Barlow v Wigan Council

For Highways Act 1980 section 36(2)(a) to apply, a way need not have been intended or dedicated as a highway when constructed. It is sufficient that a highway authority constructed the way and that it later became a highway, including through long public use. The authority need not have acted specifically in its capacity as a highway authority; a local authority is the relevant legal entity. The provision is not confined to highways constructed after the Act came into force. Liability arises from a subsequent failure to maintain, so applying the provision to an earlier-constructed way is not impermissibly retrospective.

Ms Barlow appealed from HHJ Platts’s decision after trial in the Manchester County Court. She had tripped on an exposed tree root on a path in Abram Park, Wigan. The path was accepted to be dangerous and had become a highway through long public use, but the judge held that it was not a highway maintainable at public expense under section 36(2)(a) of the Highways Act 1980.

The appeal concerned whether the provision required the path to have been constructed as a highway, whether the predecessor local authority had to act in a specific highway-authority capacity, and whether applying the provision to a path constructed before the Act was retrospective. An alternative argument relied on earlier legislation concerning public paths and highways maintainable at public expense.

1. Appeal allowed. The path was a highway maintainable at public expense under section 36(2)(a) of the Highways Act 1980.
2. The judge below had added an unwarranted requirement that the path must have been intended to be a highway when constructed. The statutory language did not require the addition of the words “as such”. A way constructed by a highway authority could later acquire highway status through statutory or common-law dedication, including long public use. The reasoning in Young v Merthyr Tydfil was significant support for that conclusion, although the relevant observation was obiter.
3. The predecessor local authority did not need to be acting specifically in its highway-authority capacity. The authority was a single legal entity. The court adopted the observation of Sedley LJ in Gulliksen v Pembrokeshire County Council that it was difficult to treat section 36(2)(a) as requiring a highway authority to act in that capacity when constructing the way.
4. The retrospectivity argument failed. The provision did not impose liability for the earlier construction of the path. Any liability arose from a failure to maintain occurring after the Act commenced. Section 36(2)(a) contained no express limitation to highways constructed after commencement, and no such limitation should be implied. The approach in Wilson v First County Trust supported treating legislation affecting existing rights prospectively as non-retrospective.
5. The alternative argument under section 36(1) was not determined. It depended on proof that the path had been dedicated before 16 December 1949, and the evidence did not permit that conclusion. The issue was academic once section 36(2)(a) applied.
6. It was common ground that the Council’s failure to maintain the path established liability in principle. The case was remitted only on contributory negligence and quantum.

• High Court (Queen’s Bench Division): Appeal from HHJ Platts’s decision dated 13 December 2018. The appeal was allowed.
• Manchester County Court: After trial on liability, HHJ Platts held that the path was not a highway maintainable at public expense and dismissed the claim.