Abbots Ride Land Ltd v Surrey County Council & Anor

At common law, creation of a highway requires dedication by the landowner and acceptance by or on behalf of the public. Dedication is principally a question of intention. It may be express or implied from conduct and may be inferred from circumstantial evidence considered in the round.

A present intention to dedicate land for future highway use may take effect when the specified future event occurs. The landowner need not have contemplated the precise form of highway use. Later sale of part of the land does not necessarily negate dedication, particularly where the subsequent owner’s conduct is consistent with public highway use.

The registered owner of a grass verge adjoining Waverley Lane appealed against the County Court’s refusal to declare that the verge was not a highway. The Council and a developer contended that the verge had formed part of the highway since the late 1950s or early 1960s.

The County Court found dedication on two alternative bases: express dedication under a 1957 agreement and implied dedication inferred from the evidence. The appeal challenged the finding of dedication, including the construction of the 1957 agreement and the effect of a later sale of part of the verge to adjoining owners.

1. Appeal dismissed. The County Court’s finding that the verge was highway was within the permissible bounds of factual evaluation.
2. At common law, a highway requires dedication by the landowner and acceptance by or on behalf of the public. Dedication is primarily a question of intention and may be established by express words, conduct or inference. The evidence must be assessed in the round, with individual strands considered cumulatively rather than as indispensable links: Fortune v Wiltshire Council [2013] 1 WLR 808.
3. The annotation to the plan forming part of the 1957 agreement showed a present intention that the hatched land should be made available to the Highway Authority for public use, but that this was to occur when the adjoining development took place. In context, “surrender” meant making the land available for use as part of the public highway, not necessarily transferring ownership.
4. The relevant dedication was not limited to a future carriageway widening scheme or to a particular form of highway use. It was sufficient that the land was intended to be used as part of the public highway. The authority’s construction of footpaths on part of the land and its treatment of the verge as highway were evidence of acceptance.
5. The sale of part of the verge to the Turners did not establish that Macari had abandoned its intention to dedicate. The Turners’ conduct, including compliance with the improvement line and permitting utility works beneath the verge without controlling the works, supported an inference of dedication by them. An improvement line and boundary fence are insufficient by themselves, but may form part of the circumstantial evidence.
6. The court was entitled to infer dedication of the whole hatched area from the evidence, including the absence of protest when part became a footpath and the preservation of visibility splays for highway purposes.
7. The judge added that, although unnecessary to the result, she would disagree with the County Court’s conclusion on express dedication. The appeal nevertheless failed because the alternative finding of implied dedication was unassailable.

• High Court (Queen’s Bench Division): appeal from the judgment of HH Judge Evans-Gordon dated 10 September 2018 dismissed. The finding that the verge was highway was upheld on the basis of implied dedication.