Houghton 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 is meant by the public having access, we have been referred to a judgment of McNair J in Buchanan v Motor Insurers’ Bureau [1955] 1 All ER 607, where, having pointed out that the public for this purpose being the general public rather than people who have a specific concern with walking on the area here in question, he went on, at p 608, to quote from Lord Sands [in Harrison v Hill, 1932 JC 13 , 17] who 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’.
On the disputed area, there is no sort of physical obstruction for the public to get over, no prohibition express or implied, so one could legitimately regard it as an area to which the public have access if members of the public are to be found there.’
The Lord Chief Justice’s review of the evidence showed that, at least so far as the scanty record before the Divisional Court went, it was unilluminating. But he concluded that the justices had been entitled to conclude that the cul-de-sac was a road for the purposes of the statutory definition. There are two points of significance in the case. First, the Divisional Court proceeded on the basis that Lord Sands’ dictum accurately represented the law. Second, accordingly, the Court regarded the question as being essentially a simple one of fact rather than of legal right. This latter point is made clearly in Lord Widgery’s remarks at 244 concerning the material on which the justices had been entitled to act:
‘[A]t the end of the day, on one of the most unsatisfactory cases stated this court has recently seen, the justices reached a conclusion, which is essentially a matter of fact, on material which included their own inspection, in circumstances where their own inspection would be of considerable value.’

Lord Widgery Cj, Melford Stevenson and Brabin Jj
[1973] RTR 239
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 . .

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.


Updated: 10 December 2021; Ref: scu.670321