Later decisions that cite It reflects the well known decision in this context of the House of Lords in Marshall v Blackpool Corporation
Lorp Arkin. My Lords, the question in this case arises on a case stated by the Court of Quarter Sessions for the County of Lancaster on an appeal by the appellants from the refusal of the Corporation of Blackpool to sanction works forming a communication from the appellants' premises across a footpath in St. Chad's Road, Blackpool. The appellants are motor coach proprietors and are the owners of premises No. 1 St. Chad's Road. St. Chad's Road is a road running into the Blackpool Promenade. The premises No. 1 (1) (1884) 14 Q. B. D. 245, 256, (2) (1883) 25 Ch. D. 511. 257. (3) (1884) 9 App. Cas. 927. A. C. AND PRIVY COUNCIL. have a narrow frontage to the Promenade and a long frontage to St. Chad's Road. They abut on the road, the footway about 8 feet wide intervening between the premises and the roadway, which is about 20 feet wide. As the appellants wished to have access from their premises to the roadway in St. Chad's Road, and for that purpose their vehicles would have to cross the footpath, they had to comply with the provisions of s. 62 of the Blackpool Improvement Act, 1879. That section is as follows: [His Lordship read the section, and proceeded.| A plan of the proposed communication was duly submitted to the Corporation containing the statutory particulars. The Corporation refused to sanction the execution of the works. No objection was taken to the works as such, but, as found by Quarter Sessions, the Corporation took into consideration matters in regard to the safety of the public and convenience of pedestrians and vehicular traffic which might use Chad Street, and also had regard to certain powers which they hoped to obtain under their proposed town planning scheme whereby this portion of the Borough would be zoned for residential purposes only. The Court of Quarter Sessions, to whom by s. 111 of the Act an appeal lay from the refusal of the Corporation, came to the conclusion that the Corporation was not entitled to take into consideration the foregoing matters, and subject to a case stated allowed the appeal. The Divisional Court, consisting of the Lord Chief Justice and Avory and Branson JJ., affirmed the decision of Quarter Sessions. The Court of Appeal by a majority (Scrutton and Slesser L.JJ., Eve J. dissenting) allowed the appeal. They agreed that the zoning question could not be considered but thought that the first question could, and remitted the matter to the Corporation for decision upon that footing. My Lords, in order to construe the section it seems desirable to consider what the rights of the appellants would be if no such enactment were in existence. The law appears to me to be as stated by the Lord Chief Justice, who has cited the relevant authorities. With no hope of improving that state- ment, but as a foundation for my own opinion, I propose to 21 H. L. (E.) 1934 ~~ MARSHALL Vv. BLACKPOOL CoRPORA- TION. Lord Atkin. 22 H. L. (E.) 1934 ~— MARSHALL v. BLACKPOOL CoRPORA- TION. Lord Atkin. HOUSE OF LORDS [1935] say shortly what I conceive the legal position to be. The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed. upon a person using the highway. Apart from any statutory provision there is no obligation upon an adjoining owner to fence his property from the highway: and though in urban districts fencing is usual, your Lordships will be familiar with many instances to the contrary, as for instance in country towns, where it is common to find large open forecourts to country inns and the like where market carts and farm vehicles are left during business hours. Moreover the ordinary traffic on any highway is always liable to be increased by the exercise by an adjoining owner of this right of access. A building estate may be developed, or a theatre, concert hall, cinema, or hotel erected on premises which will necessarily involve incalculable increase of traffic. Subject to special statutory provisions protecting footpaths, the right of access. is not affected by the fact that part of the highway is only dedicated as a footway, or is otherwise lawfully appropriated to foot passengers. The passage of the public along a footway is always liable to be temporarily interrupted by adjoining owners' right of access, whether to the footway or the roadway : and the dangers, if dangers there be, of a pedestrian having his path crossed by vehicles exercising right of access may be increased, and lawfully increased, by the adjoining owner or owners increasing their means of access. As was pointed out by the Lord Chief Justice, it would be remarkable to find this well established right of an adjoining owner taken away and without compensation, especially in a local Act, unless there were very plain words to that effect. As far as I can see the section does not even purport to affect A. C. AND PRIVY COUNCIL. the right at all. It is directed to works and to works only. The place of the communication must be stated: not to enable the Corporation to reject the place apart from the nature of the works, but to fix it on the plan and enable the Corporation to judge what provision is made for kerbing and for a paved crossing, and to consider the dimensions and gradients of the necessary works. Plainly the Corporation may consider the nature of the proposed user in order to judge how the way should be constructed, both as to surface and kerbing and in relation to the gradient. If the actual works, either by the steepness of the gradient or the depth of the side kerbing, would be likely to affect the safety of pedestrians on the footway or of vehicles on the roadway, there seems to me no reason why they should not take those factors into account. But in my opinion they are not entitled to take into account questions of safety and convenience of the public except in so far as affected by the nature of the works. They may not therefore take into account the nature and extent of the proposed user of a communication in itself safe and sufficient for that user. That user is, as has been pointed out, controlled by the general highway law. It follows that however large the existing traffic in St. Chad's Road may be both of vehicles and pedestrians, the corporation may not restrict the addition of further traffic to it, even for the promotion of the convenience or safety of the public, by using the powers of s. 62 so as to refuse sanction to works which in themselves are safe and adequate. That there is no objection to the works as works is stated in the agreed case; and I feel no doubt that the order of Quarter Sessions operates to give the sanction which was withheld by the Corporation, a power which the unrestricted terms of s. III undoubtedly confers upon Quarter Sessions. For these reasons I am of opinion that the order of the Court of Appeal should be set aside and the order of the King's Bench Division should be restored. The appellants should have the costs here and in the Court of Appeal. Lorp WARRINGTON OF CLYFFE. My Lords, I concur. 23 Inte lee ((Ds)) 1934 ~~ MARSHALL v. BLACKPOOL CoRPORA- TION. Lord Atkin. 24 H. L. (BE) 1934 —— MARSHALL v. BLACKPOOL CoRPORA- TION. HOUSE OF LORDS [1935 ] LorD THANKERTON. My Lords, I agree. Order of the Court of Appeal reversed: Order of the King's Bench Division of the High Court of Justice, thereby set aside, restored : Respondents to pay to the Appellant the costs incurred in the Courts below and also the costs of the Appeal to this House: Cause remitted back to the King's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Order. Lords' Journals, June 25, 1934.