England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Monday, 1 December 2008

1. MR JUSTICE KEITH:

Introduction

2. This case is all about a footpath. It is said to run across land in Dorset which is claimed to be within the ownership of the lord of the manor. The local surveying authority decided that it was a public footpath, and it added the footpath as a public right of way to the definitive map of the area. The lord of the manor objected, and a public inquiry was held. The inspector concluded that this was a footpath to which the public enjoyed rights of access. She confirmed the view taken by the surveying authority. The lord of the manor questioned the validity of the decision made by the surveying authority, and he has now applied to the High Court pursuant to paragraph 12(1) of Schedule 15 to the Wildlife and Countryside Act 1981 ("the 1981 Act") for the decision to be quashed.

The legal framework

3. It is necessary at the outset to set out the legal framework within which the issue of the validity of the surveying authority's decision has to be determined. The common law was recently explained by Lord Hoffmann in R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28. Unlike other systems of law, English law does not have a doctrine of acquisition of rights, whether public or private rights, by long use on its own. Instead, English law treats long use as raising a presumption that the right had a lawful origin of some kind. In the case of a public right of way, a lawful origin has to be found in the dedication by the landowner of the land for the use of the public at some stage in the past. That dedication could, of course, be proved by an express dedication by the landowner. But invariably the evidence of an express dedication was unavailable, and proof of dedication was usually effected by inferring such dedication from the character and extent of the use of the land.
4. This notion of inferred dedication was recognised to be something of a legal fiction. As Lord Hoffmann said at [6], it is "hard to believe that many of the cartways, bridle paths and footpaths in rural areas owe their origin to a conscious act of dedication. Tolerance, good nature, ignorance or inertia on the part of landowners over many years are more likely explanations." He went on to say in [7] that because some reason other than dedication was more likely for the use of the land by the public having occurred without apparent objection, "it became difficult to predict when or for what reason a jury would have sufficient sympathy with the users of the highway to find that there had been a dedication." That was the genesis of the legislation which ultimately became section 31 of the Highways Act 1980 ("the 1980 Act"). The relevant subsections are subsection 31(1) and subsection 31(2) which provide, so far as material, as follows:

"(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question ..... "

The path

5. The path to which this case relates was added to the definitive map of the County of Dorset by the Second Defendant, Dorset County Council ("the Council"), the surveying authority for the county, by the Dorset County Council (Footpath from Clay Lane to Looke Lane, Puncknowle) Definitive Map and Statement Modification Order 2003 ("the Order") made on 28 February 2003 under section 53(2)(b) of the 1981 Act. The path is about 660 metres long. It crosses land close to the village of Puncknowle. The claimant, James Wild, is the owner of the Puncknowle Manor Estate. He bought the estate in 2000. He accepts that the land over which the path passes was not included in the estate when it was conveyed to him. But he claims that his acquisition of the estate conferred on him the title of lord of the manor, and that it is in that capacity that he owns the land over which the path passes. That was not an issue which the inspector appointed by the First Defendant, the Secretary of State for the Department of the Environment, Food and Rural Affairs, thought she needed to decide, and although her decision contained a discussion about the ownership of the land, she reached no conclusions on it. What is clear is that the land over which the path passes has had no registered owner and has not been the subject of any conveyance.

The inspector's decision

6. The inspector examined a number of documents to see whether there was any documentary evidence relating to the path and its status. She decided that this evidence confirmed "the long-standing existence of the [path] as a physical feature" of the landscape, but that none of the documents provided what she called "categorical evidence of its status". Accordingly, she concluded that the documentary evidence alone could not substantiate the existence of a path over which the public had rights of access by foot. She therefore considered whether the path could be said to be deemed to have been dedicated as a public right of way by virtue of section 31 of the 1980 Act.
7. A number of alternative dates for when the right of the public to use the path was brought into question were advanced to the inspector. The Council suggested the relevant date was in late January or early February 1998 when the gates at one end of the path were locked and a notice was put up there which read "No Public Right of Way: Nature Conservation Area." The inspector found that the right of the public to use the path had indeed been brought into question then, but she also agreed with Mr Wild's claim that the right had been brought into question in September or October 1978 when the agents for the trustees of the estate of a previous owner of Puncknowle Manor Estate had appeared at a public inquiry into whether the path should appear on the definitive map of the area as a bridleway. She concluded that the airing of this objection in the 1978 inquiry had been sufficient to bring into question the public's right to use the path on foot as well as on horseback. It follows that the relevant period over which the right of way had to have actually been enjoyed by the public without interruption, if it was to acquire the status of a public right of way by virtue of section 31 of the 1980 Act, was the period between 1958 and 1978.
8. On that issue, the inspector found that only a few members of the public had been using the path on foot during the early part of that period, even though their use of it was without interruption. At best, the use was by four or five people. The use was occasional if not irregular, and it included public use as well as private use. The use of the path did not increase to a more significant level until the early 1970s. In the circumstances, the inspector was not persuaded that the use of the path as a footpath satisfied the requirements of section 31 of the 1980 Act.
9. Accordingly, the inspector looked at (a) the period from September or October 1978 to January or February 1998 (when the right of the public to use the path had again been brought into question) - a period which fell short of the 20 years required for the dedication to have been deemed to have occurred under section 31 of the 1980 Act - together with (b) such earlier use of the path as there may have been prior to 1978 to determine whether it could be inferred from this combined use of the path that it had been dedicated at common law. Having considered the evidence before her, the inspector said at paragraph 63 of her decision:

" ..... I conclude that the public were using the [path] for recreation in increasing numbers and frequency during the period 1978 to 1998. In addition, there is evidence of use prior to this, with use increasing from the 1970s onwards. I consider that use was without force, without secrecy and without permission. I consider the level and frequency of use to be commensurate with ..... the locality, and sufficient for the landowner to have been aware that it was taking place ..... "

Her conclusion, therefore, in paragraph 72 of her decision was as follows:

"I find that there has been long-standing use of the [path] by the public as of right, certainly throughout the period 1978-1998, and there is evidence of earlier use, becoming more frequent from the 1970s. I conclude, on the balance of probabilities, that the landowner, whoever that was, must have been aware of the use, and took no contrary actions to rebut an inference of dedication. It follows, in my opinion that the conduct of the landowner and the use by the public of the way are sufficient to conclude that the [path] has been dedicated by the landowner as a public right of way, and that the dedication has been accepted by the public."

The inspector therefore confirmed the Order, modifying it only to add the width of the path to the description of the path in the Order. She invited any objections or representations relating to the Order as modified. None were received, and she issued a final decision on 31 July 2007 confirming the Order as modified.

The grounds of challenge

10. The principal point originally taken on behalf of Mr Wild in the detailed grounds of claim relied on the fact that it had not been possible to identify the owner of the land over which the path passed, at any rate prior to Mr Wild becoming lord of the manor. It was said that the legal fiction which lies at the heart of the doctrine of implied dedication under the common law can only work where the landowner can be identified. If you cannot identify the landowner, you cannot say what the reason for the absence of any objection on the landowner's part may have been attributable to. However, that argument has been abandoned, and I need say nothing further about it.
11. The other point taken on Mr Wild's behalf in the detailed grounds of claim was that in considering whether the evidence was sufficient to support a case of presumed dedication under the common law, the inspector took into account an irrelevant consideration, namely the use between 1958 and 1978 which she had found to be insufficient to establish deemed dedication under section 31 of the 1980 Act. If that use was not sufficient to establish deemed dedication under section 31, it was not capable in law, so the argument went, of contributing to the period of use which together founded the presumed dedication under the common law.
12. I cannot accept that contention. It is not as if the inspector found no use at all during the period between 1958 and 1978. She plainly thought that during the 1970s the use of the path, in terms of volume, frequency and regularity, was not insignificant. There was absolutely no reason why that use could not be combined with the use which the inspector found had continued in the period between 1978 and 1998 to determine whether the dedication of the path for the public's use could or could not be presumed at common law.
13. The detailed grounds of appeal included the observation that once the inspector had concluded that the use of the path between 1958 and 1978 had not been sufficient to raise the presumption of dedication provided for by section 31 of the 1980 Act, she understandably did not go on to consider whether there was sufficient evidence that there had been no intention during that period to dedicate the path to the use of the public. The point presumably being taken on Mr Wild's behalf was that - having decided not to address that issue - it was not open to the inspector to rely on the use of the path between 1958 and 1978 for the purposes of determining whether the dedication of the path for the use of the public could be presumed under common law. I do not think that follows. There was no evidence before the inspector of anything which had happened prior to 1978 which could have suggested something other than an intention to dedicate the path to the public's use.
14. A new point has been taken today on behalf of Mr Wild by counsel who did not draft the detailed grounds of claim. This point relies on the public inquiry in 1978 into whether the path should be added to the definitive map of the area as a bridleway. If, as the inspector found, the effect of the objections raised at that inquiry had been to bring into question the public's right to use the path as a footpath as well as a bridleway, the use by the public of the path as a footpath in the period from 1978 to 1998 had to be seen in that light. That was especially so when one bears in mind that a representative of the Ramblers Association appeared at the inquiry in 1978, that the inquiry in 1978 heard evidence about the use of the path as a footpath as well as a bridleway, and that the agent for the trustees of the estate of a previous owner of Puncknowle Manor Estate had objected to the use of the path as both a bridleway and a footpath.

The criticism of the inspector, therefore, is that in reaching the conclusion that the use by the public of the path as a footpath in the period from 1978 to 1998 - when considered alongside the use by the public of the path as a footpath before then - was sufficient to infer that the path had been dedicated by the landowner for use by the public, she ignored the fact that during the period from 1978 to 1998 the members of the public who had used the path as a footpath must have been aware that it had not been dedicated in view of the objections raised at the inquiry in 1978.

15. In my view, this argument gets the focus all wrong. The question for the inspector was not so much what the members of the public who used the path thought about whether the path had been dedicated to the public's use. The question for the inspector was rather whether the landowner had done anything to show the public at large that he had not intended to dedicate it for the public's use: see, for example, what Denning LJ (as he then was) said in Fairey v Southampton County Council [1956] 2 QBD 439 at p 458. It may be that the agent of the trustees of the estate of a previous owner of Puncknowle Manor Estate had objected to the use of the path as a footpath. But (a) there was nothing before the inspector which suggested that the trustees of the estate of the previous owner of the Puncknowle Manor Estate were the landowners at the time that that objection had been made, and (b) in any event, the inspector had expressly found in paragraph 71 of her decision that had the trustees been the landowners at the time she would have expected them to have taken action to prevent the public from using the path. In fact, nothing was done until the 1990s when gates at one end of the path were locked. The effect of that finding was that the landowners, whoever they were, had not done anything after 1978 until 1998 to show the public that they were not intending to dedicate it to the public's use. The inspector must therefore be treated as having found that that inactivity on the part of the landowners, whoever they may have been, had neutralised such effect on the issue of dedication which the objection made at the 1978 inquiry might have had.

Conclusion

16. It follows that I do not believe that the inspector made any of the errors which have been attributed to her. It has therefore not been necessary for me to consider whether the detailed grounds of claim needed to be formally amended in order to enable the new point to be taken on Mr Wild's behalf. For the reasons I have given, this application to quash the Order made by the local surveying authority must be dismissed.
17. MR BULEY: I am grateful. I have an application for costs. I do not understand it to be resisted either in principle or as to quantum.
18. MR UPTON: For the record, no. It certainly would follow. The sum we have seen - we have been able to confirm - we do not object to it. I think it is something just over £5,000.
19. MR JUSTICE KEITH: You cannot resist an application for costs. You do not oppose a summary assessment of the costs by me.
20. MR UPTON: Yes. That is correct.
21. MR JUSTICE KEITH: You have no representations to make on the assessment which has been put in on behalf of the first defendant.
22. MR UPTON: Yes. That is the case.
23. MR BULEY: I do not know if the summary assessment reached your Lordship. Perhaps I can invite you to make an order in the sum of £5,833.53.
24. MR JUSTICE KEITH: I am going to look at the assessment. The assessment has not been agreed, but I understand there is no objection to it. You said you thought the assessment had been agreed.
25. MR BULEY: I thought I had understood that but - - - - -
26. MR JUSTICE KEITH: I used the language which I did when I asked Mr Upton what the position was because I thought you were saying he did not object or had not agreed. You unquestionably had agreed.
27. MR UPTON: We have seen it and we agree the figure and we agree you can deal with it.
28. MR JUSTICE KEITH: Since the figures are agreed, there is nothing that I need to do. I shall simply order that the claimant must pay to the Secretary of State the Secretary of State's costs of the proceedings which I summarily assess, by consent, at £5,833.53. (To Miss Hannett) I take it that there is no application for costs.
29. MISS HANNETT: There is not.
30. MR JUSTICE KEITH: I would have been reluctant.
31. MISS HANNETT: I anticipated that.
32. MR UPTON: I understand that by convention if there is to be an appeal I have to raise it with you. My client is not in the country today. We would need to take instructions. The only thing I can mention at this stage is whether there is a potential point of law about whether or not you exclude the intention when assessing what the public use is. I would formally apply for that as a potential point of appeal.
33. MR JUSTICE KEITH: I understand. I refuse permission to appeal. I do not think there is sufficient merit in the ground of appeal to justify granting permission to appeal.
34. You should go to the Court of Appeal.
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