Is your site a public place?

Construction operatives may risk prosecution for road traffic offences if their site is held to be accessible to the public.

Clients, contractors, subcontractors and employers should be aware of the potential pitfalls of their site being classed as a public place for road traffic purposes.

Having recently successfully defended the driver of a backhoe excavator prosecuted for careless driving, a few prudent steps become apparent. In the case in question, an archaeologist was injured by an "unexpected" and sudden rearward movement of the backhoe machine. What made the action unusual was that this took place on private land, accessible only by a private road.

The legal definition of the offence mentions "a road or other public place". As the construction site was not a road, the issue was whether it was an "other public place". For practical purposes, the term relates to a place where the public have access. Generally, a place will not be "public" if members of the public, without a special role, do not have access. So, the fact that a building officer may have a statutory right of access does not make the site "public".

The site in this case had been part of a private plot accessed by an unadopted road situated in a private industrial park. That industrial park included retail outlets, so members of the general public had access to the industrial park, but arguably not to the site. The site had been fenced off on three sides, while the fourth side remained mostly clear for access purposes. There were no signs to warn trespassers to keep away from the land, although site personnel would have challenged strangers.

A test of what constitutes a public place is given by Lord Justice Mann in DPP v Coulman.(1) Mann stated:

It would appear from the analysis of a case called DPP v Vickers that the enquiry is as to whether those who are permitted to use the road are so permitted because of some special characteristic or reason personal to themselves, which is not possessed by the public at large. If they are not, then it is a place to which the public have access.

As the site in question was privately owned, it was, on the face of it, not a public place, and the archaeologist had probably been granted a licence to be on site such as to constitute a "special characteristic personal to them, which was not possessed by the public at large".

A further line of defence was the question of whether the operative had been "driving". This seemed to be a respectable defence on the basis that the operative was not facing his cab and the usual controls, but looking out of the rear window, his seat reversed some 180º from the steering wheel. The plant was stationary immediately before the incident, and it seemed arguable that it was merely a machine being used as a tool of the trade rather than as a vehicle in the course of propulsion.

Road Traffic Act does not define the word "drive", but Lord Widgery, in the case of R v MacDonough, stated that:

The essence of driving is the use of the driver's controls to direct movement, however that movement is produced.

The use of a backhoe in its tool-of-the-trade mode might not, therefore, be being driven (2).

Such arbitrary defences are clearly inadequate for protecting individuals from prosecution. Unless parliament passes legislation or the courts can clarify the situation, those involved in the construction process should take positive steps to ensure their construction site is not inadvertently held to be a public place on which road traffic offences may be committed. Taking practical measures such as ensuring perimeter fencing is installed before works are commenced, marking the site as "closed to the public" and ensuring that the site management has systems in place so that strangers are challenged are all recommended.

Endnotes

1. (1993) RTR 230
2. (1974) RTR 372