Bowen and Others v Isle of Wight Council: ChD 3 Dec 2021

What makes a road a Road?

The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple reference to a requirement of lawfulness is capable of being rather misleading. Since 1931 the courts in this jurisdiction and in Scotland, where the same definition has applied equally, 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. But access by the public will still satisfy the definition, provided it is not exercised in the face of, or in defiance of, efforts by the owner to prevent access: that is, provided it is exercised with the owner’s tolerance. There is perfectly good reason why this should be so, and it is referred to in the cases: the, or at least an, underlying purpose of the legislation relating to traffic regulation and motoring offences, to which the definition applies, is the safety of the public who have access to the roads; and the important question is not whether their presence on the road is impliedly permitted or merely tolerated but whether the road is one on which they may reasonably be expected to be present. The case of members of the public who wilfully defy prohibitions by entering onto private land where they clearly have no right to be is, for this reason, different from the present case, where members of the public habitually use a road that appears to be no different from any other road.

His Honour Judge Keyser QC,
Sitting as a Judge of the High Court
[2021] EWHC 3254 (Ch)
Road Traffic Regulation Act 1984 1
England and Wales
CitedHarrison v Hill 1932
Mr Harrison was convicted by the Sheriff-substitute of an offence under section 7(4) of the 1930 Act on the ground that, while disqualified from holding a driving licence, he had driven a vehicle on a specific road. The Sheriff-substitute stated a . .
CitedHoughton v Scholfield QBD 1973
The Court was asked whether the cul-de-sac to which the TRO applied was a ‘road’ within the definition in section 104 of the 1967 Act. At 243-244 Lord Widgery CJ, with whom Melford Stevenson and Brabin JJ agreed, said:
‘On the question of what . .
CitedCheyne v MacNeill HCJ 1973
A motorist was convicted of an offence of driving a vehicle on a road without due care and attention contrary to section 3 of the 1960 Act. The question for the High Court was whether the road was a road to which the public had access. The road, a . .
CitedTreloar v Nute CA 1976
The judge in the County Court had rejected a claim to adverse possession by a defendant who together with his father had done a number of acts, some more trivial than others, in and around a disputed gully and adjacent land leading eventually to the . .
CitedMills and Another v Silver and others CA 6-Jul-1990
A farm’s only vehicular access was over land which was only useable occasionally when dry. The defendants laid a stone track to facilitate constant access. At first instance it was held that the earlier use had been too intermittent to allow a . .
CitedCox v White QBD 1976
Motoring offences under the 1972 Act were alleged. Justices dismissed the charges on the ground that the driving had not been proved to be on a ‘road’ within the statutory definition.
Held: The prosecutor’s appeal succeeded. the Divisional . .
CitedSpence, Regina v CACD 23-Mar-1999
There was an allegation of an offence of dangerous driving contrary to section 2 of the 1988 Act. The issue was whether the car park where the driving had taken place, not being a road, was an ‘other public place’. The case turned on the fact that . .
CitedDeacon v AT (a minor) QBD 1976
A 15-year old (Deacon or Deakin) who drove a motor car on a Council housing estate was charged with offences of driving a vehicle on a road A road in a housing estate, used only by those who resided in the estate or the visitors, and not by the . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedAdams v Commissioner of Police of the Metropolis QBD 1980
The Commissioner had been wrong to conclude that he could not bring prosecutions in respect of driving on a certain road because it was not a ‘road’ within the definition of the Road Traffic Act 1972. Having observed that ‘[c]ounsel and solicitors . .
CitedDirector of Public Prosecutins v Vivier QBD 1991
There had been a traffic accident in a large privately owned caravan park.
Held: Premises will be private where they are entered for reasons beneficial to the occupier. Referring to Harrison v Hill: ‘What Lord Sands, and indeed Lord Clyde, say . .
CitedClarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
CitedMay v Director of Public Prosecutions Admn 15-Apr-2005
Whether the car park where the driving took place was a ‘public place’ within the meaning of section 3.
Held: The appeal failed.
Laws LJ set out the following propositions as accurately summarising the relevant legal principles:
a. . .
CitedHallett v Director of Public Prosecutions Admn 8-Mar-2011
The defendant appealed by case stated against his conviction for driving with excess alcohol. He said that the ‘service road’ on which he had driven was not a ‘road or public place’.
Held: ‘The issue in this case being narrow, help to be . .
CitedPereira, Regina (on The Application of) v London Borough of Southwark Admn 3-Apr-2020
Judicial review of the decision by a review adjudicator to uphold a penalty notice issued by a local authority to the claimant for parking on a pavement forming part of a road. For part of its width, including the part where the vehicle had been . .
CitedDirector of Public Prosecutions v Richardson Admn 27-Nov-2014
The appellant had been convicted by justices of an offence of being in charge of a mechanically propelled vehicle on a public place while unfit through drink, contrary to section 4 of the 1988 Act. The issue was whether the vehicle was on a public . .

Lists of cited by and citing cases may be incomplete.


Updated: 15 December 2021; Ref: scu.670315