Town and country planning – Planning permission – Unregistered road – Claimants challenging refusal of defendant local authority of planning permission for housing on road safety grounds – Whether access road being “road to which the public has access” within section 142 of Road Traffic Regulation Act 1984 – Claim allowed.
The first and second claimants were the registered proprietors of land at Ryde, Isle of Wight, to which the only access was over a privately owned cul-de-sac (the road). The third claimant had an option to purchase the site and had applied for outline planning permission to build houses on it.
Title to the road was unregistered and, in the absence of any deeds, it was presumed that the adjoining landowners on either side owned the land to the middle line of the road. The public had long exercised access to the road and continued to do so.
The defendant was the local planning authority and the relevant traffic authority for the area in which the site was situated. It refused the application for outline planning permission, on the basis that it considered that the proposed development would be unacceptable on road safety grounds unless a traffic regulation order (TRO) was made in respect of the road pursuant to section 1 of the Road Traffic Regulation Act 1984; and that it was impossible to make an TRO because the road was not a “road” for the purposes of the 1984 Act.
Section 142 of the 1984 Act provided: “‘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…”
It is common ground that the road was not a “highway”. The question was whether it was a “road to which the public has access”. The claimants contended that it was sufficient that the public did in fact have access to the road which was tolerated, albeit not permitted, by the owners. The defendant contended that the public access had to be pursuant to an express or implied permission.
Held: The claim was allowed.
(1) It had been said that the public access in the definition of “road” had to be both actual access and legal or lawful access. However, since 1931, the courts had treated public access as falling within the terms of the definition if it was exercised with the permission of or the tolerance of the owner of the road. Such access might strictly speaking constitute a trespass, because a tolerated trespasser was a trespasser nonetheless as he lacked implied permission. But access by the public would still satisfy the definition, provided it was not exercised in the face of, or in defiance of, efforts by the owner to prevent access.
(2) When considering a word like “lawfully”, one had to consider the context, and the particular sense, in which it had been used. Thus, if decisions had spoken of “lawful” use and at the same time accepted the adequacy of what amounted to tolerated trespass, there was no necessary reason why the former word had to trump the latter acceptance. The courts had deliberately accepted that access by the general public, tolerated by the owner, sufficed for the purposes of the definition, it was neither necessary nor right to say that the acceptance was wrong because access merely tolerated was unlawful: Harrison v Hill [1932] JC 13, Clarke v General Accident Fire and Life Assurance Corporation Plc [1998] 1 WLR 1647, R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 94, R (Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 EGLR 94, R (Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] 2 EGLR 115; [2014] EGILR and R (Pereira) v Enforcement and Traffic Adjudicators [2020] EWHC 811 (Admin); [2020] PLSCS 60; [2020] 4 WLR 134 considered.
An underlying purpose of the legislation relating to traffic regulation and motoring offences, to which the definition applied, was the safety of the public who had access to the roads; and the important question was not whether their presence on the road was impliedly permitted or merely tolerated but whether the road was one on which they might reasonably be expected to be present. The case of members of the public who wilfully defied prohibitions by entering onto private land where they clearly had no right to be was, for that reason, different from the present case, where members of the public habitually used a road that appeared to be no different from any other road.
(3) A road would be a “road to which the public has access”, and thus within the definition of “road” in section 142 of the 1984 Act, provided that the general public did, as a matter of fact, exercise access to it and provided that those members of the public “have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied”. The enquiry was thus essentially a factual one. If the conditions were satisfied, it was irrelevant to enquire further whether the presence of the public on the road was merely by the tolerance of the owners or whether the tolerance was to be taken to have given implicit permission.
The simplicity of the resulting test was welcome, for at least two reasons: first, it avoided the need for courts, when considering such matters as motoring offences, to become embroiled in, or confused by, subtle distinctions regarding when an owner’s inaction did and did not imply permission; secondly, it avoided importing into the statutory definition a distinction that was wholly irrelevant to the statutory purpose of providing for the safety of those who might reasonably be expected to be on roads and affected by what happened on them.
(4) It followed that Guildford Road was a road for the purposes of the 1984 Act. Members of the general public who parked their cars along it, or who walked up and down it, were, strictly speaking, trespassers because they had no permission to be there and were merely tolerated by those entitled to possession. But they did not gain access by overcoming any physical obstruction, and they had never been prohibited from entering. They very probably did not understand that the road had a different legal status from the highways near to it. Their access was sufficient for the purposes of the statutory definition.
Samuel Laughton (instructed by Irwin Mitchell LLP) appeared for the claimants; Ashley Bowes (instructed by Isle of Wight Council) appeared for the defendant
Eileen O’Grady, barrister
Click here to read a transcript of Bowen and others v Isle of Wight Council