Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs & Anor

A way cannot be a public highway if the public have no right of entry to it from another highway or from land over which they have a public right of access. Practical use under revocable licences is insufficient. The requirement concerns an essential legal characteristic of a highway, not merely evidence of a landowner’s intention to dedicate. Accordingly, the statutory presumption of dedication under section 31(1) of the Highways Act 1980 cannot apply where the route is inaccessible to the public as of right.

The claimant challenged the confirmation by an inspector appointed by the Secretary of State of a public footpath modification order under the Wildlife and Countryside Act 1981. The claimed footpath crossed the claimant’s land between a health-centre site and a shopping parade. Neither adjoining parcel was subject to a public right of way, although members of the public could use them under licences.

The inspector found 20 years’ uninterrupted use as of right and no sufficient evidence of an intention not to dedicate. The central issue was whether an isolated route could nevertheless be a public highway and qualify for statutory dedication.

1. The claim was allowed and the Footpath Order was quashed. The inspector had erred in law by treating the route as capable of being a public highway.
2. At common law, a highway is a public right of way over a defined route, enjoyed by the whole public as of right and freely at will. The public must have a practically enforceable right to pass and repass without let or hindrance. A route accessible only through revocable licences lacks that essential characteristic.
3. An isolated highway, unconnected with another public highway or with land to which the public have a right of access, is legally incongruous. The possibility that adjoining owners may withdraw permission or physically block access demonstrates that use of the route is not as of right. The position would differ if a public right of way connected the route to a public highway.
4. Section 31(1) of the Highways Act 1980 retains common-law concepts. Its reference to a way whose use could not give rise at common law to an inference of dedication excludes a route lacking the essential characteristics of a highway. The requirements of public use as of right and the statutory caveat reflect the same underlying deficiency.
5. The legal characteristics of a highway are analytically distinct from the factual question whether the landowner intended to dedicate it. Intention cannot create a public highway where the route lacks the necessary legal attributes.
6. Bailey v Jamieson was authority for the principle that a route loses its character as a highway when the public can no longer lawfully access it. The cul-de-sac authorities did not establish that an entirely isolated route could be a highway merely because it led to a place to which the public might wish to go.
7. The inspector’s alternative common-law finding added nothing, because the parties accepted that if statutory dedication failed, common-law dedication could not succeed.