Barlow v Wigan Metropolitan Borough Council

Highways – Highway maintainable at public expense – Path – Public path providing access to and across park amenities – Respondent tripping over tree root on path – Respondent claiming damages from appellant local authority – Whether footpath maintainable at public expense – Whether appellant in breach of statutory duty under section 41 of Highways Act 1980 – Appeal dismissed The respondent tripped on an exposed tree root on a public path in Abram Park, Wigan which was in a dangerous and defective condition. She brought a claim for damages against the appellant local authority for breach of statutory duty under section 41 of the Highways Act 1980. The county court held that the path was not a highway maintainable at the public expense within the meaning of section 36(2)(a) of the 1980 Act. As a result, the respondent had no cause of action against the appellant. The land used to develop the park had been purchased in 1920 by the appellant’s predecessor with the intention of constructing a public park in the early 1930s. The path was present before 1959 providing access to and across the amenities within the park. The judge concluded that he could not infer that there was an intention to dedicate the path as or part of a highway at the time of its construction; the path became a highway by reason of at least 20 years’ usage pursuant to section 31 of the 1980 Act. The High Court allowed the respondent’s appeal holding that she succeeded on primary liability under section 36(2)(a) of the 1980 Act: [2019] EWHC 1546 (QB); [2019] PLSCS 112. The appellant appealed. The respondent sought to uphold the judge’s decision on the alternative ground that the path was dedicated before 1949 such that it was a highway maintainable at public expense by the operation of section 47(1) of the National Parks and Access to the Countryside Act 1949, section 38(2)(b) of the Highways Act 1959 and section 36(1) of the Highways Act 1980. Held: The appeal was dismissed. (1) The respondent could not succeed under section 36(2)(a) of the 1980 Act because when the appellant’s predecessor constructed the path it was not acting in its capacity as the highway authority for the area. Section 36(2)(a) had to be construed as referring only to highways constructed by a highway authority acting in its capacity as such. Although for the purposes of the law of contract a local authority was a single body corporate, it did not follow that it was indivisible for all purposes. As a provision in a consolidating Act it was not intended to change the law: Gulliksen v Pembrokeshire County Council [2002] 3 EGLR 123 considered. (2) The critical issue was whether the path on which the respondent fell was, or was deemed to have become, a highway before 16 December 1949, the date on which section 47(1) of the 1949 Act came into force. If a footpath was expressly dedicated or deemed to have been dedicated as a highway before 16 December 1949 then it was repairable by the inhabitants at large of the local parish. Section 47(1) provided that that rule of law applied to all such public paths. However, under section 49 of the 1949 Act it would not apply to any public path constructed after the commencement of the Act otherwise than in pursuance of a public path agreement. The Highways Act 1959 replaced the duty placed on inhabitants at large with the concept of a highway maintainable at the public expense. Section 38(2)(a) of the 1959 Act created two kinds of highway maintainable at public expense, by reference to the position immediately before the 1959 Act came into force (1 January 1960): (i) those dedicated or deemed to have been dedicated before 16 December 1949 by virtue of section 47 of the 1949 Act; and (ii) those which in 1959 were “maintainable by the highway authority”. The fact that the highway authority had constructed a path before 1949, in whatever the capacity, would not help the respondent because under the 1949 Act regime that did not make the highway maintainable unless it had been dedicated or was deemed to have been dedicated as a highway before 16 December 1949 (or by a later public path agreement). Section 38(3) of the 1959 Act applied to the second category. Section 36 of the 1980 Act, in particular s 36(2)(a) did not alter that position. (3) The question whether the respondent could succeed under section 36(1) of the 1980 Act depended on whether the path was, or was deemed to have been, dedicated as a highway before 16 December 1949. A highway might be created by express dedication by the landowner (of which there was no evidence in the present case), deemed dedication under section 31 of the 1980 Act or dedication inferred at common law. By virtue of section 31(1) of the 1980 Act, where a way over land had been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way was deemed to have been dedicated as a highway in the absence of sufficient evidence of a contrary intention. Under section 31(2), the period of 20 years was to be calculated retrospectively from the date when the public’s right to use the way was brought into question (which was not the present case); in any event the deemed dedication would be long after 1949. (4) The respondent succeeded on the basis of inferred dedication at common law. There was ample evidence to support the implication or presumption of dedication at common law and there was no evidence of any alternative explanation. When the common law presumption arose, it was retrospective. The act of dedication was deemed to have occurred at the beginning of the period of continuous user. In the present case that meant that the path was deemed to have been dedicated since the early to mid-1930s, well before the commencement of the 1949 Act. It was therefore deemed to have been “repairable by the inhabitants at large” until 16 December 1949 and thereafter until 1 January 1960 (the commencement dates of the 1949 and 1959 Acts), and “maintainable at public expense” since that time. The respondent’s cause of action for breach of statutory duty under section 41 of the 1980 Act was accordingly established. Matthew Cawson QC and Simon Vaughan (instructed by Forbes Solicitors, of Manchester) appeared for the appellant; Matthew White (instructed by Active Legal Solicitors, of Sutton Coldfield) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Barlow v Wigan Metropolitan Borough Council