Important judgment clarifying the roads over which a Traffic Regulation Order may be made

06 Dec 2021

Local Government, Planning and Environment

A TRO can be made over any highway or “any other road to which the public have access”, see: ss.1 and 142 Road Traffic Regulation Act 1984.

In Bowen v Isle of Wight Council [2021] EWHC 3254 (Ch) a dispute had arisen as to whether a road, which was not a highway but to which the general public had factual but not lawful access, fell within the definition. In short, the High Court needed to decide whether access by the public as tolerated trespassers was sufficient in order for the road to fall within the definition.

HHJ Keyser QC reviewed the many authorities on the term in the various road traffic statutes and concluded at [49] that:

In my judgment, a road will 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 do 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'”

Recognising that his judgment ran counter to the obiter but fully reasoned judgment of Fordham J in Pereira v Enforcement and Traffic Adjudicators [2020] EWHC 811 (Admin); [2020] 4 WLR 134, HHJ Keyser QC granted the Isle of Wight Council permission to appeal to the Court of Appeal for the point to be resolved by “higher authority”.

Dr Ashley Bowes appeared for the Isle of Wight Council (instructed by Ben Gard of Isle of Wight Legal Services).

A full copy of the judgment can be found here.

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