The Court of Appeal has determined that a path in a public park constructed by the Council in the 1930s is a highway maintainable at public expense.
The background to this case is that Ms Barlow was visiting Abram Park in Wigan when she tripped on an exposed tree root on a metalled public path within the park which caused her to fall and sustain injury. She brought a claim for compensation against the Council alleging that they were in breach of statutory duty under section 41 of the Highways Act 1980 (which requires a highway authority to maintain a highway).
At trial it was accepted that the area of the path where Ms Barlow fell was ‘dangerous and defective’. However the Council did not accept that this rendered them in breach of their duty under the 1980 Act. The Council argued that the path was not a highway maintainable at public expense, because section 36(2)(a)(1) of the 1980 Act was not satisfied. This section specifies that;
“a highway constructed by a highway authority is highway maintainable at public expense.”
The Council argued that the path in question was not constructed by a highway authority nor was it maintainable at public expense so therefore it did not fall within the ambit of the 1980 Act. Ms Barlow disagreed and her legal team advanced two reasons the path was a highway maintainable at public expense;
1. The section 36(2)(a) argument – the path had been constructed by Abram UDC in the 1930s, the Council’s predecessor, which Ms Barlow submitted was a ‘highway authority’.
2. The section 36(1) argument - The path became automatically maintainable by the public in 1949 (when the National Parks and Access to the Countryside Act 1949 came into force).
The claim was dismissed at first instance, but successfully appealed to the High Court. The Council appealed to the Court of Appeal, which dismissed the appeal and so Ms Barlow’s claim succeeded and we have set out the details below.
Court of Appeal Decision
The section 36(2) argument
This argument failed at the Court of Appeal who considered the following points as relevant:
1. Did the Council intend the path to be a highway when it was constructed?
Held: the Council had merely intended to create a path in a park.
2. Had the Council acted in their capacity as a highway authority when the path was constructed?
Held: the Council had not acted in as a highway authority.
3. Did the relevant section of the 1980 Act apply to paths which became highways before the commencement of the Highways Act?
Held: the Highways Act 1959 related to highways constructed after the commencement of the Act. Therefore section 36(2)(a) of the 1980 Act was not retrospective.
Ms Barlow’s claim could not therefore succeed under section 36(2)(a) because when the Council constructed the path it was not acting in its capacity as the highway authority for the area.
The section 36 (1) argument
The evidence was that the park was opened in the early 1930s. The path was made soon afterwards and since then the public had been allowed to use it without restriction or interruption over a lengthy period, this supported the presumption of dedication as a highway at common law.
Moreover, when common law presumption arises it is retrospective (Turner v Walsh (1881) 6 HL 636, although a Privy Council decision correctly states the English law) and the dedication is deemed to have occurred at the beginning of the period of continuous user.
Therefore, it is deemed to have been "repairable by the inhabitants at large" at common law until commencement of the National Parks and Access to the Countryside Act 1949, which provided that “public paths” in existence before the Act remained repairable by the inhabitants at large. Thereafter the path was converted into a highway maintainable at public expense by the Highways Act 1959.
On that basis the Court of Appeal Judges unanimously decided that the Council owed a duty under section 41 of the 1980 Highways Act for the path.
This case involved complex legal arguments. The Council were ultimately unsuccessful but the decision does provide some helpful guidance on the application of section 36(2).
The case highlights the need to review whether paths in parks or elsewhere which have existed since before 1949 could be deemed to be highways maintainable at public expense. If so should those paths be inspected and maintained by the highway department? When considering this it is important to remember that this case is fact specific and it was accepted that the path in question had been used as a thoroughfare from before 1949 without restrictions as there were no opening or closing times in the park.
Councils will be aware of the parks they own and will no doubt already have a system in place for inspecting the paths within them. However if a situation arises (like in the Barlow case) and a path is deemed to be a highway maintainable at public expense the council would have a statutory duty under section 41 of the Highways Act to maintain it.
In light of this decision it may be a good time for local authorities to take stock of the inspections they have in place for paths, particularly those within parks which have been in existence since before 1949.
Caroline Elson, is a senior associate in the public sector team at Langleys LLP.