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What is a 'highway maintainable at public expense'? Court of Appeal clarifies the tests in Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696 - Sam Way, Devereux Chambers

28/08/20. The Court of Appeal has clarified the tests for identifying a highway maintainable at the public expense under the Highways Act 1980. In doing so, they unpack the requirements for an inference to be drawn that a historic pathway was dedicated as a highway at common law such that it is a highway maintainable at public expense within the meaning of the Highways Act 1980.


The Claimant, Mrs Barlow, suffered injuries to her shoulder and arm when she fell over a tree root on a path in Abram Park, Wigan. The tree root rendered the path dangerous and defective. However, the Defendant Local Authority denied liability for this defect on the basis that the path was not a highway maintainable at the public expense. Instead, they claimed that the path was a public right of way which they had no duty to maintain and hence they were not liable under the Highways Act 1980.

The path had been constructed by the Defendant’s predecessor, Abram UDC, at some time prior to the commencement of the Highways Act 1959, although the precise date was not known. Although at trial there was no evidence that Abram UDC had been the Highway Authority on the date of the path’s creation, by the date of the first appeal the Defendant admitted that they were. There was no evidence as to the intention with which Abram UDC had created the path. However, the park had never been closed to the public since its creation and the public had always enjoyed access to the path on an unrestricted basis.

The Claimant had to show that the path was a highway maintainable a public expense within the meaning of the Highways Act 1980. Resolution of that issue rested on the path falling within either section 36(1) or 36(2)(a) of that Act:

“(1) All such highways as immediately before the commencement of this Act were highways maintainable at the public expense for the purposes of the Highways Act 1959 continue to be so maintainable… for the purposes of this Act.

(2) … The following highways (not falling within subsection (1) above) shall for the purposes of this Act be highways maintainable at the public expense:-

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