England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(MR RECORDER HANCOCK QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		13 January 2016

1. LORD JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal.
2. The facts giving rise to this application are as follows. In 1984, Mr and Mrs Foy bought an area of land at Wilstone Green in Hertfordshire through which a footpath ran. The relevant part of the footpath ran from Point A to Point B on the plan which is annexed to the order under appeal. In 2000, Mr and Mrs Foy sold land opposite the east side of the footpath to a man called Mr Purcell. Both the Foys and Mr Purcell believed that the footpath was only 4 feet wide. Accordingly, they built various structures on each side of the path on that assumption.
3. Dacorum Borough Council (to whom I shall refer as Dacorum) are the Highway Authority. They believed that the footpath was 6 to 7 metres wide. They therefore required the removal of all structures which impinged on the footpath as they believed it to be. Mr Purcell backed down. He took down the fence which he had erected. He repositioned his fence to where Dacorum said it should be. Mr and Mrs Foy did not yield to the Council's demands. They resisted attempts by Dacorum to remove various structures to the west side of the path.
4. By a claim form issued on 9 January 2012, Dacorum applied for a declaration as to the width of the footpath and an injunction requiring Mr and Mrs Foy to remove various structures. The defendants put in a counterclaim against Dacorum for trespass on their land and for related relief.
5. The action came on for trial before Mr Recorder Hancock QC at Luton County Court in February. The judge handed down reserved judgment on 18 February 2015. He held that Dacorum were entitled to bring the proceedings as they were the Highway Authority. Furthermore, by reason of an agency agreement between Dacorum and Herts County Council, it was the duty of Dacorum to secure the free passage of the public along all public highways.
6. The judge then turned to the issue of the width of the footpath. Mr and Mrs Foy had argued at the trial that the footpath was only 4 feet wide. The Council had argued that it was 6 to 7 metres wide. The judge carried out a detailed survey of the interesting historical documents concerning this part of the countryside. The judge began by referring to the National Parks and Access to Countryside Act 1949, section 27. That provides that the Local Authority should publish a Definitive Map and Statement showing public rights of way in their area. The judge then referred to the Definitive Map and Statement which the Local Authority had published relating to this area and the footpath which is in issue. The Definitive Plan shows that footpath. The Definitive Statement next to it contains an entry relating to the footpath, which is number 43. It reads:

"Commences from F.P.45 on N.E. side of Wilstone Reservoir thence N.W. to Wilstone Green, having two exits on the county road."

Next to that there is a column headed "width", but, somewhat unhelpfully, the Definitive Statement does not include any figure in that column to assist the court or the public as to the width of the footpath.

7. The judge then referred to a number of 19th and 20th Century documents, such as conveyances of the property and early plans, which enabled him to deduce the history of the footpath. It appears that the footpath ran to and originally across land which was bought by a Canal Company in the early 19th Century. The judge concluded from the documentation before him that the track was closed off and for a time ceased to be a public highway, but he concluded that it did not remain a private road belonging to the Canal Company. It reverted to its status as a public highway.
8. The issue which the judge then had to address was the width of the public highway. Was it merely a 4-foot wide footpath, as Mr and Mrs Foy contended, or was it a track 6 to 7 metres wide, as Dacorum contended. The judge referred to numerous plans annexed to conveyances, all of which showed a wide track. The judge also referred to the presumption established by the Chancery Division in Harvey v Truro Rural District Council [1903] 2 Ch 638. In that case, the principle was stated as follows:

"In the case of an ordinary highway running between fences, although the space between them may be of a varying and unequal width, the right of

Passage or way prima facie, and unless there be evidence to the contrary, extends to the whole of the ground between the fences, and the public are not confined to the metalled portion."

The judge held that that principle applied whether the boundary on each side of the highway was a fence or a hedge.

9. It is quite obvious from the plans that the judge looked at that the stretch of highway in question was much wider than 4 feet. It certainly looks to me from the plans, as it did to the judge, as if the width was about 6 to 7 metres.
10. The judge was satisfied from Mr and Mrs Foy's arguments that for a time the highway had been converted to a private road. He was equally satisfied that it had subsequently become a public highway again. He referred to the Definitive Plan and Statement, which showed that section of track as a public highway. He referred to section 56 of the Wildlife and Countryside Act 1981, which provided that the Definitive Map was conclusive evidence of the existence of the right of way recorded. He came to the conclusion, erring in favour of Mr and Mrs Foy, that the correct width of the public highway there was 6 rather than 7 metres. He rejected the submission that it was 4 feet. Accordingly, he gave judgment for Dacorum and he dismissed the counterclaim. The judge did not grant an injunction. Instead, he accepted undertakings by Mr and Mrs Foy which would have the same effect as an injunction in the event of breach.
11. Mr and Mrs Foy were aggrieved by the judge's decision. Accordingly, they have applied for permission to appeal to the Court of Appeal.
12. The application for permission to appeal came on the papers before McCombe LJ in June 2015. The judge refused permission to appeal, stating:

"The judge's core conclusions, in paragraphs 24 and 25 of the judgment, as to the width of the right of way (from which all else flowed) were findings of fact made from analysis of the documents before him. To my mind, those findings are ones to which he was entitled to come and the grounds of appeal and skeleton argument now presented in support of the appeal do not engage with those findings or seek to demonstrate why they are said to have been wrong. In the circumstances, this proposed appeal has no real (as opposed to fanciful) prospect of success and permission to appeal is refused accordingly."

13. Mr and Mrs Foy are dissatisfied with that decision on the papers. They have both appeared today as litigants in person. Making their submissions alternately, they have each addressed the court and argued why both the judge below and McCombe LJ fell into error. I shall refer to them collectively as the appellants without identifying which of them has advanced each particular argument.
14. The appellants said that they challenged the jurisdiction of the court. They note that His Honour Judge Pelling transferred this case from the Chancery Division to the County Court at an early stage. They say that they applied to strike out the Council's claim because all highway rights have been extinguished by a stopping up order made in the 19th Century. The District Judge had adjourned that application to trial. The appellants applied for a hearing date of that application before trial but it not was granted. At trial, the judge did not hear the adjourned application, say the appellants. He should have done, it went to jurisdiction. The court had no jurisdiction and therefore fell into error.
15. In my view, the question whether there was a footpath there or not was always capable of being an issue in the case. It was not something which went to the jurisdiction of the court. There was therefore no need for the court to deal with that matter before the trial. It was quite appropriate to leave matters such as that to be dealt with in the course of the trial.
16. When it came to the trial, the way the appellants presented their case was this. They accepted that there was a footpath running between Point A and Point B as shown on the recent plan but they submitted that it was only 4 feet wide, not 6 metres wide. The argument which the appellants seek to advance to this court today is that there was no right of way at all, either 4 feet wide or 6 metres wide.
17. I have read the judgment and the material which was put before the court below insofar as it has been provided to me and it seems to me that that is not the way the case proceeded. The judge was determining the issue as to whether the highway in question was 4 feet wide or 6 metres wide. The judge gave extremely good reasons for coming to the conclusion that it was about 6 metres wide. The highway in question is called Wells Lane on some of the plans. It plainly is much wider than 4 feet. Furthermore, the judge was perfectly entitled, having looked at the Definitive Plan and the Definitive Statement, which identified that section of land as a public footpath, to conclude that there was a public right of way along it.
18. In my view, it would not be open to this court to take a different line altogether and to say that there is no public right of way at all. The judge concluded from the vast mass of historic documents put before him that although there was a time when the public right of way was shut off, nevertheless it subsequently came into existence. One can see that Wells Lane served a number of houses along its route during the 19th and 20th Century. Mr Foy tells me that those buildings were cottages and wheelwrights. It would make sense for a public right of way to serve those dwellings and buildings.
19. I do not see how the Court of Appeal, if this application is granted, could come to the conclusion that there was no right of way at all. Likewise, I do not see how the Court of Appeal could come to the conclusion that the judge fell into error in finding that the width was 6 metres rather than 4 feet. I must therefore refuse this application for permission to appeal.
20. Before parting with this case, I should explain to Mr and Mrs Foy that if I were to give permission to appeal, the consequence would be an expensive appeal hearing at which the Council, Dacorum, would be represented. The appeal would be lost and then there would be a substantial costs order against the appellants. That would not be in their interests at all.
21. In the result, therefore, I hand back the documents which come from the appellants and this application for permission to appeal is refused.