Sinclair v Kearsley & Anor

A public vehicular highway is not established merely because land resembles an estate road, has been improved, or has been described in planning material as an unadopted highway. The person asserting the highway must prove its existence and extent. Implied dedication requires evidence supporting an inference of the landowner’s intention to dedicate and probative public acceptance. Pedestrian use of a public footpath cannot establish vehicular rights. A later highway-closure application, particularly one based on an earlier misapprehension, does not itself prove dedication or create an estoppel. A case based on implied dedication without relevant public use is unusual and requires critical scrutiny.

Sinclair v Kearsley & Anor concerned a claim by the owner of 9 Victoria Crescent to open a vehicular access across land adjoining a private cul-de-sac leading to Ellesmere Road. The land contained an established public footpath, but the claimant asserted that the wider verge was also subject to public vehicular rights.

The Kearsleys denied that the verge was part of a highway and sought declaratory and injunctive relief. District Judge Obodai held that the verge was a public highway, relying in part on a planning application describing the land as an unadopted highway and a later application by Salford City Council to close part of the highway. The central issue on appeal was whether dedication by the landowner and acceptance by the public could be inferred despite the absence of relevant public vehicular use.

Lord Justice Lloyd gave the reasons for judgment. Lord Justice Sullivan and Lord Justice Laws agreed.

1. Appeal allowed. The claimant had to prove that the verge formed part of a public highway carrying vehicular rights. It was not disputed that a highway could arise through statutory processes or through express or implied dedication by the landowner followed by acceptance by the public.
2. For implied dedication, the evidence had to support a reasonable inference of an intention to dedicate. Public acceptance had to be established by use or, where appropriate, by other probative evidence. The rebuttable presumption arising from fencing against a highway did not remove the need to establish the relevant highway status.
3. The similarity between the cul-de-sac and other estate roads was insufficient. Those roads had later become highways through statutory processes, whereas the cul-de-sac had been excluded. The 1987 widening and metalling were equally consistent with the creation of an improved private road. The absence of a sign restricting public access did not establish an invitation to the public to use the road as of right.
4. Pedestrian use of the established footpath could not support an inference of public vehicular rights. The planning application’s description of the land as an unadopted highway was, at most, an admission capable of rebuttal or explanation. The Council’s later closure application was made at the Kearsleys’ request following pressure from the Council and did not create a binding estoppel. Both matters were consistent with an earlier misapprehension and did not avoid the need to examine the underlying evidence.
5. The history was inconsistent with dedication and acceptance of the cul-de-sac as a public highway. An implied-dedication case unsupported by public use was highly unusual and required critical examination. No such inference could be drawn. The cul-de-sac therefore remained private land, subject to private vehicular rights of frontagers, with a public right of way on foot along the old footpath.

• Court of Appeal (Civil Division) — On 24 February 2010, the appeal from the order of District Judge Obodai was allowed: [2010] EWCA Civ 112.
• Manchester County Court — District Judge Obodai ordered on 12 August 2009 that the relevant verge was part of a public highway with vehicular rights.