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Ley v Devon County Council, on appeal from Exeter County Court, 28 February 2007

2 November 2007
The issues

Gullickson v Pembrokeshire County Council – Highways Authority – housing estate – whether footway responsibility of Highway Authority.

The facts

In August 2002 Mrs Ley tripped on a pathway which ran along the left hand boundary of the grounds occupied by Prescott Road flats in Exeter. She and her husband lived in a flat in Prescott Road. The claim was initially intimated against Exeter City Council, who owned the flats. Their insurers stated that the City Council were not the Highway Authority and not responsible. Proceedings were eventually commenced against Devon County Council, the Highway Authority. The proceedings were defended on the basis that the footway was not a highway within the meaning of the Highways Act 1980. The matter came to Trial. The Trial Judge found that, notwithstanding a sign which stated “Residents Only – Exeter City Council” the pathway was not restricted to Council tenants and not least because it provided a ready means of access for those passing across the complex, as well as to any member of the public who wished to do so to go to and from the houses and flats next to it. Relying on the decision in Gullickson v Pembrokeshire County Council, he added that the pathway was, by the date when Section 36(1) of the Highways Act 1980 came into force, already a highway maintainable at public expense by virtue of Section 38(2)(c) of the Highways Act 1959, the flats having been erected in 1972. He added that if he was wrong he took the view that the pathway had become a highway by virtue of public use for 20 years. He entered Judgment for the Claimant.

The Defendant appealed.

Amongst other grounds of appeal, the Defendant argued that the Recorder had erred in finding that the pathway was a highway maintainable at public expense for the purposes of the Highways Act 1980 or by public use as a right for a period of 20 years. On Appeal, the Judge found that the Recorder had erred in law in his interpretation of Gullickson. He had taken extracts from Gullickson where the facts and issues were different and had applied them to this case. In particular, he had erred in interpreting the Judgment in Gullickson as meaning that since no Local Authority could provide housing, save under statutory duty, the paths in question were dedicated from the start as highway maintainable at public expense. It was clear that it was not enough simply that the Local Authority had built the path under its statutory authority. It also had to be a highway in order to be maintainable at public expense. The Recorder had erred in law in treating the words of Lord Justice Sedley as being the definition of the highway, in particular because each case must turn on its own facts.

The facts of this case had established that although the pathway was probably built pursuant to powers under Part 5 of the Housing Act 1957 (and was therefore capable of being a highway maintainable at public expense, because of the relationship between Section 38(2)(c) of the Highways Act 1959, and Section 36(1) of the Highways Act 1980) it was not a highway by way of either Section 31 or at common law. It could not be said that the pathway was a highway in the common law sense that it was a place where the public had a right to pass and re-pass unhindered. It was clearly private property. Much reliance was placed upon the signs stating “Residents Only”. As to the alternative finding, namely that it had been dedicated under Section 31, the Court found that it was difficult from the evidence to see how the Recorder had come to the decision that the sign was not sufficiently detailed to negative the dedication.
Thanks to Nigel Lewers, Counsel for the Defendant and Daniel Tobin, both of 12 Kings Bench Walk and to Lily Caine of Veitch Penny.

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