Claimants with High Court battle with council over whether road was “road to which the public have access”

A High Court judge has ruled against Isle of Wight Council in a dispute over a whether a road was a "road to which the public has access".

In Bowen & Ors v Isle of Wight Council [2021] EWHC 3254 (Ch) the first and second claimants were the registered proprietors of land at Ryde, Isle of Wight ("the site"), to which the only access was over a privately owned way known as Guildford Road.

The third claimant had an option to purchase the site and had made an application for outline planning permission to build houses on it.

The defendant Isle of Wight Council is the local planning authority for the area in which the site is situated; it is also the relevant traffic authority.

The council had refused the application for outline planning permission, principally because it considered that the proposed development of the site would be unacceptable on road safety grounds unless a traffic regulation order were made in respect of Guildford Road pursuant to section 1 of the Road Traffic Regulation Act 1984 and that it was impossible to make such a TRO because Guildford Road was not a "road" for the purposes of the 1984 Act.

His Honour Judge Keyser QC, sitting as a judge of the High Court, said the case raised a single issue: whether Guildford Road was a "road" for the purposes of the 1984 Act. The claimants said it was. The defendant said it was not.

The judge said the relevant definition was found in section 142:

"'road'—(a) in England and Wales, means any length of highway or of any other road to which the public has access, and includes bridges over which a road passes …"

Judge Keyser said the material facts were not in issue. He set them out as follows:“Guildford Road is a cul-de-sac on the north side of the public highway, Upper Green Road (the B3330); the south end of Guildford Road joins Upper Green Road. There are pavements on either side of the carriageway. There has never been any barrier or obstacle to access at the southern end of Guildford Road, nor has there ever been a sign to show that the road was private or that access was restricted. Guildford Road serves eight residential properties on either side, a Hall at the south-eastern corner with Upper Green Road, and the Site (which was formerly a camp site) at the northern end of the road. Vehicular entrance to the Site is barred by a gate, though the gate has no lock and pedestrians can walk around it, but the Site is not part of the road. Title to Guildford Road is unregistered and, in the absence of any deeds, it is presumed that the adjoining landowners on either side own the land to the middle line of the road.”

The judge said the unchallenged evidence of the claimants showed that the public had long exercised access to Guildford Road and continued to do so. “Local people have used the road both with cars and on foot. They have parked their cars there in order to make use of local amenities, such as a medical centre, a chapel, a Community Hall, and a recreation ground. They have also used it 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 (for example, carol singers, religious canvassers, and ‘trick-or-treaters’).”

It was common ground that Guildford Road was not a "highway" and that, as a matter of ordinary language, it was a road. Therefore the question was whether it was a "road to which the public has access".

Judge Keyser QC said: “The facts as summarised above show that the general public have had and continue to have access to Guildford Road, but it is common ground that they do so without any permission or other lawful right. The claimants contend that it is sufficient that the public do in fact have access to Guildford Road and that their access is tolerated, albeit not permitted, by the owners (when I refer to owners, or sometimes proprietors, what I mean strictly is the persons entitled to possession). The defendant contends that the public access must be pursuant to an express or implied permission; it is not enough that the public access the road as tolerated trespassers.”

Judge Keyser QC said that in his judgment, the claimants were correct. “In brief, 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.”

The judge continued: “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 not 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.”

Against this conclusion, Isle of Wight advanced two basic arguments. The first was that the authorities, when properly understood, had not accepted that public access by way of tolerated trespass was sufficient for the purposes of the statutory definition. The judge said he disagreed with that argument.

The defendant council's second argument was advanced as a matter of the logic of first principles: “the cases say that for the purposes of the statutory definition public access must be lawful; though it may previously have been the practice to overlook the point, it is now very clear that so-called tolerated trespass is trespass and therefore unlawful; the law would be incoherent if it called the same thing lawful in one context and unlawful in another; therefore tolerated trespass, being unlawful, cannot be conduct that satisfies the requirements of the statutory definition."

Judge Keyser QC said: "With great respect to Dr Bowes [counsel for the Isle of Wight], who advanced this argument with skill and persuasiveness (though not so as to persuade), the argument strikes me as misguided. The statutory definition refers merely to access by the public. The courts have explained the nature of the required access. If the defendant's reading of the cases is correct, and the courts have required that access be with at least implied permission and not merely tolerated, there is an end of it: this second argument is unnecessary.

“However, if in explaining the nature of the required access the courts have made clear that access with the tolerance of the owner, in the sense of tolerated trespass, suffices, that is also an end of it. It is no objection to say that the courts have also used the words ‘lawfully’, ‘legally’ and so forth, and that access by tolerated trespass must be excluded, because the courts have explained more fully what they mean by those words in this context. Whether or not words like ‘lawfully’ are ideal, it is the substance of the decisions that matters. We cannot be prisoners of words of our own choosing.”