Smith, R (on the application of) v The Land Registry (Peterborough Office) & Anor

Adverse possession cannot extinguish a public right of way over a highway. The Limitation Act 1980 extinguishes the title of a person to land after the limitation period, but it does not extinguish an incorporeal public right of passage.

Although adverse possession may generally give title to land subject to an existing right of way, a highway maintainable at public expense remains vested in the highway authority under the Highways Act 1980 while the public right subsists. A highway can cease only by a legally effective method of extinction, not through a squatter's occupation or public non-use.

The appellant had occupied a caravan and associated structures for more than 12 years on land forming part of an unregistered byway open to all traffic. He applied for first registration of a possessory title. The Land Registry rejected the application after the county council objected that the land was a public highway.

HHJ Pelling QC, sitting in the Administrative Court, dismissed the appellant's judicial review claim: [2009] EWHC 328 (Admin). The appellant appealed. The central issue was whether adverse possession could bring to an end the highway authority's title and the public right of passage so as to permit registration of title to the occupied surface land.

1. Appeal dismissed unanimously. The Land Registry lawfully rejected the application for registration. Arden, Mummery and Elias LJJ agreed that adverse possession could not extinguish the public highway over the land claimed.

2. A highway comprises both the physical land and the public right to pass over it. Under s 263 of the Highways Act 1980, a highway maintainable at public expense is vested in the highway authority. That vesting is determinable rather than perpetual in the abstract, since it ends if the land lawfully ceases to be a highway. It nevertheless remains effective while the public highway exists.

3. The appellant therefore had to establish both the extinction of the authority's title and the simultaneous extinction of the public right of passage. The Limitation Act 1980 did not achieve the latter result. It concerns land, not incorporeal rights of way, and s 17 extinguishes only the title of the person to the land. A squatter takes only the rights of the person dispossessed and remains subject to rights which have not been prescribed against.

4. The authorities did not support extinction of a public highway by adverse possession. Haigh v West concerned title acquired by persons acting as highway authority and remained subject to the public right. Seddon v Smith concerned a private right of way. The decisions, including Dawes v Hawkins, Harvey v Truro RDC and Suffolk County Council v Mason, instead confirmed that public highway rights are not lost by obstruction, acquiescence or non-use.

5. Arden LJ added that refusal to set aside the Land Registry decision did not engage article 8 of the Convention. Any eviction issue lay outside the appeal. She also observed, obiter, that creation of a further method of extinguishing highways was a matter for Parliament, not judicial development.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the Land Registry's rejection of the application for possessory title: [2010] EWCA Civ 200 .

• High Court of Justice, Queen's Bench Division, Administrative Court — HHJ Pelling QC dismissed the judicial review challenge to the Land Registry's decision: [2009] EWHC 328 (Admin) .