No responsibility for Housing estate road

News

08 January, 2008

Pauline Carter v Wigan Council

Recorder Corner, Warrington County Court, 19.12.07

Following the case of Gulliksen v Pembrokeshire County Council 2002 CA many housing estate roads were in effect deemed to be adopted Highways by operation of the Housing Act 1957. Without a proactive inspection system it often became impossible to defend these claims. But what about estate roads that were built before that Act came into force? The case has left a 'black hole' as to the status of roads built before the Act, an issue explored in the recent December edition of Forbes review.

In cases of this type we are concerned with housing estates that were constructed before the Highways Act 1959 came into effect.

For reasons that will become apparent hereafter a distinction has to be drawn between roads (consisting of a footway and a carriageway) and footpaths.

The basic principles are as follows:

  • Where a housing estate is constructed after the coming into effect of the Highways Act 1835 and before the coming into effect of the Highways Act 1959 a road is only maintainable at the public expense if the formal adoption procedures have been entered into. In the absence of any such formal adoption the local authority is not liable to maintain the road in question.
  • An entirely different regime applies in relation to footpaths. This is because the Highways Act 1835 did not effect the common law position in relation to footpaths. Consequently if a footpath was constructed and dedicated to the public both before and indeed after the 1835 Act it automatically became maintainable by the inhabitants at large. This position was, however, altered by the National Parks and Access to Countryside Act 1949, and the effect of that Act was to implement the formal adoption procedures in relation to footpaths.

In Carter the claimant had fallen on a footpath due to the presence of a defect that the Local Authority had conceded to be actionable. The estate in question had been built in 1952 and because its construction pre-dated the coming into effect of the Highways Act 1959 Gulliksen did not apply. However, its construction post-dated the coming into effect of the National Parks and Access to Countryside Act 1949 and because there had been no formal adoption of the footpath it was found as a matter of law that the Local Authority were not under any duty to maintain that footpath.

The judge therefore accepted the Defendant's argument. For good measure he also found that the Claimant had not proved causation due to doubts in her evidence as to precisely where she had fallen. This of course warded off the possibility of an appeal.

These cases raise complex issues as to a Housing/Highway authorities duty to maintain housing estate roads. Plainly each case will turn on its facts but careful legal analysis and investigation is required to establish the nature of the precise legal duties owed to a Claimant in any given case.

If you require any further information or clarification of the decision please contact David Pickford on 01254 662831, or email David Pickford.

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