When is a highway not a highway?

Thom Wood examines a recent High Court case where a local authority was found to have been negligent in its response to a property search about whether a parcel of land formed part of a public highway.

Raising enquiries of a local authority is one of the standard pre-exchange searches that should be carried out when buying a property or an interest in a property.

Purchasers relying on information disclosed by property searches are often left frustrated by the accuracy and timeliness of responses from local authorities, and must prove negligence in order to be successful in a claim. However, a small chink of light in favour of purchasers has opened in the recent case of Chesterton Commercial (Oxon) Ltd. vs. Oxfordshire County Council [2015] EWHC 2020 (Ch).

Parking spaces at a premium

Residents of Henley and the local area are no doubt well aware of the paucity of local parking spaces. It was against this background that Chesterton Commercial, a small property developer, sought clarification in its local search of the status of a small parcel of land fronting a property that it wanted to buy. Chesterton Commercial wanted to redevelop and convert the property into mixed commercial/residential accommodation, each with the benefit of their own (valuable) dedicated parking spaces.

In its responses to enquiries in June 2007, the local authority replied with confidence to Chesterton Commercial saying that the area of land in question did not form part of the public highway and was not maintainable at the public’s expense.

However, the local authority was seemingly unaware that the land in question had been the subject of correspondence between the Henley Society, a local conservation group, and officials at Henley-on-Thames Town Council, as to whether the land formed part of the public highway. The land in question had formed part of the main road from Oxford to Marlow for hundreds of years, but had fallen into disuse when the route of the highway was changed in the early 1900s.

Public highway or private land

It was the Victorian judge John Maynard Byles who coined the phrase ‘once a highway, always a highway’ in the 1860 case of Dawes v Hawkins. This legal principle still holds true, and it remains the case that public highways can only lose this status if a formal ‘stopping-up’ order is applied for and approved by the relevant authority.

At first, the county council refused to agree that the land formed part of the public highway. However, the High Court heard how the county council had been carrying out investigations for over a year, with the assistance of a local highways expert, who had confirmed in writing that the land certainly did still form part of the highway; a position clarified by an independent local counsel.

The Court was unsympathetic to the county council’s defence that it was sufficient that the search result would accurately show what was currently designated as “highway”. Rather than provide an unequivocal response that the land was not maintainable at public expense, the court held that the county council should have at least made a note that the matter was under investigation.

Duty of care

The council was found to owe a duty of care to the claimant (under the principles established in the case of Hedley Byrne v Heller). In particular, councils are well aware of the purpose of search results in conveyancing, and that a buyer places reliance on the contents of such results. As such, the county council had acted negligently.

Chesterton was entitled to recover the difference between the price it had paid for the property, believing the land it intended to use as space for private car parking spaces to be private land, and its value as a public right of way. Significantly, Chesterton was prevented from claiming for loss of development profits. The council could not reasonably be expected to know the claimant’s intention on purchasing the property.

This High Court decision offers some comfort to buyers and confirms that local authorities must provide accurate responses to enquiries raised in local searches or be held liable in negligence.

Thom Wood is a solicitor in the Real Estate Team at Bircham Dyson Bell. He can be contacted on 020 7783 3771 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the firm's real estate blog.