Deborah Barlow v Wigan Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 19 June 2019 |
| Neutral Citation | [2019] EWHC 1546 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: D60YM368 Appeal Ref: M18Q200 |
| Date | 19 June 2019 |
[2019] EWHC 1546 (QB)
Mr Justice Waksman
Claim No: D60YM368 Appeal Ref: M18Q200
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
On Appeal from HHJ Platts sitting at Manchester County Court
Matthew White (instructed by Active Legal, Solicitors) for the Claimant/Appellant
Simon Vaughan (instructed by Forbes, Solicitors) for the Defendant/Respondent
APPROVED JUDGMENT
Hearing date: 10 June 2019
INTRODUCTION
This is an appeal from a decision of HHJ Platts dated 13 December 2018 for which permission was granted by the Judge. By that decision, after a trial on liability, he held that a public path in Abram Park, Wigan (“the Path”), was not a highway maintainable at public expense within the meaning of s36 (2) (a) of the Highways Act 1980 (“the Act”). As a result, the Claimant and Appellant, Ms Barlow, who tripped on an exposed tree root on the Path on 21 September 2018, had no cause of action against the Defendant and Respondent, Wigan Metropolitan Borough Council (“the Council”) and her claim for damages failed. Had the Path been such a highway, the Council would have owed her a duty to maintain it pursuant to s 41 of the Act. It was found by the Judge and common ground on the appeal that the Path was in a dangerous or defective condition.
BACKGROUND FACTS
The following facts are not in dispute for the purposes of this appeal:
(1) The land used to develop the park had been purchased on 10 November to 1920 by Abram Urban District Council (“Abram”); this body remained in existence until 1977 although it ceased to act as a local authority on 1 April 1974;
(2) the land had been purchased by Abram with the intention of constructing a public park; Abram was the predecessor in title to the Council;
(3) the land was not developed for some years but when it was, it was called The Lane Park. The park was constructed some time in the early 1930s and the paths (including the Path) were present before 1959;
(4) the Path had been made in order to provide access to and across the amenities built within the park and while the public at large might have enjoyed unfettered access, the Judge stated that he could not conclude or infer there was an intention to dedicate the Path as or part of a highway, as at the time of its construction;
(5) The Judge held that the Path became a highway by reason of at least 20 years usage pursuant to s31 of the Act (see further below). Indeed, the Council had always contended that this was the case (see its letter dated 2 October 2015, subsequent letters and paragraph 4 b of the Defence).
The claim was never put on the basis that the Council was liable to Ms Barlow under the Occupiers Liability Act 1957 (“the OLA”). This was because it was common ground that the Path was a highway and as a result of the decision of the House of Lords in McGeown v Northern Ireland Housing Executive [1995] 1 AC 233, there could be no liability under the OLA. The issue for the Judge was whether the Path was not merely a highway but one which was maintainable at public expense at the time.
Furthermore, although the Council denied this at the trial before the Judge, it has since accepted that Abram was itself a Highway Authority for the purposes of the relevant legislation namely the Act and its predecessor, the Highways Act 1959 (“the 1959 Act”). The Council itself is a highway authority as has always been accepted. The Council has been the relevant local authority since 1 April 1974.
THE RELEVANT LEGAL FRAMEWORK
The duty to maintain a highway on the part of a relevant highway authority under s41 of the Act is owed only in respect of a highway “maintainable at the public expense”.
Section 36 of the Act provides as follows:
“(1) All such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable… for the purposes of this Act.
(2) … The following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense:-
(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;
(b) a highway constructed by a council within their own area under Part II of the Housing Act 1985…
(f) a highway, being a footpath, a bridleway, a restricted by way or a way over which the public have a right of way for vehicular and all other kinds of traffic, created in consequence of a special diversion order or an SSSI diversion order.…”
It is common ground that, in order to be a highway, the relevant way must be as described in paragraphs 17 and 18 of the decision of HHJ Curran QC in Young v Merthyr Tydfil [2009] PIQR 23, namely:
“17 [quoting from Halsbury] .. A way over which there exists a public right of passage that is to say a right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and re-pass without let or hindrance.
18. … A highway may be created… either by statute… or by the common law doctrine of dedication and acceptance. There is a statutory presumption of dedication after 20 years uninterrupted use by the public (see s31 (1) Highways Act 1980) but as that period has not elapsed, there can be no statutory presumption of dedication. But dedication at common law does not require 20 years (or indeed any period) of interrupted user. If there is dedication and acceptance, a highway is created.”
Section 31 (1) of the Act provides that:
“Where a way over any land, other than a way of such a character that used by of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.”
As already noted, the Judge found that the Path had become a highway here pursuant to s31. Ms Barlow contended that this had occurred a long time ago but the Council contended that time could only have start to run from 1974 when it became a local authority. This dispute did not and does not matter because on any view the Path had achieved the status of a highway by no later than 1994, some 20 years before Ms Barlow sustained her injuries.
Accordingly, the issue for the Judge so far as the applicability of the duty to maintain was concerned, was a narrow one: while the path was a highway at the relevant time, was it also one which was “maintainable at the public expense”? Before the Judge, both sides proceeded upon the basis that the only route to such a finding was the applicability or otherwise of s36 (2) (a) namely that the Path was a “highway constructed by a highway authority”. Ms Barlow contended that it was while the Council contended that it was not. The Judge agreed with the Council.
THE ISSUES ON THE APPEAL AND CROSS-APPEAL
The Judges relevant findings were as follows:
(1) In order for s36 (2) (a) to apply, it was not enough that the highway, or what had become a highway, was constructed by the relevant Highway Authority; it had to be constructed as a highway at the time of its construction;
(2) that required an intention so to created on the part of the highway authority;
(3) however, there was no evidence as to what Abram's intention may have been when it created the Path; as the Judge put it in paragraph 9 of his judgment:
“… The issue is whether, when the path was constructed there was an intention to dedicate it as a highway — that is, an intention that the public should not only have unrestricted access to it, but that they should have a right to unrestricted access. There is no direct evidence as to the intention of the defendant's predecessor at the time of construction and in my judgment there is insufficient evidence to allow me to infer that the defendants predecessor intended that the public should enjoy a right of unrestricted access to the park. The park was an open space and persons could and no doubt did use it frequently and were permitted to do so, but the reality was that it was not public land. It was land owned by the local authority — the defendants predecessors — I cannot infer or conclude that at the time that paths were created, there was an intention to dedicate them as part of the highway — ie with a right of passage and re-passage.”
(4) Accordingly, since the highway only became such as a result of your long usage, not original dedication as it were, the sub-section was not satisfied. As he put it:
“10. I therefore conclude, on the balance of probabilities, that this path on which the claimant unfortunately fell, became a highway as a result of usage.
11. Is that sufficient for the purpose of 36 (2) (a)? In considering that issue I apply the ordinary and natural meaning of the words used in section 36 (2) (a)… In my judgment the intention of the Act was that, for the path to be classified as a highway, it had to be constructed as such rather than it becoming a highway due to subsequent usage. The phrase “a highway constructed by a highway authority” in my judgment refers to a highway which at the time of construction was intended to be such, and it does not, in my judgment refer to a path constructed by a highway authority that subsequently became a highway, by way of usage. In those circumstances it seems to me that this pathway cannot be said to have been a highway constructed by the highway authority for the purposes of section 36 (2) (a).”
(5) That finding alone spelled failure for the claim. However, given the other arguments addressed to him the Judge made the following further findings:
(a) s36 (2) (a), if applicable,...
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