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Determining a highway ‘maintainable at public expense’ not a walk in the park

  • United Kingdom
  • Litigation and dispute management
  • Personal injury claims litigation


The High Court looks at the definition of highway ‘maintainable at public expense’ in the recent case of Barlow v Wigan Metropolitan Borough Council (2019).

The case at first instance

The claimant, Deborah Barlow, brought a claim against the defendant, Wigan Metropolitan Borough Council for a trip which occurred on 21 September 2018. The claimant was walking along a path in Abram Park, Wigan when she tripped and fell on an exposed tree root. The park had been purchased on 10 November 1920 by the defendant’s predecessor, who ceased to act as a local authority on 1 April 1974. The land had been purchased with the intention of constructing a public park and was developed in the 1930’s, with the pathways being constructed some time before 1959. The pathways had been constructed to allow access to and across the amenities built within the park.

In the first instance the District Judge held that the path had become a highway under Section 31 of the Highways Act 1980 due to 20 years dedicated use. The District Judge held however, that the path was not a ‘highway maintainable at public expense’ and was not a highway constructed by a highway authority as set out at Section 36(2)(a) of the Highways Act 1980. The District Judge stated the highway had to be constructed as a highway at the time of construction. This was not the case here, as the path had become a highway through usage. There was no evidence that the highway authority built the path with the intention of it being dedicated as a highway. The District Judge also queried whether the defendant’s predecessor was in fact a highway authority.

The claimant’s appeal and defendant’s cross appeal

The claimant appealed against these findings, arguing that Section 36(2)(a) does not require proof of intent to create a highway at the time of construction. The claimant further argued that it was enough that the path was constructed, that it had become a highway and that it was constructed by a highway authority. The claimant also argued that in the alternative, the path fell within Section 36(1) of the Highways Act 1980. The defendant cross appealed and argued that Section 36(2)(a) did not apply in this matter as the defendant’s predecessor was not acting in the capacity of a highway authority and was in fact, a local authority. They also argued that the Highways Act 1980 only applied to highways constructed after the Act commenced.

The appeal judge found the following:

Does Section 36(2)(a) apply only at construction?

The appeal Judge considered whether a highway had to be dedicated as such at the time of construction, in order for Section 36(2)(a) to apply. The judge held that it could not be the case that express dedication was needed at the time of construction, as highway authorities could not do so for several month, leading to the highway falling outside Section 36(2)(a). The highway authority would therefore have no duty to maintain, nor would they be under a duty under the Occupiers Liability Act following the case of McGeown.

The appeal Judge concluded that there should not be a limitation imposed on the wording of Section 36(2)(a) and once it was recognised that the relevant highway may have become such after its construction, there was nothing in the wording to limit the way in which it later became a highway. A highway established through long usage would therefore qualify.

Did the defendant predecessor have capacity to act as highway authority under Section 36(2)(a)?

It was argued by the defendant that their predecessor was a local authority and as such, did not have the capacity to construct the highway as a ‘highway authority’. The appeal Judge found that whilst the predecessor may have worn many ‘hats’, including local authority or highway authority, it would not be an easy task for claimants to make the distinction between them. The appeal Judge took the view that it was necessary to identify the relevant legal entity and not attempt to look behind it.

The appeal Judge held that provided the relevant local authority at the time was, among other things, a highway authority, then Section 36(2)(a) will apply to them.

Was there a deemed intent by the defendant’s predecessor at the outset?

Although considering this ground was not necessary in light of the other findings, the claimant sought to argue that once there was a presumed dedication, the highway must be taken to have been dedicated at the outset. The appeal Judge rejected this argument, as it would seek to impose a duty on the highway authority before it arose.

Can Section 36(2)(a) apply retrospectively?

The defendant argued that the application of Section 36(2)(a) cannot apply to highways constructed before the Highways Act 1980 was implemented. The appeal Judge concluded that the application of the Highways Act 1980 only came into play when there had been a failure to maintain, despite the fact the highway was built at an earlier stage. This was not retrospective liability. Secondly there was no express limitation within the wording of Section 36(2)(a) and there was no basis for implying such a limitation.

The alternative ground

In light of the retrospective application finding it was not necessary to consider if Section 36(1) operated. The appeal Judge found that the path may have been dedicated before 16 December 1949 but chose not to consider it further.


The claimant’s appeal against the original finding that the path in question was not a highway ‘maintainable at public expense’ was successful.

The appeal Judge held that Section 36(2)(a) of the Highways Act 1980 applied to highways that arise from long usage, not just those dedicated at the time of construction. The provisions of Section 36(2)(a) can also apply to an entity who has local authority and highway authority capacities. The appeal Judge also held that Section 36(2)(a) does not only apply to highways constructed after the introduction of the Highways Act 1980, as the application only comes into play when there has been a failure to maintain the highway.

Following the ruling in this case it is likely we will now see highway authorities being held responsible under the Highways Act 1980, for areas which were not previously considered to be highways. It may therefore, be time for highway authorities to carry out a review of the classification of some pathways in light of the High Court’s comments on the application of Section 36(2)(a).

For more information contact:

Chris Humphrey
Associate (CILEx)
+44 1473 284 420 


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