Hereford and Worcester County Council v Newman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,MR. JUSTICE MacKENNA,LORD JUSTICE LAWTON |
| Judgment Date | 21 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0221-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1975 |
[1975] EWCA Civ J0221-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice, Divisional Court
Lord Justice Cairns
Lord Justice Lawton (not present)
Mr. Justice MacKenna
MR P. FREEMAN, Q. C., and MR K. H. T SCHIEMANN (instructed by Messrs Sharpe Pritchard & Co., agents for MR. J. W. Reny, Solicitor to the Hereford and Worcester County Council) appeared on behalf of the Appellants.
MR R. TUCKER, Q. C., and MR H. WOOLTON (instructed by Messrs Cartwright & Lewis) appeared on behalf of the Respondent.
I will ask MR. Justice MacKenna to deliver the first judgment.
The Divisional Court has upheld orders of the Justices at Redditch, made at the instance of MR. Newman, by which they directed the then Worcestershire County Council to put in proper repair three footpaths, admittedly highways which they were liable to repair under section 44 of the Highways Act, 1959. The chief ground of appeal, and the only one with which I need to deal, is that on the facts found by the justices the paths were "as a matter of law not out of repair".
The facts are few and simple.
The first of the foot paths, No.19, had a seven foot high hawthorn hedge growing in the middle, and passage along it was impossible.
The second footpath, No.20, had a barbed wire fence and thick undergrowth across it. A passage could be effected only be "negotiating" the fence, which I take to mean climbing over or under it, and by forcing a way through the undergrowth, which would scratch the walker's clothes.
The third footpath, described as the junction of footpaths 73 and 75, was crossed by a barbed wire fence of several strands. "Passage at this junction", in the words of the case, "could only be effected by negotiating this fence".
I begin with the provisions of the 1959 Act, though it will be necessary, before I end this judgment, to refer to the Highways Act, 1835, and to the highways Act, 1862, which were predecessors of the 1959 Act and whose effect on points material to this appeal was considered by the Court of Queen's Bench in 1863 in The Queen v. Heath 6 Best and Smith 578 also reported in 12 Law Times 492.
Section 44(1) of the 1959 Act provides: "The authority who are for the time being the highway authority for a highway maintainable at the public expense shall, subject to the following subsection, be under a duty to maintain the highway".
Section 295 provides that "maintenance" includes "repair", and that "maintain" and "maintainable" shall be construed accordingly.
Section 59 provides machinery for the enforcement of the duty imposed by section 44. The head note reads: "Enforcement of liability to maintain highway".
The section provides that if a person alleges that a way is a highway "maintainable" at the public expense, and that it is out of repair, he may serve a notice on the highway authority whom he alleges to be liable to "maintain" it, and if the authority admit these allegations he may apply to a magistrate's court for an order requiring them, if the court finds that the highway is out of repair, to put it in proper repair within such reasonable period as may be specified in the order.
There are provisions in the Act dealing with the protection of public rights, section 116 (3), in its original form, provided that it should be the duty of the council of a county district "to prevent, as far as possible, the stopping up or obstruction" of highways in their district, and by an amendment of the Act, made since this case began, these provisions have been applied to County Councils.
Section 129 provides that if an obstruction arises in a highway from accumulation of snow or from the falling down of banks on the side of the highway, or from any other cause, the highway authority shall cause the obstruction to beremoved from time to time and in any case within twenty-four hours from the date of service of a notice from a justice of the peace.
Lastly, section 299 provides that no provision of the Act relating to obstruction of or other interference with highways shall be taken to affect any right of a highway authority under any other enactment or under any rule of law, to remove an obstruction from a highway or otherwise to a bats a nuisance or other interference with a highway.
Were the footpaths in question "out of repair" within the meaning of section 59?
Two competing constructions of these words have been put before us. It is said by MR. Freeman on behalf of the County Council that a Highway is "out of repair" only if it is impassable or difficult to use because of the condition of its surface, and to give us a clearer idea of his meaning he cited an old form of indictment where it is alleged that the highway is "very ruinous, miry, deep, broken, and in great decay, for want of due reparation and amendment of the same".
MR Tucker, on behalf of MR. Newman, contended that a highway is out of repair not only in the case where its surface is decayed, but where by reason of obstructions, whether caused by nature as in the cases described in section 129, or by the acts of men who put buildings or fences on or across it, it is no longer possible to use it or it can be used only with difficulty.
In my opinion MR. Tucker is right and MR. Freeman wrong. An obstructed highway, pending the removal of the obstruction, can be said to be "out of repair" and to remain out of repair until the obstruction is removed. The removal of the obstructionis on this view of the case a work of repair.
I do not consider that this is using the words "repair" and "out of repair" in any unnatural sense. As Lord Porter said in London and North Eastern Railway Co. v. Berriman (1946) Appeal Cases 278 at page 307: "The exact meaning of repair is perhaps not easy to define, but it contains, I think, some suggestion of putting right that which has gone wrong".
If a footpath has become blocked, either by the growth of vegetation, or by the erection of a fence across it, something has gone wrong, and the man who cuts down the vegetation or lays low the fence puts right that which has gone wrong.
MR Justice Du Parcq gave much the same meaning to "repair" in Bishop v. Consolidated Properties Limited 148 Law Times 407, erne of the cases relied on by the Lord Chief Justice in the court below. A downfall pipe, which it was the landlord's duty to repair, had become blocked by a dead pigeon. The pipe had overflowed and the tenant's property was damaged. The landlord, who had failed to remove the pigeon, was held to be in breach of his repairing covenant. I quote from the judgment at page 410, omitting immaterial words: "I have to consider… whether it can properly be said that in this case the water system was out of repair; in other words, whether there was a breach of the covenant to keep it in good repair. I have come to the conclusion that a pipe which is choked and not able to do its duty as a pipe is out of repair. I think one must remember that 'to repair' after all merely means to prepare or make fit again to perform its functions; it means to put in order, and, I think, means no more".
The man who cuts down the overgrowth or removes the fence is nuking the path fit, or more fit, to perform itsfunction as a way for pedestrians; he puts the path in order.
Passing from the downpipe in Bishop's case to the Suez Canal, MR. Tucker asked whether the canal can be said to be out of repair while it is blocked by sunken ships and for that reason cannot be used as a waterway. For my part I would answer that it is, and find first support for that answer in the cases I have just cited.
It was suggested by MR. Freeman that for two reasons arising out of the provisions of the Act itself, a narrower construction than MR. Tucker's should be given to "repair". The first argument drew attention to the use of the word "maintain" in section 44(1) and to the definition of "maintain" in section 295 which is said to include "repair". Therefore, the argument proceeds, "maintain" must be a wider word than "repair", and so a meaning must be given to repair which excludes such other matters as are maintenance" only. I am uncertain whether the draftsman of sections 44 and 295 really meant the duty of maintenance to include matters other than repair. As I shall show presently, the draftsman of the 1835 Act appeared to treat the two words as synonymous. But even if "maintain" in the 1959 Act is a wider word than "repair", the question would still remain whether the removal of obstructions is maintenance but not repair, and I would answer that it is repair.
The second argument was based on the provisions of section 116. It was argued that as this section imposes a duty to prevent obstructions, a meaning should be given to the word "repair" in section 59 which does not include the removal of obstructions. I do not read the Act in this way. I regard the duty of repair imposed by the earlier sections asincluding the duty of removing obstructions, and the duty of preventing obstruction imposed by section 116 as a "cumulative" one. I borrow this expression from an interlocutory observation of MR. Justice Crompton used by him to reject a very similar argument in Heath's case.
To understand that case, which is, I think, a strong authority in MR. Tucker's favour, it is necessary to set out some of the provisions of the Highways Act, 1835, and of the Highways Act, 1862, which supplemented it.
Section 6 of the 1835 Act, omitting immaterial words, provided: "That the Inhabitants of every Parish maintaining its own Highways… shall proceed to the Election of One or more Persons to serve the Office of Surveyor in the said Parish for the Year then next ensuing… which Surveyor shall repair and keep in repair the several Highways...
To continue reading
Request your trial
-
Department of Transport, Environment and the Regions v Mott Macdonald Ltd and Others
...case, accepted by the judge, rests on the combined effect of a sequence of decisions in this court and the House of Lords: i) Hereford and Worcester CC v Newman [1975] 1 WLR 901 (hedge and barbed wire fence crossing rural footpaths); ii) Haydon v Kent CC [1978] 1 QB 343 (snow and ice on an......
-
Valentine v Transport for London and Another
...in paragraph 51. The court had been pressed with references to the word 'repair' in the judgments in Haydon, in Goodes, and in Hereford and Worcester CC v Newman [1975] 1 WLR 901, and with the contention that they somehow served to restrict the duty under section 41. Rebutting that content......
-
Mr Craig Rollinson v Dudley Metropolitan Borough Council
...under s.44(1) of the Highways Act 1959 did not include the duty to remove snow or ice. (b) Hedges and undergrowth 19 In Hereford and Worcester County Council v Newham [1975] 1 W.L.R. 901, it was contended that three footpaths which had dense vegetation growing in and over their surfaces wer......
-
Thompson v Hampshire County Council
...on that test, emphasising that the juxtaposition of path and ditch was a matter of the highway's physical condition. 20 Hereford and Worcester County Council v. Newman [1975] 1 WLR 901 concerned footpaths obstructed by vegetation and, in one case, by a barbed wire fence. It was held that t......
-
Highway Authority
...Council [2012] EWCA Civ 334: strict compliance with s 36 was not required. 27 HA 1980, s 329. 28 HA 1980, s 36(7). 29 HA 1980, s 329. 30 [1975] 1 WLR 901. 31 Department for Transport, Environment and the Regions v Mott Macdonald [2006] EWCA Civ 1089. 32 R v High Halden (Inhabitants) (1859) ......
-
Table of Cases
...LJQB 117, 68 LT 35, CA 6 Harvey v Truro RDC [1903] 2 Ch 638, 1 LGR 758, 68 JP 51, ChD 59 Hereford and Worcester County Council v Newman [1975] 1 WLR 901, [1975] 2 All ER 673, 73 LGR 461, CA 89 Hereford and Worcester County Council v Pick (1995) 71 P&CR 231, QBD 23 Herrick v Kidner and Somer......