England and Wales High Court (Administrative Court) Decisions

1. The Dorset County Council ("the Council") seeks to quash the decision of the Respondent's inspector in a letter dated 26 January 1998, acting pursuant to paragraph 10(1) of Schedule 15 to the Wildlife and Countryside Act 1981, not to confirm the Dorset County Council (Footpath at Winterborne Clenston) Definitive Map and Statement Modification Order 1996 ("the Order"). The effect of the Order, if confirmed (without modification) would have been to modify the Dorset County Council Definitive Map and Statement of Rights of Way ("the Map") by adding a footpath shown by a broken black line between points A and B on the Order map, running in a generally northern direction and connecting Bridleway 22 in Winterborne Whitechurch and Bridleway 5 in Winterborne Clenston.

2. In 1973, the British Horse Society made an application to add a bridleway to the Map. A proposal for revision of the Map was put forward, showing a bridleway along the line of the footpath which is the subject of the decision that is under challenge in these proceedings. In April 1975, the landowners wrote to the Department of the Environment objecting to the proposed revision of the Map, stating that there was "no evidence of dedication or of user by public as of right". A copy of this notice was sent by the Department to the Council. In October 1977, the landowners were informed by the Department that the objection was valid, and that a local inquiry was likely to be forthcoming. In November 1986, however, the Council and the Department informed the owners that the Review had been abandoned in view of the obligation on the Council of continuous review imposed by the 1981 Act. Accordingly, the claimed route was not subsequently shown on the edition of the Definitive Map that was published in 1989. In March 1995, an application was made for a bridleway along the proposed Order route. In August 1995, the landowners made a deposit under section 31(6) of the Highways Act 1980 ("the Act"), indicating that no right of way at all existed along the proposed route.

3. In February 1996, the Council's Committee decided to make an Order modifying the Map by adding only a footpath. The Order itself was made on 25 October 1996, and was objected to by the landowners in November 1996. A public inquiry was held in December 1997. By his letter dated 26 January 1998, the Inspector decided not to confirm the Order.

4. So far as material, it provides:

5. Having regard to the nature of the challenges, It is necessary for me to set out his conclusions in full.

6. In summary, the Inspector decided the issue adversely to the Council on three alternative bases. These were:

7. There are four issues:

8. I have set out the issues in a different order from that in which they were presented to me. Issues (i) and (ii) go to the validity of the Inspector's decision in relation to the 20 year period up to April 1975. Issues (iii) and (iv) go to the validity of his decision in relation to the 20 year period up to August 1995 or November 1996.

9. Mr Findlay submits that a right to use a way over land is not brought into question unless the landowner brings his challenge home to the users so that they may be apprised of it. It is not sufficient that the objection is made to someone who is not concerned to assert that right. At one stage of his submissions, he contended that the only way in which a challenge may be brought home to the users is by physically interrupting their use of the way. Later, however, he adopted a less extreme position, and accepted that a notice of objection, say, in a local newspaper may suffice.

10. Mr Findlay cited a number of authorities which deal with the question of what constitutes "interruption" within the meaning of section 31(1) of the Act. These included Mersham Manor Limited v Coulsdon and Purley UDC [1937] 2 KB 77, Jones v Bates [1938] 2 AER 237, and Lewis v Thomas [1950] 1 KB 438. But none of these authorities seems to me to be relevant to the issue of what is required to bring into question the right of the public to use a way within the meaning of section 31(2) of the Act. The corresponding issue arising under section 1(6) of the Rights of Way Act 1932 was, however, the subject of decision in Fairey v Southampton County Council [1956] QB 439. It is common ground that there is no material difference between section 1(6) of the 1932 Act and section 31(2) of the 1980 Act.

11. The following passages in the judgment of Denning LJ are material:

12. “...I think that in order for the right of the public to have been “brought into

13. Hampden may push down the barrier or tear down the notice: the local

14. But whatever the public do, whether they oppose the landowner’s action

15. He ought at least to make it clear to the villagers of Bossington, Houghton

16. Mr Hobson accepts that the test that had to be applied by the Inspector was the test as explained by Denning LJ. He submits that it was a question of fact for the Inspector to decide whether the means of challenge employed by the owners were sufficient to bring it home to the users that they were challenging their right to use the way. The words "or otherwise" in section 31(2) make it clear that no particular method of challenge is required. The Inspector was entitled to conclude as a matter of fact that the objection made in April 1975 brought into question the use of the right of way. Apart from the erection of notices in accordance with section 31(3), one of the most common ways in which a way becomes called into question is when objection is made to a proposal to modify the Map. The fact that in the instant case the proposals were abandoned and the matter did not proceed to inquiry cannot affect the conclusion that the making of these objections constituted a bringing into question of the right.

17. It is agreed that the relevant test was that explained by Denning LJ, and that its application is a question of fact. The challenge must therefore be brought home to the users. Leaving aside the statutory means provided by section 31(3), what does this mean? It clearly does not require that every user should be told by the owner of the challenge, or even that it be shown that every user has been made aware of the challenge by other means, for example, by reading a notice in a local newspaper. But whatever means are employed, they must be sufficient at least to make it likely that some of the users are made aware that the owner has challenged their right to use the way as a highway. Anything less will not satisfy the need identified by Denning LJ to bring home to the users the owner's challenge, so that they are given an opportunity to meet it. The persons to whom the challenge has to be brought home are the users of the way. Thus, it is no good for the owner to speak to a complete stranger, who as Denning LJ said, would know nothing of the public right, and would not be concerned to assert it.

18. If he applied this test to the present case, the Inspector must have concluded that the April 1975 objection was sufficient to bring home to the users that the owner was challenging their right to use the way. The objection was sent by the Department to the Council in April 1975, and it is the notification to the Council which Mr Hobson submits the Inspector was entitled to find was sufficient to bring home the challenge to the users. But there was no evidence that the Council conveyed the existence or details of the objection to the users at any time before the proposals were abandoned. In my judgment, it was not open to the Inspector reasonably to rely on the notification of the objection to the Department and the Council as sufficiently bringing home to the users the owner's challenge. Neither of these bodies had any interest in asserting the existence of the right of way. It is true that they were interested in whether a footpath was deemed to have been dedicated along the route in question and had statutory functions to perform in relation to the Map. Moreover, if a right of way had been acquired by prescription, they were interested to ensure that it was not obstructed. But they were not persons who might wish to assert and defend their right to use the way. Mr Hobson suggested that the Council received the objection as agent for the users. I do not agree. The Council was not under any duty to communicate the objection to the users unless an inquiry was held, and it seems that it did not do so.

19. I accept that it was a question of fact for the Inspector to decide whether the April 1975 objection sufficiently brought home to the users the owner's challenge. If the Inspector applied the correct test, namely that elucidated by Denning LJ (and it is not clear what test he did apply), then in my view he arrived at a conclusion which was no reasonable Inspector could have reached.

20. In view of my decision on the first issue, this issue does not arise. I shall nevertheless deal with it briefly. Mr Findlay submits that the reasons given in paragraph 36 were insufficient. Five statements had been put forward in support of the claim of enjoyment as of right and without interruption during the 20 year period up to April 1975. Mr Findlay submits that it is not clear whether the Inspector accepted the evidence in those statements, or whether he found it to be deficient in some respect. In my view, on a fair reading of the paragraph, the Inspector did accept the truth of what was contained in the five statements, but said that the use proved by those statements was insufficient to satisfy the statutory test. If he had regarded the evidence as unreliable in some way, I am sure that he would have said so. Where he was critical of the quality of evidence, he said so. Thus, he rejected as being “too imprecise to be of value” the information submitted in support of the 1973 application for bridleway rights. I would, therefore, reject the reasons challenge.

21. Mr Findlay also submits that the Inspector misdirected himself in paragraph 36 by addressing the question whether an intention to dedicate had been established, which is not what section 31(1) requires to be proved. I do not read paragraph 36 in this way. It is true that the Inspector said that the evidence of use was not sufficient to persuade him that it amounted to a “deemed dedication”. But the phrase “deemed dedication” was no more than shorthand for section 31(1).

22. I would, therefore, determine the second issue in favour of the Secretary of State.

23. The starting point is to decide what has to be shown by an owner who wishes to adduce "sufficient evidence that there was no intention during [the 20 year] period to dedicate" the way as a highway. There was considerable argument before me as to the correctness of certain obiter dicta, by Denning LJ in Fairey and by Sullivan J in R v Secretary of State for the Environment ex parte Billson [1998] 3 WLR 1240. In short, Denning LJ said (p458) that the test was the same as in relation to the predecessor of section 31(2), ie that the owner must bring home to the users that he does not intend to dedicate. Sullivan J said (p1259) that Denning LJ went too far, and that all that was required was some overt act on the part of the owner which sufficiently evidenced the intention of the owner not to dedicate.

24. Before I turn to counsel's submissions, I should refer to the relevant authorities. In Fairey, Denning

25. LJ said this at page 458:

26. Mr Hobson submits that all that is required to bring the proviso into play is that there be an overt contemporaneous act which evidences the owner's intention not to dedicate. The rationale for this is that it is needed in order to prevent a landowner retrospectively asserting a lack of intention to dedicate in circumstances where he has said or done nothing during the relevant period. Thus, the requirement relates to an evidentiary concern, and not, as in section 31(2), to the need to bring the matter to public attention. Mr Hobson adopts the reasoning of Sullivan J that, if the wider requirement suggested by Denning LJ is demanded by the proviso, then, having regard to section 31(2), the proviso has no role to play at all.

27. Mr Findlay contends for the approach of Laws J in Jacques. He does not, therefore, fully adopt Denning LJ’s approach. He concedes that it is not necessary for the owner to bring home to the users his intention not to dedicate, but the act must be directed at the users. He suggests that on this interpretation, a role can be found for the proviso. Suppose that a way is closed for one day, and none of the users tries to use it on that day, and none of them becomes aware of the one day closure. On the interpretation of section 31(2) which I have already accepted, the closure in such circumstances would not bring the right into question, since the owner's challenge would not be brought home to the users. But, submits Mr Findlay, the overt act of closure would be sufficient evidence of the owner's intention not to dedicate. The important feature of such an overt act is that it is directed at the users.

28. I prefer the submissions of Mr Hobson. On the face of it, the language of the proviso is straightforward. All that is required is that there be sufficient evidence of lack of intention to dedicate. Coming to the matter untutored by previous authority, one may be forgiven for thinking that what Parliament intended was that the tribunal of fact simply decide as a matter of fact whether there is or is not sufficient evidence of intention to dedicate. Indeed, in Cowell, Rose LJ emphasised that it is a question of fact. Staughton LJ made the point that the need for an overt act is not to be found in the statute. In O'Keefe, Pill J referred to the danger of putting a gloss on the word "intention". I accept that as a matter of fact the tribunal of fact will rarely, if ever, find that there is sufficient evidence of lack of intention to dedicate in the absence of overt and contemporaneous acts on the part of the owner. I do not, however, think that such a requirement can be spelled out of section 31(1) as a matter of construction .

29. In my judgment, Parliament left it to the tribunal of fact to decide whether the evidence in any given case is sufficient for the purposes of negativing the intention to dedicate. The section states no criteria as to what constitutes "sufficient evidence", although in section 31(3) and (6) two particular examples are given as to what will suffice. Section 31(3) provides that a notice "visible to persons using the way", in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate. Section 31(6) provides that the deposit of a map and statement, if the other conditions are met, is also, in the absence of proof of a contrary intention, sufficient evidence. Mr Findlay submits that these two examples of what constitutes sufficient evidence for the purposes of the proviso show that evidence has to be directed at the users; the mere fact that there are overt acts, or even overt contemporaneous acts, is not enough. But as Sullivan J pointed out, the argument based on section 31(6) can be relied on to support Mr Hobson's argument. This is because the section does not require the deposited map and statement to be brought to the attention of the users, although it is true that by virtue of section 228 of the Local Government Act 1972, these documents must be kept available for public inspection.

30. In any event, it cannot be suggested that subsections (3) and (6) are exhaustive of the circumstances in which there will be sufficient evidence. They are (the only) two examples of what, as a matter of law, will amount to sufficient evidence.

31. I would, therefore, not place any gloss on the proviso at all. But if a gloss is justified, it seems to be common ground that it cannot be that advocated by Denning LJ. As explained by Sullivan J (and accepted by Mr Findlay), the intention not to dedicate does not have to be brought home to the users, since otherwise, in view of section 31(2), there would be no role for the proviso at all. Furthermore, as explained by Laws J, the relationship between the two parts of section 31(1) itself demands that, in disproving an intention to dedicate, the owner need not bring home to the users that there was no right to use the way.

32. Mr Findlay submits that there must be evidence of overt acts directed at the users , even though they do not bring home to them that the owner objects to their use of the way. The phrase “directed at the users” was used by Laws J in the passage that I have already cited. It does not appear in the sub-section. This phrase could mean that the acts are intended to bring home the owner’s intention to the users, but fail in their object. Or it could simply mean that the acts must relate to, or be concerned with, the use of the way by the members of the public in question. It would be quite wrong to construe the language used by Laws J as a statute. I see no reason to suppose that he had in mind the rather special situation of an owner’s unsuccessful attempts to bring home his objection to the users.

33. It is necessary to stand back from the textual criticism to which the various obiter dicta have been subjected, and seek to ascertain the purpose of the proviso. It is clearly to protect the landowner, by enabling him to defeat a claim of presumed dedication by proving that he did not intend to dedicate. The only requirement imposed by Parliament is that there should be sufficient evidence of that intention. In my view, there is no reason in logic or policy why the only evidence that can be sufficient is of overt acts which are aimed at the users, but which do not bring home to them the owner’s objection. As Staughton LJ pointed out in Cowley, the overt acts rule (if that is what it is) is a sensible rule of evidence, since it prevents a landowner from asserting after the event that he had no intention to dedicate. The rule that the owner must bring his objection home to the users is relevant to section 31(2), since, as Denning LJ made clear in Fairey, one of the objects of that subsection is to give users the opportunity to meet the owner’s challenge. But I can see no reason to construe the proviso to section 31(1) as imposing a requirement that falls somewhere between what I have called the overt acts rule and that which is required for the purposes of section 31(2).

34. I would respectfully adopt the reasoning of Sullivan J as to the meaning of the proviso. I turn, therefore, to consider whether there was evidence capable of demonstrating that there was no intention to dedicate the way as a highway in the 20 years up to August 1995.

35. Mr Findlay submits that the objection of April 1975 was essentially a private act until a public inquiry was called, and was not, with or without the subsequent correspondence, of sufficient quality to be capable of demonstrating a lack of intention to dedicate. As for the reliance placed by the Inspector on the continuing effect of the April 1975 objection, Mr Findlay submits that the Inspector was wrong to base his reasoning on an analogy with section 31(6), whose 6 year “effect” is a creature of statute. Moreover, the only act of the owners was the objection in April 1975; all later acts were those of the Secretary of State or the Council, and could not be described as evidence of the owners’ intention.

36. I cannot accept these submissions. The challenge to the Inspector’s findings on intention can only be challenged on Wednesbury grounds. In the light of my decision on the meaning of the proviso, it seems to me that Mr Findlay has an impossible task. The objection of April 1975 was the clearest overt act which evidenced the owners’ intention not to dedicate. It was also a contemporaneous act. Thus, the overt acts rule was amply satisfied at that time. The only remaining question is whether the decision of the Inspector that the April 1975 objection had continuing effect into the 20 year period ending in August 1995 can be challenged as unreasonable in the Wednesbury sense. The key document is the letter dated 10 October 1977 from the Department to the owners’ solicitors, in which they said:

37. There is no evidence that the owners ever resiled from this position. On 5 November 1986, the Department wrote to the owners’ solicitors saying that the Secretary of State had directed the Council to abandon the inquiry in 1983. The letter referred to the fact that the owners’ objections were to be treated as objections to any subsequent order made under the 1981 Act. In other words, even in 1986, so far as the Department was concerned, the April 1975 objection was still being maintained.

38. Paragraph 37 of the Inspector’s decision letter is admittedly rather compressed, but it cannot be doubted that he was saying that he considered that the letter of 10 October 1977 was sufficient evidence of the owners’ continuing intention not to dedicate the way. That was sufficient evidence that there was no intention to dedicate during the 20 year period ending in August 1995. In my view, it is impossible to impugn the Inspector’s decision on this point. Indeed, it is difficult to see how the Inspector could reasonably have reached any other conclusion. In fact, he went further and said that he was “inclined to the view” that the 1975 objection had effect until November 1986. That was not necessary for his decision, but in my view he was entitled to reach this conclusion as well.

39. In considering the question whether there was evidence capable of demonstrating that there was no intention to dedicate the way as a highway in the 20 years up to August 1995, I have already dealt with the fourth issue. For the reasons given, I do not accept that the Inspector erred in deciding that the April 1975 objection had a continuing effect.

40. It follows that, although the Council succeeds on the first issue, it fails on the remaining issues, and this application must be dismissed.

41. MR JUSTICE DYSON: For the reasons set out in the judgment which has been handed down, this application is dismissed.

42. MS RHEE: My Lord, in the circumstances, I would ask for your Lordship to make an order as to the respondent's costs. Does your Lordship have a copy of the revised schedule of costs which I served on the appellants yesterday morning?

43. MR FINDLAY: There is no dispute as to the figure. The appellants are content that your Lordship makes an order in the sum requested of £5,238.

44. MR FINDLAY: My Lord, I do have an application for leave to appeal. Your Lordship's judgment is the first clear judgment on the point one way or the other and your Lordship has certainly indicated there are dicta in the previous cases that go both ways. It is a matter of some importance for the County Council. Your Lordship knows the facts that gave rise to this case arose out of the abandonment of a review of a Definitive Map and I am told there are in the order of some 100 other objections which would have the same effect as the objections here. It is a matter of some importance to this authority alone that the matter is sorted out. My Lord, without wishing to elaborate, whilst I accept your Lordship's judgment was against me, in my submission, it is feasible to imagine that the Court of Appeal may come to a different decision.

45. MR JUSTICE DYSON: Do you want to say anything on this?

46. MS RHEE: My Lord, it is my submission that the principle confirmed by your Lordship is sufficiently clearly established in R. v. Secretary of State for the Environment ex parte Billson [1998] 3 WLR 1240 in which Sullivan J reviewed the authorities. It is our submission it is not a matter appropriate for the consideration for the Court of Appeal.

47. MR JUSTICE DYSON: I think I should give leave to appeal. What I call the third issue seems to me to be worthy of consideration by the Court of Appeal.

48. MR FINDLAY: I am much obliged to your Lordship.