The High Court recently provided clarification on what can be a public highway in the case of Kotegaonkar v The Secretary of State for Environment Food and Rural Affairs & Anr. K bought a plot of land from the local authority which it intended to develop. On the plot was a paved footpath which connected a car park to a parade of shops. Both the car park and the forecourt to the shops were privately owned and the connecting path was not identified as a public highway. K applied for planning permission to redevelop the plot. The application was objected to by members of the public on the ground that the path was a public right of way. The Council and subsequently the Secretary of State sided with the objectors and dedicated the path as a public footpath on the basis that members of the public had used the right of way without interruption for at least 20 years and that it had all the characteristics of a public right of way. On appeal to the High Court, K successfully overturned this ruling.
The rationale of the successful appeal was based on the extent to which use of the footpath could in fact be restricted. In order to access the footpath, pedestrians needed to either be in the car park or on the forecourt to the parade of shops. Both the car park and the forecourt being privately owned, any person entering either did so only with the permission of the owner of the land. It was open to the owner of either the forecourt or the car park to restrict or terminate anyone's ability to be on the car park or the forecourt at any time (by, for example, closing the car park or redeveloping the forecourt) and if that happened the footpath would not be freely accessible to the world at large as a means of travelling between the car park and the shops. It was this ability to lawfully and unilaterally restrict the access to, and the use of, the footpath at any time that led the court to decide that the public having used the footpath uninterrupted for more than 20 years notwithstanding, the path did not have the character of a public right of way.
This is thought to be the first time that this issue has been determined by the Court, previous reported decisions of applications to declare a path or road as a public right of way having involved paths and roads which were connected to existing public paths or roads. Whether this decision will lead to further claims based upon similar circumstances remains to be seen.