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A Welcome Win for Welsh Ministers

 

 

The Court of Appeal in Sumner v Colbourne & Others [2018]EWCA Civ 1006, provides an important ruling on the obligations in respect of land adjoining the highway. Chambers’ own Nicholas David Jones, acted in that case as junior counsel to the Welsh Ministers, whose victory will have important implications not only for public bodies, but all those who own land adjoining a highway. 

 

Sumnerconcerned an accident at a junction: the defendant had collided with the claimant cyclist whilst emerging from a minor road. The defendant said he had taken reasonable care, but that his visibility had been severely restricted as a result of vegetation growing on land adjoining the highway owned by the Welsh Ministers. The defendant made Part 20 claims against Denbighshire County Council and the Welsh Ministers saying that one or other of them should have ensured that vegetation did not dangerously restrict visibility on the highway.  

 

The claims against the Council and Welsh ministers was struck out at first instance and upheld by the Court of Appeal. The reasons for this were that:

 

  1. Trimming back the vegetation was not a part of highway maintenance and so did not give rise to liability unders. 41 of the Highways Act 1980

 

  1. No duty of care arises for a negligent failureto carry out statutory duties. A duty only arises where there has been a positiveact which creates a danger: Stovin v Wise [1996] AC 923 Gorringe v Calderdale [2004] UKHL 15.

 

  1. The Council had not planted the vegetation and so there was no common law duty on them to maintain the same. No duty or care arises under s. 154 Highways Act 1980which creates a duty to secure the cutting back of shrubs. Previous cases have already confirmed that no common law duty arises under ss. 130 & 150 Highways Act 1980to remove obstructions: Ali v Bradford MDC [2010] EWCA Civ 1282(in which a claimant had slipped on steps covered in mud, overgrown vegetation and rubbish). 

 

  1. The Welsh Ministers had acted positively in planting the offending vegetation, however no duty of care arose as the danger was situated on land adjacentto the highway and not onthe highway itself: Yeltkin v Mahmood [2010] EWCA Civ 776 distinguished.

 

  1. Whilst some of the vegetation had made its way onto the highway, the judge at first instance was entitled to find that the defendant had no real prospect of successfully arguing that it was this small amount of vegetation that was responsible for the accident - as opposed to the dense vegetation on the adjoining land. 

 

This decision is a welcome one, not just for Councils and Public bodies, but for all those whose land adjoins the highway. As Sir Stephen Richards giving judgment in Sumner pointed out:  

 

“the imposition of a duty of care on owners of land to ensure that vegetation in their fields and gardens did not affect sightlines on neighbouring highways (at least where they had themselves planted that vegetation or had allowed its growth by positive acts such as the erection of fencing) would be profound. Farmers would need to consider visibility on the highway when deciding where to plant crops, hedges and trees, and when to harvest, prune or fell them. Similar issues would arise in relation, for example, to the planting of shrubs, hedges or trees in urban and suburban gardens. And whilst the present case concerns vegetation, the principle would extend to the erection of buildings, fences and other structures that might affect visibility on the highway. Planning controls and the powers of highway authorities provide a range of public law powers for dealing with these matters in appropriate cases. The court should be slow to supplement them by way of an onerous duty of care in private law.”

 

 

The judgment highlights the state’s current stance, that regulatory control mechanisms are an adequate means of ensuring the safety of its citizens. 

 

This case is also an important reminder that road users should be prepared to contend with hazards on the road network and drive accordingly: the road network is imperfect and drivers must take it as they find it: per Lord Hoffmanin Stovin

 

Claimants are reminded that where the danger does not arise out a faire to maintain the fabric and structure of the highway, particular care needs to be taken to determine whether a duty arises at all before even going on to consider whether such a duty has been breached. As Sumnermakes clear such a duty will usually only arise where it can be shown that:

 

  • it was a positive act that created the danger; 

 

AND

 

  • the danger causing the accident was on (and no adjacent to) the highway (however see Barnes v Ward (1850) 9 CB 392: a landowner was found liable for excavating a pit by the side of a highway which he failed to fence).

 

 

For more details on this case look out for the upcoming article in the next issue of the New Law Journal.