When does a path become a highway maintainable at public expense?
This Article summarises the recent Court of Appeal decision in the well known highways claim, which concerns quite complicated issues surrounding when a path becomes a highway; when is a highway a highway maintainable at public expense; and whether a landowner can avoid his common law duty of care, and that under s.2 of the Occupiers Liability Act 1957, for nonfeasance by reason of a right of way existing on the said land.
The Claimant tripped on an exposed tree root on a public path that ran through a local park owned by Wigan MBC (the “Path”). The park was constructed in the 1930’s by the Council’s predecessor, Abram Urban District Council, who was at the material time also the highway authority, albeit the Council contended that Abram UDC was not acting in its capacity as a highway authority when it built the path.
A claim was initially intimated against the Council. The Council claimed that the path had become a highway via dedication, and relied upon the cases of Gautret v Egerton (1867) LR 2 CP 371 and McGeown v Northern Ireland Housing Executive  1 AC 233, the so called McGeown trap:
‘A Landowner owes no duty of care for nonfeasance in common law or under OLA 1957 in respect of land where there exists a public right of way but may owe a duty of care for misfeasance.’
Further, the Council claimed that whilst the path was a highway, none of the conditions within the Highways Act 1980 were satisfied so as to enable the court to find that it was also a highway maintainable at public expense, in particular s.36(2)(a)1 was not satisfied.
At first instance, Judge Platts found that in order for s.36(2)(a) to apply, the path had to have been constructed by the highway authority with the intention that it would be a highway. The claim was dismissed on the basis there was insufficient evidence to satisfy that test.
Upon appeal before Waksman J, the Council contended that although its predecessor Abram UDC was the highway authority at the material time, it was not acting in that capacity when it built the path, nor did it
intend the path to be a highway at that point. Waksman J found that there was no requirement for the Council to have intended to construct a highway from the outset, the fact it had become a highway at later point and had been constructed by the Council was sufficient. In respect of the capacity argument, Waksman J relied upon the obiter comments of Sedley LJ in Gulliksen v Pembrokeshire CC  QB 123, that a Local Authority is a single body corporate, such that as Abram UDC was the highway authority at the material time it did not matter in what capacity it was acting.
The Issues Before the Court of Appeal
Did s.36(2)(a) apply? The question was split into three issues:
- Intent Issue – did the Council intend the path to be highway when it was constructed
- Capacity Issue – was the Council acting as a highway authority when the path was constructed
- Retrospectivity Issue – does the section apply to paths which become highways before the commencement of the 1980 Act? The equivalent section in the 1959 Act states: “…a highway constructed by a highway authority after the commencement of this act…” . However, the italicised words are not contained in the 1980 Act.
Was the highway dedicated prior to 17 December 1949, such that the path was highway maintainable at public expense by the operation of the National Parks and Access to the Countryside Act 1949 Section 47 (1), Highways Act 1959 Section 38(2)(b) and Highways Act 1980 Section 36(1)? This was a new ground of cross appeal, the “date of dedication issue”.
In his Leading and unanimous Judgment, Lord Justice Bean found:
- Capacity – in Gulliksen, Lord Sedley stated (obiter) that it did not matter what capacity the Council acted if it was also the highway authority, on the basis it was single body corporate. Bean LJ disagreed, preferring the ratio of Neuberger J (as he then was) in the original appeal. Please refer to the Judgment for the full reasoning, however, Singh LJ quite succinctly stated that the words “highway authority” mean “an authority exercising its highway functions”.
- Intent – As the Council was not acting in its capacity as a highway authority when it constructed the path, it was not necessary to consider the intent issue.
- Retrospectivity – The 1980 Act was intended to be a consolidating Act, save where amendments recommended by the Law Commission had been introduced, none of which related to s.36(2)(a). Consequently, as the provision in the previous 1959 Act related to highways constructed after the commencement of the Act, the position remained the same in the 1980 Act, s.36(2)(a) was not retrospective (with highways constructed after 1959 being caught by the 1959 Act, and therefore s.36(1) of the 1980 Act).
- Date of Dedication Issue – The path had been open to the public since it was opened in 1930. Under the common law rule dedication is presumed from the first point of uninterrupted usage, and therefore the path was dedicated as a highway before 17 December 1949, when the National Parks and Access to the Countryside Act 1949 Section 47(1) made all existing public paths maintainable by the inhabitants at large. Consequently, the path was also a highway maintainable at public expense pursuant to s.38(2)(a) of the 1959 Act, and therefore s.36(1) of the 1980 Act.
Further, in what could potentially be a significant change in the law, obiter comments by Bean LJ, to which his fellow Judges agreed, also cast doubt upon whether the McGeown trap will survive in its current guise. Bean LJ was clearly concerned that a landowner of a park could owe a duty of care in respect of the grass either side of a path, but not in respect of the path itself, simply because a public right of way existed2. The inference that can be drawn is that it is only when the user is lawfully on the land because of the existence of a public right of way that the rule applies.
- s.36(2)(a) is not retrospective, and only applies to highways constructed by a highway authority, acting in its capacity as such, after the commencement of the 1980 Act. The long held presumption that the Council is to be deemed a single body corporate, pursuant to Sedley LJ’s obiter comments in Gulliksen is incorrect.
- The rule in McGeown may in future be significantly reduced, and not applicable to those persons using land other than by the existence of a highway, for example for the purposes of visiting a park.
Practical Considerations for Highway Authorities
This case has created a risk that Council owned paths in parks and public spaces could be considered highways. To guard against such a risk, and therefore remove the burden of overcoming the onerous duty of care under s.41 of the Highways Act, Councils should consider:
- Closing parks for one day a year: or
- Placing signs upon the paths that they are not a public right of way.
To do so will remove the ability to spring the McGeown trap, but as stated above it is now doubtful the rule will continue to apply in such circumstances. The duty of care in common law and under s.2 OLA 1957, i.e. to take reasonable care, is a lesser duty than that owed under s.41 HA 1980; and could potentially be satisfied by a reactive system of maintenance subject to good evidence that such a system is adequate.
Steps to show that a reactive system of maintenance is adequate could include:
- The placing of signs or notices in public spaces for the reporting of defects
- A record showing complaints are received and logged; and appropriate action taken
- A record showing the history of accidents/claims, against usage, to confirm a reactive system has not resulted in an unreasonable amount of incidents
- Evidence that grass cutters, bin collectors etc are instructed to report dangerous defects and a record that they do.
Note 1: Highways Act 1980: s.36(2) of the Highways Act 1980 sets out classes of highways that are maintainable at the public expense, the first of which is:
“(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;”.
Note: 2: Paragraph 13 of Bean LJ’s Judgment in Barlow:
“I suspect that the true ratio of both Gautret v Egerton and McGeown v Northern Ireland Housing Executive is that if a person is only lawfully on a defendant’s land because of the existence of a public right of way which he or she is using, then there is no duty of care owed by the landowner either at common law (save in respect of dangerous acts such as the digging of pits) or under the Occupiers’ Liability Acts. But whether that is the case will have to await a decision in another claim. I only add that if I am wrong about this, and there really is no duty on anyone to maintain paths in municipal parks which have become rights of way, the traditional notices saying KEEP OFF THE GRASS ought in fairness to park users to be replaced by notices saying KEEP OFF THE PATHS.”
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Owen Welsh, Associate Partner
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