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

Highways – Dedication – Use as of right – Definitive map and statement modified to show public footpath over paved route on claimant’s land – Route accessible only by crossing private land over which no public right of way existing – Claimant applying to quash modification order – Whether route capable of being highway – Whether statutory presumption of dedication under section 31(1) of Highways Act 1980 capable of applying to such route – Claim allowed In 2002, the claimant purchased a plot of land in Bury from the second defendant council. The plot lay between a parade of shops, of which the claimant was a joint owner, and a health centre owned by a primary care trust. A paved route crossed the plot from the health centre car park to the forecourt of the shops. In 2008, the claimant obtained planning permission to develop the plot for sheltered housing. The second defendants subsequently received an application to modify the definitive map and statement for the area, under the Wildlife and Countryside Act 1981, to show a public right of way over the plot. The application proposed that a public footpath be shown running from the public highway, over the health centre land, then along the paved route over the plot to the forecourt of the shops. The second defendants made an order in more limited terms that confined the footpath to the route across the plot. The claimant lodged an objection to the order and the matter was referred to the first defendant secretary of state. The order was confirmed following an inquiry before an inspector. The inspector found that the footpath along the paved route had been dedicated as a highway both under the provisions of section 31(1) of the Highway Act 1980 and at common law. The claimant applied to the court to quash the inspector’s decision. He contended that the route could not be a highway since the public had no access to it as of right at either end, given that no public right of way existed over the health centre land or the shop forecourt. Held: The claim was allowed. A way to which the public had no right of entry at either end, or at any point along its length, could not be a public highway at common law. The concept of an “isolated highway” was an incongruous one. A way that was not connected to another public highway, or to some other point to which the public had a right of access, could not itself be a public highway because it lacked an essential characteristic of a highway, namely a right for the public to pass and repass over the route freely and at will: Bailey v Jamieson (1876) LR 1 CPD 329 and Ex parte Lewis (1888) 21 QBD 191 applied; Moser v Ambleside Urban District Council (1925) 89 JP 118 considered. The only people who could lawfully pass and repass along the paved route were those with a licence to enter and cross other land to reach it. The public did not have a right to pass over that route freely and at their will but could do so only at the will of the owners of the other land. As a matter of law, those owners could withdraw the licence at any time or physically block access to the way by walls, fences or other hindrances, with the result that the way would become unusable by any members of the public. A highway, once in existence, had the additional characteristic of permanence, in the sense that it could not cease to exist at common law, short of physical destruction. Where access to the way could lawfully be blocked at any time by adjacent landowners, the public’s ability to pass along the way was not as of right and was so fragile that it did not, and could not, have the necessary characteristics of a highway. Although section 31(1) of the 1980 Act created a statutory presumption of dedication as a highway where land had been used in the requisite manner by the public for 20 years, that presumption could not arise where the way in question was of such a character that no inference of dedication by use could have arisen at common law. The paved route way did not meet the statutory requirements of section 31(1) since it had not been enjoyed “as of right” for the requisite, or indeed any, period and it was a “way of such character that use of it by the public could not give rise at common law to any presumption of dedication”. Those were not two distinct deficiencies but rather two reflections of the fact that an essential characteristic of a highway was enjoyment by the public as of right. Stephen Sauvain QC (instructed by Jubilee Law, of Leeds) appeared for the claimant; Tim Buley (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented. Sally Dobson, barrister