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

The Claimant was injured when she was walking along a path in a park and tripped over an exposed tree root. At first instance it was found that the tree root rendered the path dangerous and defective. This finding was not disputed on appeal. The question before the Court of Appeal was whether she had a valid claim against the Defendant Council, who were the owners and occupiers of the park. Whilst the Claimant’s particulars of claim included allegations of common law negligence, these were not pursued at trial. Her claim could only succeed if she established a cause of action for breach of statutory duty under section 41 of the Highways Act 1980 on the basis that the path was a highway maintainable at public expense.

The park had been constructed as a public park in the early 1930s by the Defendant’s predecessor. The paths were constructed by the Defendant or its predecessor, and predated the Highways Act 1959. The Defendant’s records did not list the park as a public right of way. However, the public had enjoyed unrestricted access to the park. The Defendant’s predecessor had been the highway authority for the area at the time when the park was constructed, although the Defendant denied that it was acting in that capacity when constructing the paths in the parLord Justice Bean considered the law on highway maintenance, and section 36 of the Highways Act 1980 in particular. Section 36(1) provides that highways which were maintainable at public expense under the earlier Highways Act 1959, continue to be so maintainable. A highway can be created by statute, or by dedication and acceptance. Dedication can be express, deemed by the operation of s 31 of the Highways Act 1980, or inferred by common law. To fall within s 36(1), the Claimant had to prove that the path had been dedicated before 16 December 1949. Bean LJ also considered s 36(2)(a), which provides that highways which were constructed by a highway authority are maintainable at public expense.

On first appeal, Waksman J, found that the path had been constructed by a highway authority and saw “no reason of language or logic for an additional ‘capacity’ requirement” as was contended by the Defendant. Contrary to the judgment of Waksman J, Lord Justice Bean found that the path did not constitute a highway maintainable at public expense for the purposes of s 36(2)(a) of the Highways Act. He referred to and agreed with the reasoning and conclusions of Neuberger J in Gulliksen v Pembrokeshire County Council [2002] QB 825, regarding the interpretation of s 36(2)(a): “the notion of ‘a highway constructed by a highway authority’ means ‘a highway constructed as a highway by a highway authority in its capacity as such'”. Bean LJ accepted the Defendant’s contention that its predecessor was not acting in its capacity as the highway authority for the area when it constructed the path. Accordingly, the path did not fall within s 36(2)(a).

Bean LJ proceeded to consider whether the path had been dedicated as a highway before 16 December 1949, and so fell within s 36(1). There was no evidence of express dedication, however there was ample evidence to support the implication or presumption of dedication at common law. The evidence established that the park was opened in the early 1930’s and that the path was laid out soon afterwards. Ever since that time the public had had unrestricted and uninterrupted access to the paths. It was accepted that the common law presumption of dedication was retrospective, as held in the Privy Council decision of Turner v Walsh (1881) 6 HL 636. Thus, the dedication “is deemed to have occurred at the beginning of the period of continuous user, not at the end of it“. Accordingly, the path was deemed to be dedicated since the early to mid-1930s, well before December 1949. The path therefore fell within s 36(1), providing the Claimant with a valid cause of action for breach of statutory duty under s 41 of the Highways Act 1980.

Singh and Macur LJJ agreed.

July 23, 2020 · Editorial Team · Comments Closed
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