The phrase “highway maintainable at the public expense” within section 328 of the Highways Act 1980 does not convert every bridge over which publicly maintainable highway passes into publicly maintainable highway.
The High Court has considered this issue in Zipfell v Norfolk County Council [2024] EWHC 3301 (Admin).
The case concerned whether a bridge constructed circa 1790, part of the registered title of The Mill, Newton by Castle Acre, Kings Lynn, formed part of the highway maintainable at public expense. The narrow, single-track rural road crossing the bridge had been so maintained since 1929.
The bridge was approximately 35m long with three arch openings through which the River Nar and bypass channels passed. The bridge had been maintained by the Mill since 1966 and the claimant acquired the property in 2020 on this basis. It was one of 53 privately maintainable bridges in Norfolk with adopted highways running over them.
The claimant relied upon section 328 of the 1980 Act which provides that where a highway passes over a bridge or through a tunnel, that bridge or tunnel is to be taken for the purposes of the Act to be part of the highway and “highway maintainable at the public expense” was to be construed accordingly. Consequently, the claimant argued, the bridge vested in the local authority in order for the highway to be maintained.
The court dismissed the claim. The 1980 Act itself was a consolidating statute, not intended to change the law and read as a whole it did not support the proposition that all bridges become highway maintainable at public expense simply because such highway passes over them. What was vested in the highway authority was only what is strictly necessary to enable it to perform its statutory duties of repair, maintenance and operation of the highways (see Tunbridge Wells Corporation v Baird [1896] AC 434).
The bridge was not reasonably required to maintain the highway. The council’s interest was only in the surface highway of the road and works had been carried out in 2003, 2005 and 2017.
The bridge also had benefits to its owner even though the mill wheel was no longer in use. Its construction was in part to direct the flow of water to the mill wheel, it provided some structural support for the mill and it would have enabled receipt of supplies and delivery of produce. It could not be right that the bridge would belong to the highway authority even if it was essential to the functioning of the water mill.
Louise Clark is a property law consultant and mediator
