Whether a way on an industrial estate is a ‘road’ within the meaning of the Road Traffic Act 1972 is a matter of fact and degree turning on actual public use, not on issues to do with consent to or tolerance of the user
This was an
appeal by a prosecutor against a decision of Nottingham justices dismissing an
information laid against the respondent, Mr Alan White, of Mansfield, alleging
that he drove a motor vehicle while disqualified, without insurance and without
a test certificate on no 2 Road, Colwick Industrial estate, Colwick, owned and
maintained by Dobson Properties Ltd, contrary to sections 99, 143 and 44 of the
Road Traffic Act 1972.
Mr F M Pearce
(instructed by Sharpe, Pritchard & Co, agents for D W Ritchie, of
Nottingham) appeared for the appellant, and Mr P J Walmsley (instructed by H
Clegg & Co, of Nottingham) represented the respondent.
Giving the
first judgment, KILNER BROWN J said that the case did not turn upon the
offences themselves but on whether or not the charges were properly laid, the
question being whether the defendant had been driving on a ‘road’ within the
meaning of section 196 of the Road Traffic Act 1972. That section provided that
‘road’ meant ‘any highway and any other road to which the public has access. .
. .’ The justices found that the
relevant road was part of the Colwick Industrial Estate, Colwick. There were no
gates or barriers at the entrance to the estate, but notices were erected
saying, ‘Highways Act 1959 section 3A. Colwick Industrial Estate. No public
vehicular right of way.’ There was no
reference to pedestrians. On those facts it was plain, having regard to various
authorities which were cited to the justices, that the question for decision
was simply whether or not the public
degree, some mere slight degree of public access not being enough to make a way
into a ‘road’ for the purposes of the 1972 Act.
Unfortunately
the justices, instead of applying their minds to the issue described, took the
view that although the road was used by the public as members of the public,
the attitude of the owners of the road to that use, to bring it within the
scope of the 1972 Act, had to be one of consent rather than tolerance. Accordingly,
applying their own local knowledge to the area, they accepted the defendant’s
contentions that by reason of the notices erected and certain differences of
road surface and colour, the distinction between the estate roads and local
authority roads was readily apparent to road users, and that there were no
establishments on the estate such as shops, public houses, post offices or
weighbridges to which unrestricted classes of the public had access as of right
or were invited to enter. They also accepted the submission that although the
road was used by the public in their capacity as members of the public to pass
through the estate as a more convenient alternative route, this was something
tolerated by the owners only on the basis that it was impracticable to prevent
it.
It appeared
evident that somehow or other the justices had formed the view that public use
by consent or public use by tolerance was a relevant distinction, when in
reality what mattered was, sufficient public use or no sufficient public use.
He (his Lordship) was disposed to say that since the justices found that the
road was a place to which the public had access, it was a ‘road’ within the
meaning of the Act. But because of the insufficiency of evidence as to whether
the justices had applied the right test, and because of the introduction of the
elements of consent and tolerance, the case ought to be remitted to the
justices for further consideration.
Agreeing, LORD
WIDGERY said that he had sympathy with the justices, since they were clearly
persuaded that the issues were more complicated than they really were.
WATKINS J also
agreed, and an order was made in the terms proposed by Kilner Brown J.
