Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another: Admn 19 Jul 2012

The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no connection to any route back to the highway save over a privately owned parade of shops.
Held: ‘Where, as here, the only people who can lawfully pass or repass along the relevant route are those with a licence to enter and cross other land, the public do not have a right to pass over that route ‘freely and at their will’. They can only do so at the will of the owners of the land over which they have to exercise a license to get to the way. As a matter of law, those owners may, if they wish, withdraw the licence at any time; or, in more practical terms, physically block access to the way by walls, fences or other hindrances, with the result that the way is unusable by all or possibly any members of the public. A highway, once in existence, has the additional characteristic of permanence, in the sense that it cannot cease to exist at common law, short of physical destruction. Where access to the way might lawfully be blocked at any time by adjacent landowners, the public’s ability to pass along the way is not as of right and is of such fragility that it simply does not and cannot have the necessary characteristics of a highway.’


Hickinbottom J


[2012] EWHC 1976 (Admin)




Wildlife and Countryside Act 1981, Rights of Way (Hearings and Inquiries Procedure) (England) Rules 2007


England and Wales


CitedPoole v Huskisson 1843
At common law a public right of way cannot be limited iin its use for a particular group of people (here the members of a parish). . .
CitedEx parte Lewis (The Trafalgar Square Case) QBD 2-Jul-1888
L sought to assert a right to hold public meetings in Trafalgar Square.
Held: (obiter) There was no public right to occupy Trafalgar Square for the purpose of holding public meetings. The Commissioners of Works and Public Buildings (in whom . .
CitedEyre v New Forest Highway Board 1892
Wills J said: ‘All highways, all rights of passage over the property of individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say he either says . .
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 . .
CitedBailey v Jamieson CCP 1875
There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any . .
Not appliedGreat Central Railway Company v Balby-with-Hexthorpe Urban District Council 1912
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the . .
CitedAttorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .
CitedNewhaven Port and Properties Ltd v East Sussex County Council and Others Admn 21-Mar-2012
The company objected to the proposed registration by the defendant Council of a strip of beach land as a common. They said that it was not a ‘town or village green’ within the 2006 Act.
Held: The court rejected all grounds of objection, save . .

Cited by:

CitedCarter-Brown and Others v Crown Prosecution Service QBD 31-Jul-2017
Obstruction of Highway – Highway not clear
The apellant protesters had been convicted of obstructing the highway by affixing themselves to a fence by a roadway by the Atomic Weapons Establishment. They argued that the road was not a highway and that any obstruction was de minimis. In . .
Lists of cited by and citing cases may be incomplete.


Updated: 11 May 2022; Ref: scu.462978