Newry and Mourne District Council v Hamill [2017] NIQB 94 (26 May 2017)

Newry and Mourne District Council v Hamill [2017] NIQB 94 (26 May 2017)

The court held that the proposed settlement agreement was ultra vires because it purported to extinguish a public right of way without following the statutory process required by the Access to the Countryside (Northern Ireland) Order 1983. The Council could not, by private agreement, fetter its statutory duty to assert and protect public rights of way. The Attorney General's involvement was necessary to ensure the public interest was protected, and the court could not approve a settlement that circumvented statutory safeguards.

Citation
[2017] NIQB 94
Parties
Plaintiff/respondent: Newry and Mourne District Council; Defendant/appellant: Francis Hamill; Notice Party: Attorney General for Northern Ireland
Jurisdiction
Northern Ireland
Judgment Date
26 May 2017
Procedural Posture
Civil Appeal / Appeal From County Court to High Court, Preliminary Issue on Settlement Approval
Outcome
Court refused to approve the original settlement as ultra vires; parties subsequently reached a revised settlement with Attorney General's input, which was approved by consent order.
Legal Topics
Public Rights of Way, Ultra Vires, Settlement Approval, Local Authority Powers, Statutory Interpretation
Public Law Property Law Administrative Law Public Rights of Way Ultra Vires Settlement Approval Local Authority Powers Statutory Interpretation

Case Brief

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Parties

Newry and Mourne District Council

Plaintiff/respondent

Francis Hamill

Defendant/appellant

Attorney General for Northern Ireland

Notice Party

Procedural Posture

Civil Appeal / Appeal From County Court to High Court, Preliminary Issue on Settlement Approval

Legal Issues

  1. 1 Whether the court can approve a settlement agreement between a local authority and a private party that effectively extinguishes a public right of way without following statutory extinguishment procedures.
  2. 2 Whether such an agreement is ultra vires the powers of the local authority under the Access to the Countryside (Northern Ireland) Order 1983.
  3. 3 What is the role of the Attorney General in protecting the public interest in such proceedings.

Ratio Decidendi

The court held that the proposed settlement agreement was ultra vires because it purported to extinguish a public right of way without following the statutory process required by the Access to the Countryside (Northern Ireland) Order 1983. The Council could not, by private agreement, fetter its statutory duty to assert and protect public rights of way. The Attorney General's involvement was necessary to ensure the public interest was protected, and the court could not approve a settlement that circumvented statutory safeguards.

Court Disposition

Court refused to approve the original settlement as ultra vires; parties subsequently reached a revised settlement with Attorney General's input, which was approved by consent order.

Orders

  • Declaration of a public right of way on foot and by bicycle over the way X to Y as marked on the relevant map.
  • Defendant to create an opening in the wall at point 'Y' not less than 1.5m in width and a ramp over the kerbing within 10 weeks.