Cumberbatch, R (on the application of) v London Borough of Lambeth

A road may be a highway without having any particular width. Evidence of longstanding public use without hindrance, coupled with treatment as a highway by public authorities, may establish highway status. A description of land as private does not necessarily prevent it being a highway. Once a highway, always a highway, unless the public right has been lawfully released. On an appeal by case stated, the reviewing court will generally respect the lower court’s findings of fact and intervene only for an error of law.

The claimant challenged a Crown Court decision allowing the defendant local authority’s appeal from the dismissal of its complaint under Highways Act 1980 section 149. The complaint concerned vehicles allegedly deposited on Mumford Road so as to constitute a nuisance. The District Judge had found that the Council had not established that the road was a highway. The Crown Court heard evidence and concluded that it was a highway, following which it stated a case for the High Court. The central issue was whether that conclusion involved an error of law.

1. The appeal was dismissed. The High Court had no power, on an appeal by case stated, to make the declaration sought by the claimant.
2. The Council was a person aggrieved by the District Judge’s order and was entitled to appeal under Highways Act 1980 section 317.
3. The Crown Court was entitled to find that Mumford Road was a highway. The reviewing court was ordinarily bound by findings of fact in a case stated unless the challenge disclosed an error of law.
4. A highway does not need to have any particular width. Width might be relevant to whether a highway is maintainable at public expense, but it was not material to the existence of highway status. The road was in any event wide enough for two vehicles.
5. The Council’s references to the road as private did not determine the issue. The evidence that the road had been used by the public without hindrance since at least 1888, had been treated as a highway in 1956, and was maintained by Lambeth, provided compelling support for the Crown Court’s conclusion. The principle that once a highway, always a highway applied unless the public right had been specifically released.
6. The claimant was ordered to pay the respondent’s costs, assessed at £2,500.

• Camberwell Green Magistrates’ Court: dismissed the Council’s complaint, finding that it was not satisfied Mumford Road was a highway.
• Crown Court: allowed the Council’s appeal, finding on the balance of probabilities that Mumford Road was a highway, and stated a case for the High Court.
• High Court (Administrative Court): dismissed the appeal and upheld the Crown Court’s conclusion.