Barlow v Wigan Metropolitan Borough Council: CA 1 Jun 2020

Presumption of dedication dates back.

The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act.
Held: As to the capacity in which the authority acted in creating the park and the paths: ‘It may well be true that for the purposes of the law of contract a local authority is a single body corporate. But it does not follow that it is indivisible for all purposes. To take only one example, a council which is both housing authority and planning authority is not exempt from the need to obtain planning permission if it wishes to construct new housing. On the capacity issue under s 36(2)(a) of the 1980 Act I entirely agree with the reasoning and conclusions of Neuberger J.
There is, moreover, a further ground . . on which I would hold that s 36(2)(a) should be construed to refer only to highways constructed by a highway authority acting in their capacity as such, namely that as a provision in a consolidating Act it was not intended to change the law.’
One issue was whether the path became, a highway before the date on which ss 47-49 of the National Parks and Access to the Countryside Act 1949 came into force. It did not, and the claimant could not succeed under s 36(2)(a) of the 1980 Act, because when Abram constructed the Path they were not acting in their capacity as the highway authority for the area.
However, the paths had become public footpaths under the common law implication or presumption of dedication. Under that doctrine, the path was dedicated at the outset, which date was before the 1949 Act, and accordingly was maintainable at public expense, and the Council’s appeal was dismissed, albeit on different grounds.

Lord Justice Bean
[2020] EWCA Civ 696, [2020] WLR(D) 313
Bailii, WLRD
Highways Act 1959, Highways Act 1980 36(2) 41, National Parks and Access to the Countryside Act 1949 47, 48, 49
England and Wales
CitedMcGeown v Northern Ireland Housing Executive HL 24-Jun-1994
The plaintiff lived with her husband in a house in a housing estate of which he was a tenant. Part of the land of the estate, in the ownership of the defendant housing authority, was crossed by footpaths, over which the public had acquired the right . .
CitedGautret v Egerton 1867
A man fell to his death when crossing a bridge used with the consent and permission of the defendants by persons proceeding to and coming from the defendants’ docks.
Held: The claim by his widow against the bridge owner was dismissed.
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Appeal fromBarlow v Wigan Council QBD 19-Jun-2019
Responsibility for personal injury after trip over a tree root on a path in a park owned and maintained by the Council. The Court was now asked whether the public footpath was a highway under the 1980 Act for which the council was responsible for . .
CitedTurner v Walsh PC 1881
(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedSunshine Porcelain Potteries Proprietary Limited v Nash PC 17-Jul-1961
(From the High Court of Australia) There is a presumption that a statute was intended to operate prospectively and not retrospectively.
Lord Reid said: ‘Generally, there is a strong presumption that a legislature does not intend to impose a new . .
CitedGulliksen v Pembrokeshire County Council QBD 2002
Mr Gulliksen was walking on a footpath on a housing estate to the house of a friend. He had an accident at a depressed manhole cover on the footpath over which he tripped. The footpath had been constructed by Pembrokeshire County Council, who were . .
CitedGulliksen v Pembrokeshire County Council CA 11-Jul-2002
The claimant had tripped on a footpath on a housing estate. There was a depressed manhole cover on the footpath over which he tripped. The footpath had been constructed by Pembrokeshire County Council, who were both the local housing authority and . .
CitedTrustees of the British Museum v Finnis 1833
The jury were to be asked to find whether land had been dedicated as a public right of way. Patteson J directed them that: ‘If a man opens his land, so that the public pass over it continually, the public, after a user of very few years, would be . .
CitedDawes v Hawkins 6-Jul-1860
A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years . .
CitedMoser v Ambleside Urban District Council CA 1925
Atkin LJ said: ‘It has been suggested that you cannot have a highway except insofar as it connects two other highways. That seems to me that too wide a proposition. I think you can have a highway leading to a place of popular resort even though when . .
CitedDe Rothschild v Buckinghamshire County Council KBD 1957
The public used a path across the appellant’s land from 1914 to 1940. From 1940 to 1947 the land was requisitioned and there was no evidence of public user. Prior to 1914 and again in 1948 the public right to use the path was questioned by the . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Land

Updated: 01 November 2021; Ref: scu.651081