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 Chappell.

"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 Jennifer Chappell.

"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 walk."