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Council loses High Court battle over whether private way was a "road" under Road Traffic Regulation Act

Isle of Wight Council's decision that a privately owned way in Ryde was not a "road" for the purposes of the Traffic Regulation Act 1984 has been overturned, following a High Court legal challenge.

In Bowen & Ors v Isle of Wight Council (Rev1) [2021] EWHC 3254 (Ch) (03 December 2021) the council had refused the claimant's application for outline planning permission for a site principally on road safety grounds.

The local authority said that permission would depend on a traffic regulation order (TRO) being made pursuant to section 1 of the 1984 Act. However, it considered that such an order would be impossible because the way was not a "road" for the purposes of the 1984 Act.

Section 142 of the 1984 act defines a road as: "any length of highway or of any other road to which the public has access, and includes bridges over which a road passes."

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The road, named Guildford Road, is a cul-de-sac connected to a public highway. It has pavements on either side, and there has never been any barrier or obstacle to access it, nor has there ever been a sign to show that the road was private.

Entrance to the road for cars is barred by a gate which does not have a lock. Pedestrians can access the street by walking around it.

The court heard that local people have long used the road with cars and on foot, and that locals often park there in order to make use of local amenities.

It is also used for walking, whether singly or in company, with or without dogs, and sometimes in organised groups, and for the purpose of calling on the houses along the road without invitation, the court heard.

Judge Keyser QC, who heard the case in the Chancery Division, said: "It is common ground that Guildford Road is not a 'highway' and that, as a matter of ordinary language, it is a road. Therefore the question is whether it is a 'road to which the public has access'."

The judge said the facts showed that the general public has had and continues to have access to the road, but it was common ground they do so without any permission or other lawful right.

The claimants contended that it is sufficient that the public has access to it and that their access is tolerated, albeit not permitted, by the owners.

The council argued that public access must be pursuant to an express or implied permission; it is not enough that the public access the road as tolerated trespassers.

The judge said: "I consider that the defendant's contention and supporting arguments are open to objection on four grounds: first, they are contrary to authority; second, they make the application of the definition turn on a distinction that has nothing to do with the basic policy of the legislation; third, they introduce unnecessary complexity into decisions that have to be made regularly, in particular, by magistrates' courts when considering whether motoring offences have been committed; fourth, as I shall explain, one of the main arguments in support of the defendant's position is nothing more than an invitation to the courts to tangle themselves in a linguistic web of their own weaving."

Since 1931 the courts have treated public access as falling within the terms of the definition if it is exercised with the permission of or the tolerance of the owner of the road.

Such access may strictly speaking constitute a trespass, because a tolerated trespasser is a trespasser nonetheless, the judge said.

Concluding his judgment, he said: "[A] road will be a 'road to which the public has access', and thus within the definition of 'road' in section 142 of the 1984 Act, provided that the general public do as a matter of fact exercise access to it and provided that those members of the public 'have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied' (in the words of Lord Sands in Harrison v Hill, as approved and applied by the Divisional Court)."

As such, the enquiry is thus essentially a factual one, he added. "If the conditions are satisfied, it is, as the Divisional Court sought—apparently unsuccessfully—to make clear in Cox v White, irrelevant to enquire further whether the presence of the public on the road was merely by the tolerance of the owners or whether the tolerance is to be taken to have given implicit permission.

"The simplicity of the resulting test is welcome, for at least two reasons: first, it avoids the need for courts, when considering such matters as motoring offences, to become embroiled in, or confused by, subtle distinctions regarding when an owner's inaction does and does not imply permission; second, it avoids importing into the statutory definition a distinction that is wholly irrelevant to the statutory purpose of providing for the safety of those who may reasonably be expected to be on roads and affected by what happens on them."

In light of this, the judge found that the road is a road for under the 1984 Act as the public's access to it is sufficient for the purposes of the statutory definition.

Adam Carey

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