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Sufficient Public Utility - Rare Case Under s. 37 Highways Act 1980

Caroline Daly

In a decision that will be of interest to highway authorities, a District Judge has found that two roads with no through route on the Halliwick Park Estate in Friern Barnet are not of “sufficient utility to the public” to justify them becoming maintainable at public expense under s. 37(2) of the Highways Act 1980, following a hearing at Willesden Magistrates’ Court. 

S. 37 of the Highways Act 1980 provides a mechanism for owners, in this instance Bellway Homes and Taylor Wimpey Homes, to seek to have a road adopted without entering into a s. 38 Agreement, and without being required to pay commuted sums towards the ongoing upkeep of the road.

Following a notice served by the owners on the London Borough of Barnet declaring their intention to dedicate the roads as public highway, LB Barnet made a complaint to the Magistrates’ Court for an order under s. 37(2) that each highway was not “of sufficient utility to the public to justify its being maintained at the public expense”.

The Judge, in making the order sought, agreed with LB Barnet’s application of its highway adoption criteria policy on the basis that the roads, located on an Estate with no through route, did not have a wider use than simply providing access to residential properties. In doing so, the Judge took account of similar criteria adopted by other neighbouring and urban highway authorities put before the Court by LB Barnet. 

This decision is thought to be the first case under s. 37 of the Highways Act 1980 to go to the Magistrates’ Court and has already attracted national interest.  The decision is the subject of an outstanding appeal.

For more information, please contact FTB's clerks.

Caroline Daly represented the successful Complainant, the London Borough of Barnet.