Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696

The Court of Appeal gave guidance on the approach to the question of whether a way is a highway maintainable at public expense.

Full judgment, dated 1 June 2020

Summary:

C had tripped on a dangerous path in a public park, but D contended that the path was not a highway maintainable at public expense. The court concluded that the path did not fall within the Highways Act section 36(2)(a) because the path had not been built by D acting as a highway authority with the intention of creating a highway, but concluded that the path had nevertheless been dedicated a highway at common law.

Discussion:

B brought a claim for injuries arising out of her falling over an exposed tree root on a park path in Wigan. By the time the claim reached the Court of Appeal, the facts and the issue of dangerousness were no longer in dispute. The question was whether or not the council was liable for the path as “a highway maintainable at the public expense for the purposes of the Highways Act 1980” (3).

The relevant background facts were that the council had built the park and its paths, but that the paths were not a public right of way. The public had had unrestricted access to the park since its creation in 1930 (5). 

The council’s contention was that as the public had had unrestricted access to the park for over 20 years, the paths were a public right of way and therefore not subject to a duty to maintain, pursuant to McGeown v Northern Ireland Housing Executive [1995] 1 AC 233.

Very interestingly, Bean LJ, who gave the judgment of the court, made it clear that he felt the agreed narrow basis of the claim was wrong. The council had repeatedly averred in correspondence that McGeown meant that although it owed a duty to users of the park under the Occupiers’ Liability Act 1957, it did not owe a similar duty to users of the paths within the park. B’s representatives had accepted this and therefore only pursued the claim under the common law duty. Bean LJ responded to this by saying:

“we must not be taken to endorse the correctness of the Council’s contention. Since there may be other cases of this kind in the future, and since the proposition that a local authority can owe a greater duty to park users walking on the grass than to park users walking on a path is to my mind absurd, I should put on record why I consider that McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 does not require any such conclusion.”

At paragraphs 10 to 12 Bean LJ summarised the facts and ratio of McGeown, before quoting Lord Keith of Kinkel who made it clear that the rationale for the principle that public rights of way do not give rise to a duty to maintain is that the person using the land is doing so only in the exercise of the right of way, not with the permission of the owner of the land. Bean LJ therefore suspected that the true ratio of McGeown was that it only applied where the injured party was only accessing the land because of the existence of a right way, rather than because of an invitation pursuant to the OLA 57. He concluded that: 

“if I am wrong about this, and there really is no duty on anyone to maintain paths in municipal parks which have become rights of way, the traditional notices saying KEEP OFF THE GRASS ought in fairness to park users to be replaced by notices saying KEEP OFF THE PATHS.” (13)

From paragraph 14 onwards Bean LJ summarised the history of the laws governing highways maintainable at public expense and the dedication of highways. The agreed issues in the case, flowing from the aforesaid laws, were that C had to prove one of two alternatives: (i) that the path was a highway constructed by the highway authority for the purposes of s36(2)(a) Highways Act 1980 or (ii) that it was a highway that was maintainable at public expense immediately before the commencement of the Highways Act 1980 (22).

Paragraph 23 summarises the relevant findings of the first instance judge, which were that:

  1. in order for the highway to have been one constructed by the highway authority for the purposes of the Act, it had to have been constructed as a highway;
  • that required an intention so to create it on the part of the highway authority;
  • there was no direct evidence as to the council’s predecessor’s intention when creating the highway, and there was no evidence from which to infer or conclude an intention;
  • the path was not, therefore, a highway for the purposes of the Act, because it only became one because of usage;
  • that meant that it could not have become a highway for the purposes of the Act, even though its usage of a highway pre-dated the commencement of the Act;
  • furthermore, there was no evidence that the council’s predecessor was acting as a highway authority when creating the path (the path being an urban park in a residential area).

From paragraph 24 Bean LJ deals with the hearing in the High Court. As aforementioned, it was no longer contested in the High Court that the council’s predecessor was a highways authority, the council having admitted that it was. The issue was therefore its intention when constructing the path. B also argued that the decision in Turner v Walsh (1881) 6 HL 636 meant that if a highway became such by long usage it was to be regarded as having been dedicated as such at the time of its construction.

Waksman J held that s36(2)(a) was not limited to highways constructed as such at their outset. Disagreeing with the first instance judge, he noted that if his construction of the Act was correct, then a public right of way could be built by an authority but not dedicated as such for, say, 6 months, it would not be caught by s36(2)(a) and there would therefore be no duty to maintain under s41. However, because it had been dedicated by a highway, no duty would be owed to users under the OLA, pursuant to McGeown. He rejected that construction, finding instead that the section required the highway only to have been constructed by the authority, and did not require that it was a highway at the time of its construction or was intended to be so. It therefore did not matter at what time the highway had become such (26).

Waksman J also rejected the argument that, though it was a highway authority at the time of the construction of the path, the council’s predecessor was not acting in that capacity when it constructed the path, reasoning that there was no reason to add a capacity requirement to the operation of s36(2)(a) (27).

Finally, he rejected the council’s argument that s36(2)(a) was in any event prospective only. He held that the section did not have retrospective effect, it simply imposed liability for future failures to maintain paths that had been constructed before the commencement of the Act (28). C therefore succeeded under s36(2)(a). Waksman J did not consider whether or not C could succeed under s36(1) of the Act.

An appeal was brought by the council on the basis that the path was not a highway, was in fact maintainable by nobody, that the authority did have to be acting as a highway authority when constructing the path for it to become a highway and that Waksman J had been impermissibly swayed by policy considerations. C cross-appealed on the alternative basis that the path had been dedicated a highway before 1949 and therefore fell within the Act.

The council cited the dictum of Neuberger J in his first instance decision in Gulliksen v Pembrokeshire CC [2003] QB 123 to the effect that to come within the Act the highway must have been constructed by a highway authority acting in its capacity “as such” (32), as well as his comment that the Act would not cover a highway that became such by dedication after construction. Further, he submitted that because the path was not maintainable at public expense before 1980, and because the 1980 Act was a consolidating act which couldn’t have intended to change the substantive law, the path could not have become a highway by virtue of the 1980 Act (34).

C naturally relied on the decision in the Court of Appeal in Gulliksen to reject Neuberger J’s view (35), but further submitted that the council was acting as a highway authority when it constructed the path, because the burden should fall on the council to prove that it wasn’t acting as a highway authority and given the lack of evidence the council could not do so (36). C submitted that intention was nowhere in the statute and was not a requirement (37). In any event an intention should be inferred. As to the 1980 Act, C submitted that it removed the previous restriction on retrospective application and so no interpretive presumption was required, but after further investigation admitted that this point was unsustainable because the Act was clearly meant to consolidate only. 

In terms of dedication before 1949, C relied on Turner v. Walsh (1881) 6 HL 636 as holding that when a period of time passes which enables a presumption of dedication, the court should infer that dedication occurred at the beginning of that period. The relevant time for the path was therefore when the park was opened in the 1930s, notwithstanding that there had not been 20 years’ continuous use before 1949 (41). The council rejected this on the basis that the council could not have been taken to have divested itself of its right to exclude the public from the park before 1949 (42). 

From para 43 onwards the court considered Gulliksen. Neuberger J’s decision is cited at length. His reasoning was essentially that the council’s interpretation made more linguistic sense and implied fewer surprising real-world consequences (44). The CoA’s rationale was that 36(2)(a) was explicitly an residual set of categories that excluded s36(1) highways, and that since the path had been maintainable at public expense under the 1959 Act it continued to be so under the 1980 Act (45). 

Sedley LJ further added that the local authority was a “single body corporate” and therefore could not be easily distinguished between acting as a highway authority or not. However, Bean LJ didn’t accept this, holding that Neuberger J was right as to the capacity issue (47).

The question, therefore, was whether or not the path had become a highway before 1949, pursuant to the National Parks and Access to the Countryside Act 1949. The only means available was by deemed dedication. S31(1) of the 1980 Act provides that if the public have used a way over land for 20 uninterrupted years then it is deemed to have been dedicated as a highway in the absence of contrary intention. De Rothschild v Buckinghamshire CC [1957] 55 LGR 595 had held that the date from which to consider the 20 years of usage was the date at which the question of dedication was brought into question. That was unhelpful for C, because 20 years prior to 2014 got her nowhere near the pre-1949 mark that she had to establish. However, it was unnecessary to consider whether that applied, because the court decided that there was an implied dedication at common law (58).

The court agreed with the council that there were three requirements for common law dedication: (a) an intention by the landowner to divest themselves of the right to exclude the public (b) no evidence of any other explanation for the user’s presence and (c) evidence of continuous and unobstructed use over a long period. The burden is on he who asserts dedication (59).

However, the required intention to divest (known as animus dedicandi from the case of Dawes v Hawkins(1860) 141 ER 1139) can be inferred from allowing public use of land without restriction (see Trustees of the British Museum v Finnis (1833) 5 C&P 1053) (60).

Strangely, the nature of the use in this case had been disputed after draft judgments had been circulated, because the council’s documents gave one impression, namely that the path had been a thoroughfare from the park to a housing development since 1947, whereas the council said the true state of affairs was that the housing development on that side of the park was only built in the 1960s (61). In any event the council did not assert that whether or not the path was a thoroughfare does not determine its status as a highway (62). The evidence showed that the paths in the park had been in free public use since the early 1930s (63) and that was ample evidence of a presumption of dedication at common law (64).

Accordingly, pursuant to Turner the dedication was held to have been made at the time of the creation of the park, in the 1930s, meaning that the path was a dedicated highway at the time of the 1949 Act and consequently thereafter. C therefore succeeded (65-67).

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