David Wellington

IN THE BLACK COUNTRY CORONERS COURT 

IN THE MATTER OF MR DAVID WELLINGTON   

BEFORE THE AREA CORONER, MRS JOANNE LEES 

RESPONSE OF WALSALL COUNCIL TO THE REGULATION 28 NOTICE 

The council wishes to apologise for the lack of a response from it in the time specified 

by the Regulation 28 Notice.  

The  council  has  given  careful  consideration  to  the  Notice  of  Prevention  of  Future 
Deaths. It has investigated the matter. Set out below are the results of the council’s 

investigations, its proposals for action to prevent future deaths, and the reasons why 

some actions cannot be taken, or cannot be taken without the express consent of third 

parties over whom the council has no control. We also set out some further thinking 

on ways to achieve the objectives set out in the report. It must, however, be stressed 

that it might not be possible to put into effect any such scheme. 

Ownership of the land 
The  council’s  researches  indicate  that  the  land  which  is  bounded  on  two  sides  by 

Leamore Lane and by Bloxwich Road was bought by the council in various parcels in 

1961. The land was at that time already developed. There was also an L-shaped road 

which ran into this land from Leamore Lane. The site was cleared and was developed 

much as it can be seen today. There were two pieces of development which are of 

importance.  One  of  these  developments  was  the  L-shaped  parade  of  shops  with 

maisonettes above facing, but set back from, Leamore Lane. The other development 

of importance was the estate made up of blocks of flats which is bounded on one side 

by Bloxwich Road and on another side by the service road where the accident took 

place.  

The council retained ownership of the service road which runs between the blocks of 

flats and the back of the shops fronting Leamore Lane.  

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 The development of the land was by the council. The highway which ran into this land 

from Leamore Lane was stopped up by order of the court. The blocks of flats and the 

parade of shops with maisonettes above were then constructed.  

In March 2003 there was a stock transfer of almost all of the council’s housing stock. 

The housing stock was transferred to a consortium of housing associations operating 

in Walsall. The land bounded on one side by Bloxwich Road and on another by the 

service road was transferred to 

. That transfer included 

the transfer of all the buildings on the land and of the rights of way attached to them. 

The transfer was registered in June 2003. Express of rights of way on foot along the 

service  road  were  granted  to  the  residents  of  the  flats  on  the  housing  estate  (the 

Watmos estate).  

The  freehold  to  the  land  on  which  the  parade  of  shops  facing  Leamore  Lane  was 

constructed was retained by the council. The shops were let on leases, all of which fall 

within  the  Landlord  &  Tenant  Act  1954.  Long  leases  were  granted  to  most  of  the 

maisonettes above the shops. All of the leases granted express rights of way both on 

foot and by vehicle along the service road.  

The freehold of the service road was retained by the council.  

For the reasons set out above there are rights of way over the service road which can 

be exercised in various ways both by the residents of the 

 estate and, more 

significantly,  by  the  lessees  of  the  shops  and  maisonettes  facing  Leamore  Lane. 

These rights of way extend across the whole width of the service road.  

The  council  is  not  entitled  unilaterally  to  seek  to  restrict  the  usage  of  any  of  these 

rights.  It  thus  cannot  legally  restrict  vehicular usage  of  the  service  road  to  one part 

only of the service road, nor can it restrict the residents to walking along only limited 

parts of the service road.  As mentioned above, some of these rights are set out as 

express  rights  of  access  granted  by  long  leases.  Others  are  expressly  granted  in 

commercial leases falling within the Landlord & Tenant Act 1954. The tenants of these 

commercial premises will be entitled, on expiry of their existing leases, to the grant of 

new leases on much the same terms save for those relating to the rent. The council 

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 would not be entitled on renewal of the leases to seek to limit the rights of access to 

the premises along the service road.  

Public rights of way along the service road 

Although the service road has some indications, such as double yellow lines running 

along both sides of it from Bloxwich Road to the barrier, that it is public highway, it is 

not public highway. The service road has not been declared to be public highway, and 

it is unlikely that public rights of way could have been established along it by long user. 

The council is unaware of any long user by others as of right, the service road does 

not  lead  to  anywhere  and  it  would  thus  be  difficult  for  members  of  the  public  to 

establish long user along it to get from A to B, and access is obstructed by a lockable 

barrier. The only public rights of way would be by pedestrians using the footway on 

Bloxwich Road then crossing the bell mouth of the service road.  

The barrier 

The  barrier  was  erected  some  years  ago  to  deal  with  a  problem  caused  by 

unauthorised persons driving along the service road and then parking wherever they 

chose behind the shops facing Leamore Lane. These cars obstructed vehicular access 

to the shops and to the maisonettes behind. At the request of those who had rights of 

way along the service road the barrier was installed. Keys to the barrier are held by all 

of the lessees of the shops in the parade facing Leamore Lane. The installation of the 

barrier  was  found  to  be  a  reasonable  compromise  to  deal  with  the  problem  of 

unauthorised parking of vehicles behind the shops. The situation now is that anyone 

wishing to take a vehicle beyond the barrier will need to unlock the barrier, perhaps by 

obtaining  the  key  from  one  of  the  shops.  Whilst  this  is  an  impediment  to  vehicular 

access to the rear of the shops, it is a much lesser impediment than that which was 

continually caused by the unauthorised parking of cars. Prior to the installation of the 

barrier vehicular access could be obtained only if the service road was clear, or if the 

owners of the vehicles blocking it could be found and persuaded to move the vehicles.  

It is recognised that any emergency vehicle wishing to use the service road beyond 

the  barrier  would  not  have  immediate  access  to  the  rear  of  the  shops.  Prior  to  the 

installation of the barrier there was a strong likelihood that access by such vehicles 

would be obstructed by parked cars. The current position is that emergency vehicles 

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 can reach the barrier. Police Officers can proceed further on foot. Ambulance staff can 

proceed further on foot, but they can also wheel trolleys below the barrier. Access by 

wheeled trolleys might not be possible if the service road is blocked by parked cars. 

In  the  event  of  the  fire  brigade  wishing  to  proceed  beyond  the  barrier  Fire  Officers 

would, in a matter of seconds, cut through the lock to the barrier. All of the emergency 

services would be able to request keys to open the barrier, and there is of course the 

likelihood that the barrier would already have been unlocked by a keyholder if access 

were to be required by an emergency services vehicle.  

Whilst the council recognises that the presence of the barrier poses an obstruction to 

the  private  rights  of  way  along  the  service  road,  that  obstruction  was  requested  by 

those entitled to have vehicular access to their premises along the service road. The 

reality  is  that  the  barrier  poses  less  of  an  obstruction  to  vehicular  access  than  that 

caused  by  the  unauthorised  parking  of  vehicles  behind  the  shops.  The  council  has 

carried out the exercise of considering whether the concerns set out in the Prevention 

of  Future  Deaths  Report  could  be  met  by  the  removal  of  the  barrier.  The  historical 

experience  of  the  service  road  being  blocked  by  unauthorised  vehicles  has  led  the 

council to conclude that the problem of obstruction of access would be exacerbated, 

rather than lessened, by the removal of the barrier.  

Speed limit 

As the service road is not a highway the council cannot impose a legally enforceable 

speed limit along the service road. 

The council notes the concerns set out in the report that vehicles could drive along the 

service  road  at  excessive  speed.  That  has  not  been  a  problem  which  has  been 

observed by, or reported to, the council. The short length of the service road between 

Bloxwich Road and the barrier would prevent vehicles reaching any significant speed 

before they need to slow down and stop at the barrier. Likewise, a vehicle leaving that 

part of the service road which is behind the shops would have to stop at the barrier, 

either  to  open  it,  or  to  close  it  after  having  passed  through  it.  The  presence  of  the 

barrier is thus likely to have some effect in the reduction of the speed of vehicles using 

the service road.  

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 The barrier thus operates, in some ways, as an alternative to a formal speed limit.  

The  council  notes  that  the  most  unfortunate  accident  which  led  to  the  death  of  Mr 

Wellington was caused by a van reversing along the service road behind the shops. 

The  council  does  not  have  any  evidence  of  the  speed  at  which  the  van  was  being 

reversed, so it has assumed that it was being driven at a very low speed. It has also 

assumed  that  it  was  being  driven  at  a  speed  below  any  speed  limit  which  could 

reasonably have been imposed if the council had the power to impose a speed limit. 

In  the  absence  of  any  incidents  of  vehicles  being  driven  along  the  service  road  at 

excessive speed, or of speed having played any part in the accident which led to the 

most unfortunate death of Mr Wellington, the council does not have any material which 

would indicate that signs indicating a maximum speed would reduce the risk of future 

deaths.  Despite  that,  the  council  would  be  prepared  to  consider  erecting  signs 

indicating a suggested maximum speed limit of 5mph. 

Designated pathway 

As has been set out above all those persons who have rights of way along the service 

road are entitled to exercise those rights across the full width of the service road. It 

would be the duty of anyone using the service road to do so in a way which did not 

interfere with the use of it by anyone else. The council is thus not entitled unilaterally 

to designate parts of the service road as a pathway, leaving the rest of the service 

road for vehicular use.  

The council has considered the possibility that a designated pathway could be installed 

with the consent of all those with rights of access along the service road. It has thus 

considered how such a pathway could be safely installed.  

The  Manual  for  Streets,  which  was  written  after  taking  into  account  many  years  of 

experience of highways engineers, sets out minimum recommended widths for public 

highways. The minimum recommended width for a carriageway on a public highway 

is 4.8m. The minimum recommended width for a footway on a public highway is 1.5m. 

Whilst these recommendations are applicable to public highways, the thinking behind 

them must have application to private roads as well. The width of a carriageway needs 

to accommodate any vehicle which is likely to use that road. The width of a footway 

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 needs to take into account that the footway will be used not only by those on foot, but 

also  those  travelling  in  buggies  or  in  wheelchairs.  It  would  thus  not  be  sensible  to 

disregard these recommendations.  

The evidence of the use of the service road on the morning of the accident which led 
to Mr Wellington’s death is that a delivery vehicle was delivering potatoes to the rear 

of the fish and chip shop in the parade, and that a panel van was delivering goods to 

another shop further along the parade. There is nothing to indicate that this usage was 

out of the ordinary. The carriageway of the service road thus needs to be wide enough 

to  accommodate  the  passage  of  any  commercial  vehicle  which  is  likely  to  want  to 

make deliveries to the rear of the shops facing Leamore Lane. These vehicles would 

include box vans and modest sized lorries. Even if it were to be assumed that larger 

vehicles would not want to have access along the service road, there would be little 

justification  in  seeking  to  reduce  the  width  of  the  carriageway  much  below  the 

recommended width of 4.8m. 

The assumption must be that any footway leading to residential accommodation must 

be wide enough to enable small children to be wheeled along it in buggies and prams, 

and that it will accommodate anyone using a wheelchair. The recommended width of 

an external door which needs to allow the passage of a wheelchair is 36 inches. The 

footway needs to allow some space each side of a wheelchair. Such a footway could 

not reasonably be much narrower than 1.5m.  

The service road at the point where the barrier is installed is 4.85m wide. A modest 

reduction  in  the  width  of  the  service  road  at  this  point  would  not  be  sufficient  to 

accommodate a footway approaching 1.5m in width. Whilst it would be possible to lay 

out a separate footway along one side of the service road, neither the footway nor the 

remaining carriageway would be sufficiently wide to allow proper use of either.  

It needs to be remembered that the separation of the service road into a carriageway 

and  a  footway  would  require  the  consent  of  all  of  those  with  rights  of  access.  It  is 

unlikely that such consent would be given by all those with private rights of access if 

that would lead to difficulties of access by vehicles making deliveries.  

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 Road markings providing a designated footway 

There was a time when shared spaces were popular. These were spaces which were 

shared by both vehicles and pedestrians. The DfT stopped promoting shared spaces 

in 2018. This may have been because of the risks to partially sighted road users. Any 

attempts to mark out parts of the service road for use by vehicles and parts for use by 

pedestrians would be met with the practical problem that the service road is not wide 

enough  to  accommodate  both  a  carriageway  for  vehicles  and  a  footway  for 

pedestrians. It is thus questionable whether marking out a designated footway on the 

service road would in fact increase the safety of a pedestrian. There is the risk that a 

marked out footway would give the impression to a pedestrian that he or she would be 

safe to use that footway. That might be leading the pedestrian into a false sense of 

security.  Vehicles  using  the  service  road  would  frequently  need  to  stray  into  any 

marked footway in order to drive along the service road. That would not provide the 

pedestrian with an increased level of safety.  

The council would not be prepared, even if it had the consent of all those with private 

rights of way, to mark out the carriageway with a designated footway. Such markings 

would be contrary to the current advice about the safe usage of roads. There is the 

possibility that it would increase the risks to pedestrians using the service road. There 

is nothing to indicate that a marked footway would reduce those risks. There is also 

nothing  to  indicate  that  a  marked  footway  would  prevent  accidents  such  as  those 

which led to the death of Mr Wellington. A pedestrian walking along a marked footway 

would still be in the blind spot of many commercial vehicles reversing along the service 

road. The risks might be increased if there were a marked footway. The pedestrian 

might be under the impression that he or she would be safe by keeping to the footway. 

Not  only  would  that  impression  not  be  correct,  it  might  also  lead  to  the  pedestrian 

making fewer efforts to keep a lookout for his or her safety.  

The council accepts that there has been a change in thinking about the use of what 

were termed as ‘shared spaces’, with both vehicles and pedestrians making use of the 

same  space.  There  are  very  real  concerns  about  such  shared  spaces  at  times 

increasing the risks to pedestrians. Those risks are particularly understandable where 

many of the  vehicles sharing  the  same  space  with  pedestrians  would  be  reversing, 

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 and there would be areas behind those vehicles which were completely obscured from 

the vision of the driver.  

Waste bins 

In the absence of anywhere, other than the service road, more suitable to leave the 

trade waste bins for collection, the council is in the process of altering the procedure 

for collecting trade waste from the rear of the shops. The proposal is in the future the 

crew of the waste collection lorry will be provided with a key to the barrier across the 

service road. The waste collection lorry will reverse along the service road to the rear 

of the shops. Any trade waste bins will be collected from the rear of the shops. The 

waste collection lorry will then drive forwards along the service road towards Bloxwich 

Road, locking the barrier behind it. There will thus be no need for trade waste bins to 

be left on the carriageway of the service road.  

Skips 

As can be seen from the opening paragraphs of this response the council owns the 

service road but the occupiers of adjoining premises have private rights of way along 

it. Those rights of way allow for people to pass and re-pass along the service road. 

They do not give anyone the right to place a skip on the service road. A wrongly placed 

skip could obstruct the rights of way of others along the service road. The council does, 

however, recognise that there are occasions when skips do need to be placed near 

buildings.  The  council  has  thus  written  to  all  of  the  lessees  of  the  shops  and  the 

maisonettes facing Leamore Lane to remind them that they are not permitted to place 

skips  on  the  service  road.  The  letter  took  the  opportunity  to  point  out  that  the 

Prevention  of  Future  Deaths  Report  took  the  view  that  the  presence  of  a  skip 

obstructed the service road and presented a risk of future deaths. Such a situation is 

clearly unacceptable. If, in future, any lessee needs to make use of a skip that person 

must first obtain the written consent of the council to place a skip on the service road. 

That written consent, if it is given, will require the skip to be placed in a position which 

does not obstruct the service road.  

Signage 

As  mentioned  above,  the  council  would  be  perfectly  prepared  to  consider  installing 

signs if that would increase the safety of anyone using the service road. Exactly what 

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 signage would be of assistance is a matter which would require careful consideration. 

We  have  already  mentioned  above  the  possibility  of  installing  a  sign  indicating  a 

maximum  speed  along  the  service  road.  As  mentioned  above,  there  would  be  no 

means of readily enforcing a maximum speed limit. Consideration would need to be 

given to the signs which would increase the safety of the road users. The erection of 

a multiplicity of signs is unlikely to be helpful; one carefully positioned sign which gives 

important information is likely to have a greater effect. The question of what, if any, 

signs should be erected needs to be considered over a reasonable period of time.  

An alternative proposal 

The council takes very seriously the fact that an accident occurred on its land. That 

was  made  more  serious  by  the  fact  that  this  was  a  fatal  accident.  It  regards  the 

Prevention  of  Future  Deaths  Report as  a  request  to  take  whatever  action  might  be 

possible  to  deal  with  the  concerns  raised  in  that  report.  The  council  has  thus 

considered  what  scheme  might  be  implemented  which  takes  account  of  all  of  the 

concerns set out in the report. Those considerations have included the taking of steps 

which are beyond the present powers of the council and would require the express 

consent of other parties.  

A senior council officer, in consultation with other officers, is considering a scheme for 

stopping up a pedestrian entrance from the service road to the 

estate, the 

provision of a crossing diagonally across the service road behind the barrier, and a 

footway along the Watmos land beside the service road leading to Bloxwich Road. We 

enclose  a  rough  sketch  of  this  scheme.  This  would  require  consideration  by  the 

highway engineers, and negotiation with 

, which owns the land along which 

the proposed footway would run. The scheme also assumes that any long lessee of a 

flat in the 

 estate would be agreeable to a change in the pedestrian rights of 

access to that flat from the service road.  The suggested scheme would not remove 

any pedestrian rights of access to the flats in the 

 estate, but it would require 

a detour in the most direct route from one block of flats to the shops facing Leamore 

Lane. The potential scheme under consideration would require signage to be erected 

and reasonable expenditure to lay out a new footway alongside the service road, if 

such were to be acceptable to 

.  

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 It must be stressed that this potential scheme is not even in the embryonic stages. It 

has been produced to show that officers are giving consideration to the matters raised 

in your report. It would need a great deal of further consideration, even if Watmos were 

to give its consent to the construction of a footpath along its land, as to whether such 

a scheme would increase the safety of pedestrians. One of the factors which would 

have to be considered is whether a pedestrian crossing of the service road similar to 

the one hatched red on the plan would improve the safety of pedestrians. 

Conclusion  

The council has attempted to show that there are both legal and practical difficulties in 

adopting the measures suggested in the Prevention of Future Deaths Report. It has, 

however, not stopped there. It is considering whether there are any measures which 

might be adopted, albeit requiring the agreement of others, which would deal with all 

of the concerns which were raised in the report. As the council was not a party at the 

Inquest, it was not then able to raise the matters set out in this response. It is, however, 

quite prepared to enter into conversations with you as to what may be needed. 

Signed 

Head of Law (Contentious) 

Dated   

17 July 2024 

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