High Court hands down ruling on council resources and provision of footways

The High Court has given its first ruling on the meaning of s.66(1) of the Highways Act 1980, which concerns the provision of footways.

Hearing a dispute over the lack of path in a Norfolk town, Mr Justice Laws held in Thorpe, R (on the application of) v Norfolk County Council [1998] EWHC 107 (Admin) that the section meant a local authority may have regard to its financial resources in considering whether "the provision of a footway is necessary or desirable”.

He rejected two alternative interpretations, that an authority may have regard to its financial resources in deciding when to provide a footway - having earlier concluded without regard to financial resources that its provision is necessary or desirable - or that the authority's financial resources played no part in the lawful administration of s.66.

The case was brought by resident DE Thorpe against Norfolk County Council, asking the court to decide whether the highway authority’s financial resources were a material consideration in its approach to s.66.

Mr Thorpe, who has a visual disability, has lived in Wymondham for more 50 years and in 1990 a housing estate was developed opposite his home.

As part of this the road was diverted and a stretch of about 31 metres was left with no useable footway on the Mr Thorpe’s side.

Norfolk’s Highways Committee in 1996 refused on financial grounds to include in its footway programme a scheme put forward by the area engineer to fill this gap.

Laws J said: “The duty which s.66 imposes is not a duty to individuals, but to the public at large.

“I think that means that a wider range of considerations may be taken into account by the highway authority in assessing whether the duty arises.”

He said the concept of ‘necessity’ was highly significant as s.66 imposed a duty on the highway authority where it was satisfied that the footway is necessary “or desirable for the safety or accommodation of pedestrians”.

The judge said: “I cannot believe that Parliament intended to require a highway authority to decide, irrespective of all its other obligations and its financial resources, whether it would be desirable to provide a footpath to make it easier and more convenient for pedestrians to pass along the highway, and if that conclusion were reached, to impose an absolute duty to provide the footpath.”

He said a highway authority was entitled to have regard to its financial resources in deciding whether any particular footway proposal is necessary or desirable.

It was obliged to consider objectively the merits of footway proposals but could conclude, including on financial grounds, that a proposal was not necessary or desirable.

Mark Smulian