QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|ADRIAN MARTEN GEORGE DARBY||(CLAIMANT)|
|FIRST SECRETARY OF STATE AND WORCESTERSHIRE COUNTY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPEL (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"I HAVE RECEIVED A LETTER FROM HEREFORD AND WORCESTER COUNTY COUNCIL TELLING ME THAT IT HAS REFUSED MY APPLICATION TO DIVERT FOOTPATH NO 9 SOUTHWARDS BY ONE FIELD SO THAT IT RUNS ALONG THIS TRACK. I MUST THEREFORE ASK PEOPLE TO USE THE FOOTPATH INSTEAD. THIS TRACK IS CLOSED TO PUBLIC ACCESS.
I REGRET THAT THIS APPLICATION HAS BEEN TURNED DOWN. IT WAS SUPPORTED BOTH BY THE PARISH COUNCIL AND BY THE ANNUAL PARISH MEETING."
He then dealt further with the history of the matter. He concluded he would issue permits for those who, in effect, could make out a case for them and told people where to apply if they wanted them. This is the date taken later by the Inspector as the date when the right of the public to use the disputed path was brought into question for the first time within the meaning of section 31 of the Highways Act 1980.
"Where a way over any land ... has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it."
Any court or tribunal of fact therefore faced with construing or applying this subsection is necessarily involved in the consideration of proof of a negative state of intent, here one in the mind of the part of an owner of land.
"Section 31(1) of the 1981 Act contains what is frequently referred to as the 'proviso', which means that even if usage of a way by the public can be shown to fulfil the statutory requirements, a public right of away will not be established if an owner can demonstrate that during the period in question, he had shown an intention not to dedicate the way. The Dorset case makes it clear that such an action must be contemporaneous, and overt, but does not necessarily have to be communicated to the users."
Mr Darby's complaint is not that this is a misstatement of the task that she had to carry out, but that having stated it she failed to carry it out properly.
"What Mr Darby did in fact do was to announce his intention of applying to create a public right of away along the route in question, albeit at the expense of another. It might be argued that his application to divert the path, and the publication of the Order by the then County Council, constituted an acknowledgment by both parties that public rights were not deemed to pre-exist along the track. However, it does not seem to me that the positive action by the landowner of proposing that the track become a public right of way can be construed in the negative as a lack of intention to dedicate it. Whilst there is no doubt that the application constituted a contemporaneous act on the part of Mr Darby, and that it was overt as evidenced by the Parish Council minutes, I cannot place upon it the interpretation that Mr Darby prefers. It follows that I do not consider that this action is sufficient evidence of a lack of intention to dedicate but rather the opposite. "
Mr Darby puts forward with this action and as an aid to the construction of it, his stance at the Parish Council Annual General Meeting, 27th March 1979, which the Inspector covered in an earlier part of the decision letter. At that meeting the question of his proposed diversion application was discussed and he was recorded as saying that he would be applying for it because he was aware that though the disputed path was not a public right-of-way most people used it in preference to following the route of Footpath No 9. The clerk to the Parish Council could not recall anyone voicing opposition to that or concern about it at the meeting.
"However, it does not seem to me that the positive action by the landowner of proposing that the track become a public right of way can be construed in the negative as a lack of intention to dedicate it."
"As I have already discussed .... subsequent to his application and up to March 1987, far from preventing access along the track, Mr Darby encouraged it. So I must look at the 12 years prior to 1979 ... to see whether any other actions taken by Mr Darby might demonstrate a lack of intention to dedicate."
She then reviewed the evidence as to usage in those years. It is not suggested that she included evidence that was not relevant to that period or excluded evidence that was. The results of that consideration she expressed in this way:
"The weight that I can attach to this evidence [the evidence of challenges by Mr Darby] is therefore reduced as a consequence as in my view I have no evidence of an overt and contemporaneous act sufficient to demonstrate a lack of intention to dedicate."
As with all such inquiries the resolution of the core question often comes down to the weight to be attached to evidence. This Inspector felt that that weight in this case was reduced by the fact that none of the people who gave evidence to the Inspector of regular use had themselves encountered any challenges from Mr Darby, as he conceded, with the absence of one lady, who had died before the inquiry took place. This finding of fact, as with many in the letter, must have been a disappointing one for Mr Darby and the court can understand that.
"Footpath No 9 Kemerton
You will remember that I telephoned you two weeks ago to complain that a footpath sign had been erected on the Kemerton - Kinsham road both on the original line of the footpath and the line to which it was provisionally diverted on the order of 18th April 1980. I understand that this provisional diversion has still not been finalised and that the line of the path is currently uncertain. However, I think it is unreasonable to have two signs and that you must make up your mind which one is appropriate. I am, of course, still anxious to complete the diversion which will be more convenient from a farming point of view as well as being to the wishes of the population of Kemerton as expressed at the annual meeting."
After some delay by the Council, he wrote threatening, not in any offensive way, to remove the sign himself if they did not do so, and eventually the Council did. They reacted by removing the sign which had been placed at the disputed path.
"... I do not consider that this action demonstrated a lack of intention to dedicate as Mr Darby did not specify which sign he wanted removed."
Mr Darby says that is not right, that he is, in effect, specifying that he wanted the disputed path sign removed. But in so saying, I think he is putting a favourable or one-sided construction of the letter, and I do not mean that in any offensive sense. My judgment is it was open to the Inspector to take the line she took. She went on significantly:
"Neither do I consider that this event was significant enough to bring the use of the right of way into question, as Mr Darby continued to encourage use of the path."
The Inspector as I have noted above found that the displaying of the notice of March 1987 was the first challenge within the meaning of section 32 to its use.