Public highways connect individuals and businesses with each other. They enable members of the public to go about their daily affairs and to interact with each other - to pass and repass whenever and as often as they wish, without let or hindrance, and without charge.

Owners of premises adjoining highways are also entitled to make reasonable use of the highway to obtain access to, and to load and unload goods at, their premises.

However, it has always been a nuisance to obstruct the highway, or to cause a highway to become dangerous, and the recent case of Business Environment Ltd v Wendy Fair (Wembley) Ltd [2005] illustrates some of the difficulties that the courts face when they are asked to reconcile the conflicting interests of highway users and street traders.

The common law rule is that those using the highway are entitled to remain at rest for a reasonable time, but anyone who obstructs the highway for longer than is reasonable causes a nuisance, and individuals who can show that they have suffered loss as a result can recover damages from the person responsible in a civil action.

When do obstructions to the public highway become so unreasonable that they constitute a nuisance? Whether an obstruction or encroachment amounts to a nuisance is a question of fact and degree. It will depend on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and of course whether it does, in fact, cause an actual obstruction - as opposed to a potential obstruction.

The obstruction or encroachment may be so inappreciable or temporary that it does not constitute a nuisance. But, if it is a nuisance, it is no defence to show that the act complained of might actually be beneficial to some members of the public.

The facts in Wendy Fair

The claimant in this case was the leasehold owner of a large office block in Wembley. Approximately half of the building was let as government offices. The remainder consisted of offices that were licensed to users as fully serviced offices to which there was access 24 hours a day, seven days a week. The only practical means of obtaining vehicular access to the premises was from Olympic Way, a public highway that had been pedestrianised by an order that extinguished all vehicular rights of way, except for the purpose of accessing the premises with frontages to the road.

The defendant, Wendy Fair, operated a Sunday market, which was relocated to Olympic Way, with an appropriate licence from the council, for a temporary period of 12 months because of redevelopment work in the area. The use was not new. Historically, Olympic Way has been used as the site of a market for a three-week period, once every year, during the Horse of the Year show.

However, the claimant complained about the Sunday market on the grounds that the stallholders were obstructing the highway. It said that the presence of the street traders was making it impossible for its tenants and licensees to access its offices and asserted that it would be impossible for

emergency vehicles to attend the premises in the event of a fire while the market was operating.

The market operator agreed to change the layout of the market on a temporary basis to meet those concerns, but this reduced the lettable area of the market, representing a loss of over £2,000 per week, and it soon reverted to the original layout.

The claimant applied for an interim injunction to ensure that the stallholders left an open corridor to enable delivery vehicles and emergency vehicles to obtain access to its building. It adduced evidence that the process of setting up and dismantling the market involved substantial periods of time during which the road was completely blocked, so passage for emergency services would not be available if required.

It also adduced evidence from a number of traders who had tried and failed, or who were no longer prepared to attempt, to make deliveries to the premises on Sundays. It also produced photographic evidence of the successful journeys that were made through the Sunday market; the judge commented that the drivers of the vehicles concerned must have required considerable skill and courage to execute the requisite manoeuvres!

However, the claimant was unable (with one trivial exception in respect of a wasted journey by a plumber, for which it had received an invoice for £175) to point to any quantifiable pecuniary loss. But it argued that it had suffered and would continue to suffer damage as a result of its inability to carry out maintenance and refurbishment work at weekends, and through the loss of amenities that it was able to make available or to advertise to its present or prospective licensees. It accepted that this damage was hard to quantify but submitted that it was, nevertheless, real.

The market operator took a different tack. It accepted that the market had affected the claimant's use of Olympic Way, but argued that the degree of interference with the claimant's rights to use the highway had not been so unreasonable as to amount to a public nuisance in respect of which the claimant was entitled to sue. It also argued that the claimant was unable to show sufficient damage to support its claim in public nuisance, and applied to strike out the claim in its entirety.

In the High Court

The High Court stressed that minor inconveniences are not actionable. The judge, Hart J, reminded both parties that:

No member of the public has an exclusive right to use the highway. He has merely a right to use it subject to the reasonable user of others...The law...recognises that there are...competing public interests. The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others and must not themselves expect a degree of convenience only obtainable by disregarding that of other people (per Romer J in Harper v GM Haden & Sons Ltd [1933]).

However, Hart J went on to acknowledge that access through the front gate was substantially less convenient on Sundays. He also observed that access for certain types of vehicle was, for all practical purposes, impossible during certain periods while the market was in operation, and rejected the argument that the market operator had failed to inflict sufficient damage to give rise to a claim in public nuisance.

The judge took the view that the claimant had suffered real damage because the Sunday market was interfering with the way in which the claimant ran its business. The judge said that if the market operator's argument - that the claimant needed to show that it had suffered pecuniary damage to support its claim - were to be taken to its logical conclusion, the market operator would be able to deny all access on Sundays and then resist interlocutory relief on the ground that the claimant would not suffer any 'real' damage as a result.

The judge acknowledged that it was a close run thing, but said that keeping a corridor open for vehicular access would solve the claimant's problem at a cost to the market operator which the claimant would be well able to meet if it were to lose at trial. So he decided to grant the interim injunction to preserve a balance between the competing interests of the parties until trial or until the cessation of the Sunday market in twelve months' time.

The market operator appealed against the decision. The appeal was heard just before the summer recess and has not yet been fully reported, but the Court of Appeal ruled that the judge had been entitled to come to the decision that he had, for the reasons that had been given, and concluded that there were no grounds for interfering with the judge's decision. And so the court refused to discharge the interim injunction.

Comment

The case provides us with another fascinating insight into the relationship between the common law and public law.

There are interesting parallels with the decision in Wheeler v JJ Saunders Ltd [1995], a case which concerned the nuisance caused by smells emanating from a pig farm. The farmer contended that he had received planning permission for the construction of buildings to house pigs, which authorised him to use his land as a pig farm, despite the inevitable smells that would occur as a result. But the Court of Appeal ruled that planning authorities do not generally have the jurisdiction to authorise a nuisance (although they do have the power to grant consents that will change the character of a neighbourhood - see Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992]).

The judge did not explore the issue in his judgment, but this latest decision indicates that the grant of a street trading licence - without which the Sunday market would have been unlawful - does not constitute a licence to commit a nuisance. The case also confirms that public rights of passage will normally take precedence over other lawful uses to which the public highway may from time to time be put.

Other case law

In Rodgers v Ministry of Transport [1952] the court had to decide whether lorry drivers could pull off the road onto the grass verge, or into a lay-by, to buy refreshments at a roadside cafe. The judge said:

I certainly cannot find that the fact that the lorries call at the café for refreshment causes an obstruction of the highway. They do not obstruct the highway merely by a temporary call for a legitimate and proper purpose such as getting a meal while on the road, provided they do not stop at a place where the mere presence of a stationary vehicle would create an obstruction.

In Nagy v Weston [1965] the defendant owned a motor van from which he sold hot dogs. He parked his van in Oxford on an evening in May 1964, just past a bus stop. He remained in that position for five minutes, and was asked to move on by a police constable. He refused to do so and was arrested. The Court of Appeal upheld his conviction for obstructing the highway, even though he was parked at the edge of a wide road, because he parked his van there for several hours every night.

In Absalom v Martin [1974] local magistrates dismissed a prosecution for obstruction brought against a bill poster who drove around the centre of a town, stopped at advertisement hoardings to post his bills and then moved on again, because they did not think that he was making unreasonable use of the highway and was trying to carry on his business in such a way as to cause the least possible interference with other road users.

Absalom v Martin [1974] RTR 145

Business Environment Ltd v Wendy Fair (Wembley) Ltd [2005] EWHC 1385 (Ch); [2005] All ER (D) 47

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 1 PLR 113

Harper v GM Haden & Sons Ltd [1933] Ch 298

Nagy v Weston [1965] 280 1 WLR

Rodgers v Ministry of Transport [1952] 1 All ER 634

Wheeler v JJ Saunders Ltd [1995] 1 PLR 55