Divisional Court
| Published date | 01 November 1987 |
| Date | 01 November 1987 |
| DOI | 10.1177/002201838705100401 |
| Subject Matter | Article |
DIVISIONAL
COURT
WILFUL
OBSTRUcnON
OF
THE
HIGHWAY
Hertfordshire County Council vBolden
In this case, reported at [1987]151 JP 252, the respondent owned
premises adjoining a public highway.
For
aperiod of 18 monthson
Saturdays and Sundays he used part of the highway bordering his
premisesfor the display and sale of garden produce. The total width
of the strip of the land between the respondent's premises and the
main carriageway was 17 feet 2 inches and consisted of two grass
verges with a tarmac footpath between them. The stalls and
produce extended some 9 feet into the highway, but did not
protrude over the tarmac footpath. The width of the respondent's
frontage onto the highway was approximately 45 feet.
After due warnings by the local authority, two specimen
informations were laid against the respondent, alleging offences
under section 137 of the Highways Act 1980, the allegation being
wilful obstruction of the highway.
The
justices hearing this case dismissed the informations and in
giving reasons for their decision, stated that they were of the
opinion that the items placed on the highway were a technical
obstruction and were a reasonable use of the highway. The actual or
potential obstruction of any member of the public was so unlikely as
to be disregarded, and the width of the verges and the footpath still
available for use by foot passengers was sufficient for all or
forseeable purposes. The justices also stated that if their conclusion
was wrong in law, they considered that any offence committed
should be dismissed under the de minimis principle. The local
authority appealed by way of case stated to the Divisional Court.
That court was extremely scathing about the conclusion of the
justices. They came to the conclusion that in no way could a
projection of 9 feet into the highway be regarded as being described
as de minimis. In particular, they drew attention to the authority of
Wolverton UDC vWillis
[1962]
1 All
ER
243, where goods that
projected into a path only to the extent of eleven inches were not
355
Journal
of
Criminal Law
described as falling under the de minimus principle. Dealing with
the conclusion of the justices that the obstructions were reasonable
obstructions, they held that the decision was perverse in that they
hadnot taken into account factors which were relevant to reaching a
conclusion in the matter. In particular, the court held that the
intention of the defendant and the duration and extent of the
obstruction were all factors that should have been taken into
consideration when determining the issue of reasonableness.
The
actions of the respondent were quite deliberate and were persistent
and regular on each Saturday and Sunday over a period of 18
months. The obstruction extended very substantially into the
footpath, and occupied approximately half of it. The public was
fully entitled to use the whole of the footpath available which
included the two verges and the tarmaced footpath itself.
Many laymen, including those lay justices involved, would clearly
regard the activities of the respondent in this case as not being of a
nature which should result in his obtaining aconviction. Indeed,
many persons may well regard such activity as being beneficial to
the community. Nevertheless, the Divisional Court clearly favours
a strict literal interpretation of this provision which will mean many
occupiers of stalls and similar structures will be liable to
prosecution.
It
is hoped that the local authorities responsible for
enforcing this law will only prosecute if the activities are causing a
real nuisance to the general public.
C. E. Bazell
LL.B.
Solicitor
Justices' Clerk
Tynedale
SPECIAL REASONS NOT TO
ENDORSE
ALICENCE
R. vAshford and Tenterden Magistrates' Court, ex p. Wood
Inthis case [1987] The Times, May 20, the defendant was convicted
of an offence under section 8(7) of the
Road
Traffic Act 1972 as
substituted in Schedule 8 of the Transport Act 1981 in that he had
failed to give a specimen of breath when required to do so.
356
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