Joan Lois Bowen v Isle of Wight Council
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWHC 3254 (Ch) |
| Year | 2021 |
| Docket Number | Case No: PT-2020-000702 |
| Court | Chancery Division |
[2021] EWHC 3254 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Keyser QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: PT-2020-000702
Samuel Laughton (instructed by Irwin Mitchell LLP) for the Claimants
Ashley Bowes (instructed by Isle of Wight Council) for the Defendant
Hearing date: 29 November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser QC
JUDGE Keyser QC:
Introduction, facts and summary
The first and second claimants are the registered proprietors of certain land at Ryde, Isle of Wight (“the Site”), to which the only access is over a privately owned way known as Guildford Road. The third claimant has an option to purchase the Site and has made an application for outline planning permission to build houses on it. The defendant is the local planning authority for the area in which the Site is situated; it is also the relevant traffic authority. It has refused the application for outline planning permission, principally because it considers that the proposed development of the Site would be unacceptable on road safety grounds unless a traffic regulation order (“TRO”) were made in respect of Guildford Road pursuant to section 1 of the Road Traffic Regulation Act 1984 (“the 1984 Act”) and that it is impossible to make such a TRO because Guildford Road is not a “road” for the purposes of the 1984 Act.
This case (which might, perhaps, have found a more natural, though not a more welcoming, home in the Queen's Bench Division than in the Chancery Division) raises a single issue: whether Guildford Road is a “road” for the purposes of the 1984 Act. The claimants say it is. The defendant says it is not. The relevant definition is 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 …”
The material facts are not in issue. 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 unchallenged evidence of the claimants shows that the public have long exercised access to Guildford Road and continue 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 is common ground that Guildford Road is not a “highway” and that, as a matter of ordinary language, it is a road. Therefore the question is whether it is a “road to which the public has access”. 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.
In my judgment, the claimants are 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 basis for these conclusions will, I hope, become apparent from what follows. But I shall explain it briefly now. 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 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, the defendant advances two basic arguments. The first is that the authorities, when properly understood, have not accepted that public access by way of tolerated trespass is sufficient for the purposes of the statutory definition. I disagree with that argument, for reasons that I hope will be apparent from what follows. The defendant's second argument is 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. With great respect to Dr Bowes, 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.
In what follows I shall summarise a little of the legislative history and then consider a number of authorities. Counsel assured me that I had been referred to only a selection of the cases. I in turn shall mention only what seem to me to be the more useful cases to which I was referred.
The Statutes
Counsel's researches indicate that the first...
To continue reading
Request your trial