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Barlow v Wigan Metropolitan Borough Council (2020) EWCA Civ 696

In an important ruling for local authorities the Court of Appeal has overturned the High Court decision that for a path to be a highway maintainable at public expense it did not have to be constructed by a highway authority acting in its capacity as a highway authority.

In Barlow v Wigan [2020] EWCA Civ 696 the claimant alleged that she tripped over an exposed tree root on a path in Abram Park, Wigan. The happening of the accident was not in dispute and the finding of the County Court Judge, that she had tripped over a defect that rendered the path "dangerous and defective", was also not in dispute.

Further, the parties agreed that:

• The land was purchased by the defendant's predecessor, Abram UBC on 10 November 1920 with the intention of building a public park.
• The park was constructed sometime in the early 1930s.
• The paths were constructed sometime prior to 1959 and thus prior to the commencement of the Highways Act 1959.
• The defendant or its predecessor built both the park and the paths.
• The defendant's records did not list the relevant path as a public right of way.

The defendant had asserted from the outset of the claim that the path was one over which the public had a right of way, and the claimant accepted that this meant that they could not pursue a claim under the Occupiers Liability Act 1957. The remaining and crucial issue, therefore, was whether the path was a highway maintainable at the public expense for the purposes of the Highways Act 1980 and so provide a remedy under that Act.

The claimant had to prove one of two alternative cases. The first was that it was a "highway constructed by a highway authority" within the meaning of S36(2)(a) of the 1980 Act. The second was that it was one of those highways which "immediately before the commencement of this Act were highways maintainable at public expense" within the meaning of S36(1) of the 1980 Act.

The High Court found that if Abram UBC constructed a path that later became a highway and Abram UBC was a highway authority then it didn't matter that the path had been constructed by a different department of the Council, nor that there was no of right of way over the path at the time it was constructed. As such the path would be presumed to be highway maintainable at public expense from when the right of way arose, so falling within the definition of S36(2)(a) of the 1980 Act.

The Council appealed and the Court of Appeal overruled the High Court on this point, ruling that for the purposes of S36(2)(a) of the 1980 Act the path would have had to have been built by the highway authority acting in its capacity of highway authority.

The Court of Appeal, however, found the Council liable on the basis that the path had become highway maintainable through deemed dedication due to the public having had continuous use over the path for sufficient time so that it fell within the definition of a highway maintainable for the purposes of S36(1) of the 1980 Act. The Court of Appeal disagreed with the Council that deemed dedication could not be backdated to the beginning of the period of use by the public, which, in this case meant that it was deemed to be a highway from when the park was laid out in the 1930s and so was deemed to be a highway when the National Parks and Access to the Countryside Act 1949 came into force. This in turn meant that it became highway maintainable at public expense when the Highways Act 1959, and the later 1980 Act, came into force.

The following points for local authorities arise from this judgment:

• The S36(2)(a) Highways Act 1980 duty to maintain highways constructed by highways authorities at public expense can only apply to highways built by highways authorities from 1980 when the Act came into force.
• The obiter comments in Gulliksen v Pembrokeshire County Council [2002] EWCA Civ 968 that a highways authority does not need to be acting in its capacity as highways authority to create a highway maintainable, have been disapproved.
• In future cases it will be important to consider exactly when a path was built and what its use had been, and whether it can be shown that free use was ever prevented for a period of time, to defeat the deemed dedication impact.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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