England and Wales High Court (Administrative Court) Decisions

1. MR J. HOBSON appeared as Counsel on behalf of the Secretary of State for the Environment.

2. MR G. LAURENCE QC AND MISS L. DAVIES appeared as Counsel on behalf of Mr Billson.

3. MR C. COCHRANE QC AND MR R. RUNDELL appeared on behalf of the Landowner.

4. Transcribed from the Palantype notes of

5. Smith Bernal Reporting Limited,

6. Monday, 16th February 1998

7. MR JUSTICE SULLIVAN: Ranmore Common is a wooded area to the north-west of Dorking. It is traversed by a number of public footpaths and bridleways that are shown on the Definitive Map and also by Ranmore Common Road. There are also a number of tracks across the common. The tracks connect at various points with defined footpaths and bridleways and with Ranmore Common Road. The tracks have been used extensively by members of the public, both on foot and on horseback.

8. In March 1990 the landowner put up barriers obstructing that use. The applicant considered that the tracks were public rights of way and so on 31st January 1993 he asked the County Council for an order under section 53 subsection (2) of the Wildlife and Countryside Act 1981 modifying the Definitive Map and statement to include eight tracks as bridleways, one of them being upgraded from a footpath on the Definitive Map to a bridleway.

9. On 1st December 1993 the County Council declined to make the modification order and so the applicant appealed to the Secretary of State under paragraph 4 of schedule 14 to the 1981 act.

10. On 13th March 1995 the Secretary of State directed the County Council to make a modification order. The County Council did so, making the Surrey County Council Bridleways Numbers 587, 588, 589, 590, 591, 592, 593 and 528 (Wotton) Definitive Map Modification Order 1995.

11. Making the order is only the first step in what was becoming a lengthy process. The 1981 act gives an opportunity for objections to be made to a modification order. The landowner, Mr White, objected, and so the Secretary of State held a public inquiry before deciding whether or not to confirm the order. The decision as to whether or not to confirm the order was transferred to the Inspector, Mr Mellor LLB, who held an inquiry in May 1996.

12. By a letter dated 16th August 1996 the Inspector decided not to confirm the order so that the tracks have not been added, or in one case upgraded to the list of bridleways that are shown on the Definitive Map.

13. It is a curiosity that whilst a decision to confirm an order may be challenged by way of an application to the High Court under paragraph 12 of schedule 15 of the 1981 act, no such right is given if, as happened in this case, the Secretary of State declines to confirm an order. Hence the applicant challenges the Inspector's decision by way of an application for judicial review, and the matter comes before me nearly 8 years after the barriers were first erected.

14. Since there was no evidence of any express dedication of the tracks as rights of way, the applicant relied on section 31 of the Highways Act 1980. So far as material that provides:

15. The other enactment upon which the Inspector's decision turned was section 193 of the Law of Property Act 1925, which provided:

16. Section 193 was relevant because the then owners, Cubitt Estates Limited, had applied section 193 to Ranmore Common by an expressly revocable deed dated 12th December 1929 ("the Deed"). Thereafter, part of the common was conveyed to the National Trust in 1959, which revoked the Deed insofar as it affected its land in 1962.

17. The part of the common on which the disputed tracks are located was purchased by Farmstiles Limited on 31st October 1984. Farmstiles were not told, and did not know, of the existence of the Deed at that time.

18. After the barriers had been erected, Mr White, a Director of Farmstiles, made a statutory declaration under section 31 subsection (6) of the 1980 act. That declaration acknowledged the existence of certain bridleways and footpaths across the common, but it excluded the disputed tracks from the list of rights of way.

19. On 20th June 1990 Farmstiles were told of the existence of the Deed by Mole Valley District Council. On learning of its existence, the company revoked the Deed on 15th October 1990. On 1st November 1991 the land was transferred to Mr White.

20. It is not in dispute that the putting up of the barriers in March 1990 brought the right of the public to use the tracks into question for the purposes of section 31 subsection (2) of the 1980 act, thus the 20-year period in question ran from 1970 to 1990.

21. When the County Council looked at the matter in 1993 it "felt that if there were no other considerations, the user evidence would be more than sufficient to substantiate a presumption of dedication under section 31 of the Highways Act 1980."

22. However, the Council considered "that public rights of way could not have been established under section 31 of the 1980 Act during the existence of the Deed. They maintain that any user after 1929 was not ´as of right' as the owner had given permission for the public to wander over the common. They also argue that at that time horseriding was a very common form of exercise for members of the rural population and this supports the contention that riding falls within those rights permitted under the 1925 Act."

23. The Secretary of State in 1995 took a different view. He said:

24. He then took the view in paragraph 12 that horseriding is included within the right to air and exercise.

25. In paragraph 13, he said:

26. He therefore allowed the appeal, but that was expressly without prejudice to any decision as to whether or not to confirm the order.

27. Mr Mellor in his decision letter in 1996 reached the following conclusions:

28. He listed the 10 authorities to which he had been referred, and continued:

29. We are not concerned with his consideration of

30. He continued in paragraph 31:

31. Having dealt with two other matters, his final conclusion was:

32. He therefore decided not to confirm the order.

33. Mr Lawrence QC, for the applicant challenges the Inspector's decision on four grounds: firstly, he says, whatever intention might have been evidenced by the Deed it could not be "sufficient" evidence of an intention not to dedicate, because to be sufficient for the purposes of section 31 subsection (1) the landowner's intention had to be manifested to the public . He relies in particular on the dictum of Denning LJ, as he then was, in Fairey v. Southampton County Council [1956] 2 QB 439 at page 458:

34. Although obiter, that dictum has been followed, or a similar approach adopted, in a number of cases . In

35. R. v. Secretary of State for the Environment, ex parte William Greaves Blake [1984] JPL, page 101, Walton J said:

36. In R. v. Secretary of State for the Environment, ex parte Cowell [1993] JPL 851, Staughton LJ said, at page 857:

37. The matter was put slightly differently in

38. Ward and Ward v. Durham County Council [1994] 70 P & CR 585 by the then Vice Chancellor at page 590:

39. Finally, in R. v. Secretary of State for the Environment v. Isle of Wight County Council, ex parte O'Keefe [1996] JPL page 42, Pill J, as he then was, said a propos the proviso to section 31 subsection (1) at page 59:

40. That decision was affirmed by the Court of Appeal on 29th July 1997, but the transcript of the Court of Appeal's decision does not take the matter any further.

41. Here, says Mr Laurence, the Inspector had concluded that no steps were taken to publicise the Deed and few if any members of the public resorting to the Common were likely to have known of it.

42. Mr Laurence says that the Inspector erred in drawing an analogy with the lack of publicity required for declarations under section 31 subsection (6) of the 1980 Act. Parliament chose to enact subsection (6) as a specific means of satisfying the proviso to subsection 31(1). The declaration has to particularise the highways that are acknowledged, be deposited with the highway authority and be renewed every 6 years. It is wholly different from a deed under section 193, which is not concerned with highways at all.

43. He points out that to be effective under section 31 subsection (3) as evidence of a contrary intention the notice must have been erected so as to be visible to persons using the way.

44. Equally, he says, if other evidence of a contrary intention is to be relied on then that intention must have been capable of being apprehended by the public using the way.

45. He accepts that there will on his approach be a fine line between acts which are a sufficient manifestation of a contrary intention and acts which are sufficient to bring the right of the public to use the way into question. Once the contrary intention is not merely capable of being apprehended but is actually apprehended by the public they would no longer be using the way believing their use to be of right and/or their right would have been called into question.

46. Mr Laurence's second point is that the proviso to section 31 subsection (1) applies only where the evidence shows that the landowner did not intend to dedicate throughout the whole of the 20-year period . He says that the words "during that period" refer back to the "full period of 20 years" and Parliament did not choose to say "during that period or any part thereof" . He points to the fact that to be effective for the purposes of subsection (3) a notice has to be maintained, and that declarations made under subsection (6) have to be renewed every 6 years. Here the landowner had no knowledge of the Deed between 1984 and 1990. Although the Inspector concluded that this did not negate the effect of the Deed there was no evidence which showed independently of the Deed that the landowner had no intention to dedicate the tracks during that period.

47. Thirdly, he says, in any event, the Deed is not evidence of an intention on the part of the landowner not to dedicate. Whilst it gave members of the public rights of access to the Common for air and exercise on a revocable basis, it said nothing about whether the public could pass and repass along physically defined tracks on the Common to get, for example, from one edge of the common to another. Such a use of the tracks to pass and repass going from A to B, rather than simply rambling over the Common for air and exercise would be a public use of the tracks "as of right".

48. The Inspector had noted that the question of user as of right was not contested. Thus, the Inspector was to be read as concluding as a fact that there had been sufficient use of the tracks by the public outside the terms of the permission conferred by section 193 to satisfy the requirements of user in section 31 subsection (1).

49. He submitted it was not open to the respondents to reopen the question of whether user had been as of right. Section 193 enabled landowners to confer a new right on the public, a right of access for air and exercise to common land. It could not have been Parliament's intention that conferring this new right would restrict the public's ability to acquire a right of way by evidence of long user at Common Law.

50. I will return to Mr Laurence's submissions on the "as of right" issue when I have set out the respondent's submissions in respect of that matter.

51. Mr Laurence's fourth point was that the rights of access granted to members of the public by section 193 do not include a right of access on horseback as well as on foot.

52. In Mienes v. Stone 30th April 1985, unreported, Farquarson J, as he then was, and Tudor Price J expressed opposing views on this question, both expressions of view being obiter. Mr Laurence invites me to prefer the view of Farquarson J. Had Parliament intended to confer the right on members of the public on horseback it would have said so. Since it did not, the Deed is wholly silent as to the dedication of bridleways and so the order should have been confirmed in respect of equestrian rights.

53. Mr Hobson for the Secretary of State submits that the manner in which the Inspector concluded the tracks were used (paragraph 22 of his decision letter) was consistent with the public simply exercising rights of access for air and exercise within section 193 subsection (1) of the 1925 Act.

54. The Inspector accepted that the public used the tracks in the belief that they were doing so as of right (paragraph 23) . When the Inspector said in paragraph 25 that user as of right was not contested he cross-referred back to paragraph 23. Thus, on a proper construction of the decision letter, the Inspector was not concluding as a fact that user was as of right , merely that there was undisputed user for the purposes he described and that the public believed that such user was as of right.

55. The Inspector went on to consider what was the effect of the Deed on that undisputed evidence of user.

56. Mr Hobson submitted that before one gets to the proviso in section 31(1) one has to consider whether the way has actually been enjoyed by the public as of right for the requisite period. To establish that it was necessary for the public to demonstrate that they believed they were entitled to use the way as of right, but that belief, although necessary, was not sufficient. It was also necessary to show that the way had actually been enjoyed nec vi, nec clam,

57. None of the cases were concerned with force or secrecy. Dealing with user by permission, in the absence of any evidence from the landowner to the effect that the use had been permissive the public's belief that they were using the way as of right would usually suffice. In those circumstances they were not required to prove a lack of permission . But if the landowner gave evidence that the use was with permission and that evidence was not gainsaid, the use would not be as of right, notwithstanding the belief of the public that it was.

58. Mr Cochrane QC for the landowner made similar submissions, and he and Mr Hobson referred to dicta of Hilbery J in Merstham Manor Limited v. Coulsden and Purley Urban District Council [1936] 2 All ER 422. Those dicta were cited by the Court of Appeal in Jones v. Bates [1938]

59. Slesser LJ at page 241 said:

60. Scott LJ at page 245 said:

61. Finally, in Cowell, Balcombe LJ had said at page

62. In that case both Rose LJ and Staughton LJ had observed that arguments that enjoyment by the public had been as of right and that under the proviso there was no intention to dedicate might well overlap, and the same evidence might well be relevant under both heads.

63. Turning to the proviso, Mr Hobson says that it was originally inserted in section 1 of the Rights of Way Act 1932 as a benevolent provision for the protection of the landowner. The requirement that there should be "sufficient evidence" of no intention to dedicate was to prevent the landowner from retrospectively asserting a lack of intention when he had said and done nothing during the 20-year period. There was no requirement that his intention must be made manifest to the public as contended by Mr Laurence. He accepts that it would not be a sufficient intention if the intention remains locked in the landowner's own mind, see Denning LJ in Fairey, or if it remains in pectore, see Staughton LJ in Cowell. But, he says, Denning LJ erred in equating the evidence necessary to satisfy the proviso with the evidence necessary to support the proposition that the right of the public to use the way had been brought into question.

64. In the case of the latter he accepts that the landowner's challenge must be sufficiently open and notorious to bring it home to the public that their right to use the way is being challenged. The evidence of the landowner's conduct may be sufficient to serve both purposes, to bring the right into question and to show that he had no intention to dedicate, but it need not be. There may be sufficient evidence of lack of intention to dedicate even though the public do not realise that their right has been brought into question, otherwise there would be no scope for the operation of the proviso.

65. In Jaques v. Secretary of State for the Environment [1995] JPL 1031, Laws J had discussed the relationship between the first and second parts of

66. Mr Hobson said that the cases cited by Mr Laurence were all examples of the Court accepting that the landlord could not simply keep his intention to himself and then retrospectively assert that there had been a lack of intention all along. Thus in Blake Walton J said that it was not sufficient for the landowner merely to come along and beat his breast and say that all is lost.

67. In Cowell Staughton LJ had contrasted overt acts with an intention that was kept to oneself.

68. In O'Keefe Pill J was rejecting as sufficient evidence of no intention to dedicate a statutory declaration which had been made after the way had been brought into question where there had been no overt acts during the relevant period.

69. In Ward the then Vice Chancellor did not go so far, contenting himself with saying that the court should be slow to find that a landowner's unexpressed intention not to dedicate was sufficient for the purposes of section 31.

70. What is sufficient evidence is a question of fact. The execution of the Deed and depositing that deed with the relevant Government department was a sufficiently overt act for the purposes of the proviso, submits

71. Mr Hobson. He points out that section 31, subsection (6) does not require the deposit of the declaration with the local authority to be publicised locally or at all.

72. So far as Mr Laurence's second issue is concerned, he says that the Deed continued to have effect until it was revoked in 1990 so that the public's use of the Common continued to be with permission until then. But, in any event, he says, that the words "evidence that there was no intention during that period to dedicate" in section 31 subsection (1) should not be read as though the proviso said "evidence that there was no intention throughout that period to dedicate".

73. He contrasts the landowner's position with that of the public who have to show that they have enjoyed the right of way, the way as of right and without interruption "for a full period of 20 years".

74. Thus, subject to questions of de minimis, if the evidence shows that, for example because of changes in land ownership, there was no intention to dedicate for some period within the 20 years, the way is not deemed to have been dedicated under section 31 subsection (1).

75. In this context Mr Cochrane pointed to certain dicta of Walton J in Blake, in which he accepted that for the first 3 years of the 20-year period in that case a notice sufficient to indicate no intention to dedicate had been in position. Walton J said that that was fatal to the applicant's case that there was a right of way. Walton J's approach had been endorsed in Cowell by Balcombe LJ at page 858:

76. In response to Mr Laurence's third point, Mr Hobson and Mr Cochrane said that by executing the Deed under section 193 subsection (2) the landowner conferred upon members of the public rights of access to the Common for air and exercise. Such rights were enjoyed over many other commons by virtue of section 193 subsection (1). The rights extend over the whole of the Common, including any tracks across it, thus the public have an express licence to use the tracks for that purpose. That permission serves a dual function, of negating any user as of right, and of satisfying the proviso, particularly since the licence in this case is expressly revocable.

77. The respondents argue that on the facts found by the Inspector that was how the public were using the tracks: for air and exercise. The one possible exception was the use of the tracks as "routes to the church", but there was no indication in the decision letter of the extent of that use, and here it was being claimed that the tracks were bridleways and there was no evidence of significant numbers of the public riding to church.

78. Turning to the fourth ground on which Mr Laurence challenged the decision, the respondents contended that the Deed did not limit the public's right of access for air and exercise to a right of access on foot. It extended to access on horseback. In 1925 horseriding was a popular way of taking air and exercise and if Parliament had intended to exclude horseriders from commons generally it would have said so expressly. If horseriding caused problems on any particular common the Minister could impose limitations and conditions under section 193 subsection (1) paragraph (b). This had been done in the case of other commons, see paragraph 28 of the decision letter.

79. Finally, the respondents pointed to paragraph (c) of section 193 subsection (1), which specifically provided that the rights of access should not include a right to draw or drive carriages, carts, et cetera, upon the land. If the right of access is limited to pedestrians only this provision would have been otiose. In 1925 horses would have been perhaps the principal means of drawing carriages, carts, and so forth, onto commons.

80. In response to the respondent's submissions that the licence conferred upon the public by the Deed was sufficient, not merely for the purposes of the proviso to section 31 subsection (1), but also for the purpose of defeating any claim that the public's enjoyment of the tracks was ´as of right', Mr Laurence argued that it was sufficient to establish that a way was actually enjoyed as of right if the evidence established that the public were using the way believing themselves to be exercising a public right. That is what the Inspector had concluded in paragraph 23 of his decision letter. He submitted that the law relating to the public rights of way had diverged from that relating to private rights of way. Whilst in the latter case it was necessary to establish as a fact that the use for the requisite period had been without the landowner's permission and the belief that of the user was irrelevant, in the former case the belief of the user that he was exercising a public right was all important, and if that belief was established it did not matter whether there was evidence which showed that the user was in fact with permission.

81. He relied on the dicta of Farwell J in Jones v. Bates:

82. He also referred me to the dicta of Pill J in

83. The Court of Appeal dismissed an appeal against that decision. Mummery LJ said at page 22 of the transcript: "The relevant issue was sufficiently considered by reference to whether the public use without interruption for 20 years was in the honest belief in a legal right to use it as a public footpath. There was ample material to support the view that the user was peaceable, open, not by permission and as of right."

84. Mr Laurence accepts that Mummery LJ's use of the word "and" was equally consistent with it being necessary to demonstrate both an honest belief in a legal right to use the way and evidence that the user was not in fact by permission.

85. He adds that at the inquiry before Mr Mellor, because it was accepted that the user was "as of right" the applicant did not call the witnesses who would have spoken to their public way evidence forms. I have been provided with a specimen form. It is very detailed and includes, for example, a question: "For what purpose were you using the way?"

86. In the light of those submissions I set out my own conclusions as follows: the first question to be answered is what did the Deed permit? Section 193 subsection 1 conferred rights of access for air and exercise on the public in respect of very many commons. By

87. The rights of access for air and exercise extend over the whole of the Commons in question, including any tracks across them . Walking along such tracks for the purpose of taking air and exercise is permitted by

88. Since the dicta in Mienes v. Stone are obiter and conflict with each other I am free to conclude that the rights of access for air and exercise conferred by

89. Not merely do paragraphs (a) to (d) not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all. In 1925 many, if not most carriages, carts and so forth, would still have been horse drawn.

90. If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.

91. The next question is: how were the public actually using Ranmore Common?

92. I bear in mind that there was no cross-examination, and that because of the extent of agreement the applicant called only one out of many potential witnesses who were prepared to speak to their public way evidence forms, but the findings of the Inspector in paragraph 22 of the decision letter are clear: the public were using the tracks "for leisure walking, sometimes with dogs, recreation, exercise, training (running), horseriding, organised rambles and as routes to visit Ranmore Church. On the face of it, with the sole possible exception of the use of the tracks as routes to visit the church, that is precisely the kind of use of the tracks that falls within section 193 subsection (1) and which is therefore permitted by virtue of the Deed.

93. Turning to the use of the tracks as routes to visit the church, I would accept the proposition that if a track across a common is not used for the purpose of taking air and exercise but is being used by the public for some other purpose: as a route between points A and B, for example, from the village across a common to a nearby school, church, or railway station, then in principle such usage of the track is capable of establishing a right of way over it under section 31 of the 1980 Act. It may well be difficult to distinguish between user of the track for air and exercise and use for other purposes. For example, the walk across the common to the church may well be the longer way round, but more attractive, and so the public may choose to use it for the dual purpose of enjoying air and exercise on the common and getting to church. But if that distinction can be drawn on the evidence a right of way over a track may in principle be established even though it runs across a common. But here there is no indication in the decision letter as to how many of the 1300 rights of way forms refer to the use of the tracks as routes to visit the church and no indication as to which of the 8 tracks were used for this purpose. We do not know whether the visits were for the purposes of worship or because the church was an attractive place to visit whilst one was taking air and exercise. Moreover, it was being claimed that the tracks were bridleways and there is no suggestion that significant numbers of the public rode to church on horseback. I do not therefore consider that this reference to use as routes to the church takes the use of the tracks across Ranmore Common as described by the Inspector outside the ambit of taking "air and exercise".

94. Thirdly, what did the Inspector mean when he said in paragraph 25 of his decision letter that the question of "user as of right" was not contested? In the light of his description in paragraph 22 of how the tracks were actually used I am unable to accept Mr Laurence's submission that the Inspector was thereby finding as a fact that the public were using the tracks in ways other than those permitted by the Deed.

95. One has to read the decision letter as a whole and in a commonsense way. Although it was dealing with legal issues it should not be construed as though it was an enactment. The Inspector describes the use made of the tracks in paragraph 22 and there is no suggestion elsewhere in the decision letter of any use that falls outside the ambit of taking air and exercise (apart that is from the use of routes to visit the church which I have dealt with above).

96. In my view, all the Inspector was saying in paragraphs 22 to 25 of the decision letter was that it was not contested that:

97. The Inspector then went on in paragraphs 31 to 33 to determine the question, as he put it, "whether the law would recognise that use conferred by what I have earlier referred to as a revocable statutory licence in the same terms".

98. Fourthly, was the belief of the public that their use of the tracks was ´as of right' sufficient to establish enjoyment as of right for the purposes of dedication under section 31 subsection (1) of the 1980 act?

99. I do not accept that the law relating to the creation of private and public rights of way has diverged as contended by Mr Laurence.

100. In both cases it is necessary to establish that the use of the way was in fact enjoyed without force, secrecy or permission.

101. Whilst the belief of the user may well be irrelevant for the purposes of the acquisition of a private right of way, indeed, he may well be seeking quite deliberately to establish a way across his neighbour's land; in order to establish the existence of a public right of way it is necessary for the public to establish a genuine belief that their enjoyment of the way was "as of right".

102. In practice it will normally be sufficient for those claiming the existence of a public right of way to establish that they enjoyed it for the requisite period in the belief that they were doing so as of right. They do not have to prove in every case that they were using the way without permission if that issue is not raised , but if the landowner establishes that their use was in fact with permission, that will defeat the claim that their use was as of right.

103. I believe that my conclusion accords with the dicta of Slesser LJ and Scott LJ at pages 241 and 245 in Jones v. Bates and with the dicta of Balcombe LJ in Cowell at page 858, to which the respondents have referred.

104. I consider that Mr Laurence has taken the observations of Farwell J on page 251 of Jones v. Bates somewhat out of context. A little further on at letter H, Farwell J added:

105. In O'Keefe, Pill J was not dealing with an express permission to use the way. It was being argued that toleration should be distinguished from acquiescence. In deciding that use which was tolerated could be "as of right", Pill J was, in effect, rejecting that claimed distinction.

106. It follows that, on the admittedly limited information contained in the decision letter, the users of the tracks on Ranmore Common were doing what they were permitted to do under section 193 by virtue of the Deed, and no more. Their enjoyment of the ways was by licence and not as of right, even though they genuinely believed that it was as of right.

107. Whilst that conclusion will be disappointing to the applicant and to the many other users of the tracks, I do not consider that it leads to any absurdity or anomaly. Rather the reverse, there are a large number of commons where section 193 applies or has been applied. There must be very many walkers and riders who enjoy using the tracks across them and who do so in the firm belief that their user is as of right. It would be strange if using such tracks for "leisure walking, recreation, exercise, running or horseriding", precisely the kind of activities permitted by section 193, should somehow establish rights of way across those commons.

108. Therefore, consideration of the proviso does not arise , but as Staughton LJ in Cowell remarked, it may well overlap with the requirement that the user be as of right.

109. That need not necessarily be so. Mr Cochrane gave examples of cases where there might be no permission to use the tracks in question but where the owner could nevertheless establish that he had no intention to dedicate. They included the landowner who had a long-term programme of mineral extraction and restoration over a large area. His intention to excavate the tracks in due course might be well established by contemporaneous plans and policy statements, yet he might be content to acquiesce in the public's user of the tracks in the meantime. In such a case there would be no permission to use the tracks, but the landowner would nevertheless be able to establish that he had no intention to dedicate.

110. In the present case, the Deed is expressly revocable. It is clear evidence that the landowner intended that the public could be stopped from using the common and from walking and riding along the tracks thereon at any time that he chose.

111. I would accept Mr Laurence's argument that the Deed is silent as to what the landowner's intention might be if the public were to use the tracks across the common not for the purpose of taking air and exercise in accordance with the Deed, but for some other purpose, such as travelling along a particular track to a particular destination for the purpose of getting to that destination, but as I have indicated, that question does not arise on the facts of this case as found by the Inspector.

112. Is the Deed "sufficient evidence" of the landowner's intention, given that it was not publicised or made manifest to the users of the way?

113. The authorities cited by Mr Laurence, Blake, Cowell, Ward and O'Keefe, all of which I have referred to above, do no more, in my view, than establish the proposition that evidence of the landowner's intention must be overt and contemporaneous. Thus, it will not avail the landowner to assert after the event that he had no intention to dedicate, but he is not required to publicise his intention to users of the way.

114. The only dicta to the contrary are those of Denning LJ in Fairey. Mr Laurence accepts that they were obiter.

115. Insofar as they equate the evidence necessary to satisfy the proviso with the evidence necessary to bring home to the public that their right to use the way is being called into question, they go too far, in my view.

116. Implicit in Mr Laurence's submissions is the existence of a very fine line between acts that are sufficiently "open and notorious" to be capable of bringing the landowner's intention not to dedicate to the attention of the public, but which are not so open and notorious that they succeed in bringing the user of the way into question. His approach seems to me to leave little if any scope for the operation of the proviso.

117. The landowner must not keep his intention locked in his own mind, but whether his acts are fairly described as overt or covert must be a question of fact for the Inspector.

118. One can imagine far-fetched hypothetical examples: writing a letter to oneself and placing it in one's desk drawer, but the Inspector was entitled to conclude in this case that the formal execution of a deed addressed to "all men" and depositing that deed with the appropriate Government department, was a sufficiently overt act.

119. I accept that the analogy with section 31 subsection (6) is not precise, because Parliament created a specific means of negativing intention, and the declaration has to be deposited with a highway authority and renewed every 6 years, but it is fair to observe that Parliament did not feel that it was necessary to bring the existence of such a declaration to the attention of the public using the way.

120. It is true that in order to be effective under section 31 subsection (3) the notice has to be visible to persons using the way , but erecting such a notice is merely one way of establishing a contrary intention, and is deemed to be sufficient in the absence of proof of a contrary intention.

121. One would expect that the evidential threshold required to bring the landowner within such a deeming provision would be relatively high.

122. Finally, does it matter that Farmstiles Limited did not know of the existence of the Deed between October 1984 and June 1990? Since the permission conferred by the Deed continued regardless of the landowner's state of knowledge it could make no difference as to whether the enjoyment of the public was during that period "as of right".

123. I do not accept Mr Laurence's submission that for the proviso to operate at all there must be evidence that there was no intention to dedicate for the whole of the 20-year period . Whilst "that period" is a reference back to the 20-year period, "during that period" is not to be equated with "throughout that period".

124. Thus if there is sufficient evidence that for say 5 or 10 years during the 20-year period a landowner who objected to riders or walkers across his land had no intention to dedicate, that would defeat a claim of dedication under section 31 subsection (1).

125. I consider that such an approach is consistent with that adopted by Balcombe LJ in Cowell in respect of the effect of a section 31 subsection (3) notice which is not maintained throughout the whole of the relevant period. It is effective for the period during which it is maintained.

126. If the evidence shows that there was no intention to dedicate for only a very short period during the 20 years questions of de minimis may well arise. They would have to be resolved on the facts by the Inspector hearing the evidence.

127. I therefore conclude that the Inspector was right not to confirm the order and that the applicant's challenge to his decision must fail.

128. I would like to express my gratitude to all counsel for the very full and helpful submissions that they have put to me.

129. MR HOBSON: My Lord, I appear on behalf of the Secretary of State. We would seek our costs, my Lord.

130. MR JUSTICE SULLIVAN: Do you resist that,

131. Mr Laurence, the Secretary of State's costs?

132. MR LAURENCE: My Lord, yes, I do resist it. Your Lordship may be aware from his personal experience that there is a developing trend, and perhaps judicial review is as good an example of the trend as any, to exercise a discretion whether to order an unsuccessful applicant to pay the Secretary of State's costs rather more cautiously than before and, my Lord, the reason for the trend, in my respectful submission, is this: that frequently cases of this sort involve a distinct public element. The applicant is plainly interested in the outcome of the proceedings for himself, but it is equally plain that in seeking judicial review he is in effect seeking a legal result which will redound to the benefit of many members of the public, other than himself.

133. This was perhaps as good an example of such a case, my Lord, as could be imagined, and I can tell your Lordship from my own experience -- and I do not know that it would assist you to look at the case -- I can tell your Lordship from my own experience that Potts J in a case called Mayhew took the view that an unsuccessful member of the public in proceedings where Mrs Mayhew was seeking clarification as to the extent of the public's rights over the land in question. I would need to remind myself of the precise issue, my Lord, but it was analogous in the sense that she was not speaking merely for herself in dealing with proceedings.

134. Potts J took the view that there was an appropriate case not to order that, although Mrs Mayhew was unsuccessful, she should pay the Secretary of State's cost.

135. My Lord, that is merely illustrative of the developing trend which I invite your Lordship to note, and which I invite you on the facts of this particular case to say ought to be given a further small impetus by your Lordship refusing the Secretary of State's application to have Mr Billson pay his costs.

136. Although your Lordship has expressed the view in the course of his judgment that this matter will be disappointing for the applicant, of course it will, but that it has implications for many commons, all over the country. My Lord, we might just as well have expressed the view that the withdrawal by landowners of the permission in effect accorded by applying section 193 to the particular common owned by them is itself a very serious matter from the point of view of members of the public who may for a long time have enjoyed the facility of what they had come to regard and did regard as a right, namely, the right to pass and repass on foot and on horseback across the particular tracks.

137. My Lord, under those circumstances, your Lordship may feel that the point which Mr Billson here sought to establish, which is that in circumstances like the present, although the general right of having access to the common is withdrawn by the revocation of the Deed applying section 193 to the land, he was seeking, we would say, respectfully my Lord, quite understandably and rightly, to establish the very important point that the public did not thereby lose the right to the enjoyment of tracks which they had been in the habit of passing and repassing over in the exercise of believing themselves to have a public right.

138. My Lord, in addition, it is for consideration -- and your Lordship may think that the legal issue itself which has been last established by your Lordship's decision in this case -- was not one which as it were changed between the schedule 14 appeal and the determination by the Secretary of State of the appeal under schedule 15, and I will, if I may, just read to your Lordship a letter from the Government Office for the South East, and I will give my learned friend opportunity to look at it in a moment before he responds.

139. My Lord, he refers, does the writer of the letter, who is I think the same Mr Palmer under whose name the schedule 14 decision is given, he writes to Mr Billson and says this:

140. And then this, my Lord:

141. My Lord, I wonder if I can just ask Mr Billson if he has got a copy of that letter that I can just put before your Lordship while my learned friend is looking at it. I thought it right to read it in full so that your Lordship that the context in which the final paragraph appears.

142. My Lord, this was indeed a case where the same narrow questions of law which fell to be resolved at the schedule 14 appeal stage fell again to be resolved at the stage of the schedule 15 inquiry. Mr Palmer on behalf of the Secretary of State took a different view on the schedule 14 appeal of that legal question of law than did the Secretary of State's Inspector at the schedule 15 inquiry.

143. If ever there was a case in which there appears, on the face of it, to have been different views expressed even within the -- different views within the Secretary of State's jurisdiction if I can put it that way -- my Lord, this is such a case and that links, I would respectfully invite your Lordship to say, with a consideration that there was a public point of very considerable importance at issue here, a point that Mr Billson is not to be taken as an ordinary litigant seeking to assert an ordinary litigant's rights in circumstances where the usual consequences would follow if that litigant was unsuccessful.

144. My Lord, I have not brought the Mayhew case with me because I have taken the view that these cases do in the end depend on the discretion which the individual judge thinks it right to exercise in relation to costs on the facts of the particular case, but I would invite your Lordship just to give me a moment if necessary in order to show you that case if you think, having heard my account of what occurred there, you believe you would be assisted to see it , but subject to that, my Lord, my respectful suggestion is that this would be a proper case in which to order that each side should pay their own costs.

145. MR JUSTICE SULLIVAN: I suspect that Mayhew may well turn, as so many of these cost decisions do, on the particular facts of that case, so unless you positively press me to take it, I will not ask you for it.

146. MR LAURENCE: I hope your Lordship could just accept that it was also a case under the Act, the Wildlife and Countryside Act, it went really, from recollection, to the kind of objection which was capable of giving rise to a decision in favour of the public following the making of a modification order, and, my Lord, to that extent, it was in the same area, although I think Mrs Mayhew's point on behalf of the public was -- and, again, I say this from recollection and I would need to check it if it were thought material -- her point was that an existing footpath ought not to be upgraded to a higher status because she was concerned on behalf of the walking public that bridle rights should not be established over the way.

147. My Lord, those, however, are my submissions in support of saying that each side should be ordered to pay its own costs.

148. MR JUSTICE SULLIVAN: Do you want to reply to that?

149. MR HOBSON: Very briefly, my Lord. We would submit that the very clear principle is costs should follow the event. It is quite clear you do have a discretion, but we would say that this is not an appropriate case to exercise it. If you were to exercise it it would impose a very heavy burden on Government departments, because most cases of judicial review could be said to be matters of great public importance where issues need to be resolved.

150. My learned friend submitted that Mr Billson was no ordinary litigant. We would submit that to avoid problems of costs this matter could have been brought by a representative interest group which would dissipate the burden. I have nothing further to add, my Lord.

151. MR JUSTICE SULLIVAN: Thank you very much. Further applications? Yes, Mr Cochrane?

152. MR COCHRANE: Your Lordship will have noted I am sure at tab 16 the case of Bolton.

153. MR JUSTICE SULLIVAN: I noticed it was on the index but it was the one case that was not actually in my file. I did not, however, think it necessary to draw it to anyone's attention.

154. MR COCHRANE: My Lord I have not got a another copy because I had assumed it was in your Lordship's bundle. Obviously it has not been referred to yet because it was totally irrelevant.

155. My Lord, I am sure it is unnecessary for me to remind your Lordship of what was held so clearly and stated so clearly in the speech of Lord Lloyd of Berwick in that case about a second set of costs. It is true of course in that case we were concerned with the planning appeal, the Secretary of State's costs at first instance and the developer's costs, but I would submit that the general principles set out on page 1178 apply in any public law case such as this where there is a claim by another interested party for costs. The principles set out on the second half of page 1178, just below halfway down: "What then is the proper approach?"

156. My learned friend wants me to start at the top of the first paragraph, the top of that page:

157. So that is the starting point with the general principle. But then later in that page there are exceptions, half way down the page:

158. I do not rely on (1). It is (2) and (3) so far as I am concerned:

159. Now, my Lord, I start by emphasising that your Lordship found against this applicant at a stage before you reached the proviso. It was towards the end of your Lordship's judgment, although you go on to consider the proviso you said the proviso does not arise, because your Lordship found that by reason of the Deed this user was not in fact as of right; it was precario.

160. Now, my Lord, our reading of the Inspector's decision was that it certainly was not clear that that was his view, and we considered that he meant exactly what he said in paragraph 25. We took him at face value that the question of user as of right is not contested. We thought he had made the very leap -- and we still think he probably had -- the very leap which my learned friend says is correct, namely, from proof or acceptance of a genuine belief that the user was as of right; (2) -- i.e. skipping out nec clam and precario -- the conclusion that the question of user as of right is not contested, and we considered that that as a matter of law was wrong and your Lordship has agreed as a matter of law if that is what he was saying he was wrong.

161. My Lord, it is important to note, in my submission, that the Secretary of State's skeleton argument does not take that point at all, and my learned friend expressed himself somewhat surprised during the course of argument that the Secretary of State was now taking that line.

162. Your Lordship will see in the Secretary of State's skeleton argument that he identifies four issues. In the Secretary of State's skeleton argument, starting on page -- I am skipping the setting out of the facts and the background -- starting out on page 5 he identifies issues 1, 2, 3 and 4, and not one of them raised the point that we considered crucial: can this use be said to have been as of right by virtue of the Deed? Issue 1: can the Deed be evidence of lack of intention to dedicate, to satisfy the proviso? Issue 2: does it confer equestrian rights? That is the Deed. Issue 3, on the next page: does the execution of the Deed in circumstances which the public were unaware of the existence constitute evidence of lack of intention? Again, it was on the proviso, issue 3, and finally, on the last page, issue 4: did the Inspector err in holding that the proviso was satisfied although he found for 6 years the landowner was unaware of the existence of the Deed?

163. MR JUSTICE SULLIVAN: Mr Hobson left himself a toe hole, the sentence in issue 1, such permission may indicate user as of right and he, having left himself a toe hole he then --

164. MR COCHRANE: He has got his whole body in there; he managed to force the door open and entered. The point I make, my Lord is this: we could not have known, and indeed I think largely speaking we were right to suspect that the Secretary of State was not proposing to argue that point, which was in fact the point on which your Lordship -- I mean, the point on the proviso was strictly speaking obiter, because your Lordship had already determined that the user was not as of right by virtue of the Deed. That argument does appear in our skeleton, and I suspect that it was when the Secretary of State read our skeleton that he realised that that argument might possibly be a hare that would run or course, and it then did figure in his argument, but in my submission there was no way that we could know that the Secretary of State was going to, so to speak, argue that point which we considered to be the fundamental point, and we were right on that.

165. So, my Lord, for that reason I would submit that there, first of all, clearly, we had a strong interest being the landowners, but that we could not sit back and rely on the Secretary of State to argue that point, since it was not apparent that he was alive to it.

166. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Laurence?

167. MR LAURENCE: My Lord, what I want to say about that is this: that the application of the Bolton rule, difficult as it is, is not to be rendered more difficult by the accident of what it is that in the event the Secretary of State chooses or does not choose to argue.

168. The question is whether the second party, or the third party, can show that there was likely to be a separate issue on which he was to be entitled to be heard; that is to say -- and when Lord Lloyd uses the words: "an issue not covered by counsel for the Secretary of State, or unless he has an interest which requires separate representation". What must be meant there is that there is something separate from what the Secretary of State in defending the decision letter can be expected to say in so defending it, and an applicant in the position of Mr Billson is not to be liable, I respectfully submit, to find himself paying a second set of costs because in the event it is found that the Secretary of State has chosen to confine himself, in defending the decision letter, to particular arguments when he could and should, in the judgment of -- as it turns out in the judgment of the Court -- have taken further points. The question is rather whether those further points were properly open to the Secretary of State, and if they were, and could have been taken by him, they are points which nevertheless entitle the third party to come along and say he wanted to add belt and braces to the argument of the Secretary of State, and it is -- it may not be without significance that, according to my note, Mr Cochrane stood up at the end of my learned friend Mr Hobson's argument to say that what he was here to do was to add braces to the belt.

169. My Lord, this is not a case in which, in my respectful submission, the applicant should pay two sets of costs. My Lord, if it were held to be a case in which two sets of costs have got to be paid by this applicant, one might as well get rid, I respectfully say, of the rule that the losing party will not normally be required to pay more than one set of costs because the qualifying phrase, "unless the recovery of further costs is justified in the circumstances of the particular case" will have been interpreted in such a way as to permit that requirement to be said to have been satisfied in almost every case, and, my Lord, in truth what has happened is that Mr Cochrane has come here and been glad to add his arguments to those of the Secretary of State in seeking to uphold the decision of the Inspector, but that in reality the points which were open to Mr Hobson to argue and which he did in the event argue on behalf of the Secretary of State, were points which were identical to those capable of being taken by Mr Cochrane, and in those circumstances I invite your Lordship to say that it would be inappropriate to visit a second set of costs on Mr Billson.

170. MR COCHRANE: My Lord, I did use the phrase "belt and braces", but I added that the reason that we were here was that we took a different view from the Secretary of State as to what the Inspector had said in his decision letter and as to what the law was in respect of user as of right.

171. MR JUSTICE SULLIVAN: So far as costs are concerned, Mr Laurence urges upon me that the applicant should not be taken as an ordinary litigant; he is seeking to establish a public right, and he refers me to a case where Potts J accepted that in a case under the 1981 act it might be appropriate for the Secretary of State not to have his costs.

172. I can understand that there may be cases where in effect there is almost what amounts to almost a joint attempt to clarify the law for the benefit of both the Government department and an applicant, but here I can see no reason not to apply the normal rule.

173. The problem seems to relate to this particular common, although I accept of course that my decision may well have implications for other commons.

174. Mr Laurence referred me to a letter from the Government Office for the South East of 18th September 1996 dealing with the fact that the Secretary of State had reached apparently conflicting decisions, firstly, in deciding to order the County Council to make a modification order and then, secondly, through his Inspector in deciding not to confirm the order. But the first letter made it perfectly clear that the decision to require the County Council to make the modification order was without prejudice to the Secretary of State's ultimate decision, and that of course can only be made after he has heard the objections to the modification order and, as the letter of 18th September 1996 points out, that may well result in the Inspector having new evidence or different arguments presented to him.

175. So far as Mr Cochrane's application for costs is concerned, I have been referred to the case of Bolton [1995] 1 WLR 1196, and to the speech of Lord Lloyd of Berwick at page 1178.

176. The relevant proposition is the second one:

177. The reference to "the developer" is of course explained by the fact that the Bolton case was a planning case.

178. It does seem to me that it was not clear what the Secretary of State's attitude would be to the "as of right" issue . It was certainly open to the Secretary of State to argue that point, as Mr Laurence points out, but it was not clear on the papers whether he was proposing to do so.

179. It seems to me, therefore, that there was in that sense a separate issue on which the landowner was entitled to be heard.

180. I found Mr Cochrane's submissions most helpful, that goes without saying, but to a degree he was, as he fairly put it, adding braces to the Secretary of State's belt. There was a degree of overlap.

181. In my view, therefore, the fair order is that the second respondent should be paid half of its costs by the applicant, but that the first respondent should get its costs in full.

182. MR LAURENCE: Your Lordship, one other matter arises, and that is that your Lordship will be aware that under section 18 (1) A of the Supreme Court Act 1981 provision is made for the rules of the Supreme Court to prescribe classes of case in which an appeal shall lie with the Court of Appeal only with the leave of the Court, and, my Lord, applications for judicial review are included in such cases by virtue of Order 59 rule (1) B.

183. MR JUSTICE SULLIVAN: It is an oddity that if it was an appeal against a decision confirming an order I think you would not need leave, would you; you could go straight off to the Court of Appeal without leave, but since you are appealing a judge's decision about a refusal to confirm one you are going by judicial review and so you do need leave. It is another quirk, I suppose.

184. MR LAURENCE: My Lord, it is a quirk and --

185. MR JUSTICE SULLIVAN: You need leave, and you ask for leave?

186. MR LAURENCE: It appears I definitely need leave and, my Lord, I ask for leave.

187. MR JUSTICE SULLIVAN: Mr Laurence, unless you are going to be opposed I need not trouble you on leave. It does seem to me that provisionally, without having heard either of the respondents, the points you argued are of considerable importance, but do either of you respondents wish to oppose that in the light of what I have just said?

188. MR JUSTICE SULLIVAN: Very well, you may have your leave.

189. MR LAURENCE: My Lord, may I say something that is easier to say when you are on the losing side than if you are on the winning side without being misunderstood: we are very grateful for the trouble you have taken in judgment and delivering it so speedily after last week's hearing, and I am sure my learned friend's associate themselves with that remark.

190. MR COCHRANE: My Lord, indeed I do.

191. MR JUSTICE SULLIVAN: I was ably assisted by your