Adoption of highways — Challenge to adoption — Respondent bringing private law trespass proceedings — Whether challenge to be confined to statutory remedies or judicial review — Appeal allowed
The appellant’s land was separated from the metalled surface of a street by an unmetalled patch, part of which was in the respondent’s ownership. The respondent, who lived in the street, cultivated the patch as part of the garden to her property. Over the years, she had arranged for various works to be undertaken to the patch.
The local county council gave permission to the appellant to install a gate in a hedge and to lay a concrete surface over the patch for access from the metalled part of the street to his land. They proceeded on the basis that the patch had become an adopted highway some years previously, pursuant to section 228(1) of the Highways Act 1980. Section 228 permitted street works authorities to adopt private streets as highways maintainable at public expense if “street works” had been executed, provided that no objections were received by the sole owner, or a majority of owners, or any objections were not upheld. The adoption procedure provided for the display of notices of the intended adoption and gave a one-month period in which objections could be submitted. Section 228 also set strict time limits for applications to the magistrates’ court for determination of objections, appeals from magistrates’ decisions, and judicial review challenges. No objections had been received concerning the adoption of the patch.
The respondent brought proceedings against the appellant for trespass, seeking damages and an injunction. Her claim depended upon challenging the legitimacy of the adoption of the patch. Finding in her favour, the recorder held that notices had been appropriately displayed as required under section 228, but that the council had had no power to adopt because no “street works”, as defined in section 203 of the Act, had been carried out to the patch.
On appeal, the appellant submitted that the adoption of the patch was a public law decision, which the respondent could not challenge years later in private law proceedings in circumstances where the tight time limits for such challenges had long since expired.
Held: The appeal was allowed.
The only way to challenge the county council’s act of adoption was under the express terms of the statutory objection procedure or by judicial review: O’Reilly v Mackman [1983] 2 AC 287 and Cocks v Thanet District Council [1983] 2 AC 286 applied; Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 distinguished. The Act made adoption conclusive subject to those remedies, and subject to complying with the section 228(1) notice requirements. It did so in the interests of certainty, to avoid the need for a court to consider the point in the context of disputed facts concerning things done to land many years previously. The respondent’s right to peaceful enjoyment of her possessions under Article 1 of the First Protocol to the European Convention on Human Rights had not been infringed. The respondent had had a remedy against any unlawful adoption, albeit subject to a strict time limit and although she might have been unaware of it at the time. It was not now open to her to argue that the patch was not a highway maintainable at public expense.
Jonathan Selby (instructed by Addleshaw Goddard, of Leeds) appeared for the appellant; Timothy Hartley (instructed by Cowling, Swift & Kitchin, of York) appeared for the respondent; John Barrett (instructed by the legal department of North Yorkshire County Council) appeared for the council.
Sally Dobson, barrister
