Neutral Citation Number: [2009] EWHC 3132 (Admin)

CO/8302/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 20 October 2009
 
B e f o r e:

LORD JUSTICE GOLDRING 

MRS JUSTICE RAFFERTY 
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Between: 

ALUN GRIFFITHS (CONTRACTORS) LIMITED 
Claimant

v 

DRIVER AND VEHICLE LICENSING AGENCY 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Brendon Moorhouse (instructed by Gabb & Co) appeared on behalf of the Claimant
Miss Helen Roddick (instructed by DVLA) appeared on behalf of the Defendant
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J U D G M E N T
LORD JUSTICE GOLDRING:   
1.	In this appeal by way of case stated from the decision of the Abertillery Magistrates' Court of the 30 April 2009, the issue is whether the Justices were entitled in law to find on the facts that land immediately behind the safety barrier of Cwmbran Drive, Cwmbran, was a public road for the purposes of the Vehicle Excise Registration Act 1994.  On the footing that it was, the Justices convicted the appellant of keeping an unlicensed mechanically propelled vehicle on a public road, contrary to section 29(1) and 29(3) of that Act.  
The stated case 
2.	There was no dispute as to the position of the dumper truck in question.  It was on the grass verge of Cwmbran Drive behind a crash barrier.  The appellant contended that the area where it was parked was not part of the road.  The respondent contended that it was: it was an area maintained by the Highway Authority.  
3.	As material to this appeal the magistrates, in their clear case stated, made the following findings of fact. 
"... 
 (b) [The dumper truck] was parked on the grass verge of Cwmbran Drive.  
 (c) There was a fence running along both sides of the road behind the grass area and the trees as shown in the photographs.  
 (d) The grass verge of Cwmbran Drive forms part of the road.  
 (e) The map attached to the section 9 statement of Sue Davies, Highways Development Officer, showed the area where the dumper truck was parked was maintained by the Highway Authority.  
 (f) The dumper truck had no vehicle excise licence."  
4.	In paragraph 6 they say: 
"It was not in dispute by the parties that the dumper truck was parked on a grass area off the main carriageway, behind a safety barrier.  We were of the opinion, having regard to all the evidence including plans, photographs and case law, that the dumper truck was parked in an area that formed part of the road and accordingly found the case proved against the appellant." 
5.	They posed the following question in paragraph 7 for this court's opinion: 
"The question for the opinion of the High Court is whether the Justices were entitled in law to find on the facts that the land adjacent to (immediately behind) the safety barrier to the carriageway known as Cwmbran Drive, Cwmbran, was a road for the purposes of the Vehicle Excise and Registration Act 1994." 
The relevant legislation 
6.	Section 29 of the Vehicle Excise and Registration Act 1994 provides in sub‑section (1) as follows: 
"If a person uses, or keeps, on a public road a vehicle (not being an exempt vehicle) which is unlicensed he is guilty of an offence."
7.	Section 62 provides: 
"'public road'—
 (a) in England and Wales and Northern Ireland, means a road which is repairable at the public expense..."  
The argument 
8.	The appellant's submissions, succinctly and attractively made by Mr Moorhouse on its behalf, is that a vehicle parked on a small piece of apparently unused open ground between a crash barrier and a wooded area cannot be said to be on a road.  The crash barrier determines the limit of the road.  The piece of land upon which the dumper truck was parked had none of the characteristics of a road or highway.  He submits that the clear purpose behind section 62 of the 1994 Act was that vehicles which used roads repairable at the public expense must be registered because they use the road. Vehicles parked, as was this dumper truck, do not.  They are not, therefore, required to have a licence.  
9.	Mr Moorhouse makes a comparison between what is submitted to be the more restrictive interpretation which we should apply to section 29, with the definition of "road" in other pieces of legislation.  He drew our attention, for example, to section 192(1) of the Road Traffic Act 1988, which defined "road" as "any highway and any other road to which the public has access, and includes bridges over which a road passes".
10.	Mr Moorhouse first of all relies upon the restrictive interpretation of "road" ‑ the purposive interpretation as it was described in argument.  He secondly submits that, having regard to the authorities and other legislation in which the word "road" is defined, this area of the verge cannot on any view be said to be a road.  He drew our attention to the observations of Tuckey LJ in Sadiku v the DPP [2000] RTR 151.  The issue in that case was whether Trafalgar Square was a road within the terms of section 192(1).  In the course of his judgment, at page 163D, Tuckey LJ said this: 
"In Griffin v Squires [1958] 1 WLR 1106 the Court emphasised that the decision as to whether or not any particular place was a road was essentially one of fact for the Justices (in this case for the Crown Court) and the Divisional Court would not interfere with any such decision unless it could be shown that the court below had misdirected itself or there was no basis upon which the decision could be justified. 
I think the definition of a "road" as a definable way between two points is a helpful but not exhaustive. 
The cases show that a road may be a pavement, a car park, a forecourt and so on ‑ in other words things which would not commonly be called roads. The concept is one of a thoroughfare or a way of communication ordinarily to be thought of as a way." 
11.	Mr Moorhouse drew our attention to the cases of Thomas v Dando [1951] 2 KB 620, and Cutter v Eagle Star Insurance Limited, Clarke v Kato [1998] 4 All ER 417. 
12.	Cutter concerned the definition of a road within section 192 of the Road Traffic Act 1998.  There a road was defined in terms of "any highway and any other road to which the public has access".  It is unnecessary to recite the facts in any detail, other than to observe that the issue in the two cases being considered by the House of Lords was whether car parks qualified as roads.  Lord Clyde, in a speech with which each of their Lordships agreed, said this at page 431B: 
"The application of the statutory term 'road' comes to be a matter of fact and circumstance to be determined by the tribunal of fact properly directing itself in the law." 
My conclusion 
13.	The term "road" is not as such defined in the Vehicle Excise and Registration Act 1994 other than in terms of a road repairable at the public expense.  It is defined in other pieces of legislation to which our attention has been drawn.  There is no doubt in this case that the public had access to the verge upon which the dumper truck was parked.  The issue, as it seems to me, is whether the Justices were entitled to conclude that Cwmbran Drive, undoubtedly itself a road, included its grass verges.  That was a question of fact.  
14.	It seems to me that they were, and I say so for the following reasons.  The verge was maintained by the Highway Authority as part of the public highway.  The authorities relied upon by the appellant are not strictly in point.  The issue is not whether, viewed in isolation, the area of land upon which the dumper truck was parked could be defined as a road in terms of itself providing a thoroughfare or way of communication, but rather whether, on the facts, Cwmbran Drive included this grass verge.  In deciding that issue, it was not necessary for the Justices to apply any presumption, if indeed that is what they did, to the effect that fencing on both sides of the highway was prima facie evidence of its extent: see Offin v Rochford Rural District Council [1906] 1 CH 342; Attorney General v Baynon [1971] 1 CH.  
15.	The photographs, the magistrates were entitled to conclude, indicated that the crash barrier was erected for reasons of safety, and had nothing to do with the limit of Cwmbran Drive.  As Miss Roddick, on behalf of the respondent, observed, the crash barrier did not extend the whole length of the highway.  If the respondent is right, the highway, it could be said, would extend to an area where the barrier begins, and recommence after it ends.  Mr Moorhouse accepted in argument that the verge on the opposite side of the road, which did not contain a barrier and had a footpath, did amount to part of the road.  
16.	I have come to the clear view that the Justices were entitled, on the particular facts of this case, to find that Cwmbran Drive included the grass verge upon which the dumper truck was parked.  
17.	I should add this.  One has some sympathy for the appellants in this case.  It is clear that they sought to put the dumper truck out of harm's way and chose with some care the area in which they placed it.  However, sympathetic though one might be, it seems to me that one is driven to conclude that the Justices were entitled to convict.  I would answer the question in the affirmative, and would therefore dismiss the appeal.
18.	MRS JUSTICE RAFFERTY:  I agree.  
19.	LORD JUSTICE GOLDRING:  Thank you very much indeed, Mr Moorhouse.  Thank you also, Miss Roddick.  If I may say so, and I speak on both our behalves, we thought the case was argued with skill, both in the skeleton arguments and in the oral arguments before us.