Barlow v Wigan Metropolitan Borough Council

For Highways Act 1980 purposes, a local authority is a highway authority only when exercising its highway functions. A path made while exercising separate public amenity functions is not a highway constructed by a highway authority under section 36(2)(a).

However, common-law dedication may be inferred from long, continuous and unrestricted public use without notices, closure or another explanation. The inferred dedication is retrospective to the beginning of the relevant user. If that date precedes the statutory cut-off, the path passes through the successive statutory regimes and becomes maintainable at public expense, giving rise to the section 41 maintenance duty.

The claimant tripped over an exposed tree root on a path in a municipal park. The county court dismissed her claim, holding that the path had become a highway only through later public use and was not a highway constructed by a highway authority.

On appeal, Waksman J allowed the claim under section 36(2)(a) of the Highways Act 1980: [2019] EWHC 1546 (QB); [2020] 1 WLR 29. The Council appealed. The claimant also relied on an alternative ground that a common-law dedication before 16 December 1949 caused the path to become maintainable at public expense under the later statutory regimes.

The central issues were whether the path fell within section 36(2)(a), and whether its presumed dedication was retrospective to a date before the National Parks and Access to the Countryside Act 1949 came into force.

1. Appeal dismissed. The court unanimously upheld judgment for the claimant, but on the alternative ground in her respondent’s notice rather than on Waksman J’s construction of section 36(2)(a) of the Highways Act 1980.

2. The court held that section 36(2)(a) concerns a highway constructed by an authority while exercising its highway functions. A local authority’s status as a single body corporate does not eliminate the significance of the statutory capacity in which it acted. Abram had constructed the park path while exercising public amenity functions, not as highway authority. The path therefore did not qualify under section 36(2)(a). The court approved Neuberger J’s reasoning in Gulliksen, [2002] QB 825, and disapproved Sedley LJ’s contrary obiter observations in the later appeal, [2003] QB 123.

3. The statutory route under section 31 could not establish a dedication before 1949. The court nevertheless found a common-law dedication. The park and paths had been open to unrestricted public use from the early 1930s, without interruption, notices or another explanation. That was ample evidence from which to infer animus dedicandi.

4. Applying Turner v Walsh, (1881) 6 HL 636, the inferred dedication was retrospective and coeval with the early user. The path was therefore deemed dedicated before 16 December 1949. It was consequently repairable by the inhabitants at large under the National Parks and Access to the Countryside Act 1949, then maintainable at public expense under the Highways Act 1959, and continued as such under section 36(1) of the Highways Act 1980. The claimant’s cause of action for breach of the section 41 maintenance duty was established.

• Court of Appeal (Civil Division): The Council’s appeal was dismissed. The court upheld judgment for the claimant on the alternative common-law-dedication ground: [2020] EWCA Civ 696.
• High Court (Queen’s Bench Division): Waksman J allowed the claimant’s appeal on liability under section 36(2)(a) of the Highways Act 1980: [2019] EWHC 1546 (QB); [2020] 1 WLR 29. The Court of Appeal upheld the result but rejected that route.
• Manchester County Court: HHJ Platts dismissed the claim on liability, while granting permission to appeal.