Floyd v Redcar & Cleveland Borough Council

For adoption under section 38(3) of the Highways Act 1980, the adopted way must remain sufficiently connected with the way proposed and constructed under the agreement. Exact conformity between the agreement and the works as built is not essential. A highway authority may adopt where it is entitled to regard the agreement as substantially complied with. Adoption will fail only where the divergence is so great that there is, in truth, no statutory adoption.

Floyd claimed damages after tripping on an uneven paved area outside his father’s house. He alleged that Redcar and Cleveland Borough Council was responsible for the area as an adopted highway and owed the statutory duty under section 41(1) of the Highways Act 1980. The council denied that the area formed part of an adopted highway.

Mr Recorder Reeds dismissed the claim in the Middlesbrough County Court on 11 November 2008, holding that no adoption had occurred because no distinct footpath had been constructed. The appeal concerned whether the area had been validly adopted under the section 38 agreement despite deviations from the development plan.

The Court of Appeal allowed the appeal. Lord Justice Laws gave the reasons, with which Lord Justice Richards and Lord Justice Hughes agreed.

1. Statutory framework. Adoption under section 38(3) of the Highways Act 1980 must follow the section 38 agreement. It must relate to a particular road or way proposed to be constructed and in fact constructed pursuant to that agreement. The agreement and its certification procedure were therefore relevant to identifying the works capable of adoption.
2. Substantial compliance. Exact conformity between the agreement and the works as built was not an absolute precondition to statutory adoption. The authority could regard the agreement as substantially complied with and adopt the works. There might be cases where the divergence was so great that there was no statutory adoption, but this was not such a case.
3. Application. The relevant quadrant served as a footway and covered the area expressly shown as a footway on the agreement plan. A provisional certificate had been issued, and the Borough Engineer had recommended adoption. There was no suggestion that he misunderstood either the agreement or the works on the ground. Although no distinct footpath had been constructed and the development differed in several respects from the plan, the council was entitled to treat the agreement as substantially complied with.
4. The recorder had therefore applied too strict a requirement by insisting that a distinct footpath had to exist before adoption. The appeal was allowed. The court did not need to determine the consequences of an ultra vires adoption because the adoption was valid.

• Court of Appeal (Civil Division): Appeal allowed on 5 August 2009, [2009] EWCA Civ 1137.
• Middlesbrough County Court: Mr Recorder Reeds dismissed the claim on 11 November 2008.