Construction of a highway

If a highway authority built a highway, it is highway maintainable at public expense. Matthew White reports on a significant High Court ruling for local authorities.

I represented the successful claimant/appellant in Barlow v Wigan Council [2019] EWHC 1546 (QB). I also represent a lot of highway authorities and I have had a number of calls/emails from people concerned that this case will have a big impact on local authorities. Don’t panic. The case does nothing surprising. I explain below what it does and how highway authority defendants can avoid the same problem.

The basic message is that Highways Act 1980 s.36(2)(a) does what it says on the tin: a highway constructed by a highway authority is highway maintainable at public expense (“hm@pe”). The vital questions in any case are (a) was it a highway at the time of the accident?; and (b) was it constructed by a highway authority? It doesn’t matter when it was constructed, or what the highway authority’s intention was when they constructed it. Nor does it matter whether it was constructed by a council exercising a highway (as against any other) function. If it is a highway and if it was constructed by a highway authority, it is hm@pe and a duty is owed under s.41 of the Highways Act 1980. The risk that the case highlights for highway authorities is that there might be highways in their area that were constructed by them or their predecessor highway authorities which they have not realised are highways (and therefore hm@pe).

The facts

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Mrs Barlow was walking on a metalled path through a public park in Abram, Wigan. The park was owned by the Council. Mrs Barlow tripped and fell on a tree root growing through the path. The trial judge determined that it was a dangerous defect, but found that the path was highway but not hm@pe such that Mrs Barlow’s claim failed at first instance.

The position taken by the parties

The Council took the position that this path in a park was a highway and they deployed the rule in Gautret v Egerton (more recently re-stated in McGeown v Northern Ireland Housing Executive [1995]1 AC 233). That rule is that a person on a highway is there as of right, so is owed no duty of care by the occupier in respect of non-feasance; the occupier only owes a duty of care to visitors. Thus someone injured on a highway can be left without a remedy.

Mrs Barlow accepted the Council’s position that the path was a highway. Accordingly the claim was fought on the basis that the path was a highway.

Note the first point of significance for councils/ highway authorities: paths through parks are not necessarily highways. The Council contended that the path was a highway. The issue was not properly looked at in this case because the parties were both content to work on the basis of this contention. Highway authority defendants should be very careful. Whilst Mathew understands a desire to spring the McGeown trap, (a) it might backfire; and (b) councils should be mindful of their public authority duty and only assert things which they believe to be accurate. The Council in this case might, of course, have genuinely believed that this path was a highway. Councils should always be comfortable that they are dealing with an accident on a highway before asserting as much. They should resist any desire to assert that a way which might (or might not) be a highway is a highway merely to spring the McGeown trap.

The legal issue

Given that all were working on the basis that this path was a highway, the claim would fail (no duty owed) unless the path was hm@pe. The focus of the case was s.36(2)(a) of the Highways Act 1980 which says that hm@pe includes “a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority”. There was never any suggestion that this path was constructed on behalf of someone else, so the question in the case was whether the path was “constructed by a highway authority”.

Highway constructed by a highway authority?

It was common ground that the path was built by Abram Urban District Council (a predecessor of the Council defendant). The Council had resisted attempts to make them set out their case in advance of trial, but at trial asserted that Abram UDC was not a highway authority. That was wrong, and the Council conceded as much at the appeal. So, the path had been constructed by a highway authority. Looking back at s.36(2)(a) the question is whether Mrs Barlow fell on a “highway constructed by a highway authority”.

Mrs Barlow’s case was simple: what she fell on was a highway (common ground), and it was constructed by a highway authority (also common ground by the time of the appeal). Thus the requirements of s.36(2)(a) were met and this was hm@pe.

The Council’s suggestion was that it was not “a highway constructed by a highway authority” because:

(1) whilst Abram UDC was a highway authority, they did not construct the path wearing their highway authority “hat” (rather they were wearing a “parks” or some other hat – not performing the function of highway authority);

(2) whatever hat they were wearing, when they built the path there was no intention to dedicate it as a highway, thus it was not constructed as a highway and cannot have been a highway constructed by a highway authority; and

(3) even if they were wearing the highway authority hat and did mean to construct a highway, since they did so before the 1980 Act they cannot have constructed a hm@pe because the 1980 Act only applies to highways constructed after 1980, otherwise it is retrospective and that cannot be right.

As for the first argument (that Abram was not wearing its highway authority “hat”), the Council faced the problem that this argument was rejected (albeit obiter) at paragraph 18 of the judgment of Sedley LJ in Gulliksen v Pembrokeshire County Council [2003] QB 123 where he said that a council is a “single body corporate”. In other words, if it has a highway authority function, then when it constructs a highway it is a highway authority constructing the highway regardless of the “hat” that it is wearing (i.e. the function that it is performing).

As for the second argument Waksman J determined that intention at the time of construction did not matter. If it was dedicated as a highway later (and therefore became highway later), then if constructed by a highway authority it was “a highway constructed by a highway authority” and fitted within s.36(2)(a). If that were wrong it would mean that a highway authority could construct a highway, not dedicate it for 6 months, then dedicate, thereby creating a highway that was not hm@pe and in respect of which no duty of care was owed. That would be surprising. Notice out of interest that the judge could have taken an easier route to this conclusion which would have been to determine that absent any facts from which there could be doubt as to intention to dedicate the court ought to infer that Abram UDC had intended to dedicate from the outset. He rejected that argument.

The third argument is a matter of statutory construction. The forerunner of the Highways Act 1980 was the Highways Act 1959. Its equivalent of HA 1980 s.36(2)(a) was HA 1959 s.38(2)(b) which said that hm@pe included “a highway constructed by a highway authority after the commencement of this Act other than on behalf of some other person not being a highway authority”. Note that the 1959 Act includes the words “after the construction of this Act”. Thus the 1959 Act made highways constructed by highway authorities after 1959 into hm@pe. The effect of the 1980 Act was to make all highways constructed by highway authorities hm@pe, whenever they were created (before or after 1980 or 1959). That this is so can be seen from the different words used in the two acts (why change the wording if the 1980 Act was only intended to apply to highways constructed after 1980?). The Council’s objection to this construction of the 1980 Act was to say that statutes should be taken not to have retrospective effect and if the 1980 Act were to make hm@pe of all highways constructed by highway authorities, whenever so constructed, it would have retrospective effect. Such argument was found to be wrong with the simple observation that the 1980 Act does not have retrospective effect. It does not make past (lawful) things unlawful. Rather the 1980 Act is entirely prospective. From 1980 highway authorities acquired a new duty, for the future only, to maintain (as hm@pe) highways constructed by highway authorities, whenever they were constructed. Will this mean that highway authorities will make mistakes, not realising that they (or their predecessors) built a path which is a highway such that it is hm@pe? Probably, but we already know that highway authorities make mistakes about what hm@pe they are supposed to look after (for example the path in Gulliksen).

Do notice that the relevant part of the Act is s.36(2)(a) (highway constructed by a highway authority). If it was constructed by someone else, it cannot fit within that sub-section. This case is not saying that paths in parks are hm@pe. All that it is saying is that if a path in a park is a highway, then if it was constructed by a highway authority, it is hm@pe, regardless of when it was constructed and regardless of whether or not there was an intention to dedicate at the outset.

Conclusion and thoughts for the future

Highway authorities need not panic. There is nothing new in this decision that goes beyond what I have been lecturing highway authorities on for years. I do not foresee a flood of claims (unless arising from the fact that claimants are thinking about these issues harder than they used to). The law has not changed. If claims arise, remember that for the issue in this case to arise, it first has to be highway, and often paths in parks probably are not. It also has to have been constructed by a highway authority if a Barlow v Wigan situation is to arise.

Many highway authorities already have a register of highways (and I mean merely “highways” – public rights of way – rather than hm@pe), and might wish to check that there are not highways that they constructed which are being treated as highways but not hm@pe. Highway authorities do have a statutory obligation under s.36(6) of the 1980 Act to maintain a list of hm@pe in their area. It might be a good time to check that they are compliant with that obligation.

I suspect that many of the relevant highways (i.e. constructed by a highway authority but not formally adopted as part of the network of hm@pe) will be little used paths of the type that many highway authorities treat as part of a PROW network (with reactive inspection only, or perhaps with a very long inspection cycle). That has potential to give rise to an interesting issue in the future. Suppose a highway authority has a highway that they constructed but did not realise was hm@pe and if they had realised, they would have treated it as a PROW and dealt with it on a reactive basis only (and supposing that a reactive system is reasonable). That is, if the highway authority had realised it was hm@pe they would have done exactly the same thing that they in fact did when they did not realise that it was hm@pe. Is that a defence under s.58 of the Highways Act 1980? This is another topic that I have lectured on a lot over the years, and the authorities appear to give contradictory answers. It will be an interesting case when it arises.

As for claimants, they need (as before) to be alive to the fact that just because a highway authority asserts that a way is a highway does not make it so. Similarly the fact that the highway authority asserts that it is not hm@pe does not determine that issue either. It is very common for loss adjusters instructed by highway authorities to assert that a highway is not hm@pe “because it has not been adopted”. It is worth checking who built it: if it was a highway authority then assuming that it is highway it is hm@pe, and you might want to hoist a highway authority by their own petard: if they assert that it is highway then if you can show that it was constructed by a highway authority the HA 1980 s.41 duty is owed (rather than merely the OLA 1957 duty).

Matthew White is a barrister at St John’s Chambers.

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