC 880 it has been clear that the occupier of land could be liable in nuisance for a nuisance created by a trespasser where he became aware of that nuisance and did nothing to abate it. In Page Motors v Epsom the local authority occupiers of land were found liable in nuisance to their neighbours when that nuisance had been created by travellers camping on their land. Likewise in Lippiatt v South Gloucestershire  QB 51 the local authority were found liable for nuisance committed by travellers occupying their land in respect of acts committed by those travellers off their land. However those cases in my view are really nothing to the point so far as this case is concerned. The defendants are the Highway Authority. Accordingly their rights and liabilities largely derive from the Highways Act 1980. The strip or lay-by is part of the highway. By virtue of Section 130 of the Act the defendants have a duty to protect the rights of the public to the use and enjoyment of any highway for which they, these defendants, are responsible. The people using this stretch of road and this lay-by are not in any event to be regarded as trespassers. As the defendants say in paragraph 11 of their skeleton argument "the rights of the public to use the highway are not limited simply to passing and re-passing along it but it also includes ancillary rights such as stopping and parking. This includes the right to park on a roadside verge - see Rodgers v Ministry of Transport  1 ALL England 634". In any event the powers of the Highway Authority are somewhat limited. Pursuant to Section 116 of the Act they can apply to the Magistrates Court for the purposes of obtaining a stopping up order. It should be noted that the order would have to be made by the Magistrates and not by the Highway Authority. The real complaint of the claimants herein is that the defendants have chosen not to exercise their power to apply for an order from the Magistrates court. I emphasise the word power to distinguish it from a duty. In this connection it is worth referring to the judgment of Lord Hoffman in Stovin v Wise  AC 925 at page 953. He said "in the case of a mere statutory power there is the further point that the legislature has chosen to confer a discretion rather than create a duty... in summary I think that the minimum pre-conditions for placing a duty of care upon the existence of a statutory power if it can be done at all are first that it would be in the circumstances have been irrational not to have exercised the power so that there was in effect a public law duty to act and secondly that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised". In my view it was certainly not irrational and is not irrational of the Highway Authority not to apply for a stopping up order, they have to balance a number of interests. As is overwhelmingly apparent from the vast documentation in this case there is considerable local support for the existence of the lay-by and the Highway Authority have to balance the rights of these claimants against the rights of local inhabitants and local businesses who use this highway and who wish the lay-by to remain open.
16. In my view therefore in neither law nor fact are these defendants liable to these claimants in this action and this claim is dismissed.
Dated this 14th day of July 2011
HIS HONOUR JUDGE DENYER QC