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

Highways – Public maintainable highway – Bridge – Bridge within registered title of property owned by claimant – Claimant applying for judicial review of refusal of defendant to accept bridge as highway maintainable at public expense – Whether effect of section 328(2) of Highways Act 1980 Act treating bridge over which publicly maintainable highway passed as itself publicly maintainable – Application dismissed In 2020, the claimant purchased The Mill, Mill Common, Newton by Castle Acre, Kings Lynn. A bridge built at the same time as The Mill was within the registered title and was constructed circa 1790. The bridge was approximately 35m long and had three discrete arch openings through which water passed. An unclassified road which crossed the bridge had been highway maintainable at the public expense since 1929. It was common ground that the bridge had been privately maintained since 1966. However, the claimant contended that the defendant highway authority was unlawfully refusing to accept the bridge as highway maintainable at the public expense. The practical issues which had led to the present dispute included the difficulties which the claimant had experienced insuring the bridge (including obtaining public liability insurance) and concern about how vehicles (including large vehicles) used the bridge (risking damaging the bridge). The defendant’s evidence indicated that there were 53 privately maintainable bridges in Norfolk with adopted highways running over them. The claimant stressed that he was the only private individual who was held responsible for a bridge over which a publicly maintainable highway passed. He contended that previous owners of the bridge had been under a misapprehension as to the correct legal position. The effect of section 328(2) of the Highways Act 1980 Act was to treat the bridge over which the publicly maintainable highway passed as itself a publicly maintainable highway. Held: The application was dismissed. (1) In Kent County Council v DRG Packaging [1991] NPC 80, it was held that the effect of 328(2) of the 1980 Act was that a bridge carrying a publicly maintainable highway was itself publicly maintainable. While that might usually be the case, it had been suggested that subsection could not have had the effect of extinguishing ownership of the bridge without other evidence of such transfer. While most bridges carrying publicly maintainable highways would themselves be publicly maintainable that result could not have been brought about simply by operation of an interpretation section such as section 328(2): see Encyclopaedia of Highway Law and Practice, paragraph 2-484.2. The 1980 Act was a consolidating Act. It was necessary to evaluate highway law with an appreciation of how provisions had changed over time. Self-contained statutes, whether consolidating previous law, or with amendments, had to be interpreted, if reasonably possible, without recourse to antecedents, unless there was a real and substantial difficulty or ambiguity which classical methods of construction could not resolve. (2) However, in Goodes v East Sussex County Council [2000] EGCS 75; [2000] 1 WLR 1356 (a case about the 1980 Act and the Highways Act 1959), the court said it was quite impossible, in construing the 1959 Act, to shut one’s eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built on centuries of highway law. The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them: Goodes, Farrell v Alexander [1975] 2 EGLR 68; [1977] AC 59 and Southwark London Borough Council v Transport for London [2018] UKSC 63; [2019] EGLR 9; [2020] AC 914 followed. It was critical to understand the implications of a highway (or part of a highway) being maintainable at the public expense. Section 263 of the 1980 Act provided that “Subject to the provisions of this section, every highway maintainable at the public expense together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway”. Thus, the effect of highway being maintainable at the public expense was that ownership vested in the highway authority. (3) The courts regarded that form of statutory vesting as a form of expropriation of property rights without compensation, and was therefore concerned to limit its effect strictly to what was necessary to achieve the Parliamentary objective of conferring upon the highway authority sufficient property to enable it to perform its statutory duties of the repair, maintenance and operation of the highways: Tunbridge Wells Corporation v Baird [1896] AC 434 applied. It would be contrary to the Baird principle to take an expansionist approach to the extent of vesting. On the claimant’s case, all bridges over which publicly maintainable highway passed, necessarily (and automatically) became public maintainable highway. That would expropriate property rights through an expansive vesting which was out of kilter with the express statutory provisions and the common law principles which were codified in the legislation. (4) In this case, the evidence did not in fact support the proposition that the bridge was reasonably required to maintain the highway. In the circumstances of this case, the bridge had benefits to its owner. Its construction was in part to direct the flow of water to the mill wheel. The fact the mill wheel was no longer used did not alter that. There were 53 privately maintained bridges in Norfolk over which highway maintainable at public expense passed. The effect of the claimant’s argument was that all of those were publicly maintainable by virtue of section 328 of the 1980 Act and vested in the highway authority irrespective of the extent of the benefit to the owner of the bridge. That could not be right. It would negate the careful limits on the Baird principle developed by the courts over the years and embedded into the statutory scheme. It would impose a burden on the highway authority in a way which the overall scheme of the legislation did not support. (5) Section 382(2) of the 1980 Act did not have the effect of automatically converting every bridge over which publicly maintainable highway passes into publicly maintainable highway. Rather, the proper approach to the statutory scheme was to enquire whether the bridge was itself publicly maintainable highway. That depended upon applying the principles which applied before the 1959 Act came into force. It did not become highway maintainable at the public expense simply due to the effect of section 328 (or its predecessor section 294 of the 1959 Act): DRG Packaging not followed. Simon Bell (instructed by Direct Access) appeared for the claimant; Steven Gasztowicz KC (instructed by Norfolk Public Law) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Zipfell) v Norfolk County Council