The definition of “What is a Highway” is a matter that comes up surprisingly often in relation to both residential conveyancing, land development and litigation matters.
In the recent case of Barlow v Wigan Council  EWHC 1546 (QB), the Court had to determine whether a pathway in a public park constituted a public highway under the Highways Act 1980.
The case in question was a personal injury case whereby Mrs Barlow tripped on an exposed tree root in a park and brought a claim against Wigan Council.
If the pathway was in fact a Highway under the 1980 Act, then Wigan Council had a duty to maintain it and she had a personal injury claim against them.
The Judge at first instance was required to review the law on what constituted a Highway and the Judge concluded that for it to be a Highway it must have been constructed as a Highway at the outset.It had not, so her claim failed.
Mrs Barlow appealed this decision and she was successful.The Appeal Court found that the Highway itself may have been constructed at an earlier stage, not as a Highway, but nevertheless it had 20 years uninterrupted used by the Public under Section 31 (1) of the Highways Act 1980 and, accordingly, there was a dedication and acceptance so as to create a Highway.
The decision is important because a pathway not constructed as a Highway can become a Highway after long usage, even though it was not constructed as such at the outset.The decision has therefore increased the potential liability of land owners over which the public have a right of way which has been in existence for more than 20 years.
The decision will also be directly relevant to property lawyers and/or land owners as once a right of way becomes a Highway, the land owner has a duty to maintain it and keep it free from defects.
If you have a query regarding a highway issue then please contact our Residential Property Litigation Team who will be happy to assist you.
This article was written by Stephen Eccles, Partner in the Residential Property Litigation Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of September 2019.