News & Insights

A highway to nowhere? No way

Commercial property lawyer Michael Higgin looks at a recent case where an attempt to designate land as a highway failed because there was no way for the public to get to or from the land.

In a recent High Court case, the claimant had bought the middle of three areas of land.  A paved route crossed that area of land leading to the properties on either side.  It may be helpful to imagine the bar of a Victorian circus strongman’s dumbbells!

Landowners may be familiar with the fact that a particular person using a way over land for over 20 years “as of right”, to serve an area of land, can claim that they have acquired an easement by long usage (or “prescription”).  However, it is less well known that a similar process can apply to the right which is used by the public at large.  Section 31(1) of the 1980 Highways Act creates a statutory presumption of dedication of land as highway where that land has been used in the requisite manner by the public for 20 years or more.

The claimant, a Mr Kotegaonkar, got planning permission to develop housing, and the local authority received a separate application to register a right of way over the plot and the adjoining land.  The local authority made a more limited order, that the right of way would cross Mr Kotegaonkar’s plot only, and not the adjoining areas of land.

In the High Court the judge agreed with Mr Kotegaonkar’s objection that the access could not be public highway, because there was no right to gain access to the way at one end or the other, both of which were private land and could be freely blocked or restricted by their owners.

The law would not expect members of the public to “parachute in” in order to use the footway.  Highways by their definition are permanent and the ability of the adjoining landowners to block up one end of the access or the other meant that this was inevitably an unreliable and impermanent situation.  Accordingly the footway could not be a public highway without the appropriate context whereby members of the public could get to and from each end of it.

Kotegaonkar v DEFRA (19th July 2012)