December 18, 2012

A necessary characteristic of public highways

A recent attempt by a local authority to recognise a route over a plot of land as a public footpath acts to remind us of one of the fundamental characteristics required for a route to be recognised as a public highway—it must be connected to another public highway or to some other land to which the public have access to enable the public to pass and repass over the route at will.

In the recent case of Kotegaonkar v Secretary of State for the Environment, Food and Rural Affairs the local authority made an order under the Wildlife and Countryside Act 1981 for a claimed route to be recognised as a public footpath. Following objections, the Inspector found the route had been enjoyed by the public for at least 20 years and there was insufficient evidence to suggest it had been the intention not to dedicate the way during the period. The Inspector also dismissed an objection, under s31 of the Highways Act 1980, that the way was of such character that use of it by the public could not give rise, at common law, to any presumption of dedication.

The Inspector’s decision was to confirm the order.

A subsequent claim for judicial review of the Inspector’s decision was made and the order to recognise the route as a public footpath was quashed. It was held that the Inspector had failed to refer to previous case law providing authority that a route, unconnected to another public highway (as was the case with the route in question), could not be a public highway as it lacked the necessary characteristic to enable the public to have free access to the route to be able to pass and re-pass over it at will—an essential characteristic for it to be considered a public highway.

About the author

Joanna Lilliott is one of Holmes & Hills' specialist Planning Law Solicitors. For more information on the team and their Planning Law advice services for local authorities, developers, community action groups and home owners across the South East and East Anglia.

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