According to the High Court in the recent case of Bowen and others v Isle of Wight Council (Rev1)  EWHC 3254, yes it can.
The highway status of privately owned accessways can be of vital importance for a number of reasons. In this recent case, the status of the private accessway would determine whether or not outline planning permission for housing could be granted on adjoining land.
Two of the claimants were the owners of the adjoining land and the third claimant had an option to purchase it. The third claimant had submitted an application for outline planning permission to build houses on it. The application was refused principally because the local planning authority considered that the development of the land would be unacceptable on road safety grounds unless a traffic regulation order (“TRO”) could be made in respect of the accessway to it. In order to make a TRO, the accessway must be a highway or “road to which the public has access” for the purposes of section 142 of the Traffic Regulation Act 1984 (“the 1984 Act”). The claimants said the accessway was a road for the purpose of the 1984 Act whilst the defendant said it was not.
The accessway comprised a cul-de-sac off a ‘B’ road which had pavements on either side and was freely accessible by the public. There had never been any barrier to prevent access nor any signage to show that it was a private way or that access was restricted.
There was much debate between the parties about the legality of the use by the public with the claimants submitting that it was sufficient that the use was ‘tolerated’, albeit not permitted by the owners of the accessway. The defendant argued that the use needed to be by virtue of an express or implied permission and that the use being merely tolerated was not enough. The High Court ultimately agreed with the claimants and said that access by the public would satisfy the definitions for the 1984 Act provided it was not exercised in the face of, or in defiance of, efforts by the landowner to prevent access.
Whilst this judgment was specific to the Traffic Regulation Act 1984, it does act as a reminder to landowners of the dangers of ‘tolerating’ use of their land by members of the public. Claims for unwanted public rights of way (i.e. footpaths and bridleways) can be particularly problematic for rural landowners. I would therefore urge them to carefully consider whether members of the public are accessing or using their land and to take advice on what action they can take to prevent unwanted legal rights from being acquired by them.