ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
2 Park Street
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE GROSS
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Mr Wadsley & Ms Evans appeared on behalf of the Respondents.
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Lord Justice Pill:
"(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as a right and without interruption for a full a period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.
(2) The period of 20 years referred to in sub-sub-section (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice or otherwise."
"The southerly part (A-B on the Order map) runs from the turning circle at the end of a cul-de-sac road called Forest Walk to just south-west of a railway bridge over the River Ely. It is in woodland, close to and in parts adjacent to the River. It then rises very steeply from the river side to the top of the southern end of the bridge. The northern part of the Order route (B-C) runs northwards across the bridge and along the course of the former Ely Valley Railway to where it is crossed by Footpath 1 Llanharan."
"I conclude from the evidence considered so far that the Order route was, during the period 1986 to 2006, of a character such that use of it could give rise to a presumption of dedication, that the public used it on foot during that period as of right and without interruption, and thus that it may be deemed to have been dedicated as a public footpath unless there is sufficient evidence that there was no intention during that period to dedicate it."
Having gone on to consider evidence in relation to intention to dedicate, the inspector concluded at paragraph 72 that "the statutory tests were deemed dedication is met".
"The objectors produced photographs of the former railway line taken in 1990. They show the track-bed, formed of ballast. They do not show, as was argued, that the Order route between B and C would have required clearance at that time to be walkable. No fence is shown on the photographs."
"37. A little way below the top of the embankment, and at the top, there are concrete posts which have the appearance of those seen often at the sides of the railways. It is clear that at some time in the past they would have had wires attached, two sets of which would have had to be climbed through or over to get to the railway line. It is not possible to gauge from the physical evidence for how long the wire has been missing or broken. There are also posts from which wire would have traversed the line just south of the bridge. This cannot have been in place earlier than 1984, when the last train ran.
38. Further north, nearly half way between B and C, are the remains of a fence of sheep netting lying on the ground at right angles to and on either side of the track-bed, which at that point is on fairly level ground with narrow belts of immature woodland on both sides. If this fence crossed the line it cannot have been in place before 1984. The remains are attached to trees either side of the track-bed. I consider that a fence erected by the BRB would probably have consisted of wire stretched between concrete posts, as at other locations. What can be seen of the remains does not suggest professional erection. The objectors suggested it could otherwise only have been erected by Taff Ely Borough Council. I do not agree. The fence could, for example, have been erected by a neighbouring landowner for the purposes of stock control if stock were getting onto the former line and wandering along its length. It does not seem likely that it was erected by the owner of the railway land.
39. No significant conclusions about use of the Order route can be drawn from this evidence on its own, but they may be in conjunction with user and objector evidence which refers to the various fences, the embankment and the gate."
"20. There were stark disparities between accounts of the use of the Order route and of its features given by users, and those given by witnesses for the objectors. Evidence given by some users was inconsistent with that given by others, and there were also some contradictions between accounts given by the objectors' witnesses. I accept the objectors' argument that in these circumstances any relevant documentary or physical evidence may assume significance, so I shall first consider contemporaneous documentary evidence, then any current physical evidence which may shed light on the position during the relevant period, before dealing with the oral evidence."
I refer, to highlight the point, to the opening words which plainly were an accurate statement of the position.
"60. Dr Laverty owns a property just south of point B which has included since 1991 a small part of the land crossed by the Order route. Her evidence was that for some time during the 20 year period around 1991 there had been a barbed wire fence across the Order route as it climbed the bank from the River Ely to the railway line, that a fence had been in place across the former railway line where it crossed the bridge near point B for between one and two years from 1990 or 1991, and that there had been a further fence across the track-bed between B and C over which she had not been able to climb and which was in position for at least six months in 1992. The physical evidence of posts and remnants of wire (paragraphs 37 to 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period.
61. None of the 20 individuals or couples who completed user evidence forms mentioned fences across the route, and the twelve users who gave evidence to the enquiry, including those who stated that they had used the whole Order route, were adamant that their progress had never been impeded by fences. Several were clear that there had been a fence across the line of the former railway, but were clear that there had been a fence across the line of the former railway, but only to the south of B, adjoining Dr Laverty's garden, and not across the Order route. I was impressed by the obvious surprise expressed by the CBC's witnesses when it was put to them that they must have encountered fences when using the Order route to access the former railway line and between B and C. They were sure that the only barrier they had seen was south of B. It seemed to me that they were credible witnesses on this point.
63. I do not consider the Dr Laverty's oral evidence of the existence of fences to be bolstered by the physical evidence of fence posts and the remains of wires, from which it is not possible to conclude at what period they would have formed effective barriers to use. The photograph taken looking north along the former railway line taken in the autumn of 1990 shows no fence.
64. It seems to me that the conflict of evidence between users and objectors is incapable of reconciliation except on the improbably basis that Dr Laverty and one of the objectors' witnesses encountered fences very shortly after they were erected, and that they were torn down or breached almost immediately afterwards (although the objectors stated that they did not allege that this was done by any of those who had completed user forms)."
"I prefer the evidence of those witnesses who appeared for the CPC [that is the council] and I conclude that there were probably no fences impeding access to and along the former railway during the relevant 20 year period."
"whether there was a wire fence at point B during the relevant period."
It is submitted that the inspector had found that there was a fence traversing the route of the footpath at some point but did not consider the implications of that finding when resolving the conflict of evidence between the objectors and other witnesses. It was also submitted that the inspector failed to consider documentary and circumstantial evidence. It was accepted at the hearing before the judge that an allegation of unclear findings about the erection of a sheep wire fence between points B and C was not a freestanding ground of challenge.
"…the Inspector unreasonably failed to take account of the map produced by Llantrisrant Community Council in 1987. That map was a map of local walks but it did not show a footpath along the route subject to the 2009 order."
"55. I have, however, concluded that, notwithstanding the circumspection a court is required to show in dealing with the factual conclusions of an Inspector, on these limbs of the first ground Mr Blohm's submissions are to be preferred. The Welsh Ministers' defence of the approach of the Inspector to the fencing issue depends to a large extent on the premise that the Inspector did not conclude that a wire fence traversed the Order route at or around point B. Although paragraph 37 of the decision states that the "wire would have traversed the line just south of the bridge", it is clear from the context that the Inspector is considering the Order route. Had he not been considering the Order route, the wire and the posts would have been in the wrong location. It is, moreover, clear from paragraph 60 that he was, in paragraphs 37 and 38, concerned with remnants of wire which went "across the route". He stated that the "physical evidence of posts and remnants of wire (paragraphs 37 - 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period".
56. The Inspector's statement in paragraph 63 that he did not consider Dr Laverty's oral evidence of the existence of fences was "bolstered by the physical evidence of fence posts and the remains of wires" is in context also consistent with the view that those physical remains are remains from which wire would have traversed the Order route.
57. What is the consequence of this? In a context where what was at issue was whether the route had been fenced off at all and not simply when it had been fenced off, these parts of the decision letter which in effect reject part of the evidence given by those who said there never was a fence, were factors supporting the evidence of the objectors. The Inspector considered the question whether the physical remains gave any guidance as to when the wire traversed the route and concluded that it did not. There is no and could be no challenge to that finding. But he then set aside consideration of the physical evidence and did not stand back and consider the implication of his conclusion that at some time the wire had traversed the route on the other evidence and the circumstantial evidence before him including the obligation on the Association to fence "forthwith" and Mr Israel's evidence. He did not accordingly take it into account in making his assessment of the credibility of the witnesses.
58. The Inspector's approach to the map prepared by the Community Council is also relevant at this stage. I have said that, had the issue about how the information in the map was gathered been raised at the inquiry, the Inspector's conclusion to give the map no weight would not have been open to challenge. But it was not raised. I have concluded that to set aside a map produced by a public body with the support of the Countryside Commission at about the material time by giving it no weight, with no explicit consideration of the factors listed in section 32 of the Highways Act and, as I have said, no implicit consideration of them and without the issue having been raised at the inquiry, is Wednesbury unreasonable. The consequence is that the Inspector also did not take the map into account at all in assessing the evidence of the witnesses who gave oral evidence or made statements. As Mr Blohm recognised, had the Inspector done all of these things he may nevertheless have come to the same conclusions. I, however, accept Mr Blohm's submission that what in fact occurred was a failure to take account of this evidence."
"My conclusions on these matters mean that the claimants must succeed on the first two limbs of the fencing issue together with the second issue, the map question."
"…a fence had been in place across the former railway line where it crossed the bridge near point B for between one and two years from 1990 or 1991..."
"No significant conclusions about use of the Order route can be drawn from this evidence on its own."
"No significant conclusions about use of the Order route can be drawn from this evidence on its own [that is the evidence in the preceding paragraphs], but there may be in conjunction with user and objector evidence which refers to the various fences, the embankment and the gate."
The inspector was thus rightly keeping open the possibility that the physical documentary evidence might assist him in reaching the difficult conclusion he had to reach as to which witnesses were telling the truth.
"The physical evidence of posts and remnants of wire (paragraphs 37 to 38) corroborates the existence of fences across the route, although not that they were in place during the 20 year period."
"No path on the line of the Order route between A and B shown on small-scale OS maps of the area published between 1980 and 2007. Since no information was given as to when the area was actually surveyed by the OS the detail such as paths and tracks, I can give no weight to this evidence. Nor is a path shown on a map on local walks drawn by Llantrisant Community Council in 1987, but since no evidence was provided as to how the information shown was gathered, I can give it no weight."
Lord Justice Jackson:
Lord Justice Gross:
Order: Appeal allowed