Dawood, R (On the Application Of) v Parking & Traffic Appeals Service & Anor

The statutory definition of road may extend to any section of a street or pavement to which the public has access, including privately owned land. The disjunctive wording does not impose a rigid two-stage inquiry in every case. Whether a place is a highway may be considered first where that assists the analysis, but a finding that it is a highway does not exclude the alternative category of another road to which the public has access. Parking restrictions may therefore apply to privately owned pavement forming part of a publicly accessible street.

Dr Dawood sought judicial review of a parking adjudicator’s refusal to quash a penalty charge notice. He had parked a motor scooter on a section of pavement in Cleveland Street which he owned. The adjudicator held that the statutory parking restriction applied because the public had access to the surface, and the Administrative Court, presided over by His Honour Judge Oliver-Jones QC, held that the contrary argument was not arguable. A previous application to the Court of Appeal had taken the same view. The renewed application concerned the construction of the statutory definition of road and whether a highway finding excluded the separate category of a road to which the public had access.

1. Application refused. The contrary construction of the parking legislation was not arguably correct, so permission to appeal was refused.
2. Section 142 of the Road Traffic Regulation Act 1984 applies to any length of highway or of any other road to which the public has access. The word “or” does not require a rigid two-stage inquiry under which the alternative category is excluded whenever the place is a highway.
3. Clark v General Accident [1998] 1 WLR 1647 did not establish such a rigid process. Lord Clyde’s analysis addressed the problem whether a multi-storey car park was a road or highway for Motor Insurers Bureau liability. It was sensible in that context to ask first whether the place was a highway, but the analysis did not govern parking adjudication in the manner submitted.
4. The relevant question was whether Cleveland Street was also another road to which the public had access, including its road surface and pavement. That access was conceded. Even if the street was a highway, and even assuming the privately owned pavement was excluded from the highway, the concession meant that the statutory restriction could apply.
5. The breadth of the formula was intended to permit control of parking on sections of road or street habitually and freely used by the public. The fact that the applicant owned the land did not make the contrary argument arguable. The formal order was: Application refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; [2009] EWCA Civ 1411.
• Administrative Court, Queen’s Bench Division: His Honour Judge Oliver-Jones QC held that the contrary challenge to the parking adjudicator’s decision was not arguable.
• Parking adjudicator: refused to quash the penalty charge notice.