Letter: Upherds Lane is not a private road - a brief history

Upherds Lane, in Ely, has extensive and deep potholes which are located across the road

Upherds Lane, in Ely, has extensive and deep potholes which are located across the road. Although the road is wide, the council says waste trucks are unable to navigate the potholes. - Credit: Harry Rutter / Archant

Perhaps I might be allowed to correct a misleading story published in your paper dated April 15 regarding a proposed change to the refuse collection services in Ely.

The short and unadopted section in the middle of Upherds Lane is not, as stated in your article, a private road.

No person or organisation has ever laid claim to the land on which the lane was constructed. It is not privately owned.

The original purpose of the lane, dating back several hundred years, was as a drove over common land. 

It was used by local farmers to herd their livestock up to Ely market for sale – hence the name.

The lane itself is clearly shown on the ordnance survey map1885 as a highway.

A more recent history of the construction of the lane can be traced back to a decision in January 1937 by the then highways authority, Ely Urban District Council (EUDC), to install footpaths along both sides of the Lane at public expense.

This is the first record of the highway authority accepting the lane to be their responsibility under the terms of the Highways Act 1835.

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Although poorly maintained by the council since that time, the kerbstones of these two pathways are still in place today.

In March 1945 EUDC further resolved to install a public sewer along the length of Upherds Lane at a cost to the public purse of £720.0s.0d, including repair to the construction of the lane.

Extensive potholes in Upherds Lane, Ely 

Extensive potholes in Upherds Lane, Ely - Credit: Harry Rutter / Archant

Further efforts by residents of the lane to require the council to bring the road up to a reasonable standard were opposed by the council until, in May 1956, when in an effort to resolve the dispute, a legal opinion was sought from the local solicitors, Hall, Ennion and Young.

Their letter to the council stated that [Upherds Lane].…. “is a roadway which falls to be made up, and indeed has been made up in successive years before 1939, by your council, as a charge upon the general rate.”

The letter went on to state “this road or lane appears to have been in existence for over 300 years.

"In more recent times a dyke or drain has been filled in and a footpath laid by your council and surface dressing applied at the eastern end, all without charge to the frontages.”

Although further work on piping and filling in a dyke was carried out at public expense in April 1957 (Ministry of Housing Loan of £500), the council continued to resist formal adoption of the Lane.

In taking this stance the council were, I believe, relying on the Highways Act 1835 (s.23) that roads constructed after 1835 would not be the responsibility of the inhabitants of the parish unless a formal adoption procedure was followed.

Extensive potholes in Upherds Lane, Ely 

Extensive potholes in Upherds Lane, Ely - Credit: HARRY RUTTER

Leaving aside the contentious issue of the date the Lane was constructed (OS maps only go back to 1885), a judgement in the case of Leigh Urban District Council v King [1901]1 QB 747 stated that where a highways authority had repaired a road on one occasion, the road was then maintainable by the inhabitants at large.

The facts, in this case, proved Leigh Council had adopted the road without needing a formal process.

Following the Local Government Act 1972, responsibility passed from the disbanded EUDC to the Cambridgeshire County Council Highways Department.

A final effort was made by the county surveyor in 1979 to bring the lane up to highways standard but as the residents were expected to both pay for the works and have parts of their front gardens taken away to widen the Lane, the proposal was turned down and abandoned in January 1980.

Coincidentally, at around the same time, the Highways Act 1980 placed a new duty on councils to maintain highways at public expense, whensoever the highway was constructed – ending the old anomaly under the 1835 and 1959 Highways Acts of ‘roads constructed after 1835’.

This new responsibility was tested in the recent Barlow v Wigan Council [2019] EWHC 1546 (QB) case.

The judgement made clear that the fact that the highway authority asserts a road is not a highway maintainable at public expense does not determine that issue. Each case must rest on its own facts.

The Barlow case was widely reported in local government circles because of the risk that councils will have acquired responsibility for roads without going through a formal adoption process (see Local Government Lawyer 12 July 2019).

This is clearly the case with Upherds Lane given that public funds were used to repair and maintain the Lane over the past 100 years, construct formal pathways, construct public sewers and even to install public street lighting (upgraded in the major countywide works by Balfour Beatty in 2011).

None of this would have taken place if, as the council contends, the lane is a “private road”.

It is unfortunate that Councillor Anna Bailey, as Leader of East Cambridgeshire District Council, should be looking to punish the residents of Upherds Lane for the failure of Cambridgeshire County Council Highways Department to accept their responsibility for the repair and maintenance of Upherds Lane.

I would take this issue up with our elected representative on Cambridgeshire Council but, unfortunately, that representative is the same Councillor Anna Bailey with her county council hat on!

There is a solution that would provide a temporary repair using a local firm and costing the council less than £12,000.

The residents were prepared to discuss this with Councillor Bailey and the county highways department at a meeting that was arranged back in February 2020.

Unfortunately, both declined to attend, and we were informed instead by the head of the East Cambs Steer Scene company that the district council would proceed with their plans to require residents to take their refuse each week to Downham Road for collection.

If the legal department at Cambridgeshire County Council persists with the view that the remaining 210 metres of Upherds Lane is a private road, despite this weight of evidence to the contrary, then the only other solution will be to take this matter to the magistrates court for a judgement that would finally bring to an end this 100-year-old dispute.