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Devon County Council v Webber, Court of Appeal, 19 April 2002

30 April 2002
The issues

Highways – Obstruction To Highway – Section150(4) Highways Act

The facts

The Defendant’s appealed from the decision of the Judge to the Court of Appeal in this case in which the County Council brought proceedings under Section 150 of the Highways Act 1980.

Under Section 150 the County Council has a duty to remove an obstruction from the highway resulting from an accumulation of snow, or from the falling down of banks on the side of the highway, or “from any other cause” – the latter words to be taken as referring – ejusdem generis – to the previous words i.e. confined to sudden substantial obstructions attributable to natural causes occurring without warning and requiring urgent removal.

Under Section 150 the Highway Authority can take any reasonable steps to warn highway users of the presence of the obstructions and anything removed in carrying out the duty and recover its reasonable expenses from the owner of anything which caused or contributed to the obstruction. The owner can defend those proceedings for recovery of expenses on the basis that they took reasonable care to secure the object that the question did not cause or contribute to the obstruction. The words reasonable steps or reasonable care involve ensuring the obstruction did not arise in the first place – he is not required to prove that he took reasonable steps to secure the removal of the obstruction once it occurred – Williams v Devon County Council 1967).

In May 1999 a violent rainstorm caused a landslip. Soil and rubble was washed on to a road near Higher Radway Farm at Bishopsteignton. The County Council removed the soil and rubble at a cost of £30,000.00. They sued the owners of the land under Section 150 (4). They also sued in negligence. The owners of the land claimed that they had taken reasonable care. They relied on Section 150 (4) (c).

The evidence was that the rainstorm was so severe that is was likely to occur once every 200 years. In the previous 40 years there has been no significant wash out of 2 fields owned by the Defendants from which the soil etc had come. The Defendant had owned two other fields nearby which had been the subject of wash out in 1989 and twice in 1994. The Defendants had decided not to use those fields in order to minimise the risk of further wash out. The fields in question in this action were used for arable farming which was a significant cause of the 1999 washout. The Judge found that the Defendants because of the similarities between these fields and the fields where they had stopped farming should have been aware of the risks of a washout. Therefore he found that they did not make out a defence of reasonable care and judgment was entered for the County Council. The Judge also found liability and negligence.

The Defendant appealed.

The decision

1. Reasonable care under the Act was a broad common sense test.

2. Guidance had been produced by the Ministry of Agriculture, Fisheries and Food dealing with erosion risks. That guidance clearly identified fields of this sort as being high risk.

3. The Defendants knew of the risk with regard to the two fields where they had ceased farming.

4. There had been however no obvious signs of washout from the fields in question in this Action when the decision had been taken with regard to the other fields. There had been no washout in over 40 years.

No reasonable person would have predicted a washout other than in exceptional circumstances. The burden of establishing reasonable care by the Defendants was therefore discharged. The negligence claim also therefore failed.

Appeal Allowed.

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