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are courts prepared to consider economic restrictions placed on local authorities?

7 December 2010

Following the recent case of Ali v The City of Bradford & Metropolitan District Council there are real suggestions to say that they are.

In Ali, the claimant had appealed against the ruling that her pleadings disclosed no cause of action. Ali had slipped and fallen on steps leading to a footpath which had been covered with mud, overgrown vegetation and rubbish. Unusually, her claim was not that the highway was dangerous but that the condition of the footpath had been neglected by the local authority and so she brought her claim under Section 130 of the Highways Act 1980. This section provides a duty upon highway authorities to protect the rights of the public to use and enjoy the highway and also includes the provision to remove obstructions and waste and had the court found in her favour, would have represented an extension in the duties owed by local authorities to members of the public.

The Court, however, found that there was no such provision to extend the duty under Section 130 to remove general rubbish and overgrown vegetation and that the duty, which is for the benefit of the public in general, did not give rise to a civil action for damages.

The claimant also alleged that the failure to remove obstructions from the highway amounted to a nuisance. The Court rejected this argument, finding that a local authority is not the occupier of the land - it just has statutory duties imposed upon it. The laws relating to the maintenance of highways and the responsibilities of local authorities are sufficiently contained within the Highways Act and that the concept of nuisance should not be extended.

In reaching its decision, the court was conscious that to require highway authorities to carry out regular precautionary inspections of public footpaths of all descriptions to see that they are kept free from obstructions would have substantial economic implications for local authorities.

We are finding that the Courts are increasingly open to the suggestion that local authorities have limited resources to perform their functions. The Court of Appeals refusal to extend the duties owed by local authorities to members of the public, which would have imposed a significant financial burden, is welcome news during these difficult times.

Going forward, it will be more common to put forward this type of argument where all council departments are facing cuts. Ali suggests that such an argument will be given serious consideration by the Courts.

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