Growth of vegetation makes a highway ‘out of repair’ only in so far as it interferes with the surface of the way–Obstruction of the way by a barbed-wire fence does not put it into disrepair–Majority allows Worcestershire foot-path appeal in part only
This was an
appeal by Hereford and Worcester County Council from a decision of the Queen’s
Bench Divisional Court on April 24 1974 dismissing the council’s appeal from
orders made by justices sitting at Redditch at the instance of the respondent,
Mr Peter John Newman, now of Prior House, Cleeve Prior, Evesham,
Worcestershire, directing the then Worcestershire County Council to put in
proper repair three footpaths at Inkberrow, Worcestershire.
Mr P Freeman
QC and Mr K Schiemann (instructed by Sharpe, Pritchard & Co, agents for the
clerk to the council) appeared for the appellants, and Mr R Tucker QC and Mr H
Wolton (instructed by Cartwright & Lewis, of Edgbaston, Birmingham)
represented the respondent.
Giving the first
of the reserved judgments, MACKENNA J said that the facts were few and simple.
The first of the footpaths in question, no 19, had a 7-ft-high hawthorn hedge
growing in the middle, and passage along it was impossible. The second, no 20,
had a barbed-wire fence and thick under-growth across it, so that a passage
could be effected only by ‘negotiating’ the fence and forcing a way through the
undergrowth. The third, described as the junction of foot-paths 73 and 75, was
crossed by a barbed-wire fence of several strands, and passage at this junction
could be effected only by climbing over or under the wire. Each of the three
paths was admittedly a highway for whose repair the appellants were made
responsible by section 44 of the Highways Act 1959. That section provided: ‘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 provided that ‘maintenance’ included ‘repair,’ and that
‘maintain’ and ‘maintainable’ should be construed accordingly. Section 59
provided machinery for the enforcement of the duty imposed by section 44. If a
person alleged that a highway ‘maintainable’ at the public expense was ‘out of
repair’ he might serve a notice on the highway authority whom he alleged to be
liable to ‘maintain’ it, and if the authority admitted those allegations, he
might apply to the justices for an order requiring them, if the justices found
that the highway was out of repair, to put it in proper repair within such
reasonable period as might be specified in the order. Other provisions of the
Act dealt 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 district
‘to prevent, as far as possible, the stopping-up or obstruction of highways in
their district.’ By an amendment, that
provision now applied to county councils. Section 129 provided that if an
obstruction arose in a highway from an accumulation of snow, or from the
falling down of banks on the side, or from any other cause, the highway
authority should cause the obstruction to be moved from time to time and in any
case within 24 hours of service of a notice from a justice of the peace.
Lastly, section 299 provided that no provision of the Act relating to
obstruction of or other interference with highways should be taken as affecting
any right of a highway authority, under any other enactment or rule of law, to
remove any obstruction from a highway or otherwise abate a nuisance or other
interference with a highway.
Were the
footpaths in question ‘out of repair’ within the meaning of section 59? On behalf of the appellants, it was contended
that a highway was ‘out of repair’ only if it was impassable or difficult to
use because of the condition of its surface. For the respondent, it was
submitted that a highway was out of repair not only where the surface was
decayed but where by reason of obstructions, whether caused by nature or by the
acts of men, it was no longer possible to use it or it could be used only with
difficulty. He (his Lordship) was of opinion that the latter argument was
correct. An obstructed highway, pending the removal of the obstruction, could
be said to be ‘out of repair’ and to remain out of repair until the obstruction
was removed. The removal of the obstruction was a work of repair. That was not
using the words ‘repair’ and ‘out of repair’ in any unnatural sense. As Lord
Porter had said in London and North Eastern Railway Co v Berriman [1946]
AC 278 at 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 had become
blocked, either by growth of vegetation or by erection of a fence across it,
something had gone wrong, and the man who cut down the vegetation or laid low
the fence across the highway put right that which had gone wrong. Du Parcq J
had given much the same meaning to ‘repair’ in Bishop v Consolidated
Properties Ltd (1933) 148 LT 407, one of the cases relied upon by Lord
Widgery CJ in the court below. There 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. At p
410 du Parcq J said:
I have to
consider . . . whether it can be properly 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 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 that one has to remember that ‘to repair’ after all merely means to
prepare or make fit again to perform its function; it means to put in order,
and, I think, no more.
Similarly, the
Suez Canal was ‘out of repair’ when it was blocked by sunken ships and for that
reason could not be
appellants had relied on two arguments arising out of the provisions of the Act
of 1959. They pointed first to the use of the word ‘maintain’ in section 44 (1)
and to the definition of ‘maintain’ in section 295, where it was said to include
‘repair.’ This, they said, meant that
‘maintain’ was wider than ‘repair,’ and therefore ‘repair’ had a meaning which
excluded such other matters as were maintenance only. He (his Lordship) was
uncertain whether the draftsman of the 1959 Act really meant the duty of
maintenance to include matters other than repair, but even if he did, so that
‘maintain’ was wider than ‘repair,’ the question would still remain whether the
removal of obstructions was maintenance but not repair, and he (his Lordship)
would answer that it was repair. The second argument put forward by the
appellants was that as section 116 imposed a duty to prevent obstructions, a
meaning should be given to the word ‘repair’ in section 59 which did not
include the removal of obstructions. He (his Lordship) did not read the Act in
that way. He thought that the duty of repair imposed by earlier sections
included the duty of removing obstructions, and that the duty of preventing
obstructions imposed by section 116 was a ‘cumulative’ one, to borrow an
expression used in R v Heath (1865) 6 B & S 578, 12 LT 492.
That was a strong authority in the respondent’s favour. To understand it, it
was necessary to look at some of the provisions of the Highways Acts of 1835
and 1862. Section 6 of the 1835 Act provided:
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 in the said parish for which he is
appointed, and which are now or hereafter may become liable to be repaired by
the said parish.
There one met
the two words ‘maintaining’ and ‘repairing’ in conjunction. The section
referred to the old duty of the inhabitants to ‘maintain’ and to the new duty
of the surveyor to ‘repair.’ He (his
Lordship) would not expect the new duty to be less extensive than the old, so
as to omit matters of maintenance, not being repair, for which the surveyor was
not to be responsible. Section 20 imposed penalties on the surveyor for neglect
of his duty, and section 27 empowered him to make a rate in order to raise
money ‘for carrying the several purposes of this Act into execution.’ As in the 1959 Act, there were sections
dealing with the removal of obstructions. Section 26 provided that if there
should be an obstruction from snow, or from the falling down of banks, or from
any other cause, the surveyor should, from time to time, and within 24 hours if
ordered by a justice, cause it to be removed. Sections 63 to 69 dealt with the
removal by the surveyor of particular kinds of obstructions including, in
section 69, encroachment by buildings. Then there was the 1862 Act, which
supplemented the 1835 provisions by enabling different parishes to join
together in setting up highway boards to do the work for all the parishes which
had formerly been done by a surveyor for each of them separately. Section 17
was in these terms:
The highway
board shall maintain in good repair the highways within their district, and
shall . . . as respects the highways in each parish within their district,
perform the same duties, have the same powers, and be liable to the same legal
proceedings as the surveyor of such parish would have performed, had, and been
liable to if this Act had not passed. . . .
Section 20
provided for the highway board charging the expenses they had incurred for the
common use of the several parishes to a district fund, to be contributed by the
parishes according to a prescribed scheme. The section continued:
. . . But the
expenses of maintaining and keeping in repair the highways of each parish
within the district, and all other expenses in relation to such highways,
except such expenses as are in this Act authorised to be charged to the
district fund, shall be a separate charge on each parish.
In R v
Heath a highway board was seeking to recover from one of its parishes part
of its costs of indicting one T Burrows for obstructing a highway. Burrows had
erected houses partly on his own land and partly on a paved footway which
adjoined his land and formed a public highway. He was indicted for a nuisance,
tried at the assizes, found guilty and ordered to pay the taxed costs of the
prosecution. He paid the costs and at once removed the obstruction, but the
taxed costs were not equal to the whole of the prosecutor’s expenses, and the
board took proceedings against the parish to recover the £60 difference. The
parish disputed liability, and the case was tried at Quarter Sessions, which
stated a case for the opinion of the Court of Queen’s Bench. The board put its
case in two ways, the first of which involved the following three propositions:
(i) if a surveyor had himself removed Burrows’s obstructions, this would have
been work of repair within the meaning of section 6 of the Act of 1835, and he
would have been entitled to make a rate to cover the cost under section 27;
(ii) if he had proceeded by indictment, as the board had in fact done, this
would equally have been work of repair, and a rate could have been made to
recover the cost of the litigation; (iii) by section 17 of the Act of 1862, the
board had the same power that a surveyor would have had. The second argument
was that the costs of the litigation were recoverable as an expense of
‘maintaining and keeping in repair the highways’ of the township under section
20 of the Act of 1862, alternatively as ‘other expenses in relation to such
highways’ under the same section. Counsel for the parish tried to meet the
board’s argument on section 6 of the 1835 Act by pointing out that that section
dealt with repair while sections 26 and 29 dealt with the removal of
obstructions, saying, in effect, that the powers and duties of removal in the
later sections excluded such powers and duties from section 6. Here it was that
Crompton J observed that the sections were ‘cumulative.’ When counsel attempted to distinguish between
the costs of removing an obstruction and the costs of litigation, Cockburn CJ
answered:
If the
surveyor is entitled to charge the expenses of removing a nuisance by manual or
mechanical labour, why is he not entitled to charge the expenses of doing it by
legal proceedings? . . . Litigation
leads to the same end.
Giving
judgment, the Chief Justice supported the board’s first argument, as follows:
If this had
been the case of a prosecution by the surveyor under the Act of 1835 for
removing an obstruction on a highway I should have been disposed to hold that
he had the power to include the expenses of it in a highway rate; for by
section 27 he was directed to make a rate in order to raise money for carrying
out the several purposes of that Act into execution. The main purpose of the
Act was to repair the highways and keep them in proper condition, but the
existence of an obstruction on a highway amounting to a nuisance is
inconsistent with that condition. And therefore, according to a wise and
liberal construction of the Act, the expenses of such a prosecution might have been
fairly and legitimately included in the highway rate.
The closing
sentences were expressed in a slightly different way in the Law Times Report,
but the meaning was the same. Having thus dealt with the 1835 Act, the Chief
Justice pointed to the words of section 20 of the 1862 Act about ‘all other
expenses in relation to such highways’ and said that they made the section a
wider one than section 17 of the earlier Act. He concluded that the expenses
claimed against the parish fell within these wider provisions. Crompton J said
the same about both the earlier Act and the later:
Mr McIntyre
(counsel for the highway board) rested his case on short and simple
propositions. The highway board are bound to maintain the highways in good
repair; it is impossible to do that without removing obstructions; and in many
cases obstructions cannot be removed without having recourse to law. And he
said that the costs of such legal proceedings are expenses which may
be charged upon that parish under statutes 5 & 6 Will. 4, c 50 [the Act of
1835] and 25 & 26 Vict. c 61 [the Act of 1862]. I have not heard anything
to meet that argument and I think his propositions are correct.
And a little
later he said:
Supposing 5
& 6 Will. 4 c 50 did not include such an expense as that in question,
though I think it does, it is clearly an expense in relation to highways within
25 & 26 Vict. c 61, section 20.
Blackburn J
thought that section 20 of the later Act was no wider than section 27 of the
earlier Act, that the expenses of litigation would have been recoverable by a
rate under section 27 as being incurred for the purpose of repair, and that
they were equally recoverable under section 20. Those judgments of
authoritative judges clearly supported the conclusion that the removal of an
obstruction which was not merely temporary in its nature and which made the whole
or part of a highway impassable, or at least very difficult to use, was work of
repair, and that the highway, until that work was done, was out of repair. Mr
Freeman objected, very truly, that Heath’s case was an old authority,
more than 100 years old, and asked why the construction of a modern statute
like the 1959 Act should be governed by it. He pointed out, accurately, that
the decision, not being one of the Court of Exchequer Chamber, was not binding
on this court. The answer to that submission lay partly at least in the
connection between the 1959 Act and the old highways law. That Act was in
direct succession to the 1862 Act and the 1835 Act. It was not a slavish
adherence to authority which would preserve a meaning given to the word
‘repair’ in those earlier Acts by judges such as Blackburn J, even when sitting
in the Queen’s Bench, and never subsequently challenged. For the rest, the
answer to the submission was that what the judges said in Heath’s case
was good sense. It was not surprising that the Divisional Court based its
judgment on that case.
Before ending,
he (his Lordship) would briefly and respectfully comment on two passages in the
judgment of the Lord Chief Justice in the present case. The first was at page
944 of the report in the Weekly Law Reports, where Lord Widgery said
that if an obstacle was one which ought to have been prevented or remedied in
the course of ‘normal routine maintenance’ its existence caused the highway to
be out of repair. He then went on to give an example of an obstruction for
which proceedings would not lie under section 59: ‘If, however, a builder chose
to dump tons of rubble on a footpath thus rendering it impassable it would, I
think, be an abuse of language to say that the highway authority had allowed
the footpath to become out of repair.’
That, with respect, was a mistaken view. If the obstruction to the use
of the highway was such that it could fairly be said to put it out of repair,
the duty to remove the obstruction, or cause it to be removed, existed however
it might have got there. The authority’s liability was not based on its having
wilfully ‘allowed’ the obstruction to be erected, nor was its duty of removal
limited to what might be achieved in the course of ‘normal routine
maintenance.’ The second passage was at
945 of the report where the Lord Chief Justice dealt with a fourth footpath
which was sent back to the justices for further consideration. As neither party
in the present proceedings had appealed against that part of the Divisional
Court’s order, his (MacKenna J’s) observations on that passage were obiter.
The case was one of a footpath which had become flooded with effluent from a
cesspit, and the Lord Chief Justice said: ‘If the effluent was originally
carried under the footpath in a culvert which has collapsed or become
obstructed, this may well be a failure in maintenance. If, however, someone has
built a cesspit in such a way that the effluent floods the footpath I do not
think that the result is to put the footpath out of repair.’ If, as appeared to be the case, the flooding
made the footpath impassable, the path was out of repair. The cause of that
condition was relevant only in considering the time which it was reasonable to
give the local authority for removing it or causing it to be removed. The
appeal should be dismissed.
CAIRNS LJ said
that he did not feel able to give the word ‘repair’ the weight which MacKenna J
had done. In his opinion the word had to be considered in its ordinary meaning
and the context in which it was used. Not every act of putting a thing right
was a repair. Whatever the answer with regard to the correctness of the actual
decision in Bishop’s case, du Parcq J appeared to have given an unduly
extended meaning to ‘repair.’ To wind up
a watch and set the figures to the correct time was to make it fit again for
its normal function, but no one could describe such an operation as
‘repair.’ In relation to a highway, no
one, so he (his Lordship) ventured to suggest, would describe the removal of an
obstruction as a ‘repair.’ It was, in
his judgment, striking that in all the Highways Acts ‘repair’ and ‘removal of
obstructions’ were separately dealt with. Despite R v Heath, he
did not feel constrained to give to the word ‘repair,’ as used in the Highways
Act, any meaning other than the natural and normal meaning. Highways could only
be ‘out of repair’ when the surface was in some way defective or disturbed. In
the present case he could not say that the footpath obstructed by the wire was
‘out of repair.’ He would accordingly
allow the appeal in respect of footpath 73 and 75, but dismiss the appeal in
respect of paths 19 and 20 on the basis that the growth of vegetation had
interfered with their surfaces.
LAWTON LJ said
that section 44 of the Highways Act 1959 imposed upon highway authorities the
duty to maintain highways. Keeping a highway in repair was only one aspect of
maintaining it. The words ‘repair’ and ‘maintain’ were not, in his opinion,
synonymous. Since the 18th century, and probably long before, justices had had
a duty to see that the King’s subjects could pass freely on the highway.
Blackstone in his Commentaries, in a section dealing with public
nuisances, said: ‘Of this nature are annoyances on highways, bridges and public
rivers, by rendering them inconvenient or dangerous to pass; either positively
by actual obstruction or negatively, by want of reparation’ (23rd edition, vol
4, p 205). It was only the inhabitants at large who were responsible for want
of reparation; individuals were responsible for obstruction and encroachments.
That distinction was reflected in the General Highways Act 1773. It was also to
be found in the Highways Act 1959, but before showing that he (his Lordship)
had to consider the phrase ‘out of repair’ in section 59. It was an adjectival
phrase, one in ordinary usage, and in his opinion, when used in relation to
highways or bridges it connoted the restoration to a sound or unimpaired
condition of that which had become unsound or impaired by neglect or use. If Hawkins’
Pleas of the Crown was a reliable guide, in at least one case the
indictment charging want of repairs referred to the highway being ‘in decay’
(see 8th edition vol 1 pp 698-704). That fitted in with two of the meanings of
repair given in Murray’s Oxford Dictionary. The 19th century precedents
of indictments in the 2nd and 15th editions of Archbold’s Pleadings and
Evidence in Criminal Cases reflected the same concept of decay or neglect.
A highway got
out of repair because the highway authority, over a long period, had not done
its duty. It was therefore just that the law should make mandatory orders for
repairs. That was what section 59 did. A highway, however, could become
obstructed or encroached upon overnight. If the obstruction had been caused by
weather, for example a landslide, the highway authority could not reasonably be
expected to remove the obstruction quickly. It might be impossible to do so.
The highway authority had a duty to prevent, so far as possible, the
obstruction of highways (section 116), and was given powers to enable it to do
so (sections 124, 125, 131 and 133). Whether a highway was out of repair was a
question of fact for justices. In his (Lawton J’s) judgment,
bridge was out of repair, had intended to draw the distinction between positive
and negative conduct causing nuisances to highways which the law had recognised
for over 200 years. In coming to this conclusion, he had not derived much help
from the meaning given to the word ‘repair’ in leases or other contexts. What
mattered in the present case was the historical background. He did not share
MacKenna J’s opinion that the decision in R v Heath was a
valuable guide. The problem in that case was the mundane one as to which authority
should pay the costs of prosecuting someone who had obstructed the highway. He
was doubtful whether the Court of Queen’s Bench directed its attention
specifically to the question in the present case, namely whether a highway
which had been obstructed, or had become obstructed, could be said to be ‘out
of repair.’
Turning to the
facts in the present case, there was a hawthorn hedge in the middle of footpath
19 making passage along it impossible. That finding by the justices was
expressed in few words, and more detail would have been helpful, because if the
hedge had been planted then it would seem, on the authority of Hawkins (supra),
that it should be regarded as an encroachment or a positive act of obstruction.
He inferred, however, that the justices found that it had grown up where it had
because the highway authority had done nothing to the path for a long period.
Nature did tend to take over when footpaths were neglected. He would adjudge
that footpath out of repair. By the same reasoning footpath 20 was out of
repair because of the undergrowth which had grown up. That was due to neglect.
The barbed-wire fence, however, had got where it had because of positive action
of someone. He therefore adjudged the junction of footpaths 73 and 75 not to be
out of repair, but to be obstructed by the barbed-wire fence. He would
therefore allow the appeal in respect of the junction of footpaths 73 and 75,
but dismiss it in respect of footpaths 19 and 20.
The appeal was
accordingly dismissed in so far as it related to the orders made concerning
footpaths 19 and 20, and allowed only in respect of the junction of footpaths
73 and 75. The appellants were ordered to pay the costs. They were granted
leave to appeal to the House of Lords on terms that they did not ask for costs
against the respondent in the House of Lords.
