Mark Zipfell, R (on the application of) v Norfolk County Council

Section 328 of the Highway Act 1980 is an interpretation provision. It does not automatically make every bridge carrying a highway maintainable at the public expense. The question is whether the bridge was already so maintainable under the statutory scheme or the applicable pre-1959 principles.

Because public maintenance generally entails vesting in the highway authority, an expansive construction would produce uncompensated expropriation and impose substantial liabilities without express statutory language. The statutory scheme must therefore be read as a whole and in its legislative context.

The claimant sought judicial review of Norfolk County Council’s refusal to accept responsibility for maintaining a privately owned bridge at The Mill. The road crossing the bridge was agreed to be a highway maintainable at the public expense, but the bridge had historically been privately maintained.

Permission was granted on one ground: the effect of section 328 of the Highway Act 1980. The central issue was whether that provision automatically made the bridge itself a highway maintainable at the public expense, with the consequent vesting and maintenance obligations.

1. Claim dismissed. Section 328(2) of the Highway Act 1980 does not automatically convert every bridge over which a publicly maintainable highway passes into publicly maintainable highway.
2. Section 328 is an interpretation provision. The operative provisions concerning highways maintainable at the public expense are sections 329 and 36. Section 36 preserves the status of highways already maintainable immediately before commencement; it does not newly confer that status on a bridge which lacked it.
3. Section 263 provides for vesting of every highway maintainable at the public expense in the highway authority. The claimant’s construction would cause ownership of privately owned bridges to pass without compensation merely through an interpretation provision. That consequence was inconsistent with the statutory scheme and the limits imposed by the Baird principle.
4. The court considered the legislative history of the Highway Act 1959, including sections 38 and 294, because the 1980 Act was consolidating legislation and the statutory history was necessary to resolve the issue.
5. The court rejected reliance on Southwark LBC v Transport for London. The concept of land reasonably required for highway purposes limits vesting and does not support an expansionist approach. On the evidence, the bridge was not reasonably required for maintenance of the highway, and it had independent benefits and structural connections associated with the mill.
6. The proper approach is to determine whether the bridge was itself publicly maintainable under the pre-1959 principles or became so under the applicable statutory provisions, including section 38 of the Highway Act 1959 and section 36 of the Highway Act 1980. The court disagreed with the brief decision in Kent County Council v DRG Packaging to the extent that it treated section 328 as automatically producing that result.
7. The court expressed no view on the claimant’s separate application under section 93, although it considered that section 93(6) provided no support for the main construction argument.