England and Wales High Court (Administrative Court) Decisions

1. Mr Justice Kay: The National Trust applies pursuant to section 53 and paragraph 12 of Schedule 15 of the Wildlife and Countryside Act 1981 (“the Act”) to quash the East Sussex County Council (Crowlink Car Park to Flagstaff Point, East Dean and Friston No.37) Definitive Map Modification Order 1997 (“the Order”). The effect of the Order was to modify the County Council’s definitive map and statement of public rights by adding a public footpath which runs from the car park at Crowlink to a junction with the South Downs Way at Flagstaff Point at Friston across land owned by the National Trust.

2. The challenge is to the decision of an Inspector appointed by the Secretary of State under paragraph 10(1) of Schedule 15 of the Act to confirm the Order. It is conceded on behalf of the Secretary of State that the Inspector’s decision cannot stand and that accordingly the Order must be quashed but the grounds upon which it falls to be quashed are not agreed and since it will be for the East Sussex County Council to consider whether a fresh order should be made, the National Trust have pursued the grounds not accepted by the Secretary of State in an attempt to avoid any further litigation on these points.

3. It is common ground that the case raises four issues:

4. On behalf of the Secretary of State, it is accepted that the Inspector failed to reach a conclusion as to whether the use of the footpath by members of the public was “user of right” (issue 1) and that the Inspector adopted the wrong approach towards considering whether the National Trust had taken sufficient steps to manifest an intention not to dedicate the path as a public right of way (issue 3). No concession is made on issues 2 and 4, although Mr. Hobson for the National Trust has accepted that if the court finds in his favour on issue 2, it is unnecessary to resolve issue 4.

5. On 29 September 1929, the National Trust obtained at public auction the land at Crowlink crossed by the path and it was declared inalienable in October 1931. The path was not claimed as a right of way under the Rights of Way Act 1932, in surveys by the Ramblers Association and the East Dean and Friston Parish Council in preparation for the 1953 Definitive Map, nor in subsequent Definitive Map reviews in 1960 and 1971. It is clear, however, that the path did exist during at least a substantial part of this period. It can be seen in photographs taken in 1947. On 25 July 1952, the Parish Council in writing to Rural District Council said:

6. In 1970, the path was included in a guidebook written by a former Chairman of the Parish Council as a path but not as a right of way.

7. Between April 1976 and April 1977, there was correspondence between the Ramblers Association, the National Trust and Wealden District Council concerning the obstruction of footpaths. Whilst that correspondence did not relate to the path in question, the Ramblers Association referred to the area crossed by the path as “the central plateau area, where people have been accustomed to roam without restriction”.

8. On 9 September 1980, Mr Harry Comber of the Ramblers Association submitted a form claiming that the path was a right of way. On 10 July 1991, Mr Comber made a formal application to East Sussex County Council for an Order to be made under section 53(2) of the Act modifying the definitive plan by adding the footpath. In July 1991, the National trust disputed the existence of “a public footpath as claimed”.

9. In due course the Modification Order was made by the County Council on 4 April 1997. Following a public hearing on 2 September 1997, the Inspector by letter dated 20 October 1997 confirmed the Order.

10. The National Trust is not seeking to stop persons using the footpath but its contention is that such people use the footpath at its invitation and not as of right.

11. By section 4 of the National Trust Act 1907, the Trust was established “for the purpose of promoting the permanent preservation for the benefit of the nation of lands and tenements (including buildings) of beauty or historic interest and as regards lands for the preservation (so far as practicable) of their natural aspect features and animal and plant life”. The Trust was granted rights under section 4(2) of the Act of 1907 "to acquire .... and may maintain and manage lands as open spaces or places of public resort and for purposes of public recreation .... and may exercise full powers of ownership over their lands and property according to their estate and interest not inconsistent with the objects for which they are constituted ....”.

12. There is no specific provision in the Trust Acts granting the public a general right of access to National Trust land, but the public has had access to walk over this land throughout the period of its ownership of the land. The only restrictions that the National Trust imposes are that such use should not be inconsistent with the needs of land management, the Acts under which the trust owns and manages the land and its Byelaws made under the 1907 Act. In its submission to the Inspector its position was explained as:

13. There was evidence from the Warden for Crowlink and his predecessor that since at least 1984 there have been notices at all the entrances to the land including the Car Park saying “Open to the public subject to the byelaws on the back of the notice” and there have been a succession of map boards in the car park. From at least 1973 to 1988, the map board stated “The whole area is maintained by the National Trust as an open space for people to enjoy subject to the needs of farming and conservation, and to preserve the property for future generations.” In 1988, this was changed to read “The National Trust owns land on either side of Birling Gap and maintains the area as extensive greenland farm with public access for people to enjoy subject to the needs of farming and conservation and to preserve for future generations”. That in turn was replaced in 1992 by a board which stated “700 acres (283 hectares) of downland owned by the national Trust where you may roam freely”.

14. The Order was made by the County Council on the ground that the evidence of user gave rise to the presumed dedication of the public right of way in accordance with the provisions of section 31(1) of the Highways Act 1980, which provides:

15. The period of 20 years is calculated retrospectively from the date when the right of the public to use the way is brought into question (subsection (2)). The Inspector considered that date to be 1997 but it is accepted on both sides that this was wrong and that the right of way was brought into question in July 1991 when the National Trust disputed the claim of Mr Comber.

16. The relevant legal considerations are helpfully set out in his skeleton argument by Mr. Hobson. Miss Robinson, on behalf of the Secretary of State, does not suggest that they do not accurately reflect the law and I draw on his clear summary gratefully.

17. It is clearly established that use as of right requires open use of the way, without force or permission, by those believing they had a public right to do so (see: Jones V Bates [1938] 2 All ER 237 (CA), per Slesser J. at 241 and Scott J. at 245.

18. The presumption of dedication under section 31 may be rebutted if there is "sufficient evidence that there was no intention during that period to dedicate it". In relation to this proviso Laws J held in Jaques v SSE [1995] JPL 1031 at p 1037:

19. The National Trust contends that it follows that the Inspector is required to reach a decision that there was “user as of right” and not user by permission of the National trust before the presumption of dedication in accordance with section 31(1) of the 1980 Act could operate.

20. Paragraph 32 of the Inspector’s decision letter reads:

21. There cannot be the slightest doubt that the Inspector was wrong in identifying the only issue as he did in the last sentence of that paragraph. He had totally overlooked the need to decide whether there was user as of right and not permissive user. Quite properly, the Secretary of State concedes this issue.

22. In paragraph 35 of his decision letter, the Inspector concluded:

23. It is contended on behalf of the National Trust, and accepted on behalf of the Secretary of State that the Inspector had thereby adopted the wrong approach. As Laws J. made clear in Jacques (supra) the landowner does not need actually to have brought home to the public that there was no right to use the way provided he does some act evidencing a lack of intention during the relevant period so as to negative the possibility that it is merely an ad hoc assertion. It is clear that the Inspector applied the wrong test in this regard.

24. The conclusions on Issues 1 and 3 would each be sufficient to cause the Order to be set aside. It is, however, desirable that the court should go on and consider Issue 2 next on which there is no concession because a resolution of that issue would clearly have a considerable impact on what should happen hereafter.

25. It is the contention on behalf of the National Trust that the Inspector, although he failed to consider the issue of whether there was user as of right by members of the public for the relevant period of 20 years, made sufficient findings of fact that the court can properly conclude that if he had directed his mind to this issue, he must have concluded that there was no user as of right. Reliance is placed on paragraphs 33 and 34 of the decision letter:

26. Miss Robinson has addressed a number of arguments against the National Trust’s proposition. First she submits that if the Inspector has not directed his mind to the right question, any findings that he has made when considering another question cannot satisfactorily be relied upon as demonstrating how he would have answered the right question. I cannot accept this general proposition. Where a decision maker asks the wrong question, it is quite likely that he will not make the necessary findings of fact to enable one to conclude what would have been his answer to the right question, and it is not, of course, for the court reviewing the decision to fill any such gaps. Equally, even where findings of fact are made, they may not be in sufficiently clear and precise terms to enable the answer to the right question to be determined. However, if there are clear and unambiguous findings of fact, it cannot be said that if the decision maker had addressed a different question, he would have made different findings of fact. That is to confuse the process of determining the facts with the application of those facts to the question that has to be answered. The sole question is, therefore, whether the Inspector did make sufficiently clear and unambiguous findings of fact to answer the question whether the use of the path by the public was “as of right”.

27. Miss Robinson contends that in any event the Inspector’s findings of fact are not clear and certainly do not demonstrate that any conclusion that user was of right would be absurd. She points to the passage in paragraph 32 of the decision letter that reads “In my view the "freedom to roam" policy adopted by the NT at Crowlink and clearly advertised on site is not in itself incompatible with permissive use only of the property.” She contends that this is confused and does not suggest that the Inspector accepted that the National Trust’ “freedom to roam” policy constituted a grant of permission to use the path.

28. I a passage difficult to follow but I understand the Inspector to say that the mere existence of the “freedom to roam” policy does not of itself mean that any use of the property can only be permissive. Having recognised that possibility he then goes on to make clear findings of fact in the next two paragraphs about the use of the path in question. It is clear from paragraph 33 that he makes those findings on the evidence that he has heard. Read together, and in the context of the whole of the decision letter, paragraphs 33 and particularly 34 make clear findings that save in respect of existing rights of way, the public have used any path other than an existing right of way not as of right but by invitation of the National Trust. Those findings of fact are clear and specific and provide an answer to the question that the Inspector failed to ask himself. Having made those findings of fact, the only answer he could then have gone on to give to the question was that there had not been a user as of right.

29. Miss Robinson suggested that having considered that the relevant period was the 20 years ending in 1997, it was not possible to say that he would have reached the same conclusion if he had considered the period of 20 years ending in 1991. For example, the last, and certainly the clearest, notice on the mapboard was erected within the period 1991 to 1997. However, the finding of fact in paragraph 33 specifically referred to the whole period since 1931 and thus covered the relevant period whether 1997 was right or 1991.

30. Miss Robinson then went on to consider the evidence. However, she does not suggest that there was not evidence upon which the findings of fact could be made and in the absence of such a submission it is not for the court to substitute its view of the facts. As has been stressed that is very much for the tribunal of fact (see e.g. Pill J. in O’Keefe v SSE [1996] JPL 42). Accordingly I make no finding of fact, I simply rule that upon the Inspector’s findings of fact, there was only the one answer to which he could come as I have already indicated.

31. For these reasons, I resolve issue 2 in favour of the National Trust. If the Inspector had considered the right question, he was bound on his own findings of fact not to confirm the Order since user “as of right” had not been established.

32. Issue 4 required the National Trust to establish that the evidence was so much one way that no reasonable Inspector could conclude that there was insufficient evidence of a lack of intention to dedicate. That clearly was a far higher hurdle for the Trust to scale. As indicated at the outset, Mr Hobson accepted that if I ruled in favour of the Trust on issue 2, it was unnecessary to go on to consider issue 4. In those circumstances I have reached no concluded view on this issue.

33. It follows as a result of my decision on each of the issues 1 to 3, that the Order must be quashed and I will grant relief accordingly.

34. MR. SHARLAND (MR. HOBSON): I appear on behalf of the National Trust. I would ask that we have our costs.

35. MISS ROBINSON: I cannot resist that.

36. MR. JUSTICE KAY: I make an order that the respondent pay the applicant's costs.