Appellant seeking order requiring council to put highway into state of proper repair – Order made – Council appealing – Crown court considering present-day character of highway in determining state of repair – Council’s appeal allowed – Appellant appealing – Whether crown court erred – Highways Act 1980 – Appeal dismissed
In April 2000 the appellant laid a complaint against the respondent council, pursuant to section 56(4) of the Highways Act 1980, seeking an order requiring the council to put a highway, known as Prestwick Carr, into a proper state of repair. Prestwick Carr was an unclassified road in a rural area, and was, primarily, a single track used for farm access. Traffic was generated by the local community, and included both heavy-goods vehicles and taxis. However, it was not a busy road, and the appellant wanted the road repaired so that pedestrians, cyclists and horse riders could safely use it.
The justices made an order that “the unmade defective and disturbed parts of the thoroughfare” be repaired to its full width between enclosures “in such a manner that not only [can] the HGVs and other vehicles pass along it, but can pass each other with safety”. The council appealed under section 317 of the 1980 Act.
The crown court found that: (i) the central metalled part of the highway was suitable for traffic to pass along; (ii) other parts for example, the verges, were not suitable for traffic to pass along; (iii) the highway was in a reasonable state of repair to serve the ordinary traffic that made use of it; and (iv) to embark upon the programme envisaged by the justices would involve significant upgrading and improvement, which would alter the character of the road.
The court directed itself that the character of the highway was relevant when considering whether it was out of repair, and that the appropriate question to ask was whether it was in good enough condition to be used by the ordinary traffic of the neighbourhood. The court allowed the appeal.
The appellant appealed, raising the question, inter alia, of whether the court had erred in considering the present-day character of the highway when determining its state of repair.
Held: The appeal was dismissed.
1. In applying Burnside v Emerson [1968] 1 WLR 1490 and Goodes v East Sussex County Council [2000] 1 WLR 1356, the court had asked itself the correct question. Whether the highway met the required standard was a question of fact for the crown court, and it was not for the present court to interfere with that finding.
2. The appellant’s complaint was as to the court’s treatment of the verges, but the finding that the verges were not suitable for all traffic did not amount to a finding that the highway was out of repair.
3. The critical finding was that the highway was in a good enough state of repair to serve the ordinary traffic that used it. The crown court had to consider the highway as a whole. It correctly found that the highway included the whole of the width between the enclosures, but this did not mean that the council had an obligation to level everything, and flatten banks to enable vehicles to pass over them. The question was whether the highway, as a whole, was in a fit state for use by ordinary traffic. In that respect, the character of Prestwick Carr was of critical importance and the court clearly had that well in mind.
The appellant appeared in person; Ian Ponter (instructed by the solicitor to Newcastle City Council) appeared for the respondents.
Sarah Addenbrooke, barrister
