In the ‘curious’ absence of any firm definition of ‘highway’, either in statute or at common law, a High Court judge has stepped in to try to resolve the lacuna.
Mr Justice Hickinbottom has ruled that a path or track that has private land at either end of it and cannot be accessed by members of the public without crossing that private land cannot be classified as a public highway.
Landowner, Dr Kumar Kotegaonkar (the appellant), had been granted planning permission for a sheltered housing development on a plot of land between the Mill Lane Health Centre, in Bury, West Midlands, and a parade of shops.
However, within days of that grant, an application was made to have a path across the proposal land declared a public right of way. The appellant’s development plans were scotched when Bury Metropolitan Borough Council accepted the application and directed that the path should be recognised as a public highway on the area’s definitive map.
The appellant failed in a challenge to that decision before a Government inspector. However, his development plans are now back on track after Mr Justice Hickinbottom ruled that the inspector erred in law.
In his ruling, the judge pointed out that the path, as delineated by the inspector, has private land at either end of it and is not connected to a public highway.
Upholding the appeal, the judge said: ‘As a matter of law, on principle and authority, I do not consider that a way to which the public has no right of entry at either end or at any point along its length can be a public highway at common law.
‘The inspector, in directing herself that it was capable of being a public highway, misdirected herself in law.’
In his ruling, the judge remarked that it was ‘curious’ that the word ‘highway’ is not defined in the Highways Acts and that, coyly and somewhat surprisingly’, common law precedent also did not provide any direct authority on the issue.