- Gulliksen dead and McGeown fatally wounded? An important case for highway lawyers (Barlow v Wigan MBC)
- What was the background?
- The capacity issue
- The intent issue
- The retrospectivity issue
- The outcome in relation to McGeown
- The outcome based on NPACA 1949
- Key points for highway authorities
Local Government analysis: On 1 June 2020 the Court of Appeal handed down judgment in Barlow v Wigan MBC. The court clarified that the provisions of section 36(2)(a) of the Highways Act 1980 (HiA 1980) which says that a highway constructed by a highway authority is a highway maintainable at public expense, only applies to highways constructed from 1980. Further the words ‘highway constructed by a highway authority’ have been interpreted as meaning ‘a highway constructed by a highway authority exercising its highway authority functions’. This has the effect that Sedley LJ’s obiter comments in Gulliksen that it does not matter what capacity a council with a highway authority function was acting in when constructing a highway have been disapproved. Finally the Court of Appeal made an obiter suggestion to get around the rule in Gautret v Egerton/McGeown to the effect that no duty of care is owed by the landowner to people when they are on highways on the landowner’s land, namely that it is only when a person is only lawfully on the land because of the existence of a highway that the rule applies. Written by Matthew White, barrister, at St John’s Chambers.
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