Section 6
Creation of highways
6.1: General
Alex Lewis, LL.B., Solicitor (non-practising), Senior Rights of Way Officer, Hampshire
County Council
Local Authorities are being encouraged to make greater provision for cyclists, yet
some doubts remain about the status of highways used by cyclists and the ways in which new
rights can be created. This article explores the cause of those concerns. These doubts
have a bearing on the significance of use by cyclists where the status of a way depends on
the inference of dedication at common law or a deemed dedication under s.31 of the
Highways Act 1980. That aspect is discussed in the companion article 'The impact of use by
cyclists' by D. Braham.
David Braham Q.C.
Highways over which the public have a right of passage with pedal cycles but no right
of way with horses or with other vehicles may be created under statutory powers. The
companion article in this issue, 'The creation of ways for cyclists' by Alex Lewis,
concludes that there is a good prospect that it would be held that at common law such
highways may also be created by express dedication and acceptance by the public. This
article explores the implications of that view where highway status depends on the
inference of dedication at common law or on a deemed dedication under s.31 of the Highways
Act 1980.
Alex Lewis, LL.B., Solicitor (non-practising), Senior Rights of Way Officer,
Hampshire County Council
Private rights of way and public highways are distinct legal entities, yet it is not
always easy to ascertain whether any given incident of use of a path or way is in exercise
of a public, or a private, right.
This article explores the distinction between public user and the exercise of
‘private’ rights and considers whether the nature of public user is the same for
the purposes of s.31(1) Highways Act 1980 (presumed dedication after 20 years use) and for
s.67(2)(a) Natural Environment and Rural Communities Act 2006 (exception from
extinguishment of rights of way for mechanically propelled vehicles).
6.2: COMMON LAW
David Braham Q.C. 
Nowadays most claims that a way is a highway are founded on s.31 of the Highways Act
1980. But the claimant has to rely on the common law where the way runs over land owned by
the Crown; in most cases where the way has fallen into disuse; and where the way has been
used by the public for less than 20 years.
David Braham Q.C.
The classical summing up by Wills J. to the jury in the New Forest case in 1892 brings
out the need to look at the route as a whole. The status of some stretches of a through
route may be clearer than the status of other stretches, and may hold the key to the
status of those other stretches. There, the point arose because the parish had repaired
only one section of the route, but the point can arise in other ways.
David Braham Q.C.
An appraisal of the classic statement that "You refer the whole of the user to a
lawful origin rather than to a series of trespasses".
David Braham Q.C.
The wider implications of Robinson v. Adair are examined with the conclusion that
common law claims are unaffected.
Jonathan Mair. LL.B., Dip.L.G., Principal Solicitor, Dorset County Council
The possibility of express creation should not be overlooked when investigating
highway claims. Such creation depends upon actual dedication by the landowner, either by
some overt act or by an express declaration, together with acceptance by the public.
Capacity to dedicate, and a definite intention so to do, must both be established.
Responsibility for the maintenance of public paths thus created may depend upon the date
of their creation.
David Braham Q.C.
A case note
Secretary of State for the Environment Transport and the Regions
v.
Baylis (Gloucester) Limited and Bennett Construction (U.K.)
Limited
Bennett Construction (U.K.) Limited v. Baylis (Gloucester)
Limited
and Tewkesbury Borough Council
An agreement between the landowner and the highway authority for widening a highway was
found to establish an immediate dedication, and not merely an agreement to dedicate as and
when certain agreed works had been completed by the highway authority.
Both dedication and acceptance are needed and, untypically, acceptance was an issue in
this case. Acceptance by the highway authority was held to suffice; and if that were
wrong, the subsequent public use of part of the roadside strip amounted to public
acceptance of the whole strip.
Rowena Meager LLB (Hons), BCL , Barrister, Lecturer in Law, University of Buckingham
A case note
A recent decision of the Court of Appeal concerns the circumstances in which an inference
of dedication of a public way at common law can be established. In particular,
difficulties can arise when objections to public use have been made but the identity of
the owner of the claimed way is unknown. The relationship between the user ‘as of
right’ test and an expression of contrary intention by the landowner is considered.
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