England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		Friday, 22nd March 1996

Mr. Justice Dyson:

Mr Nicholson is the owner and occupier of Woodcutt House, Whitchurch, Hampshire, where he has lived for the last 50 years. He has been actively farming the surrounding land for about 15 years. He owns part of the land over which the way known as "Litchfield and Woodcutt Road used as a path 14" ("RUPP 14") runs. On 1 November 1991 the Hampshire County Council ("the Council") made an order under s 54 of the Wildlife and Countryside Act 1981 reclassifying RUPP 14 as a byway open to all traffic, specifying 1 July 1991 as the relevant date for the purposes of the order.

Section 54 of the 1981 Act provides, so far as material, as follows:

"(2) A definitive map and statement shall show every road used as a public path by one of the three following descriptions, namely --

(a) a byway open to all traffic;

(b) a bridleway;

(c) a footpath,

and shall not employ the expression 'road used as a public path' to describe any way.

(3) A road used as a public path shall be shown in the definitive map and statement as follows:

(a) if a public right of way for vehicular traffic has been shown to exist, as a byway open to all traffic;

(b) if paragraph (a) does not apply and public bridleway rights have been shown not to exist, as a bridleway; and

(c) if neither paragraph (a) nor paragraph (b) applies, as a footpath."

Mr Nicholson objected to the classification both as landowner of the land over which RUPP 14 lay and as Chairman of the Litchfield and Woodcutt Parish meeting. A public inquiry was arranged. It was held on 7 March 1995. On 2 February 1995 the Council notified Mr Nicholson that it would be making representations to the Inspector at the inquiry that RUPP 14 should be reclassified as a bridleway. In the event the Council offered no evidence at the inquiry.

Before the Inspector, the users of RUPP 14 argued that the reclassification order should be confirmed without modification. Mr Nicholson argued that the reclassification as a byway open to all traffic should be rejected essentially because a public right of way for vehicular traffic had not been shown to exist. A central issue was whether a public right of way for vehicular traffic had been dedicated either by statute or at common law. The Inspector was not satisfied that there had been a statutory dedication, but found that there had been a dedication at common law and concluded that the reclassification order should be confirmed without modification.

Before I turn to the criticisms made of the Inspector's decision, I should deal with the law relating to dedication.

Dedication

A track can become a highway by reason of the dedication of the right of passage to the public by the owner of the soil and the acceptance of that right by the public. Dedication means that the owner of the soil has either said in so many words, or so conducted himself or herself as to lead the public to infer that he or she was willing that the public should have this right of passage: see Halsbury's Laws (4 Edition) Volume 21 para 65. In the absence of an express dedication the creation of a highway subject to vehicular rights of way could be proved by showing either that the user gave rise to the statutory presumption pursuant to s 31 of the Highways Act 1980, which presumption had not been rebutted, or that the conduct of the landowners was such as to give rise to an inference of dedication at common law by reason of their knowledge and acquiescence in the user.

Section 31 of the Highways Act 1980 provides, so far as material, as follows:

"(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 of right and without interruption for a full 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 ss(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 a notice such as is mentioned in ss(3) below or otherwise."

As regards the inference of dedication at common law from user, I take as an accurate statement of the law the following summary from para 75 of Volume 21 of Halsbury's Laws:

"The fact that a way has been used by the public is evidence from which a dedication may be inferred if the way has been used for so long and in such circumstances that the proper inference is that the owner of the soil had said or so conducted himself as to imply that he had granted the right of passage to the public. The inference may be of a dedication at some time before the earliest proved user. At common law the question of dedication is one of fact to be determined on all the evidence. User by the public is no more than evidence and is not conclusive evidence. Thus if nothing is known about a road except that it is used by the public, that user may raise a presumption of dedication in the sense that the evidence points all one way. However, any presumption raised by that user may be rebutted. Accordingly, where there is satisfactory evidence of user by the public, dedication may be inferred even though there is no evidence to show who was the owner at the time of the alleged dedication or that he had the capacity to dedicate. The onus of proving that there was no one who could have dedicated the way lies on the person who denies the absence of dedication. A statutory presumption, however, may be raised by a 20 years user."

It is common ground that it is a condition of dedication, whether by statute or at common law, that there has been open, uninterrupted user as of right. What differences are there between the conditions that will found a dedication by statute and those that will found a dedication at common law? First, a period of 20 years is required for the purposes of statutory dedication. At common law there is no fixed minimum period which must be proved in order to justify an inference of dedication and no fixed maximum period which compels such an inference. It all depends on the facts of the case. Prima facie the more intensive and open the user and the more compelling the evidence of knowledge and acquiescence, the shorter the period that will be necessary to raise the inference of dedication at common law. Secondly, the burden of proof is different. By statute, after 20 years, the legal burden of proof shifts to the owner to disprove an intention to dedicate, provided that the other conditions are satisfied. At common law the legal burden rests on the user throughout to prove dedication. The evidential burden, however, shifts once presumption of dedication has been raised.

In my judgment these were the two material changes of law that were introduced by the Rights of Way Act 1932, carried through to s 31 of the Highways Act 1980. Miss Walden-Smith, on behalf of the applicant, relies on a passage in the judgment of Laws J in Jaques v Secretary of State for the Environment [1995] JPL 1031, 1036-7, to support the proposition that the change in the law was more far-reaching than I have indicated. Laws J said:

"Taking the passage cited from Scott LJ in Jones v Bates as a full and convenient description of the common law, it seemed that the material change effected by the statute of 1932 (and carried through to the Act of 1980) did not merely consist in a shift of the burden of proof. The common law required not only that the claimant to the right should show that the landowner had evinced an intention to dedicate, he had to show actual dedication; and it was precisely because such an event was usually fictitious or imaginary that the common law was unsatisfactory. But under section 31 the landowner had to prove merely that he had no intention to dedicate; certainly, he had to prove it by overt acts, directed (as Lord Denning indicated in Fairey) to the public who use the way in question. Lord Denning contemplated that the traditional means of closing the way for one day in the year would suffice.

The result was, in his view, that under the statute the landowner had a lesser proposition to disprove than under the common law the claimant had to prove. That approach vindicated the plain purpose of the Act of 1932 for the very reason explained by Scott LJ; it expunged from the law the Alice in Wonderland requirement of any actual dedication."

As a matter of strict legal theory, it may well be that what Laws J stated was correct. In practice, however, it is very difficult to envisage a case in which a user is able to prove facts from which an intention to dedicate is inferred, but not a dedication itself. It is for this reason that I think that in reality the 1932 Act made only two material changes to the requirements for establishing dedication. Miss Walden-Smith used this passage in the judgment of Laws J as a springboard for a wider submission that the quality of user required to found an inferred dedication at common law is different from that required to found a statutory dedication. She referred to Webb v Baldwin [1911] 75 JP 564, 565, where Parker J said:

"Dedication .... may be established by proof of definite acts of dedication on the part of the owner, or it may be inferred from use and enjoyment on the part of the public; but such use and enjoyment must be use and enjoyment as of right known to the owner and acquiesced in by him.

Further, this knowledge and recognition on the part of the owner may itself be inferred from the fact that the use and enjoyment has been so open and notorious as of right as to give rise to the presumption that the owner must have been aware of it and has acquiesced in it...."

Her submission was that, for the purposes of bringing the statutory presumption in s 31(1) of the Highways Act 1980 into play, it is not necessary that the user should have been so open and so notorious as to give rise to the presumption, necessary for common law purposes, that the owner must have been aware of it and acquiesced in it. No authority was cited to support the proposition that the quality of user in the two cases is different as a matter of law. I regard the argument as untenable. The relevant criteria so far as the quality of the user is concerned are the same in both cases. The use must be open, uninterrupted and as of right. The notoriety of the use is relevant for common law purposes in the sense that the more notorious it is, the more readily will dedication be inferred if the other conditions are satisfied. But notoriety is also relevant for the purposes of the statute, since the more notorious it is, the more difficult it will be for the owner to show that there was no intention to dedicate.

The challenges to the decision:

The Form 86A document makes many criticisms. These were amplified in a detailed skeleton argument. During the course of oral argument, however, Miss Walden-Smith put her case rather differently. I propose to deal with the case as it was finally developed in oral argument. Her first and fundamental criticism of the Inspector was that he blurred what she described as the important distinction between the tests necessary to establish a dedication by statute and a dedication at common law. This important distinction is the alleged difference in the quality of use, a distinction which I have already rejected. Even if that distinction were valid, it would not avail the applicants in this case, because Miss Walden-Smith accepted (rightly in my view) that the Inspector had correctly summarised the relevant criteria for proof of dedication at common law at para 10.21 of the decision letter, where the Inspector said:

"It is now necessary to consider the nature of use by the public over this, or indeed any other period. Section 31 requires there to have been actual enjoyment, as of right, without interruption, and the absence of sufficient evidence of there having been no intention to dedicate the way as a highway. Submissions on behalf of the objector seemed to suggest that it was necessary at common law to prove dedication by the landowner that there are 'required tests', and that this basis, in this instance 'is a non-starter'. No explanation was given for this point of view. Dedication at common law can be implied after a period of use by the public, provided the use was open, had come to the knowledge of the landowner, and was exercised as of right. All these features, which are very similar to the requirements of section 31 without the specified period of 20 years will be examined presently."

Accordingly, this general challenge on the basis of the adoption of the wrong approach fails altogether.

I turn the other criticisms made.

Knowledge

It was contended that the Inspector was in error because he made no findings as to the extent of Mr Nicholson's knowledge of the use of the track. The Inspector went straight from his findings about the extent of that use to his concluding para 10.24 in which he said:

"Notwithstanding the fact that few users of the route gave evidence of enjoyment for 20 years or more, I am satisfied that sufficient public vehicular use has been enjoyed over the last 12 years for a presumption of dedication to have been sustained."

It is true that the Inspector made no detailed findings about Mr Nicholson's knowledge. He did, however, refer to the October 1981 episode (to which I shall come in a moment), from which it was clear that Mr Nicholson knew that motorcyclists were using the track and claiming to do so as of right, and that unless restrained they were likely to continue to do so. They were not restrained.

Mr Nicholson also gave evidence to the Inspector that after October 1981 he occasionally came across vehicle tracks on RUPP 14. The Inspector was aware that dedication could only be inferred if uninterrupted use as of right had come to the knowledge of Mr Nicholson (see para 10.21). There was material from which the Inspector could find that the requisite knowledge existed. That was a question of fact for him. He must have been satisfied that Mr Nicholson had sufficient knowledge of the relevant facts. In my view, his failure to spell out his findings of fact on this point does not invalidate the decision.

The October 1981 episode

On 27 October 1981, Mr Nicholson wrote the following letter to the Council:

"I would be grateful for your advice on the above Right of Way, which also forms part of the North Hampshire Ridgeway and the Wayfarers Trail.

Last weekend, I met a number of people on motorcycles on the Right of Way in question, who told me that they and any other person riding motorcycles or cars, and holding a current Road Fund Licence were entitled to use the Right of Way in question.

As I was unsure of my ground I did not pursue the matter, but I would be grateful for your confirmation that they are correct. If, however, this is not the case perhaps you would be kind enough to advise me what action I can take if similar circumstances arise.

Many thanks in advance for your help and I look forward to hearing from you."

On 30 October 1981 the Senior Rights of Way Officer of the Council replied as follows:

"The term 'RUPP' means 'Road Used as Public Path' and such rights of way do indeed have vehicular rights on them. They are available to any class of vehicle which is physically able to traverse it. In the main they are used by organised bodies such as the Trail Riders' Fellowship and it sounds to me as though you encountered one of their groups.

I have found that this particular group are responsible and careful people. They are usually meticulous about securing gates, giving way to pedestrians and riders, and refrain from frequent use of one particular area. It is unusual for their machines to be ridden in a noisy manner. Indeed, I know that the Winchester group have turned members away who have turned up on machines making excessive noise.

I cannot say the same for a body called the 'All-Wheel Drive Club' whose members have been the source of a number of complaints, both about the manner of their driving and the damage they have caused to trees and other property. While it is a fact that they, too, are entitled to drive on RUPPs it is equally true that while doing so they must exercise the same degree of care and consideration for other people as they must on ordinary roads. (This also applies to motorcyclists, of course).

I do hope that vehicular use of this particular route is not going to become a problem since it is clearly not suitable for intensive use by mechanically propelled vehicles. If it seems to be getting out of hand, please let me know.

I hope this makes some sense to you."

In his evidence to the Inspector, Mr Nicholson explained that he wrote to the Council because he was unsure of the legal position. When he received the Council's reply he assumed that it was correct and was thereby discouraged from taking any steps that he might otherwise have taken, such as placing notices or obstructions on the track, in order to prevent vehicular use of RUPP 14 by members of the public. He felt that he could no longer challenge the use of RUPP 14 by them.

The October 1981 episode was used by Mr Nicholson in two ways at the inquiry. It was argued that by the letter of 27 October 1981 Mr Nicholson had brought into question the right of the public to use the track within the meaning of s 31(2) of the Highways Act 1980. Secondly, it was said that it amounted to an interruption of the use so as to defeat the suggested common law dedication. The Inspector rejected both arguments. The relevant passages are to be found in paras 10.19 and 10.23 of his decision letter. At 10.19 he said:

".... The objector referred to his meeting with drivers as 'an amicable challenge' as he recollected it over 13 years after the event. He did not say he had asked the drivers to leave his land as they had no right to be using the track nor that he had in fact turned them back. His letter to the County Council of 27 October 1981 is hardly a record of a challenge -- he states he met some people on motorcycles on RUPP 14 who said they were entitled to use that right of way and that as he had been unsure of his ground he did not pursue the matter. The County Council's Rights of Way Officer replied to the effect that RUPPs 'do indeed have vehicular rights on them'. Whatever one may think of such an unqualified response, the objector's enquiry was not in the language of challenge, far less did it indicate an interruption in the motorcyclists' use of the track. I do not believe it satisfied the test suggested in Fairey v Southampton County Council [1956] 2 QB 439. It was an isolated occasion, insufficient to make the denial of public rights clear to the public."

At 10.23 he said:

".... Dedication at common law may be presumed by the conduct of a landowner over a reasonable period. In this case the landowner may in 1981 have been given to understand by the local highway authority that a public vehicular right of way existed along the RUPP 14, but this does not seem to me to defeat the claims on behalf of the public, any more than it debarred the landowner from taking further advice or giving clear notice that there was no intention to dedicate. Indeed, in some ways it strengthens such claims as it can be more readily understood how the public should have come to think that in traversing the RUPP 14 with motorcycles and four-wheel drive vehicles, they were doing so in exercise of a public right."

When Miss Walden-Smith's argument finally came to rest, it was to the effect that the Inspector's conclusion that dedication should be inferred at common law was perverse, since the October 1981 episode showed quite clearly that Mr Nicholson did not intend to dedicate RUPP 14 as a vehicular highway, and the only reason why he did not maintain his challenge after receiving the Council's letter of 30 October was that, to use her word, he was "fettered" in acting thereafter. In my view the perversity argument must be rejected. The Inspector was entitled to make the finding of fact that he made. Even if he accepted the entirety of Mr Nicholson's evidence on the point, the Inspector was entitled to conclude as he did. Whether a landowner has the intention to dedicate must be determined on the basis of his overt acts, and not his private thoughts and feelings. In my judgment, what Denning LJ said in the context of statutory dedication in Fairey v Southampton County Council [1956] 2 QB 439, [1956] 2 All ER 843, at 458 of the former report, applies with as much force in the present context. He said:

"In my opinion a landowner cannot escape the effect of 20 years' prescription by saying that, locked in his own mind, he had no intention to dedicate; or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate. In order for there to be 'sufficient evidence that there was no intention' to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large -- the public who used the path, in this case the villagers -- that he had no intention to dedicate. He must, in Lord Blackburn's words, take steps to disabuse those persons of any belief that there was a public right: see Mann v Brodie. Such evidence may consist, as in the leading case of Poole v Huskinson, of notices or a barrier; or the common method of closing the way one day a year. That was not done here; but we must assume that the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On this footing there was sufficient evidence to show that there was no intention to dedicate."

Thus, in my view, the fact that Mr Nicholson felt that he had to accept the unfortunate advice of the Council because he thought that they ought to know best could not avail him. Put more accurately, the Inspector was not acting perversely in deciding that that fact could not avail Mr Nicholson. So far as the outside world was concerned, he questioned the right of the motorists to use RUPP 14 in October 1981, was told by the Council that they had a vehicular right of way, and he accepted that position. He did not challenge the use until 1991 when he objected to the proposed reclassification of RUPP 14 as a byway open to all traffic.

Nor is there anything in the fettering point. The Inspector was right to hold that the letter of 30 October 1981 did not debar Mr Nicholson from taking further advice or giving clear notice that there was no intention to dedicate.

Written Evidence

A good deal of the evidence from the users was admitted in letter form. The writers were, therefore, not subject to cross-examination. It was argued in the Notice of Motion that the Inspector was in error in taking the letters into account, alternatively in placing too much weight on their contents. The Inspector considered carefully the propriety of having regard to the letters at para 10.16 of his decision letter, and for the reasons there given decided to do so. His reasoning and approach are unimpeachable. In fact, Miss Walden-Smith appeared to concede as much during the oral argument.

12 years user

I have already quoted para 10.24 of the letter. At para 8.7, the Inspector said:

"Over 40 people have written as motorcyclists and members of motorcycle organisations and 20 forms have been submitted by drivers of Land Rover type vehicles, claiming to have driven over the track (RUPP 14), between once and 8 times a year, for periods between 1967 and the present time. Most of this use took place from the late 1970s to the present time, and that of all but one of the four-wheel drivers between 1987 and 1995. In each case the users claimed not to have been challenged or obstructed, nor to have seen prohibitory notices."

It is clear, therefore, that the Inspector arrived at his period of 12 years on the basis of the use from the late 1970s until the date of challenge when objection was made in 1991. This was not only rational and intelligible, but fair. It seems to me that he was fastidious in his approach. He rejected the public vehicular use on the basis of historical evidence (see para 10.15); he rejected the case on statutory dedication, because he was not satisfied as to the 20 year period. He was, however, satisfied as to common law dedication. I confess that I did not understand Miss Walden-Smith's point about the 12 years, but I am satisfied that the finding is beyond criticism.

Perversity

Miss Walden-Smith submitted, finally, that if all else failed, the finding of dedication at common law was perverse. I regard this argument as quite hopeless. She saw the force of that during oral argument, but felt constrained to persist in it. She did not, however, develop the argument. As I have already indicated, there was ample material on which the Inspector could rationally conclude as he did. He applied the right test, and the challenge to his decision must fail.

I conclude, therefore, that for all these reasons this application must be dismissed.

Application dismissed