Deemed dedication of highways

Brendon Lee analyses the application of statutory incompatibility to deemed highway dedication following the recent developments on such legal principle in a number of village green cases.

Over the past two years there has been considerable judicial focus on the registration of town and village greens where such registration, by way of section 15 of the Commons Act 2006 (“the 2006 Act”), would be incompatible with a competing statute for which a public body holds such land. The leading case being the Supreme Court’s decision relating to port authority owned land (ie. Newhaven Harbour). Recent cases in the High Court have looked at NHS owned land and local authority owned land appropriated for education purposes.

But where does this leave deemed highway dedication under section 31 of the Highways Act 1980? Could a public right of way be deemed dedicated over the foreshore of Newhaven Harbour or NHS land (where a village green may not)?

The village green cases

The leading case, as aforementioned, is the decision of the Supreme Court in R (Newhaven Port and Properties Ltd) v East Sussex CC [2015] 2 WLR 601. Lord Neuberger and Lord Hodge stated the principle of statutory incompatibility as a question of statutory construction. They enounced the principle as:

“where Parliament has conferred on a statutory undertaker powers to acquire land compulsorily and to hold and use that land for defined statutory purposes, the 2006 Act does not enable the public to acquire by user rights which are incompatible with the continuing use of the land for those statutory purposes.”

In the Newhaven case, the claimant was the owner and operator of Newhaven Port pursuant to special Act powers under inter alia Harbours, Docks and Piers Clauses Act 1847 and Newhaven Harbour and Ouse Lower Navigation Act 1847. The plurity of the Supreme Court found that there was clear statutory incompatibility between the 2006 Act and the statutory regime for running the harbour. They pointed to the criminal offence for damaging or encroaching a green or for causing an interruption of a greens use and enjoyment. In their view such criminal offences would prevent the proper management of the harbour within the special enacted powers. The port harbour land the subject of the special Acts was therefore not registrable as a village green.

The second case was a decision of the High Court in Lancashire CC v Secretary of State for the Environment and Rural Affairs and Bebbington [2016] EWHC 1238. It concerned the registration as a village green of land held by the county council as local education authority for such purposes. Ouseley J found that such land, held for educational purposes pursuant to general powers of the local education authority was not statutorily incompatible with the 2006 Act. He stated the question was:

“Can the public body carry out its statutory functions if the public has the right to use the land for recreational purposes?”    

If the answer is ‘YES’ then there is no statutory incompatibility. Ouseley J clarified the requisite question by saying:

“the statutory ownership of the land should bring specific statutory duties or functions in relation to that specific land which are prevented or hindered by its use for public recreation after registration. It is not enough that the duty could be performed on the land in question but could also be performed on other, even if less conveniently. That does not essentially require evidence of the statutory body’s intentions because it should be clear from the statutory function taken with the nature and location of the land in question.”

Ouseley J concluded that the general educational statutory functions of the county council did not require the specific land in question to be used for educational purposes. Such land was not central or even significant to the performance of the general educational duties of the county council.

The third case was a decision of the High Court in R (NHS Property Services Limited) v Surrey County Council and Jones [2016] EWHC 1715 (Admin). It concerned the registration as a village green of land held by the NHS body under the National Health Service Act 2006. Gilbart J found that the statutory power of the NHS body was incompatible with the 2006 Act. He stressed that the question is not a factual one of whether land has been used or may be used but rather a question of incompatibility as a matter of statutory construction. He concluded that if the land was a village green such land could not fulfil its statutory purpose unlike the case for broader general provisions associated with local authority land such as for educational purposes.

Relevance of the village green cases to highway law

It is well accepted that there are similarities in principles between the law for village greens and that of highway. However, as Lord Scott stated in Beresford, to apply principles applicable to one type of right to another type of right without taking account of their differences is dangerous.

The principle of statutory incompatibility clearly applies to highway law. In fact prior to the village green cases, the House of Lords considered its application in a public right of way case of British Transport Commission v Westmorland County Council [1958] AC 126. That case concerned presumed dedication of land held by the railway authority pursuant to inter alia the Railways Clauses Consolidation Act 1845. The House of Lords found that the presumed dedication was not incompatibility with the statutory functions of the railway authority. It was noted that although a hindrance the claimed public footpath did not interfere with the adequate and efficient discharge of the railway authority’s statutory duties.

Similarly, the section 31(8) preserves the position on statutory incompatibility. Such provisions draw upon the common law criteria for presumed dedication to require the landowner to have capacity to intend dedicate and the principle that such capacity for statutory bodies does not exist where such dedication is incompatible with the statutory functions of the body.

Accordingly, the principles of statutory incompatibility as advanced and clarified in the recent village green cases would apply to presumed and deemed dedication under highway law. However, the question and statutory construction needs to be assessed and understood in highway law principles.

Considerations when considering statutory incompatibility for hghway

Noting the above cases, when there is land owned by a pubilc body and subject to an application for deemed dedication, under section 31 of the Highways Act 1980, the principle question to ask when assessing statutory incompatibility is:

Can the public body carry out its statutory functions and duties if the public has the right to use the land as a highway (ie. to pass and repass)?

Each case will need to consider the above question on its own merits. However, in considering this question as a guide the following should at least be assessed:

1. What are the statutory functions (powers and duties) under which the land is held?
2. Are the statutory functions by way of a special Act? If ‘NO’ then the statutory functions are unlikely to be statutorily incompatible;
3. Do the statutory functions include public access powers or duties? If ‘YES’ then the statutory functions are unlikely to be statutorily incompatible;
4. Is the land affected central or even significant to the performance of the statutory functions (ie, consider the nature of the legal relationship between the land the statutory functions)? If ‘NO’ then the statutory functions are unlikely to be statutorily incompatible;
5. Would the proposed highway interfere with the adequate and efficient discharge of the statutory functions? If ‘NO’ then the statutory functions are unlikely to be statutorily incompatible; and
6. Can the statutory functions be carried out and discharged without criminal sanctions arising under highway law? If ‘NO’ then the statutory functions are unlikely to be statutorily incompatible.

So could a highway be deemed over Newhaven Harbour or NHS land?

In considering the question of statutory construction and whether an incompatible village green would also mean an incompatible highway, the difference in the legal nature and characteristics of the two public rights must be compared in reference to the competing statutory functions for which land is held by statutory bodies.

Village green rights are generally very rigid and inflexible rendering significant areas unable to be privately operated or developed. Alternatively, highways are generally less intrusive in size against private operations and development, and through statute have become more flexible in permitting, licencing and diversions and extinguishments.

Noting the above differences, it would seem a highway may well not be incompatible with the statutory functions of an NHS body and the management of their land. Development could be carried with appropriate highway diversions under the Town and Country Planning Act 1990 (and thus avoid any offence). Footpaths would unlikely be of a size to interfere or hinder the overall management of the land and fulfilment of the statutory purpose of the land. Similarly, it could be seen as likely that had the British Transport case concerned a village green (over a wider area) that the court would have found such application statutorily incompatible given the greater burden and limitations imposed against managing the rail infrastructure.

The Newhaven Harbour situation is more challenging. It would seem likely to fall on the particular location and type of highway claimed. There may well be instances where a highway, like a village green, is incompatible with the statutory functions of the port owner. Again referring to the British Transport case, the House of Lords didn’t rule out the possibility of their arising incompatibility with rail authority land. A port authority will likely be no different.

Brendon Lee is a Solicitor at Buckles Solicitors LLP. He can be contacted on 01733 888920 or This email address is being protected from spambots. You need JavaScript enabled to view it..