Author: David Turschwell
There are various ways in which we get around the country. Sometimes, we do so along the highways and byways of the country, on the basis of a public right of way. Sometimes we take a path that involves use of a private right of way. And sometimes we take a route without any right at all (in other words, trespassing upon someone else’s land).
Public rights of way are enjoyed over highways. A highway is a route over which all persons are entitled, at all times, to pass and repass without let or hindrance. We tend to think of highways as the roads of England and Wales, but a road may or may not be a highway. Highways fall into various classifications, including footpaths, bridleways, restricted byways, byways open to all traffic, and roads – each with its own limitations on use imposed by statute, regulation or common law. A road will be classified as a highway if it is subject to public rights of way, but it may also be a private road, subject to private rights of way, or subject to no rights at all.
What is a road? The question to be answered by the High Court in the case of Bowen & Ors v Isle of Wight Council [2021] EWHC 3254 (Ch) was whether Guildford Road, Ryde, on the Isle of Wight was a “road” for the purposes of section 1 of the Road Traffic Regulation Act 1984 and the making of a traffic regulation order (TRO). A TRO can be made for various reasons, including (amongst others) for the voidance of danger to persons or other traffic using the road, for preserving the amenities of the area through which the road runs, and for facilitating the passage on the road of any class of traffic, including pedestrians. But it can only be made in relation to a road.
In this case, the only access to an area of registered land owned by two of the claimants and intended for development was over Guildford Road. A developer had acquired an option to purchase the land and had applied for outline planning permission for residential development but the local planning authority, which was also the relevant highway authority, refused the application on road safety grounds. Planning objections could be alleviated if a TRO was made in respect of Guildford Road pursuant to section 1 RTRA 1984, but the authority said that it was impossible for such an order to be made because Guildford Road was not a road for these purposes.
The definition for the purposes of section 1 RTRA 1984 is set out in section 142 of the Act as “any length of highway or of any other road to which the public has access, and includes bridges over which a road passes”. The first part of the definition did not apply. It was known that Guildford Road was not a highway. There was no evidence that it had ever been dedicated at law as a highway. That being the case, the question was whether Guildford Road was a “road to which the public has access”. The public most certainly did have access to Guildford Road. It was a paved cul-de-sac serving eight residential properties. The public had parked cars in Guildford Road, walked along it, and had visited houses on Guildford Road.
The legal issue to be decided was whether access as a matter of fact was sufficient to satisfy the requirement for the road to be one “to which the public has access” or whether the public’s use of the road had to be lawful. Title to the road was unregistered with no evidence of ownership available. The ‘ad medium filum’ rule would therefore presume that Guildford Road was owned to its midpoint by the owners of the properties that fronted onto it. The owners had not objected to the public’s use of the road by way of prohibition notices or gated access. While users of the road were effectively trespassers, having neither express nor implied permission, they were tolerated trespassers. And, as a matter of fact, they had access. The judge was quite clear that use as a matter of fact was all that was required, provided the use was not exercised in the face of or in defiance of efforts by the owners to prevent access. In reaching this conclusion, the judge examined a number of previous cases, including the Scottish case of Harrison v Hill [1932] JC 13, and the recent decision in R (Pereira) v Enforcement and Traffic Adjudicators [2020] EWHC 811 (Admin), which itself included an analysis of the Scottish case. In Pereira, the court was considering the lawfulness of a penalty notice issued to the owner of a motor vehicle parked on a pavement forming part of a road. For the purposes of road traffic offences, the Road Traffic Act 1984 uses substantially the same definition of a road as under the RTRA 1984. In obiter, the judge in Pereira expressed the view that, to satisfy the definition of a road the public’s access to the road had to be lawful, in the sense that it was either enjoyed by right, or with express or implied permission of the owner, and that access by tolerated trespassers was not sufficient. The judge in the current case did not agree. He saw significant problems, especially in relation to motoring offences alleged to have been committed on roads that were not highways, if a court was required to ascertain whether or not use of the road had been impliedly permitted by its owner or merely tolerated. He said the enquiry to make was merely a factual one: did the public have access to the road without having to do so either by overcoming a physical obstruction or in defiance of an express or implied prohibition. This was the case here.
Ascertaining the status of roads is not just important for the purposes of road traffic offences and traffic regulation orders. It is an essential part of pre-contract searching and enquiring in relation to the roads affording access to a property. A buyer needs to know if the land it is acquiring abuts an adopted highway, or whether the road serving the property is unadopted. In the latter case, the buyer needs to consider the likelihood of future adoption of the road and therefore the likely cost to property owners whose properties abut the road. The buyer will also need to ensure it has an unrestricted private right of way over the road and should ensure that satisfactory arrangements exist for future maintenance of the road whereby each person entitled to use the unadopted road can be forced to contribute to its maintenance.
In new development, estate roads remain unadopted for some time from creation. Under the terms of an agreement under section 38 Highways Act 1980, a developer will be required to maintain the estate roads for a maintenance period at the end of which the local authority will adopt the roads and they will become highways maintainable at public expense. Until then, the roads are unadopted and so it is important that plot purchasers are given legal rights of way over the roads that will last through to adoption, when the public right of way will arise. However, in the meantime, the roads remain roads to which the public has access. Accordingly road traffic offences are able to be committed despite the unadopted status of the roads.
This content was provided by Alan Riley, Property Law Consultant.
