R (Smith) v The Land Registry
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Elias,Lord Justice Mummery |
| Judgment Date | 10 March 2010 |
| Neutral Citation | [2010] EWCA Civ 200 |
| Docket Number | Case No: C1/2009/0657 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 2010 |
[2010] EWCA Civ 200
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION) (ADMINISTRATIVE COURT)
HHJ Pelling QC
(Sitting as a Judge of the High Court)
Before: Lord Justice Mummery
Lady Justice Arden
and
Lord Justice Elias
Case No: C1/2009/0657
Mr David Watkinson (instructed by the Community Law Partnership) for the Appellant
Mr James Strachan (instructed by Treasury Solicitor) for the Respondent
Mr Richard Ground (instructed by Messrs Sharpe Pritchard) for the Interested Party
Hearing date: 24 November 2009
Lady Justice Arden:
The appellant, Mr Wayne Smith, has occupied his caravan and associated structures on an unmetalled byway near Belsar's Hill, Willingham in Cambridgeshire for more than twelve years. He says that he does not obstruct the byway and that he keeps the hedges and verges on the area he occupies trimmed. He provides window cleaning services in the locality, and the evidence shows that he is an established and valued member of the community. He also says that his possession has been undisturbed during the twelve year period. So in about May 2007, he filed an application with the Land Registry seeking to register title by adverse possession to the land which he occupies. The land is unregistered and this was an application for first registration. The local authority, Cambridgeshire County Council, however, soon objected, stating that the highway was shown on the definitive map for the area as a public highway open to all traffic. On 25 July 2007, the assistant land registrar rejected the application on the ground (so far as material) that the land was a public highway. Mr Smith brought judicial review proceedings to challenge that decision but this was dismissed before HHJ Pelling QC, sitting as a judge of the High Court of Justice, Queen's Bench Division, Administrative Court on 13 February 2009. Mr Smith now seeks to appeal that decision. The issue on this appeal is the important and relatively novel issue whether a person may acquire the right to land forming part of the highway by means of adverse possession.
There is a long-standing saying “once a highway, always a highway”. English law has since at least the time of Bracton in the thirteenth century regarded “the King's highway”, now the Queen's highway, as incapable of ownership by any person other than the King or Queen. It is commonly assumed that there can be no adverse possession of any part of a highway, and Mummery LJ delivered an important dictum to this effect in Bromley LBC v Morritt [1999] 78 P & CR D37, where he held:
“In my judgment, this appeal does fail. On the judge's finding of fact the land enclosed by the fence and the wall was part of the public highway. As a matter of law, an adverse possession or squatter's title cannot be acquired to land over which a public right of way exists. The only question is the exercise of discretion to make a mandatory order.”
However it is not possible to point to any decision from which the maxim is derived, and, moreover, there is no exception for public highways in the provisions facilitating adverse possession. Furthermore it is a common experience from time to time to find a highway wholly or partially obstructed for a temporary or permanent purpose, for example, by café tables, items displayed for sale, salt bins, street markets, public conveniences or other obstructions. In other words, there are situations in which people have, or appear to have, a right to occupy the highway to the exclusion of others. The saying that “once a highway always a highway” cannot therefore be taken as an absolute and universal rule. There are some circumstances in which a highway can cease to be such on a permanent or temporary basis. One of the ways in which this might occur is under licence from the local authority granted under some statutory power. But can it occur through adverse possession?
It will be clear from what I have already said that this appeal engages two areas of property law, namely (1) ownership of the byway and rights over it, and (2) adverse possession. I begin my judgment with a summary of the material parts of the judge's judgment and then by looking at relevant aspects of those areas of law. I will then discuss the arguments advanced before us and state my conclusions.
Judgment of HHJ Pelling QC
The judge gave a detailed and careful judgment. The judge considered a number of authorities, including Haigh v West [1893] 2 QB 19, Seddon v Smith (1877) LT 168, St Ives Corporation v Wadsworth [1908] Knight's Local Government Reports 306, Dawes v Hawkins (1860) 8 CPB 348. He noted that, although a highway could be extinguished in the ways I have mentioned, there was no reference to extinction by adverse possession. He dismissed Mr Smith's claim for judicial review.
Ownership of the byway and rights over it
Before the Highways Act 1835, the obligation to repair highways often fell on the inhabitants of the parish through which the highway ran. There was no statutory vesting of the highway in a public authority at this stage. The liability of inhabitants of the parish was abolished by s 38 of the Highways Act 1959.
The principal Act now applying to highways is the Highways Act 1980 (“HA 1980”). That Act does not define “highway” and accordingly it is necessary to find the meaning of that term from the general law.
There are two elements to a highway. A highway is both a public right to pass over a defined route and the physical land or other property over which the right is exercised. It is possible to have a highway over water, as where a highway continues via a bridge.
Where there is a highway, the surface of the land or other property is dedicated to public use (see per Cairns LJ in Rangeley v Midland Railway Company (1868) 3 Ch App 306).
Section 263(1) of the HA 1980, which is based on statutory provisions stretching back to the Highways Act 1835, provides for the statutory vesting of highways. It provides that:
“Every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway. ”
The materials and scrapings appear to be whatever is used to make the surface of the road, such as tarmac, gravel, sand etc..
In Tithe Redemption Society v Runcorn UDC [1954] Ch 383, relied on by Mr David Watkinson who appears for Mr Smith, this court considered the effect of a provision in s 29 of the Local Government Act 1929 which is similar to s. 263 of the HA 1980. Evershed MR cited a passage from an earlier judgment of James LJ in Rolls v Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785 @ 796–7 explaining the difficulties arising out of a similar provision in the Public Health Act 1875:
”It appears to me that the legitimate construction of the enactment that streets being highways shall vest is that streets if and so long as they are highways shall be vested. There are no words of inheritance, there are no words of perpetuity in the Act, there is nothing to say whether the streets are to vest in fee simple or for any limited estate, and it appears to me that they are given to and vested in the public body for the purposes of the Act and during the time for which those purposes require them to be held, and no longer. Words of divesting or defeasance are not required, because to my mind the interest of the vestry is exactly like a limited estate. If an estate is given to a woman during her widowhood words of defeasance are not required to divest it on her marriage, because the estate has ceased when the original limit is arrived at. So in this case it appears to me that when the thing has ceased to be a highway, when it has ceased to be a street, then it ceases to be vested, because the period for which it was to be vested in the board has come to an end. ” (emphasis added)
In reliance on this, and other authorities, this court held in Tithe Redemption that the statutory vesting of a highway in the highway authority operated to vest in the highway authority a determinable fee simple in the surface of the land.
Two things are thus clear. First, the highway is not just the surface of the physical property to which the right attaches. It is also the right of passage over that land. Secondly, the statutory vesting is not permanent: it could come to an end. That is a major point in Mr Watkinson's argument. It is not, therefore, an answer to Mr Smith's case to say, following the maxim “once a highway always a highway”, that by virtue of s 263 the highway has become vested for ever and a day in the highway authority.
In what circumstances can a highway cease to be such? It is common ground that the common law does not treat highways which fall into disuse as having ceased to be highways (see Dawes v Hawkins (1860) 8 CB 848). They might cease to be such if they were destroyed, for example if a cliff path fell into the sea, but they might equally in such circumstances be diverted. A highway could in the past be declared in judicial proceedings commenced by writ ad quod damnum to have ceased to be such. Proceedings can also be taken under the HA 1980 to stop up a highway in certain specified circumstances. It may also be possible to extinguish highways under other statutes.
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