The case of Kotegaonkar v Secretary of State for Environment,
Food and Rural Affairs and Bury Metropolitan Borough Council should
have been common sense believes Jennifer Chappell, senior associate
at Bircham Dyson Bell, but instead the case made it to the High
Court for a ruling on a new area of law.
"Surprisingly, there was no previous authority on
whether a route unconnected to a public highway can be a public
right of way. All previously reported decisions on public
rights of way have involved paths or roads which were connected at
each end to dedicated highways," explains Jennifer
"Bury Council argued that a footpath across a
development site should be added to the Council's definitive
map of public highways, even though the route could only be
accessed over private land i.e. via a private car park and a parade
of shops. The High Court sensibly decided against the concept of an
'isolated highway' - a roadway that is unconnected to any
other public highway - as it was not freely accessible to members
of the public."
Mr Kotegaonkar bought a plot of land from the local authority
which he intended to re-develop. Across the plot of land was
a paved footpath which connected a health centre 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 public highway. Kotegaonkar had applied for planning
permission to redevelop the plot but members of the public opposed
this on the grounds they had a right of way across the land.
"The court looked at the extent to which use of
the footpath could be restricted - it was accessed via the car park
or the forecourt to a parade of shops - both privately owned and
therefore private permission was needed from them to gain access.
Access could also be restricted on that basis. " explains
"In this case, common sense has prevailed. Effectively
members of the public were using the pathway as a short cut. They
actually could get from one place to the other by using the proper
dedicated highways, but it was just a few yards further to
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