Definition of Highway in relation to Bailiff enforcement

Bailiff Advice · October 13, 2017

Bailiff enforcement was completely overhauled in 2014 and whilst the new regulations have undoubtedly proved to be a major improvement on the previous regulations, there are nonetheless areas of the regulations where improvements are desperately needed and where clarification is required on important subjects, one being the definition of a 'highway'.

With this is mind, I was very interested to read a recent article from the President of CIVEA which represents the interests of approx 2,000 certificated enforcement agents. The article features in a trade publication and concerns the outcome an EAC2 Complaint that had been made to the court by a debtor after his vehicle had been clamped and removed to the vehicle pound after being located by the enforcement agents ANPR equipped vehicle. The debtor considered that the seizure had been unlawful because his vehicle had been parked on 'private' property which was not considered a 'highway'.

By way of background, I have copied the article below:

Definition of Highway

Since the introduction of TCE there has been significant debate about where an enforcement agent may take control of a vehicle and the definition of a highway.

There are two sources of law in relation to the seizure of vehicles in these circumstances. The first is in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. The second is the regulations under that Schedule, which are The Taking Control of Goods Regula ons 2013. Between them, together with The Taking Control of Goods (Fees) Regulations 2014, they provide a self-contained statutory scheme.

Paragraph 9 of Sch.12 provides:

“An enforcement agent may take control of goods only if they are— (a) on premises that he has power to enter under this Schedule, or (b) on a highway.”

So, can a private road be considered a highway?

A private road can fall within the definition of a Highway for TCE purposes - the important factual question being, whether or not, the public can pass freely, without restriction or hindrance. Those debtors who try and rely simply on a road, car park or other area being privately owned and thus not a place where an EA can take control of a vehicle, are misguided. This principle was confirmed in a ruling of DJ Holmes sitting at xxxx County Court on (date) when dismissing a complaint against an EA who seized and removed a vehicle from a private road on behalf of Newlyn Plc.

The Enforcement Agent called at the debtors address and was unable to make contact. After leaving the premises he located the warrant vehicle approximately one mile from the warrant address, via ANPR alert. The car was parked on a private road adjacent to a block of flats. He clamped the car and it was subsequently removed.

The debtor then responded to the notice of sale and raised an EAC2 complaint against the Enforcement Agent. The complaint argued the legality of the removal as the vehicle was parked on private land not associated with his address.

When considering the definition of a highway, DJ Holmes advised it was necessary to go back to the common law as to what amounts to a highway.

The classic statement quoted was that of Wills J in Ex parte Lewis (1888) 21 QB 191 at 197: “... a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.”

In Newlyn’s case DJ Holmes considered the fact the private road in question had no means of restraint by gate, barrier or even signage statinng: “No right of way.” He did not accept that a sign stating: “private property,” supported the debtors view that the road was not a highway. The general public were entitled to park on this road, for a maximum of four hours, and therefore had a right to pass and repass. For this reason DJ Holmes ruled that the: ‘private road,’ was indeed a highway within the meaning of the common law and, therefore, within the meaning of the regulations and the Schedule to the 2007 Act.

A useful decision when considering the matter of carparks and other private land where the public can pass and repass freely.

Given the importance of the subject (whether the vehicle has been located on 'private' land or a 'highway'), I approached the enforcement company to request a copy of the Judgment. I received a copy earlier today and in the following posts, I have posted the relevant parts of the Judgment that address this important subject.

Bailiff Advice · October 13, 2017

16

The first issue that I need to address is the lawfulness or otherwise of the seizure of the vehicle. There are two sources of law in relation to the seizure of vehicles in these circumstances. The first is in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. The second is the regulations under that Schedule, which are The Taking Control of Goods Regulations 2013. Between them, together with The Taking Control of Goods (Fees) Regulations 2014, they provide a self-contained statutory scheme.

17

Paragraph 9 of Sch.12 provides:

“An enforcement agent may take control of goods only if they are—

(a) on premises that he has power to enter under this Schedule, or (b) on a highway.”

18

In relation to the definition of “premises that he has power to enter under this Schedule”, those are limited to places either where the owner of the goods works or carries on his trade or is one of where he usually lives. That is contained in paragraph 14 of Schedule 12.

20

One of the ways in which Newlyn seeks to enforce warrants of this nature is to use number plate recognition equipment. In essence, they drive the streets in the hope that the computer is going to find them something they might want to seize. That is what Mr. Bailey says he did. A few streets away, Mr. Bailey drove into a place called High Mount. Whilst he was driving through High Mount, the computer in his vehicle identified Mr. Pitt’s vehicle as being one that was of interest to him. Mr. Bailey stopped and he took enforcement action as against that vehicle. He seized it by placing a clamp upon one of the wheels and, after waiting the prescribed period of time, a collection vehicle was arranged and Mr. Pitt’s vehicle was taken away to storage.

21

The first issue that arises is whether the vehicle was taken from the highway or taken from a place which the enforcement agent reasonably believes is one of the places where the debtor usually lives or carries on a trade or business.

22

Dealing with the highway first, there is, curiously, no definition in the highways’ legislation as to what a highway is. That is a point that is remarked upon by Hickinbottom J in Kotegaonkar v Secretary of State for the Environment, Food and Rural Affairs & Anr [2012] EWHC 1976 (Admin).

23

It is, therefore, necessary to go back to the common law as to what amounts to a highway. The classic statement is that of Wills J in Ex parte Lewis (1888) 21 QB 191 at 197, namely:

“... a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.”

24

At paragraph 16 of the judgment of Hickinbottom J, some additional characteristics are set out from Halsbury’s Laws of England and are effectively approved by the learned judge:

‘(i) The passage must be as of right, not mere permission.

(ii) The right must be a right to pass at will.

(iii) Although the right may be for a limited purpose - such rights of passage may be for vehicles (i.e. a road), or for pedestrians and animals (i.e. a bridleway), or for pedestrians only (i.e. a footpath) – it must be a right owned by the whole of the public, not merely a portion of the public.

(iv) The right must be over a defined route: the common law did not recognise a right to stray or wander over land.

(v) The right must be permanent: a highway cannot be extinguished at common law except by way of complete physical destruction, hence the maxim, “Once a highway, always a highway”. Short of physical destruction, extinguishment relies upon statutory provisions.’

25

The first distinction of some little importance is the difference between the terminology of a “public highway” and a “highway”. A public highway is one that is maintainable at public expense, i.e., the highway authority is responsible for making sure that the road surface is kept to a reasonable standard and that people can use the public right of way. That is a class of highway which was created under a statutory scheme to ensure that highways were maintained. Highways themselves as a concept predated that statutory scheme. It is the word “highway” which appears within the Schedule to the 2017 Act and it is that with which I am concerned.

Bailiff Advice · October 13, 2017

Continued from previous post:

26

It is quite clear from the matters that are set out in the judgment of Hickinbottom J that whether something is a highway or not is a question of fact. It is, therefore, necessary to look at the surrounding circumstances of this piece of land to ascertain whether there is a right of way over it. Two things are of note.

27

First, this is a residential block of flats, the age of which is somewhat difficult to tell from the photographs with which I have been provided. It certainly does not appear to be of new construction. It is an area that was quite clearly laid out at the time when the building was constructed. It allows for people to park. It has an entrance and an exit onto a public highway. There are no means of restraint. There is no gate. There is no barrier of any sort that would prevent any member of the public from wandering onto the land or using it as a way of moving between one point and another.

28

The only indication available that it is anything other than a right of way is the fact that, at the entrance, it says “Private Property”. There is actually a distinction between the ownership of land and a right of way. Whilst most public highways are probably, to all intents and purposes, owned by the highway authority, if one thinks about footpaths, the land is often owned by somebody else, often the person who has the adjoining land over which the right of way travels. So, whether the property is owned by a particular individual, is not of any great relevance to whether there is a right of way over it and, therefore, whether it is a highway. Often one will see a sign that says “No Right of Way”, “Residents Only” or words to that effect. That is not present here.

29

Although there is no evidence as to usage, if it were clear on the evidence that for a substantial period of time members of the public had used it as of right, it would then be clear that a highway was established. I do not have any clear evidence on that. However, I am not suggesting for a moment that either of the parties, in what is relatively low value litigation, should have gone to the expense of obtaining it. The ultimate question would be, if somebody did put up a gate, whether anybody complained about it and said that they had a right to move across it.

30

In Mr. Pitt’s favour on this issue is the fact that there is the sign stating “Private Property”, but it is of only limited value for the reasons I have given. Second, the property is clearly a residential block. The third issue concerns parking. Mr. Pitt’s submission is that it must be private property because there is a sign that is erected which says that it is private property and that parking can only be done by those who are authorised to do so and/or for a maximum of four hours.

31

I am not entirely sure that I read the sign in the same way as Mr. Pitt does. It seems to me that that is an indication for residents. Residents may well have a permit and they probably have visitors’ permits. That is probably what is being referred to with a maximum of four hours, but the matter is unclear. I will resolve any doubt I have in that matter in Mr. Pitt’s favour. Mr Pitt says that members of the public, such as him, are entitled to park for up to 4 hours. Whether he is right is not for me to determine.

32

Another difficulty for Mr. Pitt’s ultimate argument as to whether this is a highway or not is that there is a distinction to be drawn between somebody who can park and somebody who can pass. To go back to the words of Wills J in Ex parte Lewis, it is “pass and repass without let or hindrance”. It is not the right to park or to stop, or anything of that sort. If the general public, or visitors, are entitled to park on High Mount for a maximum of four hours, then to do so they would need to “pass and repass” over the land to get there, to park their vehicle, and to walk away. It seems to me that, contrary to what Mr. Pitt is trying to argue, it is actually powerful evidence that this is indeed a highway and an area over which somebody has a right to “pass and repass”. There is clearly no evidence of there being any “hindrance” to anybody wishing to exercise that right. Although it may well be that Mr. Bailey’s training in relation to the distinction between highways and public highways and private property needs to be revisited, it is quite clear to me that this is a highway within the meaning of the common law and, therefore, within the meaning of the regulations and the Schedule to the 2007 Act.

lookinforinfo · October 13, 2017

Perhaps the above Judge should have read the article below

http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/2012/07/Ways-Highways-Highways-Maintainable-at-Public-Expense.pdf

3. What is a highway?

3.1 You’d think that this part would be easy...

3.2 Statutory definition:-

(3.2.1) The whole of s.328 of Highways Act 1980 is given over to

”Meaning of “Highway” “. What we are told is that “highway”

Ways, Highways, and Highways Maintainable at Public Expense:- the Differences and Defences.

Matthew White, 26/4/12

3

(for the purposes of the Act) means the whole or a part of a

highway other than a ferry or waterway, and includes bridges and

tunnels which the highway passes over/ through.

(3.2.2) In other words, the “Highways Act” does not tell us what a

“highway” is.

3.3 Common law definition:-

(3.3.1) A highway is a way over which there exists a public right of

passage, that is to say a right for all Her Majesty’s subjects at all

seasons of the year freely and at their will to pass and repass

without let or hindrance. (Halsbury’s Laws 21[1]).

(3.3.2) If you are that type of person, you can goad your opponent by

referring to this as the “jus spatiandi”.

3.4 Trap:- The path (or whatever) that you are looking at might not be a

highway at all.

Ley v. Devon County Council (unreported, Dobbs J sitting in Truro,

28/2/07), Lawtel reference AC0115001.

C lived in a flat which was part of a complex built by Exeter City Council.

She was injured when she tripped on a dangerous defect on a path which

was near to the flat. There was a “residents only” sign on the path. At

first instance the judge determined that the sign was to prevent nonresidents

from parking in the area, that the path was not restricted as to

who could use it, and that the path was therefore a highway

maintainable at public expense. Alternatively, he said, the path was

deemed to have been dedicated as a highway by virtue of public use for

20 years (and there was no evidence to rebut the dedication).

On appeal it was held that the path was clearly private property (on all

the evidence, including the sign). Even if it could be inferred that there

had been some use by the public over 20 years, the sign was sufficiently

detailed to negative the dedication. Thus there was not a highway at all.

3.5 Trap:- There is not a highway if there is no regular “way”, rather people

pass and repass where they like.

And it might rebut CIVEA's idea.

mariner51 · October 14, 2017

I would question Mr Pitt's intent when parking where he did.

I suggest DVLA has guidance where SORNed vehicles may/not be kept.

A 'private' supermarket car park is not one, if Joe Public is entitles to use it during store opening hours without hindrance.

Bailiff Advice · October 14, 2017

I would question Mr Pitt's intent when parking where he did.

In defence of Mr Pitt, it would seem from the judgment that the location where he parked was close to the property that he had moved to. The following paragraph's from the Judgment may provide some background.

1 On 7th June 2016, Mr. Pitt’s Range Rover was removed by Mr. Xxxx a bailiff working through Newlyn PLC (“Newlyn”).

2 This case concerns the lawfulness of that action, the fees which have been charged in relation to that seizure and the enforcement action, and what appropriate remedy is available to Mr. Pitt as a result. In addition, there is a complaint before me against Mr. XXX alleging that he is not a fit and proper person to continue to be authorised to act and work as a bailiff.

3 The underlying background of the case is that Mr. Pitt is not somebody who parks his vehicle in a way which a number of the local councils in London think is appropriate. There were, at least relevant to this case, four enforcement notices that have been issued against him or somebody who has been driving the vehicle with his consent. There is no challenge to those enforcement notices either before me or before any other appropriate authority. Therefore, it must be accepted, that those are sums lawfully and properly owing by Mr. Pitt to the various local authorities.

4 As a result of those enforcement actions being taken, each of the local authorities contacted Newlyn, which is an entity which specialises in enforcing those types of enforcement notices. They have created a file and have allocated the matter to a particular enforcement agent (a “bailiff”, in common parlance) to seek to try and take steps to enforce.

9 All the warrants of control were addressed to Mr. Pitt at what he accepts is the correct address. In fairness to him, he has not disputed during the course of these proceedings that he received those warrants of control and, indeed, that he had not paid the sums that were set out within them.

PS: The updated regulations are only 3 years old and it is only since early 2017 that cases of importance have come to the courts and 'definitions' such as this one (what is a 'highway') have started to be clarified.

It is important to stress that this case is a decision from a lower court and whilst not a binding decision, it is nonetheless an important judgment.

**brassnecked** · October 14, 2017

Take that to an extreme and a neighbour next doors car might be taken off their drive by a rogue bailiff as the postie, milkman and the Yodel/DHL/DPD driver has implied right of access so it's public

it's OK just being Pythonesque.

One thing for sure the implications from this judgment if confirmed in a higher court are widespread.

Peterbard · October 14, 2017

Take that to an extreme and a neighbour next doors car might be taken off their drive by a rogue bailiff as the postie, milkman and the Yodel/DHL/DPD driver has implied right of access so it's public

it's OK just being Pythonesque.

One thing for sure the implications from this judgment if confirmed in a higher court are widespread.

The judgment, whilst lower court was well researched and I should imagine would bear significant weight. It is however based on its own individual circumstances and even then leaves some room for argument.

As far as a debtor is concerned, it just means that some thought has to be given before parking on none public roads. IMO

**brassnecked** · October 14, 2017

The judgment, whilst lower court was well researched and I should imagine would bear significant weight. It is however based on its own individual circumstances and even then leaves some room for argument.

As far as a debtor is concerned, it just means that some thought has to be given before parking on none public roads. IMO

That is how I see it DB, it's lso how a bailiff will see it if they think there is a motor to snatch.

Bailiff Advice · October 15, 2017

The judgment, whilst lower court was well researched and I should imagine would bear significant weight. It is however based on its own individual circumstances and even then leaves some room for argument.

In the entire judgment (21 pages) DJ Holmes analyises each area of dispute in great detail and this is what should be expected from Judges when considering serious court applications such as this one (an EAC2 Complaint).

The problem with legal proceedings is that, whilst they do at least provide clarity to parts of the regulations where there may be ambiguity, they nonetheless have the potential to make matters significantly worse for the public (as has been established by this case which was made available to the enforcement industry a few months ago).

My fear is that enforcement agents could quickly revert to using tactics that had been widespread prior to 2014 when it was common practice for enforcement agents to clamp vehicles in large supermarket car parks and out of area shopping complexes (Bluewater in Essex and Cribbs Causeway in Bristol are two such examples).

Personally, I would have preferred for the regulations to use the word 'public highway' as opposed to 'highway'.

Bailiff Advice · October 15, 2017

The particular judgment is also very interesting as it provides clarity to some other areas of the regulations where there may be confusion. One such example (which I will start another discussion thread about) concerns the subject of 'multiple' enforcement fees. In this particular case, there had been 4 penalty charge notices with two different local authorities and 3 enforcement fees (of £235 each) had been applied. DJ Holmes was perfectly satisfied that the correct charges had been applied.

Additionally, the judgment highlighted the information that must be recorded on a Notice of Sale which again, I will leave for another discussion thread.

I should add that Mr Pitt had been a litigant in person. DJ Holmes did not make a finding that the bailiff was an unfit person to hold a certificate.

PS: One area where DJ Holmes was critical of Mr Pitt was in his claim for 'damages'. Mr Pitt like many other litigants (even those who are represented) failed to provided any supporting evidence for any of the amounts claimed.

**brassnecked** · October 15, 2017

In the entire judgment (21 pages) DJ Holmes analyises each area of dispute in great detail and this is what should be expected from Judges when considering serious court applications such as this one (an EAC2 Complaint).

The problem with legal proceedings is that, whilst they do at least provide clarity to parts of the regulations where there may be ambiguity, they nonetheless have the potential to make matters significantly worse for the public (as has been established by this case which was made available to the enforcement industry a few months ago).

My fear is that enforcement agents could quickly revert to using tactics that had been widespread prior to 2014 when it was common practice for enforcement agents to clamp vehicles in large supermarket car parks and out of area shopping complexes (Bluewater in Essex and Cribbs Causeway in Bristol are two such examples).

Personally, I would have preferred for the regulations to use the word 'public highway' as opposed to 'highway'.

That is my fear also, which is why I indicated a ludicrous scenario in my post #7 to illustrate the twisted way some bailiffs work.

Peterbard · October 15, 2017

That is my fear also, which is why I indicated a ludicrous scenario in my post #7 to illustrate the twisted way some bailiffs work.

I have seen supermarket car parks mentioned in relation to this judgment, personally I do not think the suggestion has legs. We have seen the trap argument mentioned. There is also the question of "freedom of use at any time," and that the usage should be by right of the public.

A supermarket would be anxious to point out that their was no right to park on their property, and that parking was a benefit which could be withdrawn.

Peterbard · October 15, 2017

I wonder why the judge did not examine the TCE,s part in all this. I would have expected some mention of what was in the mind of parliament in this regard, would they have had "highway" as proposed here in mind or did they have public highway and failed to notice the oversight.

I think you can only determine this by looking at how the definitions effect the stated purposes of the act.

Peterbard · October 26, 2017

Perhaps a bit vague

There was no difference between enforcement on the highway and ordinary enforcement mentioned in the Distress for rent rules.

It was the TCE which introduced the individual enforcement criteria. That is what was meant by my above comment.

The initial order or warrant gives a general power of entry on relevant premises under one section and goods on a highway in another. This is not about the difference between a highway and a public highway, but to me at least ,one between premises which are under the occupation or ownership of a person and those which are not.

It should also be considered that it is not only vehicles which can be taken control of on a highway but any goods. In Hansard there is reference to discussion about "highway " in relation to goods which the debtor left outside the house, ie not on the debtors premises but on public land. Which supports my point.

A right of way through third party land would not be a highway according to this, but not because of any public or private highway argument.

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