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 Court remitted the case to the justices to clarify their findings of fact and their reasoning. Kilner Brown J, with whom Watkins J and Lord Widgery CJ agreed, explained what the proper approach should be and where the justices had got themselves into difficulties: ‘The justices heard argument. They were referred to a number of authorities, including the well-known Scottish case of Harrison v Hill, 1932 JC 13, passages from which have been cited with approval on more than one occasion in this court and the effect of which is broadly speaking that all questions of whether or not the public have a right of access are questions of fact.
The justices may, as they purported to do in this case, use their local knowledge. That has been decided in this court. They have to take into account matters such as the existence of other premises, maybe private residences, maybe shops and matters of that kind. In the end it comes down to a simple question of fact. The law is quite plain that a mere slight degree of access would not be sufficient to justify the finding that it was a road.
The trouble in this case, as I see it, is that the justices, instead of applying their minds to the critical issue which was the degree of user and the nature of the user by members of the public, allowed themselves to be confused by an irrelevant issue: ‘We were of the opinion that the road was used by the public as members of the public but that the attitude of the owners of the road to that use, to bring it within the scope of the Act, must be consent, rather than tolerance. We accepted the defendant’s contentions 5(b) and (c) above [to the effect that the distinction between the road in question and the public highways was readily apparent, and that there were no premises on the road to which the public in general had any right of access], applying our own local knowledge of the area. We were, therefore, of the opinion that this was not a road to which the relevant sections of the Act applied and accordingly dismissed the three informations’.
The question posed for the court is whether No 2 Road, Colwick Estate is a road within the scope of the relevant sections of the Road Traffic Act 1972. That was a question of fact for the justices to decide along the general lines which I have just indicated.
Speaking for myself, I find myself in this difficult position that I do not understand precisely how the justices went about coming to their final opinion. The introduction of this question of whether the use should be by consent of the owners of the road rather than tolerance seems to be something which they themselves must have allowed themselves to think was a relevant issue, no doubt by consideration of the authorities which were put to them.’
Lord Widgery CJ said: ‘I agree that the case must be remitted for reconsideration by the same bench of the matters referred to in the judgment of Kilner Brown J. I would only add this. I have a great deal of sympathy with the justices in this case because by one means or another they have been persuaded to think that the issues are far more complicated than they ever possibly could be if they were properly instructed. I would invite the justices next time, and other justices charged with this same question, to look at the very brief statement of Lord Sands in Harrison v Hill, 1932 JC 13 , 17 which I am reading at the moment from Houghton v Schofield [1973] RTR 239 , 244A-B. Lord Sands said:
‘In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied.’
I think that in 99 cases out of 100 that direction is all the justices need to decide whether a road is a ‘road’ for current purposes.’
Kilner Brown J, Watkins J and Lord Widgery Cj
[1976] RTR 248
England and Wales
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Road Traffic
Updated: 10 December 2021; Ref: scu.670322
