Pereira, R (On the Application Of) v Environment And Traffic Adjudicators

For deemed dedication under Highways Act 1980, the relevant question is whether a precisely identified way has been enjoyed by the public without interruption for 20 years. It is insufficient that pedestrians could divert along another part of a wider area.

For a privately owned pavement, factual public access must be assessed by reference to the landowner’s pattern of conduct, including regular obstruction. Legal public access requires access which is lawful. An implied licence may operate at some times and be withdrawn when the owner uses the land for private purposes.

The claimant sought judicial review of a review adjudicator’s decision upholding a penalty charge for parking a Land Rover on a privately owned strip forming part of a pavement. The adjudicator rejected an adopted-public-highway case but upheld the highway limb on the alternative basis of deemed dedication under section 31 of the Highways Act 1980. The public-access-road limb was left unresolved.

The issues were whether the adjudicator could rely on an unadvanced and unevidenced section 31 case, whether the reasoning concerning interruption and the identity of the relevant way involved an error of law, and whether the public-access-road issue required remittal.

1. Claim allowed. The review adjudicator’s decision was quashed. The claimant’s appeal against the penalty charge notice was substituted, and the local authority was directed to cancel it.
2. The section 31 issue could not lawfully support the highway limb. The local authority had never advanced a deemed-dedication case or marshalled evidence addressing 20 years’ public use without interruption. The claimant’s skeleton argument raising the issue for completeness did not cure that defect.
3. The adjudicator also made a material error of law. Section 31 required identification of the particular “way” allegedly enjoyed by the public. The fact that pedestrians could avoid a vehicle parked on the hedge strip by walking along the middle strip could not establish uninterrupted public use of the hedge strip. A fluctuating route across a wider pavement was insufficient.
4. On the public-access-road limb, factual public access had to be assessed by reference to the pattern of the landowner’s conduct, not merely the position on the particular occasion. Regular parking on the hedge strip, combined with parking there on the relevant occasion, meant that the only sustainable conclusion was that the public lacked factual access to that strip at the material time.
5. The judge regarded legal public access as requiring lawful access. The obiter analysis was that neither tolerated trespass nor an implied licence which was inoperative when the owners used the land for parking could satisfy that requirement. These observations were expressly not necessary to the decision.
6. Remittal was inappropriate. The section 31 issue had not been advanced and the adjudicator’s reasoning was legally unsustainable. The factual public-access issue admitted only one lawful conclusion on the findings made.

The penalty charge notice was upheld by an appeal adjudicator on 26 March 2019. A review adjudicator upheld it on 10 June 2019, relying on deemed dedication under section 31 of the Highways Act 1980 and leaving the public-access-road limb unresolved.

The Administrative Court quashed the review adjudicator’s decision, substituted a decision allowing the claimant’s appeal and directed cancellation of the penalty charge notice.