Cheyne 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 private road, provided a link between two public roads and formed a convenient link between two populous areas and ‘a material number of members of the public’ had driven along it without permission. There had never been a physical barrier to access at either end of the road, but on one day each year for the previous few years the occupiers of the private land had placed a barrier roughly halfway along the road to prevent drivers from proceeding further. There were reasonably prominent notices at each end of the road indicating that it was private and that there was no admittance except for those with business at the occupier’s premises. In the two or three years before the alleged offence, the occupier’s security officers had challenged some but not all motorists whom they believed to have no business at the occupier’s premises and told them that persons with no such business had no right to use the road; some drivers turned back but others continued along the road.
The High Court upheld the finding that the road in question was a ‘road’ for the purposes of the statutory definition. It considered that, as the policy of the legislation was public protection, the test properly focused on the likely presence of members of the public rather than on their legal right to be on the road. The single Opinion of the Court said at 29-30:
‘In deciding what is the proper construction to be put on the critical words [i.e. ‘road to which the public has access’], the purpose of the relevant statutory provisions has always to be kept in view. Plainly the purpose is to secure the safety of the public whose members may be upon or passing over the ways within the scope of the provisions. The question then is not one of determining the measure or extent of the statutory protection by reference to the measure or extent of the legal right of access or passage which members of the public can enforce or enjoy over a particular way, but whether the way is one on which members of the public may be expected to be found and over which they may be passing, or to which they are in use to have access.’
The Court then explained, in the light of this, what was meant by the requirement that the access be exercised ‘lawfully’ or ‘legally’:
‘The statute does not in terms require that the access upon which the issue of liability to the statutory provisions depends shall be in respect of any legally enforceable rights of passage. Further, the definition contrasts ‘highway’ with the words ‘road to which the public has access’. Upon a ‘highway’ the public right of passage is secured by law and its maintenance is the responsibility of a statutory authority. A ‘road’ within the meaning of the definition would therefore seem to include a way which need not possess either of these qualities. From this contrast, it is not difficult to infer that the words ‘to which the public has access’ are necessarily referable to a situation in which it is found-in-fact that the public has access – access for the purpose for which a road is intended or designed, i.e., passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g., by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion ‘access’, as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise, it can properly be said that there is nothing illegal or unlawful in such access as the public is proved to enjoy, and therefore that the public has access lawfully to the road. In using the word ‘lawfully’ we would attach to it the meaning which was given to the word ‘legally’ by Lord Justice-General Clyde in Harrison v. Hill, 1932 J.C. 13, (1931 S.L.T. 598), at p. 16 where he said: ‘There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor.’ It is in this sense that the use of the word ‘legally’ in the opinion of the Lord Justice-General in the case of Hogg v. Nicholson, 1968 S.L.T. 265 is also to be understood.
If this is the proper construction of the words ‘to which the public has access’, as in our opinion it is, then the question in every case becomes one of evidence, i.e., whether the facts proved establish such an access by the public. What will suffice to prove such an access must necessarily depend on the circumstances of the particular case, but we are satisfied that the mere posting of prohibiting notices or warning signs indicating a private road will not be conclusive of the question or amount to such ‘express prohibition’ as was mentioned by Lord Sands in Harrison v. Hill (supra), at p. 17. This appears to have been the view taken by Lord Parker, C.J., in Knaggs v. Elson (1965) 109 S.J. 596 and we agree with it. The existence of notices and, indeed, evidence of actings by proprietors in relation to public use of private roads, are simply facts which form part of the whole evidence which must be considered; and if the evidence as a whole shows that, in spite of the posting of notices and other actings by a proprietor, substantial access or passage was enjoyed by the public, it may well entitle the court to draw the inference that the public use of the road was, in fact, permitted, acquiesced in or tolerated by the proprietor.’
The particular conclusion on the facts was expressed as follows:
‘In short, so extensive is the use of the road by the general public that, in spite of the notices, the annual blocking of the road, and the actings of the security officers, all of which, in our opinion, appear to have been designed to obviate the risk of a successful declarator of public right of way, there is ample warrant for the inference drawn by the sheriff that public access to the mill road is tolerated by the proprietors.’

Lord Emslie, Lord Justice-General, and Lords Migdale and Cameron
1973 SLT 27
Cited by:
CitedBowen 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 . .

Lists of cited by and citing cases may be incomplete.

Land, Road Traffic

Updated: 10 December 2021; Ref: scu.670320