Obstruction of highway–Intention to protect property, shop-customers, etc, does not justify shop-owner in placing bollard in footway–Lawful excuse in case of temporary obstruction cannot be extended to facts where obstruction intended to be permanent
This was an
appeal by the Ipswich Borough Council against the dismissal by Ipswich justices
of a summons alleging that the respondent, Mr Douglas Atfield, of 17 St
Stephen’s Lane, Ipswich, did on September 16 1974 obstruct the free passage of St
Stephen’s Lane without lawful authority or excuse, contrary to section 121 (1)
of the Highways Act 1959.
Mr A Fletcher
(instructed by Sharpe, Pritchard & Co, agents for E K Dixon, of Ipswich)
appeared for the appellants, and Mr P Collins (instructed by Turner, Martin
& Symes, of Ipswich) represented the respondent.
Giving
judgment, KILNER BROWN J said that the justices had undoubtedly approached the
matter with a degree of sympathy for him. What emerged was that the defendant
had been carrying on a business as an antique dealer since May 1967 in a shop
at 17 St Stephen’s Lane, Ipswich. The shop was an historic building and no less
than 400 years old. It was in a side street which was not a major public
highway, a one-way street little used by vehicular traffic except as a means of
access to nearby buildings. Unhappily for the defendant, in or about 1969 a
large building was erected on land close to his shop. Two large shops were
opened in January or February 1970, and in consequence a number of supply vehicles
passed and repassed the defendant’s shop many times a day. These vehicles
frequently mounted the footway; damage had been caused to the footway, and the
justices also thought there was danger to pedestrians. The defendant sought the
appellant council’s help, asking them to put up a bollard outside his premises,
but the council would not agree, considering that such a bollard would cause an
obstruc-
satisfactory to the defendant, who on September 16 1974 took matters into his
own hands by erecting a metal bollard on the footway outside his shop. The
justices found that he did so with the intention that the bollard should remain
in position indefinitely. It was a substantial bollard, seven inches from the
edge of the kerb, leaving a passageway two feet three inches wide along the
footway. The justices reached the conclusion that in all the circumstances the
defendant had acted ‘with lawful excuse, in order to protect his property and
reduce the risk of injury to his customers and to other persons using the
footpath.’ Accordingly, they dismissed
the information.
Mr Collins,
for the defendant, had done his best to maintain that decision. He had said in
broad, general terms that the justices had used the expression ‘lawful excuse’
quite properly, because it should be interpreted broadly; that the law had
always adopted a reasonable approach, and the courts had tried to apply a test
of reasonableness; and that, recognising that most of the cases dealt with
temporary user, where safeguarding property and so on was accepted as a
defence, that same result should follow where a permanent fixture was
concerned. He (his Lordship) found himself unable to accept those contentions.
In his view the answer to the question posed for consideration was that the
justices in the present case did not come to a correct determination and
decision in point of law. The bollard was plainly an obstruction, and there was
no evidence before the court to justify the finding of ‘lawful excuse.’ There had been a gallant attempt by the
justices to transmit sympathy into terms of evidence, but the evidence was not
there. The case should be remitted with a direction to convict.
LORD WIDGERY
and WALLER J agreed, and an order was made accordingly. The appellants were
awarded costs.
